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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
/X/ Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended December 31, 1999
Commission file number 01-13031
American Retirement Corporation
(Exact Name of Registrant as Specified in its Charter)
Tennessee 62-1674303
(State or Other Jurisdiction of (I.R.S. Employer ID No.)
Incorporation or Organization)
111 Westwood Place, Suite 402, Brentwood, TN 37027
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (615) 221-2250
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of Each Class Name of Each Exchange on Which Registered
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<S> <C>
Common Stock, par value $.01 per share ........................ NYSE
5 -3/4% Convertible Subordinated Debentures due 2002 .......... NYSE
Series A Preferred Stock Purchase Rights ...................... NYSE
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes _X_ No ___
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. ____
As of March 2, 2000, 17,145,343 shares of the registrant's common stock
were outstanding and the aggregate market value of such common stock held by
non-affiliates was $82.1 million, based on the closing sale price of the common
stock of $8.125 on the New York Stock Exchange on that date. For purposes of
this calculation, shares held by non-affiliates excludes only those shares
beneficially owned by officers, directors, and shareholders owning 10% or more
of the outstanding common stock (and, in each case, their immediate family
members and affiliates).
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Proxy Statement for use in connection with
the Annual Meeting of Shareholders to be held on May 10, 2000 are incorporated
by reference into Part III of this report.
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PART I
ITEM 1. BUSINESS
THE COMPANY
American Retirement Corporation is a national senior living and health
care services provider offering a broad range of care and services to seniors,
including independent living, assisted living, and skilled nursing services.
Established in 1978, the Company currently operates 54 senior living communities
in 15 states, consisting of 20 owned communities, ten leased communities, and 24
managed communities, with an aggregate capacity for approximately 13,600
residents.
The Company has experienced significant growth since the early 1990s
through the acquisition and development of senior living communities in major
metropolitan markets. The Company is developing these communities into Senior
Living Networks that provide a continuum of housing and care for seniors,
including independent living, assisted living, skilled nursing care and
specialized care such as Alzheimer's units. The strategy combines large
continuing care retirement communities ("CCRCs") with stand-alone assisted
living or skilled nursing residences as satellites to expand the continuum of
housing and care into the market. The Company believes that this hub and
satellite approach produces management efficiencies and market penetration by
offering a range of senior living arrangements at various price levels. The
Company intends to continue its growth by developing senior living networks
throughout the United States through a combination of (i) selective acquisitions
of senior living communities, including CCRCs and assisted living residences;
(ii) expansion of existing communities; and (iii) selective development and
acquisition of other properties and businesses that are complementary to the
Company's operations and growth strategy. The Company is currently developing 14
new senior living communities, with an estimated aggregate capacity for
approximately 1,400 residents, and plans to expand six of its existing
communities to add capacity to accommodate approximately 600 additional
residents.
Business History and Past Operations
The Company's operating philosophy was inspired by the vision of its
founders, Dr. Thomas F. Frist, Sr. and Jack C. Massey, to enhance the lives of
seniors by providing the highest quality of care and services in well-operated
communities designed to improve and protect the quality of life, independence,
personal freedom, privacy, spirit, and dignity of its residents.
The Company's predecessor, American Retirement Communities, L.P. (the
"Predecessor" or "ARCLP"), was formed in February 1995 in connection with a 1995
roll-up transaction of certain entities (the "Predecessor Entities") that owned,
operated, or managed various senior living communities. Each of the Predecessor
Entities was organized at the direction of the members of the Company's
management and certain shareholders. As a result of the roll-up, ARCLP issued
partnership interests to the partners and shareholders of the Predecessor
Entities in exchange for their limited partnership interests and stock,
respectively, and thereby became the owner, directly or indirectly, of all of
the assets of the Predecessor Entities.
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The Company was incorporated in February 1997 as a wholly-owned
subsidiary of ARCLP in anticipation of the Reorganization (defined below) and
the Company's initial public offering in May 1997 (the "IPO"). ARCLP was
reorganized (the "Reorganization") concurrent with the IPO such that all of its
assets and liabilities were contributed to the Company in exchange for 7,812,500
shares of the Company's Common Stock and a promissory note in the original
principal amount of approximately $21.9 million (the "Reorganization Note"). The
Company issued 3,593,750 shares of Common Stock in the IPO, resulting in net
proceeds of approximately $45.0 million. The Company used a portion of the net
proceeds from the IPO to repay the Reorganization Note.
CARE AND SERVICES PROGRAMS
The Company provides a wide array of senior living and health care
services to seniors at its communities, including independent living, assisted
living (with special programs and living units for residents with Alzheimer's
and other forms of dementia), and skilled nursing services. By offering a
variety of services and involving the active participation of the resident and
the resident's family and medical consultants, the Company is able to customize
its service plan to meet the specific needs and desires of each resident. As a
result, the Company believes that it is able to maximize customer satisfaction
and avoid the high cost of delivering all services to every resident without
regard to need, preference, or choice.
Independent Living Services
The Company provides independent living services to seniors who do not yet
need assistance or support with the activities of daily life ("ADLs"), but who
prefer the physical and psychological comfort of a residential community that
offers health care and other services. The Company currently owns 15
communities, leases eight communities, and manages an additional nine
communities that provide independent living services, with an aggregate capacity
for approximately 3,900 residents, 1,900 residents, and 2,700 residents,
respectively. In addition, the Company has communities under development or
expansion that will add estimated additional capacity for approximately 420
independent living residents.
Independent living services provided by the Company include daily meals,
transportation, social and recreational activities, laundry, housekeeping,
security, and health care monitoring. The Company also fosters the wellness of
its residents by offering health screenings such as blood pressure checks,
periodic special services (such as influenza inoculations), chronic disease
management (such as diabetes with its attendant blood glucose monitoring), and
dietary and similar programs, as well as ongoing exercise and fitness classes.
Classes are given by health care professionals to keep residents informed about
health and disease management. Subject to applicable government regulation,
personal care and medical services are available to independent living
residents. The Company's contracts with its independent living residents are
generally for a term of one year and are terminable by the resident upon 60
days' notice.
Certain of the Company's communities provide housing and health care
services through entrance fee agreements with residents. Under these agreements,
residents pay an entrance fee upon entering into a lifecare contract. The amount
of the entrance fee varies depending on the resident's health care benefit
election. These agreements obligate the Company to provide certain levels of
future health care services to the resident for life. The agreement terminates
when the unit is vacated. A portion of the fee is refundable to
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the resident or the resident's estate upon termination of the agreement. The
refundable amount is recorded by the Company as refundable portion of life
estate fees, a long-term liability, until termination of the agreement. The
remainder of the fee is recorded as deferred life estate income and is amortized
into revenue using the straight-line method over the estimated remaining life
expectancy of the resident, based upon annually adjusted actuarial projections.
Additionally, under these agreements the residents pay a monthly service fee
which entitles them to the use of certain amenities and services. They may also
elect to obtain additional services, which are paid for on a monthly basis or as
the services are received. The Company recognizes these additional fees as
revenue on a monthly basis when earned.
The Company also provides housing to residents at certain communities
under an entrance fee agreement whereby the entrance fee is fully refundable to
the resident or the resident's estate contingent upon the occupation of the unit
by the next resident. The resident also shares in a percentage, typically 50%,
of any appreciation in the entrance fee from the succeeding resident. The
entrance fee is recorded by the Company as refundable portion of life estate
fees and is amortized into revenue using the straight-line method over 40 years,
the life of the buildings. Additionally, under these agreements the residents
pay a monthly service fee, which entitles them to the use of certain amenities
and services. They may also elect to obtain additional services, which are paid
for on a monthly basis or as the services are received. The Company recognizes
these additional fees as revenue on a monthly basis when earned. If a resident
terminates the agreement, they are required to continue to pay their monthly
service fee for the lesser of one year or until the date of reoccupation of the
unit.
Assisted Living and Memory Impaired Services
The Company offers a wide range of assisted living care and services 24
hours per day, including personal care services, support services, and
supplemental services at 20 owned communities, seven leased communities, and 23
managed communities, with an aggregate capacity for approximately 1,000, 500,
and 1,950 residents, respectively. In addition, the Company has communities
under development or expansion that will add estimated additional capacity for
approximately 1,490 assisted living residents. The residents of the Company's
assisted living residences generally need help with some or all ADLs, but do not
require the more acute medical care traditionally given in nursing homes. Upon
admission to the Company's assisted living residences, and in consultation with
the resident and the resident's family and medical consultants, each resident is
assessed to determine his or her health status, including functional abilities,
and need for personal care services. Each resident also completes a lifestyles
assessment to determine the resident's preferences. From these assessments, a
care plan is developed for each resident to ensure that all staff members who
render care meet the specific needs and preferences of each resident when
possible. Each resident's care plan is reviewed periodically to determine when a
change in care is needed.
The Company has adopted a philosophy of assisted living care that allows a
resident to maintain a dignified, independent lifestyle. Residents and their
families are encouraged to be partners in their care and to take as much
responsibility for their well being as possible. The basic types of assisted
living services offered by the Company include the following:
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Personal Care Services These services include assistance with ADLs
such as ambulation, bathing, dressing, eating, grooming, personal hygiene,
monitoring or assistance with medications, and confusion management.
Support Services These services include meals, assistance with
social and recreational activities, laundry services, general
housekeeping, maintenance services and transportation services.
Supplemental Services These services include extra transportation
services, extra laundry services, non-routine care services and special
care services for residents with Alzheimer's and other forms of dementia.
The Company maintains programs and special units at its assisted living
residences for residents with Alzheimer's and other forms of dementia that
provide the attention, care, and services needed to help those residents
maintain a higher quality of life. Specialized services include assistance with
ADLs, behavior management, and a lifeskills-based activities program, the goal
of which is to provide a normalized environment that supports residents'
remaining functional abilities. Whenever possible, residents assist with meals,
laundry, and housekeeping. Special units for residents with Alzheimer's and
other forms of dementia are located in a separate area of the community and have
their own dining facilities, resident lounge areas, and specially trained staff.
The special care areas are designed to allow residents the freedom to ambulate
while keeping them safely contained within a secure area, with a minimum of
disruption to other residents. Special nutritional programs are used to help
ensure caloric intake is maintained in residents whose constant movement
increases their caloric expenditure. Resident fees for these special units are
dependent on the size of the unit, the design type, and the level of services
provided.
Skilled Nursing and Sub-Acute Services
The Company provides traditional skilled nursing services in eight
communities owned by the Company, two communities leased by the Company, and
seven communities managed by the Company, with an aggregate capacity for
approximately 600, 140, and 800 residents, respectively. In addition, the
Company has communities under development or expansion that will add estimated
additional capacity of approximately 90 skilled nursing beds. In its skilled
nursing facilities, the Company provides traditional long-term care through
24-hour a day skilled nursing care by registered nurses, licensed practical
nurses, and certified nursing aides. The Company also offers a range of
sub-acute care services in certain of its communities. Sub-acute care is
generally short-term, goal-oriented rehabilitation care intended for individuals
who have a specific illness, injury, or disease, but who do not require many of
the services provided in an acute care hospital. Sub-acute care is typically
rendered immediately after, or in lieu of, acute hospitalization in order to
treat such specific medical conditions.
GOVERNMENT REGULATION
The health care industry is subject to extensive regulation and frequent
regulatory change. At this time, no federal laws or regulations specifically
regulate assisted or independent living residences. While a number of states
have not yet enacted statutes on regulations specifically governing assisted
living facilities, the Company's communities are subject to regulation,
licensing, certificate of need ("CON") review, and permitting by state and
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local health and social service agencies and other regulatory authorities. While
such requirements vary from state to state, they typically relate to staffing,
physical design, required services, and resident characteristics. The Company
believes that such regulation will increase in the future. In addition, health
care providers are receiving increased scrutiny under anti-trust laws as
integration and consolidation of health care delivery increases and affects
competition. The Company's communities are also subject to various zoning
restrictions, local building codes, and other ordinances, such as fire safety
codes. Regulation of the assisted living industry is evolving and is likely to
become more burdensome on the Company; however, the Company is unable to predict
the content of new regulations or their effect on its business.
In the ordinary course of business, one or more of the Company's
communities could be cited for deficiencies. In such cases, the appropriate
corrective action would be taken.
The Balanced Budget Act ("BBA") of 1997, Public Law 105-33, included
sweeping changes to Medicare and Medicaid, significantly reducing rates of
increase for payments to home health agencies and skilled nursing facilities.
Under the BBA, beginning in the year 2001, skilled nursing facilities will no
longer be reimbursed under a cost based system. A prospective payment system
("PPS") under which facilities are reimbursed on a per diem basis is being
phased in over a three-year period. The BBA, as revised, also requires the
Secretary of Health and Human Services to establish and implement a PPS for home
health care services for cost reporting periods beginning on and after October
1, 2000. The Health Care Financing Administration ("HCFA") issued a proposed
rule implementing a PPS for home health on October 28, 1999 and a final rule is
expected by July 2000. Approximately 4.4%, 4.7%, and 6.9% of the Company's total
revenues from continuing operations for the years ended December 31, 1999, 1998
and 1997, respectively, were attributable to Medicare, including
Medicare-related private co-insurance.
Federal and state anti-remuneration and anti-referral laws, such as
anti-kickback laws, govern certain financial arrangements among health care
providers and others who may be in a position to refer or recommend patients to
such providers. These laws prohibit, among other things, certain direct and
indirect payments that are intended to induce the referral of patients to, the
arranging for services by, or the recommending of, a particular provider of
health care items or services. Federal anti-kickback laws have been broadly
interpreted to apply to certain contractual relationships between health care
providers and sources of patient referrals. Similar state laws vary from federal
laws and are often vague and difficult to interpret with little or no guidance
from courts or regulatory agencies. In addition, there are various federal and
state laws prohibiting other types of fraud and abuse by health care providers,
including criminal and civil provisions that prohibit filing false claims or
making false statements to receive payment or certification under Medicare or
Medicaid and failing to refund overpayments or improper payments. Violation of
these laws can result in loss of licensure, civil and criminal penalties, and
exclusion of health care providers or suppliers from participation in Medicare,
Medicaid, and other state and federal reimbursement programs. There can be no
assurance that such laws will be interpreted in a manner consistent with current
or past practices of the Company.
The Arizona Department of Insurance has notified the owner of the
Company's managed community in Peoria, Arizona, that the owner is not currently
in compliance with a net worth requirement imposed by Arizona law. While the
compliance with this net worth requirement is technically the responsibility of
the owner, in order to facilitate discussions with the Arizona Department of
Insurance, the Company has provided the Department with a limited guaranty
relating to the financial performance of the community. The
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Company and the owner of the community are currently considering a number of
courses of action with respect to this net worth requirement, and are engaged in
discussions with the Arizona Department of Insurance. While the Company and
owner believe that the owner's noncompliance with the net worth requirement is
only a technical violation of law and that the community is in a strong
financial position, there can be no assurance that the State of Arizona will not
enforce the law strictly. A violation of this net worth requirement may, among
other things, allow the Arizona Department of Insurance to take steps to appoint
a receiver for the community.
Certain of the communities operated by the Company are currently operating
a number of skilled nursing beds as "shelter beds" under a Florida statutory
exemption from CON review which is generally limited to situations where beds
are used only for residents of the community. Such communities are not currently
in full compliance with these shelter bed CON. A violation of the shelter bed
CON may, among other things, subject the owner of the facility to fines of up to
$1,500 per day. Although the Company is evaluating a number of alternatives
relating to these shelter bed issues, the Company does not anticipate that the
communities will be in full compliance with the shelter bed requirements under
the CON statutes in the foreseeable future, if ever. There can be no assurance
that the State of Florida will not enforce the shelter bed requirements strictly
against the Company in the future or impose penalties for prior or continuing
violations.
Under the Americans with Disabilities Act of 1990, all places of public
accommodation are required to meet certain federal requirements related to
access and use by disabled persons. A number of additional federal, state, and
local laws exist that also may require modifications to existing and planned
communities to permit access to the properties by disabled persons. While the
Company believes that its communities are substantially in compliance with
present requirements or are exempt therefrom, if required changes involve a
greater expenditure than anticipated or are required to be made on a more
accelerated basis than anticipated, the Company will incur additional costs.
Further legislation may impose additional burdens or restrictions with respect
to access by disabled persons, the costs of compliance with which could be
substantial.
In addition, the Company is subject to various Federal, state, and local
environmental laws and regulations. Such laws and regulations often impose
liability whether or not the owner or operator knew of, or was responsible for,
the presence of hazardous or toxic substances. The costs of any required
remediation or removal of these substances could be substantial and the
liability of an owner or operator as to any property is generally not limited
under such laws and regulations and could exceed the property's value and the
aggregate assets of the owner or operator. The presence of these substances or
failure to remediate such contamination properly may also adversely affect the
owner's ability to sell or rent the property, or to borrow using the property as
collateral. Under these laws and regulations, an owner, operator, or an entity
that arranges for the disposal of hazardous or toxic substances, such as
asbestos-containing materials, at a disposal site may also be liable for the
costs of any required remediation or removal of the hazardous or toxic
substances at the disposal site. In connection with the ownership or operation
of its properties, the Company could be liable for these costs, as well as
certain other costs, including governmental fines and injuries to persons or
properties.
The Company believes that the structure and composition of government, and
specifically health care, regulations will continue to change and, as a result,
regularly monitors developments in the law. The Company expects to modify its
agreements and operations from time to time as the business and regulatory
environment
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changes. While the Company believes it will be able to structure its agreements
and operations in accordance with applicable law, there can be no assurance that
its arrangements will not be successfully challenged.
COMPETITION
The senior living and health care services industry is highly competitive
and the Company expects that all segments of the industry will become
increasingly competitive in the future. During the mid- to late-1990's, a large
number of assisted living units was developed and most will be opened by the end
of 2000. This could have the effect of increasing the time to fill certain
assisted living projects in certain markets. Although there are a number of
substantial companies active in the senior living and health care industry, the
industry continues to be very fragmented and characterized by numerous small
operators. Most of the industry participants are privately held or are
non-profit organizations. The Company believes that the primary competitive
factors in the senior living and health care services industry are (i)
reputation for and commitment to a high quality of care; (ii) quality of support
services offered; (iii) price of services; (iv) physical appearance and
amenities associated with the communities; and (v) location. The Company
competes with other companies providing independent living, assisted living
skilled nursing, and other similar service and care alternatives, some of whom
may have greater financial resources than the Company. Because seniors tend to
choose senior living communities near their homes or near their families, the
Company's principal competitors are other senior living and long-term care
communities in the same local geographic areas as the Company's communities. The
Company also competes with other health care businesses with respect to
attracting and retaining nurses, technicians, aides, and other high quality
professional and non-professional employees and managers.
INSURANCE AND LEGAL PROCEEDINGS
The provision of personal and health care services entails an inherent
risk of liability. In recent years, participants in the senior living and health
care services industry have become subject to an increasing number of lawsuits
alleging negligence or related legal theories, many of which involve large
claims and result in the incurrence of significant defense costs. The Company
currently maintains property, liability, and professional medical malpractice
insurance policies for the Company's owned and certain of its managed
communities under a master insurance program in amounts and with such coverages
and deductibles that the Company believes are within normal industry standards
based upon the nature and risks of the Company's business. The Company also has
umbrella excess liability protection policies in the amount of at least $35.0
million per location. There can be no assurance that a claim in excess of the
Company's insurance will not arise. A claim against the Company not covered by,
or in excess of, the Company's insurance could have a material adverse effect
upon the Company. In addition, the Company's insurance policies must be renewed
annually. There can be no assurance that the Company will be able to obtain
liability insurance in the future or that, if such insurance is available, it
will be available on acceptable terms.
Under various federal, state, and local environmental laws, ordinances,
and regulations, a current or previous owner or operator of real estate may be
required to investigate and clean up hazardous or toxic substances or petroleum
product releases at such property, and may be held liable to a governmental
entity or to third parties for property damage and for investigation and clean
up costs. The Company is not aware of any environmental liability with respect
to any of its owned, leased, or managed communities that it believes would have
a material adverse effect on the Company's business, financial condition, or
results of operations. The
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Company believes that its communities are in compliance in all material respects
with all federal, state, and local laws, ordinances, and regulations regarding
hazardous or toxic substances or petroleum products. The Company has not been
notified by any governmental authority, and is not otherwise aware of any
material non-compliance, liability, or claim relating to hazardous or toxic
substances or petroleum products in connection with any of the communities it
currently operates.
The Company currently is not a party to any legal proceeding that it
believes would have a material adverse effect on its business, financial
condition, or results of operations.
TRADEMARKS
The Company has registered its corporate logo with the United States
Patent and Trademark Office (the "USPTO"). The Company develops and markets
certain free-standing assisted living residences under the tradename "Homewood
Residence." The Company has filed an application with the USPTO to register the
"Homewood Residence" tradename and logo, but there can be no assurance that such
registration will be granted or that the Company will be able to use such
tradename.
EXECUTIVE OFFICERS
The following table sets forth certain information concerning the executive
officers of the Company.
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NAME AGE POSITION
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<S> <C> <C>
W. E. Sheriff 57 Chief Executive Officer
Christopher J. Coates 49 President and Chief Operating Officer
George T. Hicks 42 Executive Vice President - Finance, Chief Financial Officer
H. Todd Kaestner 44 Executive Vice President - Corporate Development
James T. Money 52 Executive Vice President - Senior Living Network Development
Gregory B. Richard 46 Executive Vice President - Community Operations
</TABLE>
W.E. SHERIFF has served as Chairman and Chief Executive Officer of the
Company and its predecessors since April 1984. From 1973 to 1984, Mr. Sheriff
served in various capacities for Ryder System, Inc., including as president and
chief executive officer of its Truckstops of America division. Mr. Sheriff also
serves on the boards of various educational and charitable organizations and in
varying capacities with several trade organizations, including as a member of
the board of the National Association for Senior Living Industries.
CHRISTOPHER J. COATES has served as President and Chief Operating Officer
of the Company and its predecessors since January 1993 and as a director of the
Company since January 1998. From 1988 to 1993, Mr. Coates served as chairman of
National Retirement Company, a senior living management company acquired by a
subsidiary of the Company in 1992. From 1985 to 1988, Mr. Coates was senior
director of the Retirement Housing Division of Radice Corporation, following
that company's purchase in 1985 of National
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Retirement Consultants, a company formed by Mr. Coates. Mr. Coates is a former
chairman of the board of directors of the American Senior Housing Association.
GEORGE T. HICKS has served as the Executive Vice President - Finance,
Chief Financial Officer, Treasurer, and Secretary since September 1993. Mr.
Hicks has served in various capacities for the Company's predecessors since
1985, including Vice President - Finance and Treasurer from November 1989 to
September 1993.
H. TODD KAESTNER has served as Executive Vice President - Corporate
Development since September 1993. Mr. Kaestner has served in various capacities
for the Company's predecessors since 1985, including Vice President -
Development from 1988 to 1993 and Chief Financial Officer from 1985 to 1988.
JAMES T. MONEY has served as Executive Vice President - Development
Services since September 1993. Mr. Money has served in various capacities for
the Company's predecessors since 1978, including Vice President - Development
from 1985 to 1993. Mr. Money is a member of the board of directors and the
executive committee of the National Association for Senior Living Industries.
GREGORY B. RICHARD has served as Executive Vice President - Community
Operations since January 2000. Mr. Richard was previously with a pediatric
practice management company from May 1997 to May 1999 serving as President and
Chief Executive Officer from October 1997 to May 1999. Prior to this Mr. Richard
was with Rehability Corporation, a publicly traded outpatient physical
rehabilitation service provider, from July 1986 to October 1996, serving as
Senior Vice President of Operations and Chief Operating Officer from September
1992 to October 1996.
EMPLOYEES
The Company employs approximately 6,800 persons. None of the Company's
employees is currently represented by a labor union and the Company is not aware
of any union organizing activity among its employees. The Company believes that
its relationship with its employees is good.
RISK FACTORS
Substantial Debt and Operating Lease Payment Obligations
At December 31, 1999, the Company had long-term debt, including current
portion, of $436.0 million and was obligated to pay rental obligations in 2000
of approximately $14.2 million under long-term operating leases. The Company
currently intends to finance its growth through a combination of bank
indebtedness, mortgage financing, transactions with real estate investment
trusts ("REITs"), and joint venture and other arrangements. As a result, a
substantial portion of the Company's cash flow will be devoted to debt service
and lease payments. Debt and annual rental obligations will increase as the
Company pursues its growth strategy. There can be no assurance that the Company
will generate sufficient cash flows from operations to meet required interest,
principal, and lease payments. Any payment or other default with respect to such
obligations could cause lenders to foreclose upon the communities securing such
indebtedness or, in the case
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of an operating lease, could terminate the lease, with a consequent loss of
income and asset value to the Company. Furthermore, because of cross-default and
cross-collateralization provisions in certain of the Company's mortgages, debt
instruments, and leases, a default by the Company on one of its payment
obligations could result in acceleration of other obligations. Consequently,
such a default could adversely affect a significant number of the Company's
other properties and, in turn, the Company's business, results of operations,
and financial condition. See "-- Need for Additional Financing; Exposure to
Rising Interest Rates."
Need for Additional Financing; Exposure to Rising Interest Rates
The Company's ability to sustain any operating losses, complete
construction projects underway, and to otherwise meet its growth objectives will
depend, in part, on its ability to obtain additional financing on acceptable
terms from available financing sources. The Company's future debt instruments
may include covenants restricting the Company's ability to incur additional
debt. Moreover, raising additional funds through the issuance of equity
securities could dilute the ownership interests of existing shareholders and
adversely affect the market price of the Company's common stock. There can be no
assurance that the Company will be successful in securing additional financing
or that adequate financing will be available and, if available, will be on terms
that are acceptable to the Company. The Company's inability to obtain additional
financing on acceptable terms could delay or eliminate some or all of the
Company's growth plans.
Future indebtedness, from commercial banks or otherwise, and lease
obligations, including those related to REIT facilities, are also expected to be
based on interest rates prevailing at the time such debt and lease arrangements
are obtained. Therefore, increases in prevailing interest rates could increase
the Company's interest or lease payment obligations and could have a material
adverse effect on the Company's business, financial condition, and results of
operations.
Risks Associated With Lifecare Benefits
Certain communities owned or operated by the Company are lifecare CCRCs
that offer residents a limited lifecare benefit. Residents of these communities
pay an upfront entrance fee upon occupancy, which generally is partially
refundable, and a monthly service fee while living in the community. Residents
are generally entitled to a limited lifecare benefit, which is typically (a) a
certain number of free days in the community's health center during the
resident's lifetime, (b) a discounted rate for such services, or (c) a
combination of the two. The lifecare benefit varies based upon the extent to
which the resident's entrance fee is refundable. The pricing of entrance fees,
refundability provisions, monthly service fees, and lifecare benefits are
determined from actuarial projections of the expected morbidity and mortality of
the resident population. In the event the entrance fees and monthly service
payments established for the communities are not sufficient to cover the cost of
lifecare benefits granted to residents, the results of operations and financial
condition of the communities will be adversely affected.
Residents of the Company's lifecare CCRCs are guaranteed an independent
living unit and nursing care at the community during their lifetime, even if the
resident exhausts his or her financial resources and becomes unable to satisfy
his or her obligations to the community. In addition, in the event a resident
requires nursing care and there is insufficient capacity for the resident in the
nursing facility at the community where
11
<PAGE> 12
the resident lives, the community must contract with a third party to provide
such care. Although the Company screens potential residents to ensure that they
have adequate assets, income, and reimbursements from government programs and
third parties to pay their obligations to the communities during their lifetime,
there can be no assurance that such assets, income, and reimbursements will be
sufficient in all cases. To the extent that the financial resources of some of
the residents are not sufficient to pay for the cost of facilities and services
provided to them, or in the event that the communities must pay third parties to
provide nursing care to residents of the communities, the Company's results of
operations and financial condition would be adversely affected.
No Assurance as to Ability to Manage Growth
The success of the Company's growth strategy will depend, in large part,
on its ability to effectively operate any newly acquired or developed
communities, as to which there can be no assurance. The Company's growth plans
will also place significant demands on its management and operating personnel.
The Company's ability to manage its future growth effectively will require it to
continually improve its operational, financial, and management information
systems and to continue to attract, retain, train, motivate, and manage key
employees. If the Company is unable to manage its growth effectively, its
business, results of operations, and financial condition will be adversely
affected.
Difficulties of Acquiring and Integrating Communities and Complementary
Businesses
The Company plans to continue to make strategic acquisitions of senior
living communities and other properties or businesses that are complementary to
the Company's operations and growth strategy. The acquisition of existing
communities or other businesses involves a number of risks, including the
following:
- existing communities available for acquisition frequently serve or
target different markets than those presently served by the Company;
- renovations of acquired communities and changes in staff and
operating management personnel are necessary to successfully
integrate such communities or businesses into the Company's existing
operations;
- costs incurred to reposition or renovate newly acquired communities
may not be recovered; and
- the Company may be adversely impacted by unforeseen liabilities
attributable to the prior operators of such communities or
businesses, against whom the Company may have little or no recourse.
The success of the Company's acquisition strategy will be determined by numerous
factors, including:
- the Company's ability to identify suitable acquisition candidates;
- the competition for such acquisitions;
12
<PAGE> 13
- the purchase price;
- the requirement to make operational or structural changes and
improvements;
- the financial performance of the communities or businesses after
acquisition;
- the Company's ability to finance the acquisitions on reasonable
terms; and
- the Company's ability to integrate effectively any acquired
communities or businesses into the Company's management,
information, and operating systems.
There can be no assurance that the Company's acquisition of senior living
communities and complementary properties and businesses will be completed at the
rate currently expected, if at all, or, if completed, that any acquired
communities or businesses will be successfully integrated into the Company's
operations.
Losses from Newly Developed Residences and Acquisitions
In view of the Company's growth through development and acquisitions,
there can be no assurance that the Company will be profitable in any future
period. Newly developed senior living communities are expected to incur
operating losses during a substantial portion of their first 12 to 15 months of
operations, on average, until the communities achieve targeted occupancy levels.
Newly acquired communities may also incur losses pending their integration into
the Company's operations.
Risks of Development in Concentrated Geographic Areas
Part of the Company's growth strategy is to acquire and develop senior
living communities in concentrated geographic service areas. Accordingly, the
Company's occupancy rates in existing, developed, or acquired communities may be
adversely affected by a number of factors, including regional and local economic
conditions, competitive conditions, applicable local laws and regulations, and
general real estate market conditions, including the supply and proximity of
senior living communities.
Dependence on Attracting Residents with Sufficient Resources to Pay
Approximately 95.6% of the Company's total revenues for the year ended
December 31, 1999 were attributable to private pay sources. For the same period,
4.4% of the Company's revenues were attributable to reimbursement from
third-party payors, including Medicare and Medicaid. The Company expects to
continue to rely primarily on the ability of residents to pay for the Company's
services from their own or familial financial resources. Inflation or other
circumstances that adversely affect the ability of seniors to pay for the
Company's services could have a material adverse effect on the Company's
business, financial condition, and results of operations.
13
<PAGE> 14
Pricing Pressures
The health care services industry is currently experiencing market-driven
reforms from forces within and outside the industry that are exerting pressure
on health care and related companies to reduce health care costs. These
market-driven reforms are resulting in industry-wide consolidation that is
expected to increase the downward pressure on health care service providers'
margins, as larger buyer and supplier groups, including government programs such
as Medicare and Medicaid, exert pricing pressure on health care providers. The
Company cannot predict the ultimate timing or effect of market-driven reforms.
In addition, the Company cannot guarantee that any such reforms will not have a
material adverse effect on the Company's business, results of operations, or
financial condition.
Increasing Competition
The senior living and health care services industry is highly competitive,
and the Company expects that all segments of the industry will become
increasingly competitive in the future. The Company competes with other
companies providing independent living, assisted living, skilled nursing, and
other similar service and care alternatives. Although the Company believes there
is a need for senior living communities in the markets where the Company is
operating and developing communities, the Company expects that competition will
increase from existing competitors and new market entrants, some of whom may
have substantially greater financial resources than the Company. In addition,
some of the Company's competitors operate on a not-for-profit basis or as
charitable organizations and have the ability to finance capital expenditures on
a tax-exempt basis or through the receipt of charitable contributions, neither
of which are readily available to the Company. Furthermore, if the development
of new senior living communities outpaces the demand for such communities in the
markets in which the Company has or is developing senior living communities,
such markets may become saturated. An oversupply of such communities in the
Company's markets could cause the Company to experience decreased occupancy,
reduced operating margins, and lower profitability. Consequently, there can be
no assurance that the Company will not encounter increased competition that
would adversely affect its occupancy rates, pricing for services, and growth
prospects.
Community Management, Staffing, and Labor Costs
The Company competes with other providers of senior living and health care
services with respect to attracting and retaining qualified management personnel
responsible for the day-to-day operations of each of the Company's communities
and skilled technical personnel responsible for providing resident care. A
shortage of nurses or trained personnel may require the Company to enhance its
wage and benefits package in order to compete in the hiring and retention of
such personnel or to hire more expensive temporary personnel. The Company will
also be dependent on the available labor pool of semi-skilled and unskilled
employees in each of the markets in which it operates. The Company cannot be
sure its labor costs will not increase, or that, if they do increase, they can
be matched by corresponding increases in rates charged to residents. If the
Company is unable to attract and retain qualified management and staff
personnel, to control its labor costs, or to pass on any increased labor costs
to residents through rate increases, such failures could have a material adverse
effect on the Company's business, financial condition, and results of
operations.
14
<PAGE> 15
Government Regulation and the Burdens of Compliance
Federal and state governments regulate various aspects of the Company's
business. The development and operation of health care facilities and the
provision of health care services are subject to federal, state, and local
licensure, certification, and inspection laws that regulate, among other
matters, the number of licensed beds, the provision of services, the
distribution of pharmaceuticals, billing practices and policies, equipment,
operating policies and procedures, fire prevention measures, environmental
matters, compliance with building and safety codes, and staffing, including
professional licensing. Failure to comply with these laws and regulations could
result in the denial of reimbursement, the imposition of fines, temporary
suspension of admission of new patients, suspension or decertification from
Medicare, Medicaid, or other state or Federal reimbursement programs,
restrictions on the Company's ability to acquire new communities or expand
existing communities, and, in extreme cases, the revocation of a community's
license or closure of a community. While the Company endeavors to comply with
all applicable regulatory requirements, from time to time certain of the
Company's communities have been subject, like others in the industry, to various
penalties as a result of deficiencies alleged by state survey agencies. There
can be no assurance that the Company will not be subject to similar penalties in
the future, or that federal, state, or local governments will not impose
additional restrictions on the Company's activities that could materially
adversely affect the Company's business, financial condition, or results of
operations.
The Balanced Budget Act ("BBA") of 1997, Public Law 105-33, included
sweeping changes to Medicare and Medicaid, significantly reducing rates of
increase for payments to home health agencies and skilled nursing facilities.
Under the BBA, beginning in the year 2001, skilled nursing facilities will no
longer be reimbursed under a cost based system. A prospective payment system
under which facilities are reimbursed on a per diem basis is being phased in
over a three-year period. The BBA, as revised, also requires the Secretary of
Health and Human Services to establish and implement a prospective payment
system for home health care services for cost reporting periods beginning on and
after October 1, 2000. Approximately 4.4%, 4.7%, and 6.9% of the Company's total
revenues for the years ended December 31, 1999, 1998, and 1997, respectively,
were attributable to Medicare, including Medicare-related private co-insurance
and, thus, may be impacted by the changes under BBA.
The Arizona Department of Insurance has notified the owner of the
Company's managed community in Peoria, Arizona, that the owner is not currently
in compliance with a net worth requirement imposed by Arizona law. While the
compliance with this net worth requirement is technically the responsibility of
the owner, in order to facilitate discussions with the Arizona Department of
Insurance, the Company has provided the Department with a limited guaranty
relating to the financial performance of the community. The Company and the
owner of the community are currently considering a number of courses of action
with respect to this net worth requirement, and are engaged in discussions with
the Arizona Department of Insurance. While the Company and owner believe that
the owner's noncompliance with the net worth requirement is only a technical
violation of law and that the community is in a strong financial position, there
can be no assurance that the State of Arizona will not enforce the law strictly.
A violation of this net worth requirement may, among other things, allow the
Arizona Department of Insurance to take steps to appoint a receiver for the
community.
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<PAGE> 16
Many states, including several of the states in which the Company
currently operates, control the supply of licensed skilled nursing beds and home
health care agencies through CON programs. Presently, state approval is required
for the construction of new health care communities, the addition of licensed
beds, and certain capital expenditures at such communities. To the extent that a
CON or other similar approval is required for the acquisition or construction of
new facilities or the expansion of the number of licensed beds, services, or
existing communities, the Company could be adversely affected by the failure or
inability to obtain such approval, changes in the standards applicable for such
approval, and possible delays and expenses associated with obtaining such
approval. In addition, in most states the reduction of the number of licensed
beds or the closure of a community requires the approval of the appropriate
state regulatory agency. If the Company were to seek to reduce the number of
licensed beds at, or to close, a community, the Company could be adversely
affected by a failure to obtain or a delay in obtaining such approval.
Certain of the communities operated by the Company are currently operating
a number of nursing beds as "shelter beds" under a Florida statute and CON that
generally limits the use of such beds to residents of the community. Such
communities are not currently in full compliance with these shelter bed CON
requirements. A violation of the shelter bed CON requirements may, among other
things, subject the owner of the facility to fines of up to $1,500 per day.
Although the Company is evaluating a number of alternatives relating to these
shelter bed issues, the Company does not anticipate that the communities will be
in full compliance with the shelter bed CON requirements in the foreseeable
future, if ever. There can be no assurance that the State of Florida will not
enforce the shelter bed CON requirements strictly against the Company in the
future or impose penalties for prior or continuing violations.
Federal and state anti-remuneration and anti-referral laws, such as
"anti-kickback" laws, govern certain financial arrangements among health care
providers and others who may be in a position to refer or recommend patients to
such providers. These laws prohibit, among other things, certain direct and
indirect payments that are intended to induce the referral of patients to, the
arranging for services by, or the recommendation of, a particular provider of
health care items or services. Federal anti-kickback laws have been broadly
interpreted to apply to certain contractual relationships between health care
providers and sources of patient referral. Similar state laws vary from federal
laws and are often vague and difficult to interpret with little or no guidance
by courts or regulatory agencies. In addition, there are various federal and
state laws prohibiting other types of fraud and abuse by health care providers,
including criminal and civil provisions that prohibit filing false claims or
making false statements to receive payment or certification under Medicare and
Medicaid and failing to refund overpayments or improper payments. Violation of
these laws can result in loss of licensure, civil and criminal penalties, and
exclusion of health care providers or suppliers from participation in the
Medicare, Medicaid, and other state and federal reimbursement programs. There
can be no assurance that such laws will be interpreted in a manner consistent
with the practices of the Company.
Under the Americans with Disabilities Act of 1990, all places of public
accommodation are required to meet certain federal requirements related to
access and use by disabled persons. A number of additional federal, state, and
local laws exist that also may require modifications to existing and planned
communities to create access to the properties by disabled persons. Although the
Company believes that its communities are substantially in compliance with
present requirements or are exempt therefrom, if required changes involve a
greater expenditure than anticipated or must be made on a more accelerated basis
than anticipated, the Company
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<PAGE> 17
will incur additional costs. Further legislation may impose additional burdens
or restrictions with respect to access by disabled persons, the costs of
compliance with which could be substantial.
ITEM 2. PROPERTIES
The table below sets forth certain information with respect to the senior
living communities currently operated by the Company.
<TABLE>
<CAPTION>
Resident Capacity(1)
-------------------- Commencement
Community Location IL AL SN Total of Operations(2)
- --------- -------- -- -- -- ----- ----------------
Owned(3):
- ---------
<S> <C> <C> <C> <C> <C> <C>
Broadway Plaza Ft. Worth, TX 252 40 122 414 Apr-92
Carriage Club of Charlotte Charlotte, NC 355 54 50 459 May-96
Carriage Club of Jacksonville Jacksonville, FL 292 60 -- 352 May-96
Freedom Plaza Florida Sun City Center, FL 542 30 42 614 Jul-98
Freedom Village Holland Holland, MI 450 56 72 578 Jul-98
The Hampton at Post Oak Houston, TX 162 39 56 257 Oct-94
Heritage Club Denver, CO 220 35 -- 255 Feb-95
Homewood at Corpus Christi Corpus Christi, TX 60 30 -- 90 May-97
Homewood at Deane Hill Knoxville, TN -- 108 -- 108 Oct-98
Homewood at Sun City Center(4) Sun City Center, FL -- 60 -- 60 Aug-99
Homewood at Tarpon Springs Tarpon Springs, FL -- 64 -- 64 Aug-97
Lake Seminole Square Seminole, FL 395 34 -- 429 Jul-98
Parklane West San Antonio, TX -- 17 124 141 Jan-00
Parkplace Denver, CO 195 48 -- 243 Oct-94
Richmond Place Lexington, KY 206 78 -- 284 Apr-95
Santa Catalina Villas Tucson, AZ 217 85 42 344 Jun-94
The Summit at Westlake Hills Austin, TX 167 30 89 286 Apr-92
Village of Homewood(5) Lady Lake, FL -- 50 -- 50 Apr-98
Westlake Village Cleveland, OH 246 54 -- 300 Oct-94
Wilora Lake Lodge Charlotte, NC 142 44 -- 186 Dec-97
----- ----- --- -----
Subtotal 3,901 1,016 597 5,514
Leased:
- -------
Bahia Oaks Lodge(6) Sarasota, FL -- 100 -- 100 Jun-98
Bay Pines(7) St Petersburg, FL -- 82 -- 82 Jul-99
Hampton at Pearland(8) Houston, TX 15 67 -- 82 Feb-00
Holley Court Terrace(9) Oak Park, IL 179 17 -- 196 Jul-93
Homewood at Victoria(10) Victoria, TX 60 30 -- 90 May-97
Imperial Plaza(11) Richmond, VA 850 152 -- 1,002 Oct-97
Oakhurst Towers(12) Denver, CO 195 -- -- 195 Feb-99
Park Regency(13) Chandler, AZ 154 -- 66 220 Sep-98
Rossmoor Regency(14) Laguna Hills, CA 210 -- -- 210 May-98
Trinity Towers(9) Corpus Christi, TX 220 84 76 380 Jan-90
----- ----- --- -----
Subtotal 1,883 532 142 2,557
</TABLE>
17
<PAGE> 18
<TABLE>
<CAPTION>
Resident Capacity(1)
-------------------- Commencement
Community Location IL AL SN Total of Operations(2)
- --------- -------- -- -- -- ----- ----------------
Managed(15):
- ------------
<S> <C> <C> <C> <C> <C> <C>
Burcham Hills East Lansing, MI 138 95 133 366 Nov-78
Freedom Plaza Arizona(16) Peoria, AZ 455 78 256 789 Jul-98
Freedom Square(17) Seminole, FL 497 177 192 866 Jul-98
Freedom Village Brandywine(18 Glenmore, PA 380 32 47 459 Jul-98
Glenview at Pelican Bay Naples, FL 150 10 25 185 Jul-98
Hampton at Cypress Station(20) Houston, TX -- 96 -- 96 Oct-99
Hampton at Willowbrook(20) Houston, TX -- 50 -- 50 Jun-99
Hampton at Pinegate(20) Houston, TX -- 95 -- 95 Jul-98
Hampton at Shadowlake(20) Houston, TX -- 94 -- 94 Apr-99
Hampton at Spring Shadows(20) Houston, TX -- 68 -- 68 May-99
Heritage Club at Aurora(19) Aurora, CO -- 94 -- 94 Jun-99
Heritage Club at Greenwood Village(19) Denver, CO 90 90 180 Nov-99
Homewood at Boynton Beach(19) Boynton Beach, FL -- 92 -- 92 Jan-00
Homewood at Coconut Creek(19) Coconut Creek, FL -- 96 -- 96 Feb-00
Homewood at Countryside(20) Safety Harbor, FL -- 76 -- 76 Oct-99
Homewood at Naples(19) Naples, FL -- 100 -- 100 May-99
Homewood at Richmond Heights(19) Cleveland, OH -- 95 -- 95 Feb-00
Homewood at Rockefeller Gardens(19) Cleveland, OH -- 139 -- 139 Dec-99
Homewood at West Cobb(19) Marietta, GA -- 60 -- 60 Apr-98
Somerby at Jones Farm(21) Huntsville, AL 110 48 -- 158 Apr-99
Somerby at University Park(21) Birmingham, AL 148 120 -- 268 Apr-99
Summit at Lakeway(19) Austin, TX -- 81 -- 81 Feb-99
USAA Towers San Antonio, TX 505 -- -- 505 Oct-94
Williamsburg Landing Williamsburg, VA 360 65 58 483 Sep-85
----- ----- ----- ------
Subtotal 2,743 1,951 801 5,495
----- ----- ----- ------
Grand Total 8,527 3,499 1,540 13,566
===== ===== ===== ======
</TABLE>
- -----------------------
(1) Independent living residences (IL), assisted living residences (including
areas dedicated to residents with Alzheimer's and other forms of dementia)
(AL), and skilled nursing beds (SN).
(2) Indicates the date on which the Company acquired each of its owned and
leased communities, or commenced operating its managed communities. The
Company operated certain of its communities pursuant to management
agreements prior to acquiring the communities.
(3) The Company's owned communities are subject to mortgage liens or serve as
collateral for various financing arrangements. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations -
Liquidity and Capital Resources."
(4) Owned by a joint venture in which the Company owns a 50% interest.
(5) Owned by a joint venture in which the Company owns a 61% interest.
(6) Leased pursuant to a five-year operating lease (with five one-year renewal
options) from an unaffiliated special purpose entity that acquired the
community from a general partnership of which Robert G. Roskamp, a
director of the Company, is a partner. The Company also acquired an option
to purchase the community at the expiration of the lease term.
(7) Leased pursuant to an operating lease expiring November 2007, with renewal
options for up to three additional ten year terms.
(8) Leased pursuant to an operating lease expiring June 2012, with renewal
options for up to four additional ten year terms.
(9) Leased pursuant to an operating lease with an initial term of ten years
expiring December 31, 2006.
(10) Leased pursuant to an operating lease expiring July 2011, with renewal
options for up to two additional ten year terms.
(11) Leased pursuant to an operating lease expiring October 2017, with a seven
year renewal option. The Company also has an option to purchase the
community at the expiration of the lease term.
(12) Leased pursuant to a 14 year operating lease expiring February 2013 from
an unaffiliated special purpose entity. The Company also has an option to
purchase the community at the expiration of the lease term.
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<PAGE> 19
(13) Leased pursuant to a five year operating lease expiring September 2003,
with renewal options for up to two additional one-year terms, from an
unaffiliated special purpose entity. The Company also acquired an option
to purchase the community at the expiration of the lease term.
(14) Leased pursuant to a five-year operating lease expiring May 2003, with
renewal options for up to five additional one-year terms, from an
unaffiliated special purpose entity that acquired the community. The
Company also acquired an option to purchase the community at the
expiration of the lease term.
(15) Except as noted below, the Company's management agreements are generally
for terms of three to five years, but may be canceled by the owner of the
community, without cause, on three to six months' notice. Pursuant to the
management agreements, the Company is generally responsible for providing
management personnel, marketing, nursing, resident care and dietary
services, accounting and data processing reports, and other services for
these communities at the owner's expense and receives a monthly fee for
its services based either on a contractually fixed amount or percentage of
revenues or income. As noted below, certain of the communities managed by
the Company are owned by affiliates of the Company.
(16) Operated pursuant to a management agreement with a 20-year term, with two
renewal options for additional ten-year terms, that provides for a
management fee equal to all revenue of the community in excess of
operating expenses, refunds of entry fees, capital expenditure reserves,
debt service, and certain payments to the community's owners, including an
entity affiliated with Mr. Roskamp.
(17) Operated pursuant to a management agreement with a 20-year term, with two
renewal options for additional ten-year terms, that provides for a
management fee equal to all revenue of the community in excess of
operating expenses, refunds of entry fees, capital expenditure reserves,
debt service, and certain payments to the community's owners, Mr. Roskamp
and an entity affiliated with Mr. Roskamp. The Company has an option to
purchase the community at a predetermined price.
(18) Operated pursuant to a management agreement with a three-year term that
provides for a management fee equal to a fixed percentage of the
community's gross revenues. The Company has an option to purchase the
community in 2000 for a predetermined price. The community is owned by an
entity affiliated with Mr. Roskamp.
(19) The communities are owned by an unaffiliated third-party and leased by
John Morris, a director of the Company. The communities are operated
pursuant to management agreements that provide for the payment of
management fees based on a percentage of the gross revenues of each
community and require the Company to fund operating losses above a
specified amount.
(20) The communities are operated pursuant to management agreements that
provide for the payment of management fees based on a percentage of gross
revenues of each community and require the Company to fund operating
losses above a specified amount.
(21) The management agreements grant ARC options to purchase the communities
upon achievement of stabilized occupancy at formula-derived prices.
ITEM 3. LEGAL PROCEEDINGS
The Company currently is not a party to any legal proceeding that it
believes would have a material adverse effect on its business, financial
condition, or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
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<PAGE> 20
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
The Company's Common Stock trades on the New York Stock Exchange under the
symbol "ACR." The following table sets forth, for the periods indicated, the
high and low sales prices for the Common Stock.
<TABLE>
<CAPTION>
Year Ended December 31, 1999 High Low
----------------------------------------------------------
<S> <C> <C>
First Quarter $17.938 $13.500
Second Quarter 17.750 11.875
Third Quarter 13.750 9.438
Fourth Quarter 9.813 4.313
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31, 1998 High Low
----------------------------------------------------------
<S> <C> <C>
First Quarter $23.250 $20.000
Second Quarter 22.375 17.750
Third Quarter 19.625 14.063
Fourth Quarter 18.000 12.938
</TABLE>
As of March 2, 2000, there were 549 shareholders of record and
approximately 1,470 persons or entities holding Common Stock in nominee name.
It is the current policy of the Company's Board of Directors to retain all
future earnings to finance the operation and expansion of the Company's
business. Accordingly, the Company does not anticipate declaring or paying cash
dividends on the Common Stock in the foreseeable future. The payment of cash
dividends in the future will be at the sole discretion of the Company's Board of
Directors and will depend on, among other things, the Company's earnings,
operations, capital requirements, financial condition, restrictions in then
existing financing agreements, and other factors deemed relevant by the Board of
Directors.
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<PAGE> 21
ITEM 6. SELECTED FINANCIAL DATA
The selected consolidated and combined financial data presented below should be
read in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the Consolidated Financial Statements
and notes thereto included elsewhere in this report.
<TABLE>
<CAPTION>
Consolidated Combined
-------------------------------------------------------- ----------------------------
Predecessor
Predecessor Entities
----------- --------
Year Nine Months Three Months
Years Ended December 31, Ended Ended Ended
---------------------------------------- December 31, December 31, March 31,
1999 1998 1997 1996 1995 1995
--------- --------- -------- -------- -------- --------
STATEMENT OF OPERATIONS DATA: (in thousands)
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Resident and health care $ 164,592 $ 130,036 $ 88,416 $ 71,409 $ 47,239 $ 11,761
Management and development services 10,678 12,321 1,765 1,739 1,524 595
--------- --------- -------- -------- -------- --------
Total revenues 175,270 142,357 90,181 73,148 48,763 12,356
Operating expenses:
Community operating expense 105,978 82,698 54,921 45,084 30,750 8,035
Lease expense, net 12,985 9,063 3,405 -- -- --
General and administrative 15,020 10,581 6,717 5,657 3,446 1,108
Depreciation and amortization 13,692 10,025 6,632 6,900 4,534 1,127
Asset impairments and
contractual losses 12,536 -- -- -- -- --
Merger related costs -- 994 -- -- -- --
--------- --------- -------- -------- -------- --------
Total operating expenses 160,211 113,361 71,675 57,641 38,730 10,270
--------- --------- -------- -------- -------- --------
Operating income 15,059 28,996 18,506 15,507 10,033 2,086
--------- --------- -------- -------- -------- --------
Other income (expense):
Interest expense (23,668) (17,924) (15,056) (12,160) (7,930) (2,370)
Interest income 9,123 4,092 2,675 434 329 49
Gain on sale of assets 3,036 80 35 874 -- --
Other (241) (242) (36) (86) 919 (1,013)
--------- --------- -------- -------- -------- --------
Other expense, net (11,750) (13,994) (12,382) (10,938) (6,682) (3,334)
--------- --------- -------- -------- -------- --------
Income (loss) from continuing
operations before income taxes,
extraordinary item and cumulative
effect of change in
accounting principle 3,309 15,002 6,124 4,569 3,351 (1,248)
Income taxes 1,257 5,652 4,435 (920) 55 20
--------- --------- -------- -------- -------- --------
Income (loss) from
continuing operations
before extraordinary item
and cumulative effect of
change in accounting principle 2,052 9,350 1,689 5,489 3,296 (1,268)
Discontinued operations, net of tax:
Income (loss) from home
health operations -- (1,244) (155) 44 -- --
Write-off of home health assets -- (902) -- -- -- --
--------- --------- -------- -------- -------- --------
Income (loss) before
extraordinary item and
cumulative effect of change
in accounting principle 2,052 7,204 1,534 5,533 3,296 (1,268)
Extraordinary item, net of tax -- -- (6,334) (2,335) -- --
Cumulative effect of change
in accounting for start-up
costs, net of tax -- (304) -- -- -- --
--------- --------- -------- -------- -------- --------
Net income (loss) 2,052 6,900 (4,800) 3,198 3,296 (1,268)
Preferred return on special
redeemable preferred
limited partnership interests -- -- -- (1,104) (1,125) --
--------- --------- -------- -------- -------- --------
Net income (loss) available
for distribution to
partners and shareholders $ 2,052 $ 6,900 $ (4,800) $ 2,094 $ 2,171 $ (1,268)
========= ========= ======== ======== ======== ========
Distribution to partners,
excluding preferred
distributions $ -- $ -- $ 2,500 $ 6,035 $ 4,064 $ 1,400
========= ========= ======== ======== ======== ========
</TABLE>
21
<PAGE> 22
<TABLE>
<CAPTION>
Consolidated
----------------------------------------------
Predecessor
Years Ended December 31,
----------------------------------------------
1999 1998 1997 1996
---------- -------- -------- --------
STATEMENT OF OPERATIONS DATA: (in thousands, except per share data)
<S> <C> <C> <C> <C>
Pro forma earnings data:
Income from continuing operations before
income taxes and extraordinary item $ 6,124 $ 4,569
Pro forma income tax expense 2,210 1,644
-------- -------
Pro forma income from continuing
operations before extraordinary item 3,914 2,925
Income (loss) from home health
operations, net of pro forma tax (155) 27
-------- -------
Pro forma income before
extraordinary item 3,759 2,952
Preferred return on special redeemable
preferred limited partnership interests -- 1,104
-------- -------
Pro forma income before extraordinary item
available for distribution to partners
and shareholders $ 3,759 $ 1,848
======== =======
EARNINGS PER SHARE:
Basic earnings per share from continuing
operations before extraordinary item and
cumulative effect of change in accounting
principle $ 0.12 $ 0.67
======== ========
Basic earnings per share $ 0.12 $ 0.49
======== ========
Pro forma basic earnings per share before
extraordinary item available for
distribution to partners and shareholders $ 0.36 $ 0.20
======== =======
Weighted average basic shares outstanding 17,129 13,947 10,577 9,375
======== ======== ======== =======
Diluted earnings per share from continuing
operations before extraordinary item and
cumulative effect of change in accounting
principle $ 0.12 $ 0.66
======== ========
Diluted earnings per share $ 0.12 $ 0.49
======== ========
Pro forma diluted earnings per share before
extraordinary item available for
distribution to partners and shareholders $ 0.35 $ 0.20
======= =======
Weighted average diluted shares outstanding 17,177 14,074 10,675 9,375
======== ======== ======= =======
</TABLE>
<TABLE>
<CAPTION>
Consolidated Combined
-------------------------------------------------------------------
Predecessor
Predecessor Entities
At December 31,
-------------------------------------------------------------------
1999 1998 1997 1996 1995
-------- -------- -------- --------- --------
(in thousands)
BALANCE SHEET DATA:
<S> <C> <C> <C> <C> <C>
Cash and cash equivalents $ 21,881 $ 20,400 $ 44,583 $ 3,222 $ 3,825
Working capital (deficit) 23,590 25,804 47,744 (1,048)
Land, buildings and equipment, net 431,560 388,404 229,898 213,124 149,082
Total assets 740,411 595,854 317,154 228,162 165,579
Long-term debt, including current 435,988 300,667 237,354 170,689 102,245
portion
Refundable portion of life estate 43,386 48,805 -- -- --
fees
Partners' and shareholders' equity 148,168 145,842 53,918 37,882 51,823
</TABLE>
22
<PAGE> 23
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
OVERVIEW
The Company is a national senior living and health care services
provider offering a broad range of care and services to seniors within a
residential setting. The Company currently operates 54 senior living communities
in 15 states with an aggregate capacity for approximately 13,600 residents. The
Company currently owns 20 communities, leases ten communities pursuant to
long-term leases, and manages 24 communities pursuant to management agreements.
At December 31, 1999, the Company's owned communities had a stabilized occupancy
rate of 94%, its leased communities had a stabilized occupancy rate of 93%, and
its managed communities had a stabilized occupancy rate of 91%. The Company
defines stabilized as a community or expansion thereof that has either achieved
95% occupancy or been open at least 12 months.
For the purposes of the following discussion, amounts for the year ended
December 31, 1997 represent the sum of the results of operations of ARCLP for
the period from January 1, 1997 through May 28, 1997 and the results of
operations of the Company for the period from May 29, 1997 through December 31,
1997.
The Company's strategy is to develop Senior Living Networks in major
metropolitan regions. We have put together a portfolio of large retirement
communities which provide some or all of independent living, assisted living and
skilled nursing care. Then, in the same markets, we have been building or
acquiring stand-alone assisted living or skilled nursing residences as
satellites to expand the continuum of housing and care into the market. The
Company believes that this hub and satellite approach produces management
efficiencies and market penetration by offering a range of senior living
arrangements at various price levels. The Company's methods to develop Senior
Living Networks include: (i) selective acquisitions of senior living
communities, including continuing care retirement communities and assisted
living residences; (ii) development of senior living communities, including
special living units and programs for residents with Alzheimer's and other forms
of dementia; (iii) expansion of existing communities; and (iv) selective
acquisition of other properties and businesses that are complementary to the
Company's operations and growth strategy.
The Company acquired privately-held Freedom Group Inc. ("FGI") and
certain entities affiliated with FGI and with its chairman in July 1998. The
acquisition resulted in the ownership of three CCRCs and management of four
additional CCRCs. The Company also acquired options to purchase two of the
managed CCRCs. Additionally, the Company entered into a development and
management contract for, and acquired an option to purchase, one additional CCRC
currently under development. The consideration paid at closing was approximately
$43.0 million, including $23.2 million of cash and 1,370,000 shares of the
Company's common stock valued at $19.8 million. The Company paid an additional
$4.0 million for the purchase options and $1.5 million as consideration for
entering into the two management contracts. The transaction was accounted for as
a purchase.
During the fourth quarter of 1999, the Company announced that, as a
result of changes in the senior living industry environment, it would shift from
filling out its Senior Living Networks through development of new assisted
living residences to selective acquisitions of existing communities within those
networks. The Company believes that increases in construction costs,
particularly in the high growth markets the Company has targeted, and an
expected increase in the number of existing properties available for acquisition
currently makes
23
<PAGE> 24
acquisitions of existing communities a more attractive alternative than new
development. As a result of this decision, the Company abandoned several planned
and early-stage projects currently in its development pipeline and suspended all
new free-standing assisted living development. The Company recorded asset
impairment and contractual loss charges of approximately $12.5 million during
the quarter ended December 31, 1999.
The Company anticipates that it may enter into discussions to acquire
the leasehold interests in up to ten assisted living communities that the
Company currently is developing or managing. These communities represent the
majority of the Company's assisted living residences that were not yet open for
business at the end of 1999. If successfully concluded, the acquisitions would
likely occur in the second quarter of 2000. Following completion of these
acquisitions, the Company will receive all of the revenues and incur all of the
expenses associated with the operations of these communities, effective as of
January 1, 2000. Since each of these communities is either in the last stage of
construction or recently opened, the Company expects to incur significant
start-up and operating losses until the communities achieve break-even occupancy
levels.
The Company is currently developing or constructing 14 senior living
communities with an aggregate capacity for approximately 1,400 residents with an
estimated cost to complete and lease-up of approximately $180.0 million to
$200.0 million. In addition, the Company plans to expand six of its communities
with an estimated cost to complete and lease-up of approximately $90.0 million.
The six current expansion projects will add capacity to accommodate
approximately 600 additional residents.
RESULTS OF CONTINUING OPERATIONS
The Company's total revenues from continuing operations are comprised of
(i) resident and health care revenues and (ii) management and development
services revenues, which include fees, net of reimbursements, for the
development, marketing, and management of communities owned by third parties.
The Company's resident and health care revenues are derived from four principal
sources: (i) monthly service fees and ancillary revenues from independent living
residents, representing 66.6%, 68.3%, and 67.8% of total resident and health
care revenues for the years ended December 31, 1999, 1998, and 1997,
respectively; (ii) monthly service fees and ancillary revenues from assisted
living residents, representing 16.2%, 15.4%, and 13.6% of total resident and
health care revenues for the years ended December 31, 1999, 1998, and 1997,
respectively; (iii) per diem charges from nursing patients, representing 14.3%,
14.2%, and 18.6% of total resident and health care revenues for the years ended
December 31, 1999, 1998, and 1997, respectively; and (iv) the amortization of
non-refundable entrance fees over each resident's actuarially determined life
expectancy (or building life for contingent refunds), representing 2.9% and 2.1%
of total resident and health care revenues for the years ended December 31, 1999
and 1998, respectively. The Company did not have entrance fee amortization in
1997. Approximately 95.6%, 95.3%, and 93.1% of the Company's total revenues for
the years ended December 31, 1999, 1998, and 1997, respectively, were
attributable to private pay sources, with the balance attributable to Medicare,
including Medicare-related private co-insurance.
The Company's management agreements are generally for terms of three to
20 years, but certain of such agreements may be canceled by the owner of the
community, without cause, on three to six months' notice. Pursuant to the
management agreements, the Company is generally responsible for providing
management personnel, marketing, nursing, resident care and dietary services,
accounting and data processing services, and other services for these
communities at the owners' expense; and receives a monthly fee for its services
based either on a contractually fixed amount or a percentage of revenues or
income. Two of the
24
<PAGE> 25
Company's management agreements are for communities with aggregate resident
capacity for approximately 1,650 residents and terms of twenty-years, with two
ten-year renewals and include a purchase option for one of the communities. The
management fee for these two agreements is equal to all revenue from these two
communities in excess of operating expenses and certain cash payments. The
Company's existing management agreements expire at various times through June
2018.
The Company's operating expenses are comprised, in general, of (i)
community operating expense, which includes all operating expenses of the
Company's owned or leased communities; (ii) lease expense; (iii) general and
administrative expense, which includes all corporate office overhead; and (iv)
depreciation and amortization expense.
Certain communities provide housing and health care services through
entrance fee agreements with residents. Under these agreements, residents pay an
entrance fee upon entering into a lifecare contract. The amount of the entrance
fee varies depending on the resident's health care benefit election. These
agreements obligate the Company to provide certain levels of future health care
services to the resident for life. The agreement terminates when the unit is
vacated. A portion of the fee is refundable to the resident or the resident's
estate upon termination of the agreement. The refundable amount is recorded by
the Company as refundable portion of life estate fees, a long-term liability,
until termination of the agreement. The remainder of the fee is recorded as
deferred life estate income and is amortized into revenue using the
straight-line method over the estimated remaining life expectancy of the
resident, based upon annually adjusted actuarial projections. Additionally,
under these agreements the residents pay a monthly service fee which entitles
them to the use of certain amenities and services. They may also elect to obtain
additional services, which are paid for on a monthly basis or as the services
are received. The Company recognizes these additional fees as revenue on a
monthly basis when earned.
The Company also provides housing to residents at certain communities
under an entrance fee agreement whereby the entrance fee is fully refundable to
the resident or the resident's estate contingent upon the occupation of the unit
by the next resident. The resident also shares in a percentage, typically 50%,
of any appreciation in the entrance fee from the succeeding resident. The
entrance fee is recorded by the Company as refundable portion of life estate
fees and is amortized into revenue using the straight-line method over 40 years,
the life of the buildings. Additionally, under these agreements the residents
pay a monthly service fee, which entitles them to the use of certain amenities
and services. They may also elect to obtain additional services, which are paid
for on a monthly basis or as the services are received. The Company recognizes
these additional fees as revenue on a monthly basis when earned. If a resident
terminates the agreement, they are required to continue to pay their monthly
service fee for the lesser of one year or until the date of reoccupation of the
unit.
The Company provides development services to owners of senior living
communities. Fees for these services are based upon a percentage of the total
construction costs of the community. Development services revenue is recognized
under the percentage-of-completion method based upon the Company's costs of
providing such services.
25
<PAGE> 26
The following table sets forth, for the periods indicated, certain
resident capacity and occupancy data:
<TABLE>
<CAPTION>
Years Ended December 31,
1999 1998 1997
------ ------ -----
<S> <C> <C> <C>
OPERATING DATA:
End of period resident capacity:
Owned 5,382 5,150 3,210
Leased 2,475 2,173 1,531
Managed 5,780 4,572 2,159
------ ------ -----
Total 13,637 11,895 6,900
====== ====== =====
Average occupancy rate:
Owned 91% 90% 93%
Leased 90% 90% 90%
Managed 80% 87% 94%
------ ------ -----
Total 86% 89% 93%
====== ====== =====
End of period occupancy rate:
Owned 90% 91% 94%
Leased 90% 90% 93%
Managed 79% 87% 96%
------ ------ -----
Total 86% 89% 94%
====== ====== =====
Stabilized average occupancy
rate:
Owned 94% 94% 97%
Leased 92% 93% 96%
Managed 92% 94% 96%
------ ------ -----
Total 93% 94% 96%
====== ====== =====
</TABLE>
26
<PAGE> 27
SAME COMMUNITY RESULTS
The following table sets forth certain selected financial and operating
data on a Same Community basis. For purposes of the following discussion, "Same
Community basis" refers to communities that were owned and/or leased by the
Company throughout each of the periods being compared. Same Community data for
the 1999 and 1998 comparative periods excludes three communities at which
significant expansions were opened and the 1998 and 1997 comparative periods
excludes two such communities. These communities will return to the Same
Community group upon the earlier of 12 months of operation or stabilization of
the expansions.
STATEMENT OF OPERATIONS DATA:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1999 1998 % CHG 1998 1997 % CHG
------- ------- ---- ------- ------- -----
(dollars in thousands, except other data)
<S> <C> <C> <C> <C> <C> <C>
Resident and health care revenue $93,389 $90,162 3.6% $75,682 $70,770 6.9%
Community operating expenses 55,218 54,248 1.8% 44,974 42,820 5.0%
------- ------- ------- -------
Resident income from operations $38,172 $35,914 6.3% $30,708 $27,950 9.9%
======= ======= ======= =======
Resident income from operations margin (1) 40.9% 39.8% 40.6% 39.5%
Lease expense 5,837 5,700 2.4% 1,037 $1,037 --
Depreciation and amortization 6,308 5,977 5.5 5,807 5,666 2.5%
------- ------- ------- -------
Income from operations $26,027 $24,238 7.4% $23,864 $21,247 12.3%
======= ======= ======= =======
Other data:
Number of communities 14 14 10 10
Resident capacity 4,103 4,103 3,397 3,397
Average occupied units 3,516 3,435 2,461 2,431
Average occupancy rate(2) 95% 93% 96% 95%
Average monthly revenue per occupied unit(3) $ 2,213 $ 2,187 1.2% $ 2,563 $ 2,426 5.6%
Average monthly expense per occupied unit(4) $ 1,309 $ 1,316 (0.6%) $ 1,523 $ 1,468 3.7%
</TABLE>
- ---------------------
(1) "Resident income from operations margin" represents "Resident income from
operations" as a percentage of "Resident and health care revenue."
(2) "Average occupancy rate" is based on the ratio of occupied apartments to
available apartments expressed on a monthly basis for independent and assisted
living residences, and occupied beds to available beds on a per diem basis for
nursing beds.
(3) "Average monthly revenue per occupied unit" is total "Resident and health
care revenues" divided by "Average occupied units," expressed on a monthly
basis.
(4) "Average monthly expense per occupied unit" is total "Community operating
expenses" divided by "Average occupied units," expressed on a monthly basis.
27
<PAGE> 28
YEAR ENDED DECEMBER 31, 1999 COMPARED WITH THE YEAR ENDED DECEMBER 31, 1998
Revenues Total revenues were $175.3 million in 1999, compared to $142.4
million in 1998, representing an increase of $32.9 million, or 23.1%. Resident
and health care revenues increased by $34.6 million, and management and
development services revenue decreased by $1.6 million during the period. Of the
increase in resident and health care revenues, $3.2 million, or 9.3%, of such
increase was attributable to Same Community growth.
Approximately $28.0 million, or 80.9%, of the increase was attributable to
new senior living communities acquired, leased or developed in 1999 and 1998
(accordingly excluded from same community results), including $17.6 million from
the FGI communities acquired in July 1998. The remaining increase of $3.4
million, or 9.8%, was attributable to increases in resident and health care
revenues at the two communities with large expansions that opened in 1998 that
were excluded from the Same Community group.
Resident and health care revenues attributable to Same Communities were
$93.4 million in 1999, as compared to $90.2 million in 1998, representing an
increase of $3.2 million, or 3.6%. This increase was derived from a 1.2%
increase in average rates and a 2.4% increase in occupied units. The rate
increase was affected by a 31% reduction in per diem reimbursement from 1998 to
1999 related to the new prospective payment system in the Company's Medicare
nursing units. Same Community average occupancy rates increased to 95% for 1999
from 93% in 1998.
The decrease in management and development services revenue of $1.6
million, or 13.3%, was primarily related to the Company's decision to move to an
acquisitions-oriented method of building its Senior Living Networks and,
therefore, to discontinue new development of free-standing assisted living
residences, for which the Company receives development fees. The Company expects
that this change in its strategy for building its Senior Living Networks will
cause significantly lower levels of development fees in 2000.
Community Operating Expense Community operating expense increased to
$106.0 million in 1999, as compared to $82.7 million in 1998, representing an
increase of $23.3 million, or 28.2%. Of the increase in community operating
expense, $1.0 million, or 4.3%, of the increase was attributable to Same
Community operating expenses, which increased by 1.8% during the period.
Approximately $20.0 million, or 85.8%, of the increase was attributable to
expenses from new leased or acquired senior living communities, including $11.4
million from the FGI communities acquired in July 1998. The remaining increase
of $2.3 million, or 9.9%, was attributable to increases in operating expenses at
the two communities with large expansions that opened in 1998 that were excluded
from the Same Community group.
Community operating expense as a percentage of resident and health care
revenues increased to 64.4% for 1999 from 63.6% for 1998. This increase was
attributable to labor cost increases at certain operating communities and
startup losses at consolidating joint venture developments and recently opened
large expansions. Same Community operating expenses as a percentage of Same
Community resident and health care revenues decreased to 59.1% in 1999 from
60.2% in 1998.
General and Administrative General and administrative expense increased to
$15.0 million for 1999, as compared to $10.6 million for 1998, representing an
increase of $4.4 million, or 42.0%. The increase was
28
<PAGE> 29
primarily related to the July 1998 FGI acquisition and other increases in
corporate and regional staff to support increased operations. General and
administrative expense as a percentage of total revenues was 8.6% for 1999 in
comparison to 7.4% for 1998.
Lease Expense Lease expense increased to $13.0 million for 1999, as
compared to $9.1 million for 1998, representing an increase of $3.9 million
primarily related to leases entered into for new senior living communities and
increased lease costs at a community with an expansion that opened in late 1998.
Depreciation and Amortization Depreciation and amortization expense
increased to $13.7 million in 1999 from $10.0 million in 1998, representing an
increase of $3.7 million, or 36.6%. The increase is primarily related to
communities acquired during 1998 which had a full year of depreciation in 1999,
depreciation related to recently completed expansions, and amortization of costs
in excess of assets acquired in the July 1998 FGI transaction. Same Community
depreciation and amortization expense increased to $6.3 million for 1999, from
$6.0 million for 1998.
Asset impairment and contractual losses During the fourth quarter ended
December 31, 1999, the Company announced that due to a shift in its growth
strategy from development to acquisitions of senior living communities it would
be abandoning certain development projects and reviewing others with regard to
fit with its senior living network strategy. As a result, the Company recorded
asset impairment and contractual loss charges of approximately $12.5 million
during the quarter ended December 31, 1999.
Other Income (Expense) Interest expense increased to $23.7 million in 1999
from $17.9 million in 1998, representing an increase of $5.7 million, or 32.0%.
The increase in interest expense was primarily attributable to indebtedness
incurred in connection with development financing provided to third parties.
Interest expense, as a percentage of total revenues, increased to 13.5% for 1999
from 12.6% in 1998. Interest income increased to $9.1 million in 1999 from $4.1
million in 1998, representing an increase of $5.0 million, or 122.9%. The
increase in interest income was primarily attributable to income generated from
increased certificates of deposit and notes receivable balances associated with
certain leasing transactions and management agreements.
Income Tax Expense Income tax expense related to continuing operations in
1999 was $1.3 million, or an effective rate of 38.0%, as compared to $5.7
million, or an effective rate of 37.7%, in 1998.
YEAR ENDED DECEMBER 31, 1998 COMPARED WITH THE YEAR ENDED DECEMBER 31, 1997
Revenues Total revenues were $142.4 million in 1998, compared to $90.2
million in 1997, representing an increase of $52.2 million, or 57.9%. Resident
and health care revenues increased by $41.6 million, and management and
development services revenue increased by $10.6 million during the period. Of
the increase in resident and health care revenues, $4.9 million, or 11.8%, of
such increase was attributable to Same Community growth. Approximately $35.1
million, or 84.4%, of the increase was attributable to new senior living
communities leased or acquired, including $16.6 million from FGI communities
acquired in July 1998. The remaining increase of $1.6 million, or 3.8%, was
attributable to increases in resident and health care revenues at the two
communities with large expansions that opened in 1998 that were excluded from
the Same Community group.
29
<PAGE> 30
Resident and health care revenues attributable to Same Communities were
$75.7 million in 1998, as compared to $70.8 million in 1997, representing an
increase of $4.9 million, or 6.9%. This increase was derived from a 5.6%
increase in average rates and a 1.2% increase in occupied units. Same Community
average occupancy rates increased to 96% for 1998 from 95% in 1997.
Of the $10.6 million increase in management and development services
revenue, $3.0 million, or 28.4%, was attributable to revenues from management
fees related to agreements entered into pursuant to the FGI acquisition, and
$7.6 million, or 71.6%, related to fees earned from development services
provided to third parties.
Community Operating Expense Community operating expense increased to $82.7
million in 1998, as compared to $54.9 million in 1997, representing an increase
of $27.8 million, or 50.6%. Of the increase in community operating expense, $2.2
million, or 7.9%, of the increase was attributable to Same Community operating
expenses, which increased by 5.0% during the period. Approximately $23.0
million, or 82.7%, was attributable to expenses from new leased or acquired
senior living communities, including $11.1 million from acquired FGI
communities. The remaining increase of $2.6 million, or 9.4%, was attributable
to increases in operating expenses at the two communities with large expansions
that opened in 1998 that were excluded from the Same Community group.
Community operating expense as a percentage of resident and health care
revenues increased to 63.6% for 1998 from 62.1% for 1997. This increase was
attributable to increased operating expenses at the two communities with 1998
expansion openings and lower operating margins from recently acquired FGI
lifecare communities. Because the FGI lifecare communities are in essence
financed interest-free by up-front resident entrance fees, their monthly service
fee revenues and operating margins are generally lower than those of comparable
rental communities. Same Community operating expenses as a percentage of Same
Community resident and health care revenues decreased to 59.4% in 1998 from
60.5% in 1997.
General and Administrative General and administrative expense increased to
$10.6 million for 1998, as compared to $6.7 million for 1997, representing an
increase of $3.9 million, or 58.2%. The increase was primarily related to
increases in salaries and benefits, including corporate personnel retained as a
result of the FGI acquisition and related integration costs. General and
administrative expense as a percentage of total revenues was 7.4% for 1998 and
1997.
Lease Expense Lease expense increased to $9.1 million for 1998, as
compared to $3.4 million for 1997, representing an increase of $5.7 million. Of
this increase, approximately $2.6 million of the increase related to leases
entered into during 1998 for three senior living communities and the completion
of an expansion at one community and approximately $3.1 million related to
Imperial Plaza, which was leased in October 1997.
Depreciation and Amortization Depreciation and amortization expense
increased to $10.0 million in 1998 from $6.6 million in 1997. The increase is
primarily related to communities acquired during 1998 and amortization of costs
in excess of assets acquired in the FGI transaction. Same Community depreciation
and amortization expense increased to $5.8 million for 1998, from $5.7 million
for 1997.
30
<PAGE> 31
Merger Related Expenses On January 31, 1999, the Company terminated its
previously announced merger agreement with Assisted Living Concepts, Inc. and
recorded a charge to earnings of approximately $1.0 million during the fourth
quarter ended December 31, 1998 for merger related costs.
Other Income (Expense) Interest expense increased to $17.9 million in 1998
from $15.1 million in 1997, representing an increase of $2.8 million, or 19.0%.
The increase in interest expense was primarily attributable to the issuance in
September 1997 of the 5-3/4% fixed rate convertible subordinated debentures due
October 2002 (the "Convertible Debentures") and additional indebtedness incurred
in connection with acquisitions, partially offset by the repayment of certain
indebtedness in December 1997. Interest expense, as a percentage of total
revenues, decreased to 12.6% for 1998 from 16.7% in 1997. This decrease
primarily relates to the interest-free up-front resident entrance fee financing
on the FGI communities. Interest income increased to $4.1 million for 1998 from
$2.7 million for 1997, primarily due to income generated from the investment of
public offering proceeds and certificates of deposit associated with certain
leasing transactions and management agreements.
Income Tax Expense Income tax expense related to continuing operations in
1998 was $5.7 million, or an effective rate of 37.7%, as compared to $4.4
million in 1997 (including the $3.0 million charge recorded as a result of the
reorganization of ARCLP from a non-taxable limited partnership into the Company,
which is a taxable corporation). Excluding the effect of the $3.0 million
charge, on a pro forma basis assuming the Company was a taxable entity for all
of 1997, income taxes related to continuing operations would have been $2.2
million assuming the Company's effective tax rate of 36%.
Extraordinary Loss In December 1997, the Company recorded an extraordinary
loss of $6.3 million, net of taxes, related to costs associated with the
prepayment of $65.1 million of indebtedness. The 1997 amount expensed included
yield maintenance fees, the buy-out of the lender's participation interest in
two of the Company's communities, and the write-off of unamortized financing
costs. The Company did not incur any extraordinary losses in 1998.
Cumulative Effect of Change in Accounting Principle The Company elected
early adoption of the AICPA's Statement of Position 98-5, Reporting on the Costs
of Start-Up Activities (the "SOP"). The SOP requires that costs incurred during
start-up activities be expensed as incurred. Initial application of the SOP is
as of the beginning of the fiscal year in which the SOP is first adopted.
Accordingly, in 1998 the Company wrote off $304,000, net of tax, of unamortized
start-up and organizational costs as the cumulative effect of a change in
accounting principle effective January 1, 1998. The Company's unconsolidated
joint ventures also adopted the SOP effective January 1, 1998 and the effect of
such adoption is included in other expense for 1998. The impact of the adoption,
excluding the $304,000 write-off, was not material to 1998 operations.
ASSET IMPAIRMENTS AND CONTRACTUAL LOSSES
During the fourth quarter ended December 31, 1999, the Company announced
that due to a shift in its growth strategy from development to acquisitions of
senior living communities it would be abandoning certain development projects
and reviewing others with regard to fit with its senior living network strategy.
31
<PAGE> 32
The Company has two parcels of land upon which senior living communities
were to be developed. Each property was in the early stage of development, with
activity in process consisting primarily of securing the zoning permits,
completing architectural drawings and site testing. As a result, the carrying
values included capitalized costs for zoning, architect fees, and site testing
that will not be realized upon sale of the parcels. Management intends to
dispose of the land and has recorded an impairment charge of approximately
$800,000 related to the parcels and has classified the land as property held for
sale.
The Company also decided not to complete the development and
construction of three properties for which the Company provided development and
construction services to third party owners of senior living communities.
Pursuant to the terms of the construction agency agreements executed with the
owners of those projects, the Company was in default as a result of its decision
not to complete construction. The Company is obligated to purchase the
uncompleted property from the owners and forgive the construction financing to
the owners in exchange for the uncompleted property. The Company owned the land
for one of the projects and leased it to the owner. Management accrued an
impairment loss for this property. The land is classified as property held for
sale. The Company recorded a contractual loss of $6.2 million for its
obligations under the construction agency agreements during the fourth quarter
of 1999. The Company also provided construction financing on the projects and
recorded an impairment charge of $1.5 million against the notes receivable that
will not be collected.
The Company typically has various development activities ongoing to
locate future operating sites, research market demographics and competition,
secure proper zoning and negotiate the acquisition of land. Direct third party
costs for these activities are capitalized. Capitalized costs of approximately
$600,000 related to sites that will not be developed based upon the shift in the
Company's growth strategy toward acquisitions were written off during the fourth
quarter of 1999.
The Company owns a 50% interest in a joint venture that was formed for
the purpose of owning and operating two assisted living communities in
Knoxville, Tennessee. The communities experienced much lower than expected
occupancy levels, higher operating costs and increased competition.
Additionally, the two communities do not fit with the Company's senior living
network strategy. The Company has entered into an agreement with its partner to
dissolve the joint venture and the Company will receive one of the two
communities. The fair market value of the net assets to be received as compared
to the carrying amount of the Company's equity investment and advances to the
joint venture resulted in an impairment loss of $3.2 million which was
recognized in the fourth quarter of 1999. The transaction is anticipated to be
completed during the first half of 2000.
The Company abandoned a new software implementation project in the
fourth quarter of 1999 and accordingly wrote off the capitalized third party
costs incurred for licensing and consulting of approximately $200,000.
DISCONTINUED OPERATIONS
During 1998, the Company suspended operations of certain of its home
health care agencies pending either institution of a prospective pay system
acceptable to the Company, or major revisions to the United States interim
payment system now in effect. During the fourth quarter ended December 31, 1998,
the Company
32
<PAGE> 33
determined that an acceptable reimbursement system will not be implemented in
the near term and discontinued its home health care operations. The operating
results and cash flows of the home health care division for the years ended
December 31, 1998 and 1997 have been reclassified to discontinued operations.
The Company recorded losses from home health care operations, net of tax, of
$1.2 million and $155,000 for the years ended December 31, 1998 and 1997,
respectively. During the fourth quarter ended December 31, 1998, the Company
also recorded an after tax charge of $902,000, or $0.06 per share, related
primarily to the impairment of unamortized costs in excess of net assets
acquired in home health care agency acquisitions.
LIQUIDITY AND CAPITAL RESOURCES
The Company has historically financed its activities with the net proceeds
from public offerings of debt and equity, long-term mortgage borrowings, and
cash flows from operations. At December 31, 1999, the Company had $436.0 million
of indebtedness outstanding, including $138.0 million of Convertible Debentures,
with fixed maturities ranging from October 2000 to April 2028. As of December
31, 1999, approximately 64.5% of the Company's indebtedness bore interest at
fixed rates, with a weighted average interest rate of 6.89%. The Company's
variable rate indebtedness carried an average rate of 7.86% as of December 31,
1999. As of December 31, 1999, the Company had working capital of $23.6 million.
Net cash provided by operating activities was $12.3 million for the year
ended December 31, 1999, as compared with $19.1 million and $11.1 million for
the years ended December 31, 1998 and 1997, respectively. The Company's
unrestricted cash balance was $21.8 million as of December 31, 1999, as compared
to $20.4 and $44.6 million as of December 31, 1998 and 1997, respectively.
Net cash used by investing activities was $152.2 million for the year
ended December 31, 1999, as compared with $151.1 million and $22.6 million,
respectively, for the years ended December 31, 1998 and 1997. During the year
ended December 31, 1999, the Company made additions to land, buildings, and
equipment, including construction activity, of $59.2 million, increased notes
receivable by $78.9 million due to increased funding to owners of senior living
communities that are being developed by the Company, and made purchases of
assets limited as to use of $13.7 million, primarily as a result of certain
management agreement and leasing transactions, received $7.4 million from
development project reimbursements, and received $3.1 million from the sale of
land. Additionally, the Company purchased other investments, primarily purchase
option payments on managed and leased communities, of $10.2 million.
Net cash provided by financing activities was $141.4 million for the year
ended December 31, 1999, as compared with $107.8 million and $52.8 million,
respectively, for the years ended December 31, 1998 and 1997. The Company had
borrowings of $143.2 million under long-term debt arrangements, made principal
payments on its indebtedness of $5.3 million, and had expenditures of $3.5
million for financing costs during the year ended December 31, 1999. The Company
also received $11.0 million from the sale of life estate contracts and made
principal payments and termination refunds under master trust agreements of $4.2
million.
During the year ended December 31, 1999, the Company entered into various
financing commitments including a $100.0 million three-year revolving credit
facility with an additional $50.0 million to be syndicated on a best efforts
basis. The line of credit is available to fund development, acquisitions or
expansions of senior living communities. At December 31, 1999, $64.4 million was
outstanding under the revolving credit facility.
33
<PAGE> 34
Additionally, in 1999 the Company secured a $50.0 million line of credit
for the construction and/or expansion of senior living communities. At December
31, 1999, no borrowings were outstanding under the line. The Company has
committed $23.3 million of the $50.0 million line of credit for use in synthetic
leases for two assisted living communities being developed by the Company.
The Company also entered into a $6.0 million unsecured acquisition line
of credit and a $4.5 million secured term loan for the acquisition of land. At
December 31, 1999, $2.0 million was outstanding under the secured term loan and
$4.7 million was outstanding under the $6.0 million acquisition line of credit.
The maturity date for the secured term loan and acquisition line of credit is
June 30, 2000.
During the year ended December 31, 1999, the Company also received a
commitment from a REIT for a $50.0 million credit facility that is available for
the development and acquisition of senior living communities. No draws were
outstanding under the REIT commitment at December 31, 1999.
The Company's various credit facilities contain numerous financial
covenants that require the Company to maintain certain prescribed debt service
coverage, liquidity, net worth, capital expenditure reserves and occupancy
levels. The Company is currently in compliance with such covenants. All but one
of the Company's owned communities are subject to mortgages. Each of the
Company's debt agreements contains restrictive covenants that generally relate
to the use, operation, and disposition of the communities that serve as
collateral for the subject indebtedness, and prohibit the further encumbrance of
such community or communities without the consent of the applicable lender.
Substantially all of such indebtedness is cross-defaulted.
The aggregate estimated cost to complete and lease-up the 14 senior
living communities currently under construction or development is approximately
$180.0 million to $200.0 million. In addition, the Company plans to expand six
of its communities, which is expected to cost approximately $90.0 million to
complete and lease-up.
The Company finances the costs of certain senior living communities
owned by others which are being developed, leased or managed by the Company. The
Company is obligated to and anticipates providing approximately $52.2 million of
additional financing for these communities.
The Company expects that its current cash, together with cash flow from
operations and borrowings available to it under existing credit arrangements,
will be sufficient to meet its operating requirements and to fund its
anticipated growth for at least the next 12 months. The Company expects to use a
wide variety of financing sources to fund its future growth, including
conventional mortgage financing, leasing, unsecured bank financing, and public
and private debt and equity, among other sources. Recent declines in the market
price of the Company's Common Stock make offerings of Common Stock to the public
unlikely in the near term. There can be no assurance that financing from such
sources will be available in the future or, if available, that such financing
will be available on terms acceptable to the Company.
34
<PAGE> 35
RECENT ACCOUNTING PRONOUNCEMENT
In 1998, SFAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities" was issued. FAS No. 133 establishes accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts, (collectively referred to as derivatives) and for
hedging activities. It requires that an entity recognize all derivatives as
either assets or liabilities in the statement of financial position and measure
those instruments at fair value. The Company must adopt SFAS No. 133 in 2001.
Management does not expect the adoption of SFAS No. 133 to have a significant
impact on the Company's financial statements.
IMPACT OF INFLATION
Inflation could affect the Company's future revenues and results of
operations because of, among other things, the Company's dependence on senior
residents, many of whom rely primarily on fixed incomes to pay for the Company's
services. As a result, during inflationary periods, the Company may not be able
to increase resident service fees to account fully for increased operating
expenses. In structuring its fees, the Company attempts to anticipate inflation
levels, but there can be no assurance that the Company will be able to
anticipate fully or otherwise respond to any future inflationary pressures.
RISKS ASSOCIATED WITH FORWARD LOOKING STATEMENTS
This report contains certain forward-looking statements within the meaning of
the federal securities laws, which are intended to be covered by the safe
harbors created thereby. Those statements include, but may not be limited to,
the discussions of the Company's business and operating and growth strategies,
including its development, financing and acquisition plans. Investors are
cautioned that these forward-looking statements may be affected by certain risks
and uncertainties, including those described under the caption "Business -- Risk
Factors" herein and in the Company's other filings with the Securities and
Exchange Commission. Although the Company believes that the assumptions
underlying the forward-looking statements contained herein are reasonable, any
of the assumptions could prove to be inaccurate, and therefore, there can be no
assurance that the forward-looking statements included herein will prove to be
accurate. In light of the significant uncertainties inherent in the
forward-looking statements included herein, the inclusion of such information
should not be regarded as a representation by the Company or any other person
that the objectives and plans of the Company will be achieved. The Company
undertakes no obligation to publicly release any revisions to any
forward-looking statements contained herein to reflect events and circumstances
occurring after the date hereof or to reflect the occurrence of unanticipated
events.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Disclosure About Interest Rate Risk The Company is subject to market risk
from exposure to changes in interest rates based on its financing, investing,
and cash management activities. The Company utilizes a balanced mix of debt
maturities along with both fixed-rate and variable-rate debt to manage its
exposures to changes in interest rates. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations Liquidity and Capital
Resources." The Company has entered into an interest rate swap agreement with a
major
35
<PAGE> 36
financial institution to manage its exposure. The swap involves the receipt of a
fixed interest rate payment in exchange for the payment of a variable rate
interest payment without exchanging the notional principal amount. Receipts on
the agreement are recorded as a reduction to interest expense. At December 31,
1999, the Company's outstanding principal under its existing swap agreement was
$35.6 million maturing July 1, 2008. Under the agreement the Company receives a
fixed rate of 6.87% and pays a floating rate based upon a foreign currency index
with a maximum rate through July 1, 2002 of 6.87% and 8.12% thereafter. During
the second half of 1999, interest rates have risen and are expected to rise
further in the first half of 2000. The Company does not expect changes in
interest rates to have a material effect on income or cash flows in 2000, since
the majority of the Company's debt has fixed rates. There can be no assurances,
however, that interest rates will not significantly change and materially affect
the Company.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
<TABLE>
<S> <C>
Index to Financial Statements
Independent Auditors' Report 37
Consolidated Balance Sheets --- December 31, 1999 and 1998 38
Consolidated Statements of Operations --- Years ended December 31, 1999,
1998 and 1997 39
Consolidated Statements of Changes in Partners'/Shareholders' Equity
--- Years ended December 31, 1999, 1998 and 1997 41
Consolidated Statements of Cash Flows --- Years ended December 31, 1999,
1998 and 1997 42
Notes to Consolidated Financial Statements 44
Financial Statement Schedules 73
Schedule II- Valuation and Qualifying Accounts
Schedule IV- Mortgage Loans on Real Estate
All other schedules omitted are not required, inapplicable or
the information required is furnished in the financial
statements or notes therein.
</TABLE>
36
<PAGE> 37
INDEPENDENT AUDITORS' REPORT
The Board of Directors
American Retirement Corporation:
We have audited the accompanying consolidated balance sheets of American
Retirement Corporation and subsidiaries as of December 31, 1999 and 1998 and the
related consolidated statements of operations, changes in
partners'/shareholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1999. In connection with our audits of the
consolidated financial statements, we have also audited the Financial Statement
Schedule II - Valuation and Qualifying Accounts and Financial Statement Schedule
IV - Mortgage Loans on Real Estate as of December 31, 1999 and for each of the
years in the three-year period ended December 31, 1999. These consolidated
financial statements and financial statement schedules are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of American Retirement
Corporation and subsidiaries as of December 31, 1999 and 1998 and the results of
their operations and their cash flows for each of the years in the three-year
period ended December 31, 1999, in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedules,
when considered in relation to the basic consolidated financial statements taken
as a whole, presents fairly, in all material respects, the information set forth
therein.
/s/ KPMG LLP
Nashville, Tennessee
March 14, 2000
37
<PAGE> 38
AMERICAN RETIREMENT CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
December 31
----------------------
1999 1998
---------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 21,881 $ 20,400
Assets limited as to use 15,571 4,747
Accounts receivable, net 12,746 11,158
Advances for development projects 3,762 11,136
Inventory 950 826
Prepaid expenses 1,790 1,627
Deferred income taxes 758 1,580
Other current assets 5,727 2,972
-------- --------
Total current assets 63,185 54,446
Assets limited as to use, excluding amounts classified as current 60,855 58,035
Land, buildings and equipment, net 431,560 388,404
Notes receivable 97,236 19,731
Costs in excess of net assets acquired, net 38,524 36,817
Other assets 49,051 38,421
-------- --------
Total assets $740,411 $595,854
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 10,173 $ 1,426
Accounts payable 3,723 6,543
Accrued interest 4,140 2,391
Accrued payroll and benefits 3,144 3,987
Accrued property taxes 3,638 3,269
Other accrued expenses 4,898 5,729
Reserve for contractual losses 6,200 --
Other current liabilities 3,679 5,297
-------- --------
Total current liabilities 39,595 28,642
Long-term debt, excluding current portion 287,835 161,261
Convertible subordinated debentures 137,980 137,980
Refundable portion of life estate fees 43,386 48,805
Deferred life estate income 51,606 43,715
Tenant deposits 6,913 6,865
Deferred gain on sale-leaseback transactions 3,168 3,620
Deferred income taxes 15,236 16,631
Other liabilities 6,524 2,493
-------- --------
Total liabilities 592,243 450,012
Commitments and contingencies (Notes 3, 9, 10, 13, 15 and 16)
Shareholders' equity
Preferred stock, no par value; 5,000,000 shares
authorized, no shares issued or outstanding -- --
Common stock, $.01 par value; 50,000,000 shares
authorized, 17,145,343 and 17,118,385 shares issued
and outstanding, respectively 171 171
Additional paid-in capital 145,444 145,170
Retained earnings 2,553 501
-------- --------
Total shareholders' equity 148,168 145,842
-------- --------
Total liabilities and shareholders' equity $740,411 $595,854
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
38
<PAGE> 39
AMERICAN RETIREMENT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
<TABLE>
<CAPTION>
Years ended December 31,
----------------------------------------
1999 1998 1997
----------------------------------------
<S> <C> <C> <C>
Revenues:
Resident and health care $ 164,592 $ 130,036 $ 88,416
Management and development services 10,678 12,321 1,765
----------------------------------------
Total revenues 175,270 142,357 90,181
Operating expenses:
Community operating expense 105,978 82,698 54,921
Lease expense, net 12,985 9,063 3,405
General and administrative 15,020 10,581 6,717
Depreciation and amortization 13,692 10,025 6,632
Asset impairments and contractual losses 12,536 -- --
Merger related costs -- 994 --
----------------------------------------
Total operating expenses 160,211 113,361 71,675
----------------------------------------
Operating income 15,059 28,996 18,506
Other income (expense):
Interest expense (23,668) (17,924) (15,056)
Interest income 9,123 4,092 2,675
Gain on sale of assets 3,036 80 35
Other (241) (242) (36)
----------------------------------------
Other expense, net (11,750) (13,994) (12,382)
Income from continuing operations before income taxes, extraordinary
item and cumulative effect of change in accounting principle 3,309 15,002 6,124
Income taxes 1,257 5,652 4,435
----------------------------------------
Income from continuing operations before extraordinary item and
cumulative effect of change in accounting principle 2,052 9,350 1,689
Discontinued operations:
Loss from home health operations, net of tax -- 1,244 155
Write-off of home health assets, net of tax -- 902 --
----------------------------------------
Income before extraordinary item and cumulative effect of change
in accounting principle 2,052 7,204 1,534
Extraordinary item - loss on extinguishment of debt, net of tax -- -- 6,334
Cumulative effect of change in accounting for start-up costs, net of tax -- (304) --
----------------------------------------
Net income (loss) $ 2,052 $ 6,900 $ (4,800)
========================================
Pro forma earnings data:
Income from continuing operations before income taxes and extraordinary item $ 6,124
Pro forma income tax expense 2,210
--------
Pro forma income from continuing operations before extraordinary item 3,914
Loss from discontinued operations, net of pro forma tax 155
--------
Pro forma income before extraordinary item $ 3,759
========
</TABLE>
See accompanying notes to consolidated financial statements.
39
<PAGE> 40
AMERICAN RETIREMENT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS - CONTINUED
(in thousands, except per share data)
<TABLE>
<CAPTION>
Years ended December 31,
---------------------------------------------
1999 1998 1997
---------------------------------------------
<S> <C> <C> <C>
Basic earnings per share:
Basic earnings per share from continuing operations before
extraordinary item and cumulative effect of change in
accounting principle $ 0.12 $ 0.67
Loss from home health operations, net of tax -- (0.09)
Write-off of home health assets, net of tax -- (0.06)
Cumulative effect of change in accounting principle, net of tax -- (0.02)
----------------------------
Basic earnings per share $ 0.12 $ 0.49
============================
Diluted earnings per share:
Diluted earnings per share from continuing operations before
extraordinary item $ 0.12 $ 0.66
Loss from home health operations, net of tax -- (0.09)
Write-off of home health assets, net of tax -- (0.06)
Cumulative effect of change in accounting principle, net of tax -- (0.02)
----------------------------
Diluted earnings per share $ 0.12 $ 0.49
============================
Pro forma basic earnings per share:
Pro forma basic earnings per share from continuing operations
before extraordinary item $ 0.37
Loss from home health operations, net of tax (0.01)
---------
Pro forma basic earnings per share before extraordinary item $ 0.36
=========
Pro forma diluted earnings per share:
Pro forma diluted earnings per share from continuing operations
before extraordinary item $ 0.37
Loss from home health operations, net of tax (0.01)
---------
Pro forma diluted earnings per share before extraordinary item $ 0.35
=========
Weighted average shares used for basic earnings per share data 17,129 13,947 10,577
Effect of dilutive common stock options 48 127 98
-------------------------------------------
Weighted average shares used for diluted earnings per share data 17,177 14,074 10,675
===========================================
</TABLE>
See accompanying notes to consolidated financial statements.
40
<PAGE> 41
AMERICAN RETIREMENT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN PARTNERS'/SHAREHOLDERS' EQUITY
(in thousands, except share data)
<TABLE>
<CAPTION>
General
and Retained
Limited Common Stock Additional Earnings
Partners' --------------------- Paid-In (Accumulated
Interests Shares Amount Capital Deficit) Total
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 37,882 -- $ -- $ -- $ -- $ 37,882
Net income (loss) 1,599 (6,399) (4,800)
Distribution to partners (2,500) (2,500)
Reorganization Note (21,875) (21,875)
Transfer of partnership equity for shares of
common stock (15,106) 7,812,500 78 15,028 --
Net proceeds from initial public offering 3,593,750 36 44,954 44,990
Issuance of common stock pursuant to employee
stock purchase plan 14,610 221 221
-----------------------------------------------------------------------------
Balance at December 31, 1997 -- 11,420,860 114 60,203 (6,399) 53,918
Net income 6,900 6,900
Conversion of subordinated debentures 832 20 20
Issuance of common stock in FGI Transaction 1,370,000 14 19,765 19,779
Net proceeds from public offering 4,297,500 43 64,762 64,805
Issuance of common stock pursuant to employee
stock purchase plan 16,190 235 235
Issuance of common stock pursuant to stock options
exercised 13,003 185 185
-----------------------------------------------------------------------------
Balance at December 31, 1998 -- 17,118,385 171 145,170 501 145,842
Net income 2,052 2,052
Issuance of common stock pursuant to employee
stock purchase plan 21,624 199 199
Issuance of common stock pursuant to stock options
exercised 5,334 75 75
-----------------------------------------------------------------------------
Balance at December 31, 1999 $ -- 17,145,343 $ 171 $145,444 $ 2,553 $148,168
=============================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
41
<PAGE> 42
AMERICAN RETIREMENT CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
Years ended December 31,
------------------------------------------
1999 1998 1997
------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 2,052 $ 6,900 $ (4,800)
Loss from discontinued operations, net of tax -- 1,244 155
Write-off of home health assets, net of tax -- 902 --
Cumulative effect of change in accounting principle, net of tax -- 304 --
Extraordinary loss on extinguishment of debt, net of tax -- -- 6,334
-----------------------------------------
Income from continuing operations 2,052 9,350 1,689
Adjustments to reconcile income from continuing operations to net cash and
cash equivalents provided by continuing operations:
Asset impairments and contractual losses 12,536 -- --
Depreciation and amortization 13,692 10,025 6,632
Amortization of deferred financing costs 1,342 754 193
Amortization of deferred entrance fees (6,945) (3,756) --
Proceeds from terminated lifecare contracts 2,756 1,616 --
Deferred income taxes (207) 3,923 4,162
Amortization of deferred gain on sale-leaseback transactions (452) (453) (341)
Gain on sale of assets (3,036) (80) (35)
Losses from unconsolidated joint ventures 2,005 608 --
Minority owners' share of losses (447) -- --
Changes in assets and liabilities, net of effects from acquisitions:
Increase in accounts receivable (1,588) (3,642) (2,831)
Increase in inventory (124) (95) (63)
Increase in prepaid expenses (163) (346) (584)
Increase in other assets (4,402) (2,195) (1,956)
Increase (decrease) in accounts payable (2,820) 2,907 (12)
Increase in accrued expenses and other current liabilities 40 2,135 3,322
Increase in tenant deposits 48 496 673
Increase (decrease) in other liabilities (2,009) (172) 371
-----------------------------------------
Net cash and cash equivalents provided by continuing operations 12,278 21,075 11,220
Net cash and cash equivalents used in discontinued operations -- (1,941) (125)
-----------------------------------------
Net cash and cash equivalents provided by operating activities 12,278 19,134 11,095
Cash flows from investing activities:
Additions to land, buildings and equipment (59,221) (31,888) (29,307)
Expenditures for acquisitions, net of cash received -- (37,358) (17,489)
Reimbursements from (advances to) development projects 7,374 (11,136) --
Investments in joint ventures (1,763) (3,143) (1,411)
Contributions from minority owners 1,630 -- --
Issuance of notes receivable (78,916) (19,731) --
Purchases of assets whose use is limited (13,643) (44,975) (3,916)
Purchases of other investments (10,177) (4,704) (859)
Proceeds from the maturity of marketable securities -- 132 --
Proceeds from the sale of assets 3,138 1,736 30,412
Other investing activities (664) -- --
-----------------------------------------
Net cash and cash equivalents used in investing activities (152,242) (151,067) (22,570)
</TABLE>
See accompanying notes to consolidated financial statements.
42
<PAGE> 43
<TABLE>
<S> <C> <C> <C>
Cash flows from financing activities:
Net proceeds from public offerings -- 64,805 44,990
Net proceeds from convertible debenture offering -- -- 134,220
Proceeds from issuance of stock through employee stock purchase plan 199 235 221
Proceeds from exercise of stock options 75 185 --
Repayment of reorganization note -- -- (21,875)
Payment of redeemable preferred interests -- -- (5,195)
Distribution to partners -- -- (4,132)
Expenditures for financing costs (3,453) (77) (333)
Costs paid in connection with extinguishment of debt -- -- (9,534)
Proceeds from life estate sales, net of refunds 11,028 4,262 --
Proceeds from the issuance of long-term debt 143,162 53,717 14,275
Principal reductions in master trust liability (4,225) (2,625) --
Principal payments on long-term debt (5,341) (12,752) (99,801)
-----------------------------------------
Net cash and cash equivalents provided by financing activities 141,445 107,750 52,836
Net increase (decrease) in cash and cash equivalents 1,481 (24,183) 41,361
-----------------------------------------
Cash and cash equivalents at beginning of year 20,400 44,583 3,222
-----------------------------------------
Cash and cash equivalents at end of year $ 21,881 $ 20,400 $ 44,583
=========================================
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the year for interest (including capitalized interest) $ 24,591 $ 18,359 $ 13,130
=========================================
Income taxes paid $ 5,138 $ 249 $ 86
=========================================
</TABLE>
SUPPLEMENTAL DISCLOSURE OF NON-CASH TRANSACTIONS:
During the respective years, the Company acquired certain communities and
entered into certain lease transactions. In conjunction with the transactions,
assets and liabilities were assumed as follows:
<TABLE>
<S> <C> <C> <C>
Current assets $ -- $ 7,378 $ 128
Costs in excess of net assets acquired -- 35,938 --
Other assets -- 151,875 12,869
Current liabilities -- 15,471 235
Long-term debt -- 22,368 14,191
Other liabilities -- 74,793 767
</TABLE>
During the year ended December 31, 1999, the Company sold certain land for $3.1
million in cash and the payment on a related note payable of $2.5 million for
aggregate consideration of $5.6 million.
During the year ended December 31, 1998, 1,370,000 shares of common stock were
issued as partial consideration in the FGI transaction and 832 shares of common
stock were issued upon the conversion of $20 of convertible subordinated
debentures.
See accompanying notes to consolidated financial statements.
43
<PAGE> 44
AMERICAN RETIREMENT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) ORGANIZATION AND PRESENTATION
The accompanying financial statements as of and for the years ended December 31,
1999, 1998 and 1997 include the consolidated financial statements of American
Retirement Corporation (the Corporation) and its wholly-owned and majority owned
subsidiaries (collectively referred to as the Company). All material
intercompany transactions and balances have been eliminated in consolidation.
In February 1997, the Corporation was incorporated for purposes of effecting a
reorganization of ARCLP and to complete an initial public offering (IPO). In the
reorganization, all of ARCLP's assets and liabilities were contributed to the
Corporation in exchange for 7,812,500 shares of common stock and a promissory
note to ARCLP in the original principal amount of $21.9 million. ARCLP's
historical carrying values for assets and liabilities were carried over to the
Corporation upon consummation of the reorganization. As a result of the
conversion from a limited partnership to a corporation, the Corporation recorded
a deferred income tax liability of approximately $3.0 million resulting from the
difference between the accounting and the tax bases of the assets and
liabilities carried over from ARCLP. Such amount is included in the Company's
1997 income tax expense. Immediately prior to the IPO, which was completed on
May 30, 1997, ARCLP distributed its common stock of the Corporation to its
partners. The Corporation sold an additional 3,593,750 shares of its common
stock in the IPO. Total proceeds to the Corporation from the IPO were
approximately $45.0 million, after underwriting and issuance costs. A portion of
the proceeds was utilized on June 4, 1997 to repay the $21.9 million promissory
note to ARCLP and ARCLP distributed such amount to its limited partners.
The income taxes on earnings of ARCLP were the responsibility of the partners.
The pro forma adjustments reflected on the consolidated statements of operations
for the year ended December 31, 1997 provides for income taxes, at an effective
tax rate of 36%, assuming ARCLP was subject to taxes and excludes the $3.0
million charge resulting from the difference between the accounting and tax
bases of ARCLP's assets and liabilities at the time of the conversion from a
limited partnership to a taxable corporation. Pro forma earnings per share is
based on the number of shares that would have been outstanding assuming the
partners had been shareholders and is based on the 7,812,500 shares received as
a result of the reorganization plus 1,562,500 shares representing the value of
the $21.9 million promissory note at the IPO price of $14.00 per share.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND PRACTICES
The Company principally provides housing, health care, and other related
services to residents through the operation and management of numerous senior
living communities located throughout the United States. The communities provide
a combination of independent living, assisted living and skilled nursing
services. The Company is subject to competition from other senior living
providers within its markets. The following is a summary of significant
accounting policies.
Use of Estimates and Assumptions: The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial
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<PAGE> 45
statements. Estimates also affect the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Recognition of Revenue: The Company provides residents with housing and health
care services through various types of agreements.
The majority of the communities provide housing and health care services through
annually renewable agreements with the residents. Under these agreements, the
residents pay a monthly housing fee, which entitles them to the use of certain
amenities and services. Residents may elect to obtain additional services, which
are paid for on a monthly basis or as the services are received. The Company
recognizes revenues under these agreements on a monthly basis when earned.
Certain communities provide housing and health care services through entrance
fee agreements with the residents. Under these agreements, residents pay a fee
upon entering into a lifecare contract. The fee obligates the Company to provide
certain levels of future health care services to the resident for life. The
agreement terminates when the unit is vacated. A portion of the fee is
refundable to the resident or the resident's estate upon termination of the
agreement. The refundable amount is recorded by the Company as refundable
portion of life estate fees, a long-term liability, until termination of the
agreement. The remainder of the fee is recorded as deferred life estate income
and is amortized into revenue using the straight-line method over the estimated
remaining life expectancy of the resident, based upon annually adjusted
actuarial projections. Additionally, under these agreements the residents pay a
monthly service fee, which entitles them to the use of certain amenities and
services. They may also elect to obtain additional services, which are paid for
on a monthly basis or as the services are received. The Company recognizes these
additional fees as revenue on a monthly basis when earned.
The Company also provides housing to residents at certain communities under an
entrance fee agreement whereby the fee is fully refundable to the resident or
the resident's estate upon the occupation of the unit by the next resident. The
resident also shares in a percentage, typically 50%, of the appreciation in the
entrance fee from the succeeding resident. The entrance fee is recorded by the
Company as refundable portion of life estate fees and is amortized into revenue
using the straight-line method over 40 years, the life of the buildings.
Additionally, under these agreements the residents pay a monthly service fee,
which entitles them to the use of certain amenities and services. They may also
elect to obtain additional services, which are paid for on a monthly basis or as
the services are received. The Company recognizes these additional fees as
revenue on a monthly basis when earned. If a resident terminates the agreement,
they are required to continue to pay their monthly service fee for the lesser of
one year or until the date of reoccupation of the unit.
Resident and health care revenues are reported at the estimated net realizable
amounts from residents, third-party payors, and others for services rendered,
including estimated retroactive adjustments under reimbursement agreements with
third-party payors. Retroactive adjustments are accrued on an estimated basis in
the period the related services are rendered and adjusted in future periods as
final settlements are determined. Resident and health care revenues, primarily
Medicare, subject to retroactive adjustments were 4.4%, 4.7%, and 6.9% of
resident and health care revenues in 1999, 1998, and 1997, respectively.
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<PAGE> 46
Management services revenue is recorded monthly as earned and relates to
providing certain management and administrative support services under
management agreements with the owners and lessees of senior living communities.
Such fees are based on a percentage of revenues, income or cash flows of the
managed community, or a negotiated fee per the management agreement.
The Company provides development services to owners of senior living
communities. Fees are based upon a percentage of the total construction costs of
the community. Development services revenue is recognized under the
percentage-of-completion method based upon the Company's costs of providing such
services.
Cash and Cash Equivalents: The Company considers highly liquid investments with
a maturity of three months or less when purchased to be cash equivalents.
Assets Limited as to Use: Assets limited as to use include assets held by
lenders under loan agreements in escrow for property taxes and property
improvements, operating reserves required by certain state licensing
authorities, certificates of deposit held as collateral for letters of credit or
in conjunction with leasing activity or to support operating deficit agreements,
and resident deposits.
Inventory: Inventory consists of supplies and is stated at the lower of cost
(first-in, first-out) or market.
Land, Buildings, and Equipment: Land, buildings, and equipment are recorded at
cost and include interest capitalized on long-term construction projects during
the construction period, as well as other costs directly related to the
development and construction of the communities. Depreciation and amortization
are computed using the straight-line method over the estimated useful lives of
the related assets. Buildings and improvements are depreciated over 15 to 40
years, and furniture, fixtures and equipment are depreciated over five to seven
years. Leasehold improvements are amortized over the shorter of their useful
life or remaining lease term. Construction in progress includes costs incurred
related to the development and construction of senior living communities. If a
project is abandoned, any costs previously capitalized and determined to be
unrecoverable are expensed.
Notes Receivable: Notes receivable are recorded at cost, less any related
allowance for impaired notes receivable. Management, considering current
information and events regarding the borrowers' ability to repay their
obligations, considers a note to be impaired when it is probable that the
Company will be unable to collect all amounts due according to the contractual
terms of the note agreement. When a loan is considered to be impaired, the
amount of the impairment is measured based on the present value of expected
future cash flows discounted at the note's effective interest rate. Impairment
losses are included in the allowance for doubtful accounts through a charge to
bad debt expense. Cash receipts on impaired notes receivable are applied to
reduce the principal amount of such notes until the principal has been recovered
and are recognized as interest income, thereafter.
Costs in Excess of Net Assets Acquired: Costs in excess of net assets acquired,
is amortized on a straight-line basis over the expected periods to be benefited,
generally 40 years. The Company assesses the recoverability of this intangible
asset by determining whether the amortization of the balance over its remaining
life can be recovered through undiscounted future operating cash flows of the
acquired operation. The amount of impairment, if any, is measured based on
projected discounted future operating cash flows using a discount rate
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<PAGE> 47
reflecting the Company's average cost of funds. The assessment of the
recoverability will be impacted if estimated future operating cash flows are not
achieved. Costs in excess of net assets acquired is net of accumulated
amortization of $1.5 million and $486,000 at December 31, 1999 and 1998,
respectively. Amortization expense was $1.0 million, $486,000, and $0, for the
years ended December 31, 1999, 1998 and 1997, respectively.
Other Assets: Other assets consists primarily of security deposits, purchase
options, deferred financing costs (including convertible debenture offering
costs), costs of acquiring lifecare contracts, deferred lifecare fee
receivables, and investments in joint ventures. Deferred financing costs are
being amortized using the straight-line method over the terms of the related
debt agreements. Costs of acquiring initial lifecare contracts are amortized
over the life expectancy of the initial residents of a lifecare community.
Purchase options to acquire property are recorded at their cost and are applied
to the cost of the property acquired. Nonrefundable purchase options are
expensed when they expire or management determines that the option will not be
exercised.
Investments in joint ventures includes the Company's investments in joint
ventures organized to develop senior living communities. The Company is
providing full development services related to, and has entered into management
agreements to manage, the related communities. The Company accounts for its
investments in 20-50% owned joint ventures under the equity method. At December
31, 1999 and 1998, the Company's investment in joint ventures was approximately
$1.1 million and $3.9 million, respectively.
Start-up Costs: On April 3, 1998, the AICPA Accounting Standards Executive
Committee issued Statement of Position (SOP) No. 98-5, Reporting on the Costs of
Start-up Activities. SOP No. 98-5 requires that costs incurred during start-up
activities, including organization costs, be expensed as incurred. SOP No. 98-5
defines start-up activities broadly to include those one-time activities related
to: opening a new facility; introducing a new product or service; conducting
business in a new territory; conducting business with a new class of customer or
beneficiary; initiating a new process in an existing facility; or commencing
some new operation. Start-up activities also include activities related to
organizing a new entity (costs of such activities are commonly referred to as
organization costs). SOP No. 98-5 is effective January 1, 1999, however early
application is permitted. Initial application of SOP No. 98-5 must be as of the
beginning of the fiscal year in which it is first adopted, and restatement of
previously issued financial statements is not permitted. Previously capitalized
start-up costs must be written-off upon adoption of SOP No. 98-5.
The Company elected to adopt the provisions of SOP No. 98-5 in 1998.
Accordingly, effective January 1, 1998, the Company recorded a cumulative effect
of the change in accounting for start-up costs of $304,000, net of tax, in the
consolidated statement of operations. Start-up costs subsequent to the adoption
of SOP No. 98-5 are expensed as incurred.
Obligation to Provide Future Services: Under the terms of certain lifecare
contracts, the Company is obligated to provide future services to its residents.
The Company calculates the present value of the net cost of future services and
use of facilities annually and compares that amount with the present value of
future resident cash inflows. If the present value of the net cost of future
services and use of facilities exceeds discounted future cash inflows, a
liability will be recorded with a corresponding charge to income. As of December
31, 1999, the Company did not have a liability associated with its obligation to
provide future services and use of facilities.
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<PAGE> 48
Income Taxes: Income taxes are accounted for under the asset and liability
method. Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss and tax credit carryforwards. Deferred tax assets and
liabilities are recorded using enacted tax rates expected to apply to taxable
income in the year in which those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date.
Earnings per Share: Basic earnings per share ("EPS") is computed by dividing net
income (loss) (numerator) by the weighted average number of common shares
outstanding (denominator). The denominator used in computing diluted EPS
reflects the potential dilution that could occur if securities or other
contracts to issue common stock were exercised or converted into common stock or
resulted in the issuance of common stock that then shared in the earnings of the
Company. The effect from assumed conversion of the Company's convertible
debentures would have been anti-dilutive in 1999, 1998 and 1997 and was
therefore not included in the computation of diluted EPS. Antidilutive shares
which were excluded from the EPS calculation in 1999, 1998 and 1997 were 1,796,
235, and 35, respectively.
Stock-Based Compensation: The Company grants stock options for a fixed number of
shares to employees with an exercise price equal to the fair value of the shares
at the date of grant. The Company follows the requirements of the Accounting
Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to
Employees" in accounting for stock-based compensation, and accordingly
recognizes no compensation expense for stock option grants, but provides the pro
forma disclosures required by the Statement of Financial Accounting Standards
("SFAS") No. 123, "Accounting for Stock-Based Compensation".
Fair Value of Financial Instruments: The carrying amount of cash and cash
equivalents approximates fair value because of the short-term nature of these
accounts and because amounts are invested in accounts earning market rates of
interest. The carrying value of assets limited as to use, accounts receivable,
advances for development projects, and tenant deposits, accounts payable, and
refundable portion of life estate fees approximate their fair values because of
the short-term nature of these accounts. The carrying value of notes receivable
approximate their fair value because the notes earn interest at a variable rate
based on LIBOR. The carrying value of debt approximates fair value as the
interest rates approximate the current rates available to the Company.
Derivative Instruments: In 1999, the Company entered into an interest rate swap
agreement as a hedge against certain debt liabilities in order to manage
interest rate risk. As of December 31, 1999, the Company had an interest rate
swap agreement in effect with a notional amount of $35.6 million with an
approximate market value of $1.5 million. Under the terms of the swap agreement,
the Company receives a fixed rate interest payment based on a fixed interest
rate of 6.87% and pays a floating rate based upon a foreign currency index with
a maximum rate through July 1, 2002 of 6.87% and 8.12% thereafter. The swap
agreement matures July 1, 2008.
Interest rate swap agreements are contracts that represent an exchange of
interest payments and the underlying principal balances of the assets or
liabilities are not affected. Net settlement amounts are reported as adjustments
to interest income or interest expense. Gains and losses from the termination of
interest rate swaps are deferred and amortized over the remaining lives of the
designated balance sheet assets or liabilities. If the
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balance of the liability falls below that notional amount of the derivative, the
excess portion of the derivative is marked-to-market with a corresponding effect
on current earnings.
Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of:
Long-lived assets and certain identifiable intangibles are reviewed for
impairment whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. Recoverability of assets to
be held and used is measured by a comparison of the carrying amount of an asset
to undiscounted future net cash flows expected to be generated by the asset. If
such assets are considered to be impaired, the impairment to be recognized is
measured by the amount by which the carrying amount of the assets exceeds the
fair value of the assets. Assets to be disposed of are reported at the lower of
the carrying amount or fair value less costs to sell.
Comprehensive Income: The Company adopted SFAS No. 130, "Reporting Comprehensive
Income" during the year ended December 31, 1998. The statement establishes
standards for the reporting and display of comprehensive income and its
components. Comprehensive income is defined as the change in equity of a
business enterprise during a period from transactions and other events and
circumstances from non-owner sources. It includes all changes in equity during a
period except those resulting from investments by owners and distributions to
owners. During 1999, 1998 and 1997, the Company's only component of
comprehensive income was net income (loss).
Segment Disclosures: During 1998, SFAS No. 131, "Disclosures About Segments of
an Enterprise and Related Information" became effective for the Company. SFAS
No. 131 establishes standards for the way that public business enterprises
report information about operating segments in annual financial statements and
requires that those enterprises report selected information about operating
segments in interim financial reports issued to shareholders. It also
establishes standards for related disclosures about products and services,
geographic areas, and major customers. SFAS No. 131 requires that a public
business enterprise report financial and descriptive information about its
reportable operating segments. Operating segments are components of an
enterprise about which separate financial information is available that is
evaluated regularly by the chief operating decision-maker in deciding how to
allocate resources and in assessing performance. The Company operates in one
business segment.
Reclassifications: Certain 1998 and 1997 amounts have been reclassified to
conform with the 1999 presentation.
(3) ASSET IMPAIRMENTS AND CONTRACTUAL LOSSES
During the fourth quarter ended December 31, 1999, the Company announced that
due to a shift in its growth strategy from development to acquisitions of senior
living communities, it would be abandoning certain development projects and
reviewing others with regard to fit with its senior living network strategy.
The Company has two parcels of land upon which senior living communities were to
be developed. Each property was in the early stage of development, with activity
in process consisting primarily of securing the zoning permits, obtaining
architectural drawings and site testing. As a result, the carrying values
included capitalized costs for zoning, architect fees, and site testing that
will not be realized upon sale of the parcels.
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<PAGE> 50
Management intends to dispose of the land and has recorded an impairment charge
of approximately $800,000 related to the parcels and has classified the land as
property held for sale.
The Company also decided not to complete the development and construction of
three properties for which the Company provided development and construction
services to third party owners of senior living communities. Pursuant to the
terms of the construction agency agreements executed with the owners, the
Company was in default for its decision not to complete construction. The
Company is obligated to purchase the uncompleted property from the owners and
forgive the construction financing to the owners in exchange for the uncompleted
property. The Company owned the land for one of the projects and leased it to
the owner. Management accrued an impairment loss for this property. The land was
classified as property held for sale. The Company recorded a contractual loss of
$6.2 million for its obligations under the construction agency agreements during
the fourth quarter of 1999. The Company also provided construction financing on
the projects and recorded an impairment charge of $1.5 million against the note
receivables that will not be collected.
The Company typically has various development activities ongoing to locate
future operating sites, research market demographics and competition, secure
proper zoning and negotiate the acquisition of land. Direct third party costs
for these activities are capitalized. Capitalized costs of approximately
$600,000 related to sites that will not be developed based upon the shift in the
Company's growth strategy toward acquisitions were written off during the fourth
quarter of 1999.
The Company owns a 50% interest in a joint venture that was formed for the
purpose of owning and operating two assisted living communities in Knoxville,
Tennessee. The communities experienced much lower than expected occupancy
absorption, higher operating costs and increased competition. Additionally, the
two communities did not fit with the Company's senior living network strategy.
The Company has entered into an agreement with its partner to dissolve the joint
venture and the Company will receive one of the two communities. The fair market
value of the net assets to be received as compared to the carrying amount of the
Company's equity investment and advances to the joint venture resulted in an
impairment loss of $3.2 million which was recognized in the fourth quarter of
1999. The transaction is anticipated to be completed during the first half of
2000.
The Company abandoned a new software implementation project in the fourth
quarter of 1999 and accordingly wrote off the capitalized third party costs
incurred for licensing and consulting of approximately $200,000.
As a result of the above, the Company recorded total asset impairments and
contractual loss charges of approximately $12.5 million during the quarter ended
December 31, 1999.
(4) DISCONTINUED OPERATIONS
During 1998, the Company suspended operations of certain of its home health care
agencies pending either institution of prospective pay or major revisions to the
United States interim payment system now in effect. During the fourth quarter
ended December 31, 1998, the Company determined that an acceptable reimbursement
system will not be implemented in the near term and discontinued its home health
care operations. The operating results and cash flows of the home health care
division for the years ended December 31, 1998 and 1997 have been reclassified
to discontinued operations. The Company recorded losses from home
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health operations, net of tax, of $1.2 million and $155,000 for the years ended
December 31, 1998 and 1997, respectively. Additionally, during the fourth
quarter ended December 31, 1998, the Company recognized an after tax charge of
$902,000, or $0.06 per share, related primarily to the impairment of unamortized
costs in excess of net assets acquired in home health care agency acquisitions.
(5) ACQUISITION
On July 14, 1998, the Company acquired privately-held Freedom Group, Inc.
("FGI") and certain entities affiliated with FGI and with Robert G. Roskamp,
FGI's Chairman. The acquisition resulted in the ownership of three continuing
care retirement communities ("CCRCs") and the management of four additional
CCRCs. The Company also acquired options to purchase two of the managed CCRCs.
Additionally, the Company entered into a development and management contract
for, and acquired an option to purchase, one additional CCRC currently under
development. The consideration paid at closing was approximately $43.0 million,
including $23.2 million of cash and 1,370,000 shares of the Company's common
stock valued at $19.8 million. The Company paid an additional $4.0 million for
the purchase options and $1.5 million to enter into two of the management
contracts. The transaction was accounted for as a purchase and the consolidated
financial statements include the operations of the acquired entities effective
July 1, 1998. The transaction resulted in costs in excess of net assets acquired
of approximately $35.9 million. During 1999, the Company paid an additional $1.7
million to the former owners of FGI under a contingent arrangement within the
1998 acquisition agreement. Such amount was recorded as additional costs in
excess of net assets acquired.
The following unaudited condensed consolidated pro forma results of continuing
operations assumes the above referenced acquisition had been consummated as of
the beginning of the periods presented. The 1997 data is before extraordinary
item and also includes the pro forma tax adjustment and pro forma shares
outstanding as described in Note 1.
<TABLE>
<CAPTION>
Years ended December 31,
1998 1997
-------- --------
<S> <C> <C>
Total revenues $159,801 $127,150
Income from continuing operations
before extraordinary item
and cumulative effect of change
in accounting principle $ 6,873 $ 3,864
Diluted earnings per share $ 0.47 $ 0.32
Weighted average diluted shares 14,747 12,045
</TABLE>
(6) NOTES RECEIVABLE
The Company finances the cost of certain retirement communities owned by others
that are being developed, leased or managed by the Company. The notes receivable
generally earn interest at variable rates based on 200 basis points in excess of
the 30 day LIBOR rate, which is recalculated monthly. Interest and principal are
due monthly based on a 25 year amortization. The notes receivable mature from
March 2005 through December 2005 and are secured by the related retirement
communities. As discussed in Note 3, the Company wrote off $1.5 million with a
corresponding charge to earnings for notes receivable that will not be collected
due to the
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default by the Company under certain construction agency agreements. No other
notes receivable were impaired at December 31, 1999 or 1998.
(7) LAND, BUILDINGS, AND EQUIPMENT
A summary of land, buildings, and equipment is as follows (in thousands):
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Land and improvements $ 44,887 $ 43,603
Land leased to others 17,022 16,845
Land held for development 9,762 2,424
Buildings and improvements 351,529 317,435
Furniture, fixtures, and equipment 25,740 21,518
Leasehold improvements 3,091 515
-------- --------
452,031 402,340
Less accumulated depreciation and amortization 39,752 27,625
-------- --------
412,279 374,715
Construction in progress 19,281 13,689
-------- --------
Total $431,560 $388,404
======== ========
</TABLE>
The Company capitalized $2.1 million, $1.5 million and $554,000 of interest
costs during 1999, 1998 and 1997, respectively.
Depreciation expense was $12.1 million, $9.1 million, and $6.3 million for the
years ended December 31, 1999, 1998 and 1997, respectively.
(8) OTHER ASSETS
Other assets at December 31, 1999 and 1998 consist of the following (in
thousands):
<TABLE>
<CAPTION>
1999 1998
------- -------
<S> <C> <C>
Security deposits $ 6,957 $ 6,306
Purchase options 21,126 11,600
Costs of acquiring lifecare contracts, net 3,326 3,466
Deferred lifecare fee receivable 4,002 3,467
Deferred financing costs, net of accumulated amortization 5,961 3,736
Investments in joint ventures 1,141 3,946
Property held for sale 2,900 3,064
Other 3,638 2,836
------- -------
Total $49,051 $38,421
======= =======
</TABLE>
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(9) LONG-TERM DEBT
A summary of long-term debt is as follows (in thousands):
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Lexington-Fayette Urban County Government
Residential Facilities Revenue Bonds
refinanced May 1, 1987, collateralized by
mortgage liens on certain property and
equipment. The refinancing bond issue is
remarketed to set the coupon rate on April 1
of each year (4.2% for the year ended March
31, 2000) until the bonds mature on April 1,
2015. Interest is due semi-annually on April
1 and October 1. $ 8,010 $ 8,010
Mortgage note payable bearing interest at a
fixed rate of 8.2%. Interest is due monthly
with principal and unpaid interest due at
maturity on December 31, 2002. The loan is
secured by certain land, buildings,
equipment, and assignment of rents and
leases. 62,330 62,330
Mortgage note payable bearing interest at a
fixed rate of 8.2%. Interest is due monthly
with principal payments of $20,000 per month
with remaining principal and unpaid interest
due at maturity on December 31, 2001. The
loan is secured by certain land, buildings,
equipment, and assignment of rents and
leases. 14,300 14,540
Mortgage note payable bearing interest at a
fixed rate of 9.25%. Principal and interest
of $49,467 due monthly through April 1, 2028
The loan is secured by certain land,
buildings, equipment, and assignment of rents
and leases. 5,946 5,987
Mortgage note payable bearing interest at a
floating rate equal to two hundred
seventy-five basis points in excess of the
ninety- day LIBOR rate recalculated on the
third monthly payment date (8.26% at December
31, 1999). Principal and interest of $26,700
is due monthly with remaining principal and
unpaid interest due on May 9, 2002. The note
is secured by certain land, buildings,
equipment, and assignment of rents and
leases. 3,377 3,430
Mortgage note payable bearing interest at a
fixed rate of 9.95%. Interest is due monthly
with principal due at maturity on May 31,
2007. The loan is secured by certain land,
buildings, equipment, and assignment of rents
and leases. 4,700 4,700
</TABLE>
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<TABLE>
<S> <C> <C>
Mortgage note payable bearing interest at a
fixed rate of 6.87%. Principal and interest
of $262,747 is due monthly with remaining
principal and unpaid interest due on July 31,
2008. The note is secured by certain land,
buildings, equipment, and assignment of rents
and leases. 35,544 35,892
Revolving line of credit in the amount of
$50.0 million bearing interest at the rate of
LIBOR plus one hundred seventy-five basis
points (8.25% at December 31, 1999). Interest
only is paid monthly and the loan matures on
December 31, 2002. 47,659 15,000
Mortgage note payable bearing interest at a
fixed rate of 8.00%. -- 8,365
Mortgage note payable bearing interest at a
fixed rate of 8.65%. -- 1,638
Revolving line of credit in the amount of
$100.0 million bearing interest at the rate
of LIBOR plus two hundred twenty-five to two
hundred thirty-five basis points (7.86% at
December 31, 1999). Interest only is paid
monthly and the loan matures on May 1, 2002
The note is secured by certain land,
buildings, equipment, and assignment of rents
and leases. 64,390 --
Mortgage note payable bearing interest at a
fixed rate of 8.50%. Principal and interest
of $144,956 is due monthly with remaining
principal and unpaid interest due on December
10, 2024. The note is secured by certain
land, buildings, equipment, and assignment of
rents and leases. 18,000 --
Line of credit in the amount of $6.0 million
bearing interest at a floating rate per annum
equal to two hundred twenty-five basis points
in excess of LIBOR (7.71% at December 31,
1999). Interest is due monthly with remaining
principal and unpaid interest due on June 30,
2000. The note is unsecured. 4,653 --
Secured term loan in the amount of $4.5
million bearing interest at a floating rate
equal to two hundred twenty-five basis points
in excess of LIBOR (7.71% at December 31,
1999). Interest is due monthly with remaining
principal and unpaid interest due on June 30,
2000. The note is secured by certain land. 2,000 --
</TABLE>
54
<PAGE> 55
<TABLE>
<S> <C> <C>
Mortgage note payable bearing interest at a
floating rate equal to two hundred
twenty-five basis points in excess of the
LIBOR rate recalculated each month (8.73% at
December 31, 1999). Interest is due monthly
with principal due at maturity on December 2,
2002. The loan is secured by certain land and
buildings. 6,750 --
Construction note payable bearing interest at
a floating rate equal to two hundred basis
points in excess of the LIBOR rate (7.83% at
December 31, 1999). Interest only through May
10, 2000. Thereafter, an interest and
principal amount to be determined will be
payable monthly with remaining principal due
at maturity on May 21, 2004. The loan is
secured by certain land and buildings. 5,919 --
Mortgage note payable bearing interest at a
floating rate equal to 250 basis points in
excess of the 30 day LIBOR rate (8.48% at
December 31, 1999). Interest is due monthly
with remaining principal and unpaid interest
due May 29, 2005. The note is secured by
certain land, buildings, equipment, and
assignment of rents and leases. 6,498 --
Construction note payable bearing interest at
a floating rate equal to 250 basis points in
excess of the 30 day LIBOR rate (8.09% at
December 31, 1999). Interest is due monthly
with remaining principal and unpaid interest
due March 4, 2006. The note is secured by
certain land, buildings, equipment, and
assignment of rents and leases. 5,494 --
Convertible debentures bearing interest at a
fixed rate of 5.75%. Interest is due
semi-annually on April 1 and October 1
through October 1, 2002, at which time all
principle is due. 137,980 137,980
Other long-term debt, generally payable monthly 2,438 2,795
-------- --------
Total long-term debt 435,988 300,667
Less current portion of long-term debt 10,173 1,426
-------- --------
Long-term debt, excluding current portion $425,815 $299,241
======== ========
</TABLE>
The aggregate scheduled maturities of long-term debt at December 31, 1999 were
as follows (in thousands):
<TABLE>
<S> <C>
2000 $ 10,173
2001 1,294
2002 336,940
2003 1,005
2004 6,021
Thereafter 80,555
----------
$ 435,988
==========
</TABLE>
55
<PAGE> 56
During 1997, the Company issued $138.0 million of 5-3/4% fixed rate convertible
subordinated debentures due October 2002 in a public offering. The debentures
are non-callable for three years and are convertible at any time by the holders
into shares of the Company's common stock at a conversion price of $24.00 per
share. The Company received proceeds of $134.2 million, net of offering costs,
from the issuance of the debentures. The offering costs were capitalized as
deferred financing costs and are being amortized using the straight-line method
over the term of the debentures. During 1998, debentures totaling $20,000 were
converted into 832 shares of common stock.
During the fourth quarter of 1997, the Company refinanced its mortgage notes
with a capital corporation by prepaying a $65.1 million note and refinancing a
$62.3 million term loan. The notes were restructured with a $112.3 million
credit facility from the capital corporation, of which $62.3 million is a new
term loan bearing interest at a fixed rate of 8.2% and $50.0 million is a new
revolving line of credit bearing interest at a variable rate of 1.75% over the
lender's composite commercial paper rate, both maturing on December 31, 2002. In
conjunction with the prepayment, the Company was required to pay $9.5 million
for the buyout of the capital corporation's participation rights to future
earnings of two of the Company's senior living communities and a prepayment
penalty. The Company recognized an extraordinary after-tax charge of $6.3
million, or $.60 per share, for the prepayment penalty, participating rights
buyout, and the write-off of unamortized deferred financing costs related to the
previous notes.
The Company is required to comply with certain restrictive financial and other
covenants. Under the terms of various long-term debt agreements, the Company is
required to maintain certain deposits with trustees. Such deposits are included
in "assets limited as to use" in the financial statements.
(10) REFUNDABLE ENTRANCE FEES AND DEFERRED LIFE ESTATE INCOME
Under certain of the Company's residency and health care agreements for its
lifecare communities acquired pursuant to the FGI transaction, residents entered
into a Master Trust Agreement whereby amounts were paid by the resident into a
trust account. These funds were then made available to the related communities
in the form of a non-interest bearing loan to provide permanent financing for
the related communities and are collateralized by such land, buildings and
equipment. As of December 31, 1999, the remaining obligation under the Master
Trust Agreements is $50.1 million and is payable monthly based on a 40-year
amortization of each residents' balance. The current installment due in 2000,
and annually for the subsequent five-year period, is approximately $2.0 million.
The annual obligation is reduced as individual residency agreements terminate.
Upon termination of the resident's occupancy, the resident or the resident's
estate receives a payment of the remaining loan balance from the trust and pays
a lifecare fee to the community based on a formula in the residency and health
care agreement, not to exceed a specified percentage of the resident's original
amount paid to the trust. This lifecare fee is amortized by the Company into
revenue on a straight-line basis over the estimated life expectancy of the
resident beginning with the date of occupancy by the resident. The amortization
of the lifecare fees is included in resident and health care revenue in the
consolidated statement of operations. The Company reports the long-term
obligation under the Master Trust Agreements as a refundable portion of life
estate fees and deferred life estate income based on the applicable residency
agreements.
56
<PAGE> 57
The obligation to the Master Trust is classified as follows at December 31, 1999
and 1998, respectively.
<TABLE>
<CAPTION>
Other Residency
Master Trust Agreements Total
------------ ---------- -------
<S> <C> <C> <C>
At December 31, 1999:
Other current liabilities $ 1,980 $ -- $ 1,980
Refundable portion of life estate fees 18,792 24,594 43,386
Deferred life estate income 29,359 22,247 51,606
------- ------- -------
$50,131 $46,841 $96,972
======= ======= =======
At December 31, 1998:
Other current liabilities $ 1,479 $ -- $ 1,479
Refundable portion of life estate fees 24,307 24,498 48,805
Deferred life estate income 25,641 18,074 43,715
------- ------- -------
$51,427 $42,572 $93,999
======= ======= =======
</TABLE>
(11) PARTNERS'/SHAREHOLDERS' EQUITY
In connection with a 1995 roll-up transaction, the shareholders of a predecessor
corporation and the partners in various partnerships exchanged their common
stock or partnership interests for limited partnership interests in ARCLP.
Additionally, holders of $10.0 million of notes payable from an affiliated
limited partnership exchanged these notes for special redeemable preferred
limited partnership interests in ARCLP. Such preferred interests were entitled
to a cumulative 15% preferred distribution. The preferred interests were
redeemable, in whole or in part, at the option of ARCLP. During 1996, ARCLP
redeemed $4.8 million of the preferred limited interests, and on December 4,
1996, ARCLP approved the redemption of the remaining $5.2 million. Accordingly,
the $5.2 million was removed from equity and recorded as redemption payable at
December 31, 1996. It was redeemed in January 1997. ARCLP distributed $2.5
million to the partners in 1997. ARCLP was reorganized concurrent with the IPO.
On August 4, 1998, the Company completed a public offering of 4,500,000 shares
of common stock, of which 4,297,500 were sold by the Company and 202,500 shares
were sold by certain selling shareholders. Net proceeds to the Company were
approximately $64.8 million, net of underwriting and issuance costs.
The Company is authorized to establish and issue, from time to time, up to 5
million shares of no par value preferred stock, in one or more series, with such
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), redemption price or
prices, and liquidation preference as authorized by the Board of Directors. At
December 31, 1999, no preferred shares had been issued.
On November 18, 1998, the Board of Directors of the Company declared a
distribution of one stock purchase right (ARC Right) for each outstanding share
of the Company's common stock, to shareholders of record at the close of
business on December 7, 1998 and for each share of the Company's common stock
issued thereafter. Each ARC Right entitles the holder, subject to the terms of
the Rights Agreement, to purchase from the Company, one one-hundredth of a share
(Unit) of ARC Series A Preferred Stock at a purchase price of $86.25 per Unit,
subject to adjustment. The ARC Rights may cause substantial dilution to a person
or group that
57
<PAGE> 58
attempts to acquire the Company on terms not approved by a majority of the Board
of Directors. Thus, the ARC Rights are intended to encourage persons who may
seek to acquire control of the Company to initiate such an acquisition through
negotiations with the Company's Board of Directors.
The ARC Rights attach to all certificates representing outstanding shares of
Company common stock and no separate ARC Rights certificates will be
distributed. The ARC Rights will separate from the common stock, and will be
distributed, if certain persons acquire, obtain the right to acquire, or
otherwise obtain beneficial ownership of 15% or more of the outstanding shares
of the Company's common stock. If distributed, each holder of an ARC Right will
thereafter have the right to receive, upon exercise, shares of Company common
stock (or, in certain circumstances at the discretion of the Board of Directors,
assets of the Company) having a value equal to two times the exercise price of
the ARC Right.
The ARC Rights are not exercisable until distributed and will expire at the
close of business on November 18, 2008, unless earlier redeemed by the Company.
The Board of Directors may redeem the ARC Rights in whole, but not in part, at a
price of $.001 per ARC Right, payable, at the election of the Board of
Directors, in cash or shares of Company common stock. Until an ARC Right is
exercised, the holder will have no rights as a shareholder.
A total of 2,000,000 shares of ARC Series A Preferred Stock have been reserved
for issuance upon exercise of the ARC Rights, subject to adjustment. The Units
of ARC Series A Preferred Stock that may be acquired upon exercise of the ARC
Rights will be nonredeemable and subordinate to any other shares of preferred
stock that may be issued by the Company.
The Company has recently announced plans to buy back up to $1.5 million of its
common stock to fund the Company's contributions to its employee benefit plans
for 2000 and 2001. The purchases are anticipated to be made primarily in the
open market over the next year. The timing and actual number of shares purchased
will depend on future market conditions.
Additionally, the Company has announced that its board of directors has
authorized the repurchase from time to time of its 5-3/4% convertible
debentures. Purchases, up to $30 million in market value, may be made in the
open market or privately negotiated transactions. The timing and amount will
depend upon prevailing market conditions, alternative uses of capital and other
factors. The program is expected to be completed during 2000.
(12) STOCK-BASED COMPENSATION
Stock Option Plan
In 1997, the Company adopted a stock incentive plan (the "1997 Plan") providing
for the grant of stock options, stock appreciation rights, restricted stock,
and/or other stock-based awards. Pursuant to the 1997 Plan, as amended,
2,542,850 shares of common stock have been reserved and are available for
issuance. The option exercise price and vesting provisions of such options are
fixed when the option is granted. The options generally expire ten years from
the date of grant and vest over a three-year period. The option exercise price
is generally not less than the fair market value of a share of common stock on
the date the option is granted.
58
<PAGE> 59
A summary of the Company's stock option activity, and related information for
the years ended December 31, 1999, 1998 and 1997, respectively, is presented
below (shares in thousands):
<TABLE>
<CAPTION>
Average
Exercise
Options Shares Price
- ---------------------------------------------------------------
<S> <C> <C>
Granted 801 $15.51
Forfeited (21) 14.00
- ---------------------------------------------------------------
Outstanding at December 31, 1997 780 $15.55
- ---------------------------------------------------------------
Granted 963 $16.93
Exercised (13) 14.00
Forfeited (240) 19.20
- ---------------------------------------------------------------
Outstanding at December 31, 1998 1,490 $15.86
- ---------------------------------------------------------------
Granted 1,018 $11.53
Exercised (5) 14.00
Forfeited (135) 16.47
- ---------------------------------------------------------------
Outstanding at December 31, 1999 2,368 $13.97
- ---------------------------------------------------------------
</TABLE>
The following table summarizes information about stock options outstanding at
December 31, 1999 (shares in thousands):
<TABLE>
<CAPTION>
Weighted
Average Weighted
Remaining Average
Range of Number Contractual Exercise
Exercise Prices Outstanding Life (Years) Price
- --------------------------------------------------------------
<S> <C> <C> <C>
$ 5.000-13.188 458 9.81 $ 5.29
$14.000-14.000 496 7.42 $ 14.00
$15.125-16.875 992 8.82 $ 16.00
$17.375-23.000 422 8.93 $ 18.51
- --------------------------------------------------------------
$ 5.000-23.000 2,368 8.74 $ 13.97
- --------------------------------------------------------------
</TABLE>
There were 623,000 options exercisable at an average exercise price of $15.35 as
of December 31, 1999.
As discussed in Note 2, the Company accounts for stock-based employee
compensation in accordance with APB No. 25 and related interpretations as
permitted by SFAS No. 123. Accordingly, no compensation expense has been
recognized for its stock option awards because the option grants are generally
for a fixed number of shares with an exercise price generally equal to the fair
value of the shares at the date of grant. In accordance with SFAS No. 123, pro
forma information regarding net income (loss) and earnings (loss) per share has
been determined by the Company using the "Black-Scholes" option pricing model
with the following weighted average assumptions for the years ended December 31,
1999, 1998 and 1997, respectively: 5.53%, 4.55% and 6.35% risk-free interest
rate, 0% dividend yield, 76.4%, 39.7% and 26.7% volatility rate, and an expected
life of the options equal to the remaining vesting period.
59
<PAGE> 60
The weighted average fair value of options granted during 1999, 1998 and 1997
was $6.08, $5.38, and $7.25, respectively. For purposes of pro forma
disclosures, the estimated fair value of the options is amortized to expense
over the options' vesting period. The Company's pro forma information follows
(in thousands except per share amounts, 1997 earnings per share amounts are
based upon pro forma shares outstanding - see Note 1):
<TABLE>
<CAPTION>
1999 1998 1997
---------------------- ----------------------- ----------------------
SFAS 123 SFAS 123 SFAS 123
As Reported Pro Forma As Reported Pro Forma As Reported Pro Forma
----------- --------- ----------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Net income (loss) $ 2,052 ($ 419) $ 6,900 $ 5,559 ($4,800) ($5,450)
Basic earnings (loss) per share $ 0.12 ($0.02) $ 0.49 $ 0.40 ($ 0.45) ($ 0.52)
Diluted earnings (loss) per share $ 0.12 ($0.02) $ 0.49 $ 0.39 ($ 0.45) ($ 0.52)
</TABLE>
Stock Purchase Plan
In 1997, the Company adopted an employee stock purchase plan ("ESPP") pursuant
to which an aggregate of 197,576 shares remain authorized and available for
issuance to employees at December 31, 1999. Under the ESPP, employees, including
executive officers, who have been employed by the Company continuously for at
least 90 days are eligible, subject to certain limitations, as of the first day
of any option period (January 1 through June 30, or July 1 through December 31)
(an "Option Period") to contribute on an after-tax basis up to 15% of their base
pay per pay period through payroll deductions and/or a single lump sum
contribution per Option Period to be used to purchase shares of common stock. On
the last trading day of each Option Period (the "Exercise Date"), the amount
contributed by each participant over the course of the Option Period will be
used to purchase shares of common stock at a purchase price per share equal to
the lesser of (a) 85% of the closing market price of the common stock on the
Exercise Date; or (b) 85% of the closing market price of the common stock on the
first trading date of such Option Period. The ESPP is intended to qualify for
favorable tax treatment under Section 423 of the Internal Revenue Code (Code).
During 1999, 1998 and 1997, respectively, 21,624, 16,190 and 14,610 shares were
issued pursuant to the ESPP at an average purchase price of $9.34, $14.52 and
$15.30 per share, respectively.
(13) RETIREMENT PLANS
401 (k) Plan
Employees of the Company participate in a savings plan (the "401(k) Plan") which
is qualified under Sections 401 (a) and 401(k) of the Code. To be eligible, an
employee must have been employed by the Company for at least three months. The
401(k) Plan permits employees to make voluntary contributions up to specified
limits. Additional contributions may be made by the Company at its discretion,
which contributions vest ratably over a five-year period. The Company
contributed $115,000, $521,000, and $269,000, for 1999, 1998, and 1997
respectively.
60
<PAGE> 61
Section 162 Plan
The Company maintains a non-qualified deferred compensation plan (the "162
Plan") which allows employees who are "highly compensated" under IRS guidelines
to make after-tax contributions to an investment account established in such
employees' name. Additional contributions may be made by the Company at its
discretion. All contributions to the 162 Plan are subject to the claims of the
Company's creditors. Approximately 52 employees are eligible to participate in
the 162 Plan. The Company contributed approximately $191,000, and $96,000, to
the 162 Plan in 1998 and 1997, respectively. No contributions were made to the
162 Plan in 1999.
(14) INCOME TAXES
Prior to the IPO, taxes on the Predecessor's income were the responsibility of
the individual partners. Pursuant to the reorganization, all assets of ARCLP
were transferred to the Company. Therefore, all income generated subsequent to
the IPO is subject to Federal and state income taxes. Income taxes for the
period prior to the IPO relate only to the income of a taxable entity within the
Predecessor.
Total income tax expense (benefit) for the years ended December 31, 1999, 1998,
and 1997 were attributable to the following (in thousands):
<TABLE>
<CAPTION>
Years Ended December 31,
-------------------------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Income from continuing operations $ 1,257 $ 5,652 $ 4,435
Loss from home health operations -- (762) (95)
Write-off of home health assets -- (553) --
Extraordinary item -- -- (3,883)
Cumulative effect of change in
accounting principle -- (186) --
------- ------- -------
Total income taxes $ 1,257 $ 4,151 $ 457
======= ======= =======
</TABLE>
The income tax expense (benefit), attributable to income from continuing
operations before extraordinary item and cumulative effect of change in
accounting principle consists of the following (in thousands):
<TABLE>
<CAPTION>
Years Ended December 31,
---------------------------------------
1999 1998 1997
-------- ------- -------
<S> <C> <C> <C>
U.S. Federal
Current $ 1,375 $ 1,138 $ --
Deferred (28) 3,925 3,819
------- ------- -------
Total U.S. Federal 1,347 5,063 3,819
------- ------- -------
State:
Current 89 591 178
Deferred (179) (2) 438
------- ------- -------
Total State (90) 589 616
------- ------- -------
Total $ 1,257 $ 5,652 $ 4,435
======= ======= =======
</TABLE>
61
<PAGE> 62
The tax effect of temporary differences that give rise to significant portions
of the deferred tax assets and liabilities at December 31, 1999 and 1998 are
presented below (in thousands):
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Deferred tax assets:
Federal and state operating loss carryforwards $ 3,734 $ 2,636
AMT credit carryforward 2,000 499
Charitable contributions carryforward 6,653 6,653
Deferred gains on sale/leaseback transactions 1,183 1,574
Accrued expenses not deductible for tax 932 392
Intangible assets 549 519
Asset impairment charges and contractual losses on development 3,387 --
Other 295 926
-------- --------
Total gross deferred tax assets 18,733 13,199
Less valuation allowance (7,554) (6,653)
-------- --------
Total deferred tax assets, net of valuation allowance 11,179 6,546
Deferred tax liabilities:
Buildings and equipment 23,207 20,617
Deferred life estate revenue 1,016 800
Other 1,434 180
-------- --------
Total gross deferred tax liabilities 25,657 21,597
-------- --------
Net deferred tax liability ($14,478) ($15,051)
======== ========
</TABLE>
The following table summarizes the significant differences between the U.S.
Federal statutory tax rate and the Company's effective tax rate for financial
statement purposes on income from continuing operations before income taxes,
extraordinary item and cumulative effect of change in accounting principle:
<TABLE>
<CAPTION>
1999 1998 1997
----- ------ -----
<S> <C> <C> <C>
Statutory tax rate 35% 35% 34%
Income attributable to non-taxable entities -- -- (9%)
Federal tax charge for conversion to taxable
entities -- -- 47%
Difference in book and tax goodwill amortization
expense 4% -- (4%)
State income taxes, net of Federal benefit (1.8%) 2.5% 7%
Change in beginning of the year valuation allowance -- -- (6%)
Non-deductible expenses and other items 0.8% 0.2% 3%
--- ---- --
Total 38% 37.7% 72%
=== ==== ==
</TABLE>
At December 31, 1999, the Company had unused federal net operating loss (NOL)
carryforwards of approximately $7.1 million for regular tax purposes, which
expire beginning in 2011. The Company has no NOL carryforwards for alternative
minimum tax purposes. As of December 31, 1999 the Company had alternative
minimum tax credit carryforwards of approximately $2.0 million. The Company also
had an unused charitable contribution carryforward of approximately $19 million,
which carried over from the acquisition of FGI. The charitable contribution
carryover expires in 2002.
62
<PAGE> 63
As of December 31, 1999, the Company carried a valuation allowance against
deferred tax assets in the amount of $ 7.6 million. The net change in the total
valuation allowance for the years ended December 31, 1999 and 1998 was an
increase of $900,000. The increase in the valuation allowance during 1999
related to state net operating loss carryovers generated in 1999. In assessing
the realizability of deferred tax assets, management considers whether it is
more likely than not that some portion or all of the deferred tax assets will be
realized. The ultimate realization of deferred tax assets is dependent upon the
generation of future taxable income during the periods in which those temporary
differences become deductible. Management considers the scheduled reversal of
deferred tax liabilities, projected future taxable income, and tax planning
strategies in making this assessment. Based upon the level of projected future
taxable income over the period in which the Company can utilize the charitable
contribution carryforward, management believes that it is more likely than not
that the tax benefit of the charitable contribution carryforward will not be
fully realized prior to its expiration in 2002. Therefore, management has
determined that a valuation allowance in the amount of $6.7 million should be
applied against the charitable contribution carryforward. At such time as it
becomes more likely than not that the benefit of the charitable contribution
carryforward acquired will be realized, the cost in excess of net assets
acquired in the 1998 FGI acquisition will be reduced by an amount equal to the
related tax benefit. Furthermore, management has determined that a valuation
allowance in the amount of $900,000 should be applied against certain state net
operating loss carryovers. The amount of the deferred tax asset considered
realizable, however, could be reduced in the near term if estimates of future
taxable income are reduced.
(15) COMMITMENTS AND CONTINGENCIES
The Company maintains commercial insurance on a claims-made basis for medical
malpractice liabilities. Management is unaware of any incidents which could
ultimately result in a loss in excess of the Company's insurance coverage.
In the normal course of business, the Company is a defendant in certain
litigation. However, management is unaware of any action that would have a
material adverse impact on the financial position or results of operations of
the Company.
The Company is self-insured for workers' compensation claims with excess loss
coverage of $250,000 per individual claim and $2.7 million for aggregate claims.
The Company utilizes a third party administrator to process and pay filed
claims. The Company has accrued $843,000 to cover open claims not yet settled
and incurred but not reported claims as of December 31, 1999. Management is of
the opinion that such amounts are adequate to cover any such claims.
At December 31, 1999, the Company had entered into operating leases for nine of
its senior living communities and its corporate offices. The remaining lease
terms vary from two to 18 years. Certain of the leases provide for renewal and
purchase options. Lease expense was $13.0 million, $9.1 million and $3.4 million
for 1999, 1998, and 1997, respectively.
63
<PAGE> 64
Future minimum lease payments under operating leases as of December 31, 1999
were as follows (in thousands):
<TABLE>
<S> <C>
2000 $ 14,183
2001 14,189
2002 13,737
2003 11,334
2004 10,131
Thereafter 109,875
--------
$173,449
========
</TABLE>
The Company maintains a $100.0 million revolving credit facility and a $4.0
million secured line of credit which are available for general use. The Company
has also secured a $50.0 million line of credit for the construction and/or
expansion of senior living communities. As of December 31, 1999, $64.4 million
was outstanding under the $100.0 million revolving facility and approximately
$3.7 million of the $4.0 million line had been used to obtain letters of credit.
The Company has committed $23.3 million of the $50.0 million line of credit for
use in synthetic leases for two assisted living communities being developed by
the Company. No amounts were outstanding under the $50.0 million line at
December 31, 1999.
Additionally, during the year ended December 31, 1999, the Company received a
commitment from a REIT for a $50.0 million credit facility that is available for
the development and acquisition of senior living communities.
In 1999, the Company entered into an interest rate swap agreement as a hedge
against certain debt liabilities in order to manage interest rate risk. As of
December 31, 1999, the Company had an interest rate swap agreement in effect
with a notional amount of $35.6 million with an approximate market value of $1.5
million. Under the terms of the swap agreement, the Company receives a fixed
rate interest payment based on a fixed interest rate of 6.87% and pays a
floating rate based upon a foreign currency index with a maximum rate through
July 1, 2002 of 6.87% and 8.12% thereafter. The swap agreement matures July 1,
2008.
The Company's management agreements are generally for terms of three to 20
years, but certain of the agreements may be canceled by the owner of the
community, without cause, on three to six months' notice. Pursuant to the
management agreements, the Company is generally responsible for providing
management personnel, marketing, nursing, resident care and dietary services,
accounting and data processing services, and other services for these
communities at the owner's expense and receives a monthly fee for its services
based on either a contractually fixed amount, a percentage of revenues or
income, or cash flows in excess of operating expenses and certain cash flows of
the community. The Company's existing management agreements expire at various
times through June 2018.
In connection with the execution of management contracts pursuant to the FGI
transaction, the Company assumed a debt guaranty on the mortgage debt of one of
the managed communities. At December 31, 1999, $19.1 million was outstanding
under the debt agreement.
The Company finances the costs of certain senior living communities owned by
others which are being developed, leased or managed by the Company. The Company
is obligated to and anticipates providing approximately $52.2 million of
additional financing for these communities.
64
<PAGE> 65
The Company is currently providing development services for senior living
communities owned by others. Under the terms of the development agreements, the
Company receives a fixed fee of approximately 3.75% to 5% of the total
construction costs of the communities. Such fees are recognized over the terms
of the development agreements using the percentage-of-completion method. The
Company recognized $5.9 million and $7.6 million of development fee revenue
during 1999 and 1998, respectively. Failure to perform under the development
agreements may require the Company to acquire the senior living communities. The
Company owns the land upon which 13 of these senior living communities are
located, and has leased the land for terms of 50 years.
Upon completion of the construction, the owners of the senior living communities
lease the properties to various special purpose entities (SPEs). The Company has
entered into management agreements with the SPEs to manage the operations of the
leased senior living communities. The management agreements provide for the
payment of management fees to the Company based on a percentage of each
communities' gross revenues and requires the Company to fund the SPEs' operating
deficits above specified amounts. During 1999 the Company funded operating
deficits of $374,000. The Company is required to pledge to the lessors
certificates of deposit as collateral to support the lessor's equity
contribution commitment. At December 31, 1999, the Company has pledged
certificates of deposit in the aggregate of $29.9 million which are classified
as non-current assets limited as to use. The Company receives the interest
income earned on these certificates of deposit. The management agreements also
provide the Company with a right of first refusal to assume the SPEs' interest
in the leases at a formula price. During 1999, the Company did not assume any of
the SPEs' lease interests.
Federal and state governments regulate various aspects of the Company's
business. The development and operation of health care facilities and the
provision of health care services are subject to federal, state, and local
licensure, certification, and inspection laws that regulate, among other
matters, the number of licensed beds, the provision of services, the
distribution of pharmaceuticals, billing practices and policies, equipment,
staffing (including professional licensing), operating policies and procedures,
fire prevention measures, environmental matters, and compliance with building
and safety codes. Failure to comply with these laws and regulations could result
in the denial of reimbursement, the imposition of fines, temporary suspension of
admission of new patients, suspension or decertification from the Medicare
programs, restrictions on the ability to acquire new facilities or expand
existing facilities, and, in extreme cases, the revocation of a community's
license or closure of a community. Except as noted below, management believes
the Company was in compliance with such federal and state regulations at
December 31, 1999.
The Arizona Department of Insurance has notified the owner of the Company's
managed community in Peoria, Arizona, that the owner is not currently in
compliance with a net worth requirement imposed by Arizona law. While the
compliance with this net worth requirement is technically the responsibility of
the owner, in order to facilitate discussions with the Arizona Department of
Insurance, the Company has provided the Department with a limited guaranty
relating to the financial performance of the community. The Company and the
owner of the community are currently considering a number of courses of action
with respect to this net worth requirement, and are engaged in discussions with
the Arizona Department of Insurance. While the Company and owner believe that
the owner's noncompliance with the net worth requirement is only a technical
violation of law and that the community is in a strong financial position, there
can be no assurance that the State of Arizona will not enforce the law strictly.
A violation of this net worth requirement may, among other things, allow the
Arizona Department of Insurance to take steps to appoint a receiver for the
community.
65
<PAGE> 66
Certain of the communities operated by the Company are currently operating a
number of skilled nursing beds as "shelter beds" under a Florida statute and
certificate of need that generally limits the use of such beds to residents of
the community. Such communities are not currently in full compliance with these
shelter bed certificate of need requirements. A violation of the shelter bed
statutes may, among other things, subject the owner of the facility to fines up
to $1,500 per day. Although management is evaluating a number of alternatives
relating to these shelter bed issues, management does not anticipate that the
communities will be in full compliance with the shelter bed requirements in the
foreseeable future. There can be no assurance that the State of Florida will not
enforce the shelter bed requirements strictly against the Company in the future
or impose penalties for prior or continuing violations.
(16) RELATED PARTY TRANSACTIONS
The Company has agreed to develop ten assisted living residences for an
unaffiliated third-party. Following the completion of construction, the
residences are leased to affiliates of John Morris, a director of the Company.
As of December 31, 1999, four of the residences were operational and six were
under construction. The Company has agreed to manage such residences pursuant to
management agreements that provide for the payment of management fees to the
Company based on a percentage of the gross revenues of each residence and
require the Company to fund operating losses above a specified amount. The
Company has agreements with similar terms with unaffiliated parties. During
1999, the Company did not make any payments for operating losses and recognized
$114,000 of management fees pursuant to the management agreements.
As part of the FGI Transaction, the Company entered into a 20-year management
agreement (with two ten-year renewal options) for a senior living community
located in Peoria, Arizona. Mr. Roskamp, a director of the Company, is a
director of a charitable foundation that owns an interest in the community.
Pursuant to the management agreement, the Company will receive a management fee
equal to all revenue from the community that is in excess of operating expenses,
refunds of entrance fees, capital expenditure reserves, debt service, and
certain payments to the community's owners. The Company recognized $1.5 million
and $1.2 million of management fees in 1999 and 1998, respectively, pursuant to
this agreement.
The Company also entered into a 20-year management agreement (with two ten-year
renewal options) for a senior living community located in Seminole, Florida. In
connection with the management agreement, the Company paid a $1.2 million fee to
the owner of the community, which is a general partnership in which Mr. Roskamp
owns a 98.0% interest, and assumed FGI's existing guaranty of approximately
$19.1 million of the mortgage debt associated with the community. Pursuant to
the management agreement, the Company will receive a management fee equal to all
revenue from the community that is in excess of operating expenses, refunds of
entrance fees, capital expenditure reserves, debt service, and certain payments
to the community's owner. As part of the FGI transaction, the Company also
acquired an option to purchase the community upon the occurrence of certain
events (including the expiration of the agreement) for a formula purchase price.
The Company recognized $368,000 and $1.7 million of management fees in 1999 and
1998, respectively, pursuant to this agreement.
The Company also entered into a three-year management agreement for a senior
living community located in Glenmore, Pennsylvania, that is owned by a
partnership in which Mr. Roskamp owns a 70.0% interest.
66
<PAGE> 67
Pursuant to the management agreement, the Company will receive a management fee
equal to 5.0% of the gross revenues of the community. The Company paid a
non-refundable deposit of $2.0 million to acquire an option to purchase the
community for a purchase price of $14.0 million, plus the assumption of certain
specified liabilities. The Company's deposit will be credited against the
purchase price if the Company exercises its purchase option. The Company also
assumed FGI's remaining development obligations relating to the community. In
return for its development services and costs associated therewith, the Company
received a fee of $200,000 in 1998. Additionally, the Company recognized
$383,000 and $82,000 in management fees in 1999 and 1998, respectively, pursuant
to this agreement.
Pursuant to the FGI Transaction, the Company also entered into an agreement to
provide development services related to the development and construction of a
proposed senior living community in Sarasota, Florida that is currently in the
development and planning phase. The community is owned by a limited liability
company in which Mr. Roskamp owns a 57.5% interest. In return for its
development services and costs associated therewith, the Company will receive a
development fee of $2.1 million. The Company will manage the community following
its completion pursuant to a five-year management agreement that provides for a
management fee equal to 5.0% of the gross revenues of the community. In
consideration of the Company's payment of a $2.0 million fully-refundable
deposit, the Company acquired an option to purchase the community for a price to
be negotiated. The Company will receive a credit against the purchase price in
the amount of its deposit if the purchase option is exercised. The Company
recognized $900,000 and $450,000 of development fees in 1999 and 1998,
respectively, from the agreement.
In connection with the FGI Transaction, Mr. Roskamp entered into a three-year
consulting agreement with the Company that provides for annual payments of
$150,000 to Mr. Roskamp. In addition, pursuant to a shareholder's agreement
entered into by the Company and Mr. Roskamp, the Company caused Mr. Roskamp to
be elected to the Board of Directors of the Company and its Executive Committee
and has agreed to use its best efforts to cause Mr. Roskamp, or a designee of
Mr. Roskamp, to be recommended to the Company's shareholders for election as a
director at each annual meeting of the Company's shareholders at which Mr.
Roskamp stands for election for so long as Mr. Roskamp, or permitted
transferees, owns greater than 411,000 shares of the Company's common stock and
the shares of common stock owned by Mr. Roskamp and his affiliates constitute 1%
or more of the Company's outstanding common stock.
In October 1999, the Company secured a management contract for an up-scale
private pay skilled nursing center with 128 beds in Phoenix, Arizona. The
health center will be operated under the name "Freedom Plaza Health Center," and
is fifty percent (50%) owned by the Company's chief executive officer, W.E.
Sheriff. The health center and is located adjacent to Freedom Plaza and Plaza
Del Rio Health Center, both currently managed by the Company. The Company has an
option to purchase the Freedom Plaza Health Center at a formula price beginning
in 2009. The Company recognized $200,000 of management fees in 1999 pursuant to
this agreement.
67
<PAGE> 68
(17) QUARTERLY DATA (UNAUDITED)
The following table presents unaudited quarterly operating results for each of
the Company's last eight fiscal quarters. The Company believes that all
necessary adjustments have been included in the amounts stated below to present
fairly the quarterly results when read in conjunction with the consolidated
financial statements. Results of operations for any particular quarter are not
necessarily indicative of results of operations for a full year or predictive of
future periods.
<TABLE>
<CAPTION>
1999 Quarter Ended 1998 Quarter Ended
------------------ ------------------
Dec 31 Sept 30 June 30 Mar 31 Dec 31 Sept 30 June 30 Mar 31
------ ------- ------- ------ ------ ------- ------- ------
(dollar amounts in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues $ 42,860 $ 44,362 $ 44,453 $ 43,595 $ 44,172 $ 41,325 $ 29,820 $ 27,040
Income (loss) from continuing
operations before cumulative effect of
change in accounting principle (6,853) 2,079 3,431 3,394 2,816 2,601 2,230 1,703
Net income (loss) (6,853) 2,079 3,431 3,394 1,797 2,311 1,638 1,155
EARNINGS PER SHARE:
Basic ($0.40) $ 0.12 $ 0.20 $ 0.20 $ 0.11 $ 0.15 $ 0.14 $ 0.10
Weighted average basic shares outstanding 17,138 17,138 17,122 17,118 17,109 15,603 11,422 11,421
Diluted ($0.40) $ 0.12 $ 0.20 $ 0.20 $ 0.10 $ 0.15 $ 0.14 $ 0.10
Weighted average diluted shares outstanding 17,138 17,138 17,161 17,177 17,149 15,695 11,587 11,633
</TABLE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item with respect to the directors of
the Company is incorporated herein by reference to the Company's definitive
proxy statement for its Annual Meeting of Shareholders to be held May 10, 2000
to be filed with the Securities and Exchange Commission (the "SEC"). Pursuant to
General Instruction G(3), certain information concerning the executive officers
of the Company is included in Part I of this report under the caption "Executive
Officers."
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is incorporated herein by
reference to the section entitled "Executive Compensation" in the Company's
definitive proxy statement for its Annual Meeting of Shareholders to be held May
10, 2000 to be filed with the SEC.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is incorporated herein by
reference to the section entitled "Security Ownership of Management and Certain
Beneficial Owners" in the Company's definitive proxy statement for its Annual
Meeting of Shareholders to be held May 10, 2000 to be filed with the SEC.
68
<PAGE> 69
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is incorporated herein by
reference to the section entitled "Certain Transactions" in the Company's
definitive proxy statement for its Annual Meeting of Shareholders to be held May
10, 2000 to be filed with the SEC.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
Item 14. (a) (1) Financial Statements: See Item 8
(2) Financial Statement Schedules: See Item 8
(3) Exhibits required by item 601 of Regulation S-K are as follows:
Exhibit
Number Description
- ------ -----------
2.1 Limited Partnership Agreement of American Retirement Communities,
L.P. dated February 7, 1995, as amended April 1, 1995.(1)
2.2 Articles of Share Exchange between American Retirement Communities,
L.P., and American Retirement Corporation, dated March 31, 1995.(1)
2.3 Reorganization Agreement, dated February 28, 1997.(1)
2.4 Agreement and Plan of Merger, dated as of May 29, 1998, by and among
American Retirement Corporation, Freedom Group, Inc., and the
shareholders of Freedom Group, Inc.(2)
2.5 Supplemental Agreement, dated July 14, 1998, among American
Retirement Corporation, Freedom Group, Inc., Robert G. Roskamp, PHC,
L.L.C., and The Edgar and Elsa Prince Foundation(3)
2.6 Amendment to Agreement and Plan of Merger, dated October 12, 1998,
by and among American Retirement Corporation and each of the former
shareholders of Freedom Group, Inc. (3)
3.1 Charter of the Registrant(1)
3.2 Articles of Amendment to the Charter of the Registrant(3)
3.3 Articles of Amendment to the Charter of the Registrant, dated May
12, 1999
3.4 Bylaws of the Registrant, as amended(3)
4.1 Specimen Common Stock certificate(1)
4.2 Article 8 of the Registrant's Charter (included in Exhibit 3.1)
4.3 Form of Indenture between the Company and IBJ Schroder Bank and
Trust Company, as Trustee, relating to the 5-3/4 % Convertible
Subordinated Debentures due 2002 of the Company.(4)
4.4 Rights Agreement, dated November 18, 1998, between American
Retirement Corporation and American Stock Transfer and Trust
Company.(5)
10.1 American Retirement Corporation 1997 Stock Incentive Plan, as
amended(6)
69
<PAGE> 70
10.2 American Retirement Corporation Employee Stock Purchase Plan(1)
10.3 First Amendment to Employee Stock Purchase Plan(8)
10.4 American Retirement Corporation 401(k) Retirement Plan(1)
10.5 Officers' Incentive Compensation Plan(1)
10.6 Registration Rights Policy(1)
10.7 Registration Rights Agreement, dated July 14, 1998, by and between
American Retirement Corporation and Robert G. Roskamp, PHC, LLC, and
the Edgar and Elsa Prince Foundation(7)
10.8 Shareholder Agreement, dated July 14, 1998, by and between American
Retirement Corporation and Robert G. Roskamp(7)
10.9 Consulting Agreement, dated July 14, 1998, by and between American
Retirement Corporation and Robert G. Roskamp(7)
10.10 Lease and Security Agreement, dated January 2, 1997, by and between
Nationwide Health Properties, Inc. and American Retirement
Communities, L.P.(4)
10.11 Lease and Security Agreement, dated January 2, 1997, by and between
N.H. Texas Properties Limited Partnership and Trinity Towers Limited
Partnership(4)
10.12 Amended and Restated Loan Agreement, dated December 21, 1994,
between Carriage Club of Denver, L.P. and General Electric Capital
Corporation(1)
10.13 Amended and Restated Promissory Note, dated December 21, 1994,
between Carriage Club of Denver, L.P. and General Electric Capital
Corporation(1)
10.14 Assumption, Consent and Loan Modification Agreement, dated February
9, 1995, by and among Carriage Club of Denver, L.P. and General
Electric Capital Corporation(1)
10.15 Loan Agreement, dated October 31, 1995, by and between American
Retirement Communities, L.P. and First Union National Bank of
Tennessee, as amended.(1)
10.16 Amended and Restated Promissory Note, dated October 31, 1995, by
American Retirement Communities, L.P. and First Union National Bank
of Tennessee, as amended.(1)
10.17 Revolving Credit Promissory Note, dated October 31, 1995, by
American Retirement Communities, L.P. and First Union National Bank
of Tennessee, as amended.(1)
10.18 Standby Note, dated October 31, 1995, by American Retirement
Communities, L.P. and First Union National Bank of North Carolina(1)
10.19 Reimbursement Agreement, dated October 31, 1995, by American
Retirement Communities, L.P. and First Union National Bank of North
Carolina(1)
10.20 Letter of Intent, dated April 3, 1997, by National Health Investors,
Inc. to American Retirement Corporation(1)
10.21 Master Loan Agreement, dated December 23, 1996 between First
American National Bank and American Retirement Communities, L.P.(1)
10.22 Letter of Intent, dated February 24, 1997, by National Health
Investors, Inc. to American Retirement Corporation(1)
10.23 Deed of Lease, dated as of October 23, 1997, between Daniel U.S.
Properties Limited Partnership, as Lessor, and ARC Imperial Plaza,
Inc. as Lessee(8)
10.24 Loan Agreement, dated as of December 31, 1997, between General
Electric Capital Corporation and Fort Austin Limited Partnership(8)
70
<PAGE> 71
10.25 Promissory Note, dated December 31, 1997, by Fort Austin Limited
Partnership to General Electric Capital Corporation in the original
principal amount of $62,330,000(8)
10.26 Promissory Note, dated December 31, 1997, by Fort Austin Limited
Partnership to General Electric Capital Corporation in the original
principal amount of $50,000,000(8)
10.27 Fixed Rate Program Promissory Note Secured by Mortgage, dated July
9, 1998, by ARCLP-Charlotte, LLC to Heller Financial, Inc. in the
original principal amount of $36,000,000(7)
10.28 Financing and Security Agreement, dated June 8, 1999, by and among
ARC Capital Corporation II and Bank United, as Agent(9)
10.29 Loan Commitment, dated July 30, 1999, among American Retirement
Corporation and Guaranty Federal Bank, F.S.B. (9)
10.30 Term Sheet, dated May 28, 1999, among Health Care REIT, Inc. and
American Retirement Corporation(9)
10.31 Amended and Restated Financing and Security Agreement, dated
February 11, 2000, by and among ARC Capital Corporation II and Bank
United, as Agent
21 Subsidiaries of the Registrant
23 Consent of KPMG LLP
27 Financial Data Schedule for the year ended December 31, 1999 (For
SEC use only)
- --------------
(1) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-23197).
(2) Incorporated by reference to the Registrant's Current Report on Form 8-K,
dated May 29, 1998.
(3) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998.
(4) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-34339).
(5) Incorporated by reference to the Registrant's Current Report on Form 8-K,
dated November 24, 1998.
(6) Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (Registration No. 333-94747)
(7) Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1998.
(8) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997.
(9) Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 30, 1999.
(b) Reports on Form 8-K filed during the quarter ended December 31, 1999:
None.
71
<PAGE> 72
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
AMERICAN RETIREMENT CORPORATION
By: /s/ W.E. Sheriff
-------------------------------
W.E. Sheriff
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ W.E. Sheriff Chairman and March 30, 2000
- ---------------------------- Chief Executive Officer
W.E. Sheriff (Principal Executive Officer)
/s/ George T. Hicks Executive Vice President - Finance, March 30, 2000
- ---------------------------- Chief Financial Officer (Principal
George T. Hicks Financial and Accounting Officer)
/s/ H. Lee Barfield II Director March 30, 2000
- ----------------------------
H. Lee Barfield II
/s/ Frank M. Bumstead Director March 30, 2000
- ----------------------------
Frank M. Bumstead
/s/ Christopher Coates Director March 30, 2000
- ----------------------------
Christopher J. Coates
/s/ Robin G. Costa Director March 30, 2000
- ----------------------------
Robin G. Costa
/s/ Clarence Edmonds Director March 30, 2000
- ----------------------------
Clarence Edmonds
/s/ John A. Morris, Jr., M.D . Director March 30, 2000
- ----------------------------
John A. Morris, Jr., M.D.
/s/ Daniel K. O'Connell Director March 30, 2000
- ----------------------------
Daniel K. O'Connell
/s/ Robert G. Roskamp Director March 30, 2000
- ----------------------------
Robert G. Roskamp
Director
- ----------------------------
Nadine C. Smith
/s/ Lawrence J. Steusser Director March 30, 2000
- ----------------------------
Lawrence J. Stuesser
</TABLE>
72
<PAGE> 73
American Retirement Corporation
Schedule II - Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
Additions
------------------------------
Balance at Charged to Balance at
Beginning of Charged to other End of
Description Period costs and expenses accounts Deductions Period
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Allowance for Doubtful Accounts
Year ended December 31, 1997 $ 108 $ 187 $ (47) $ 248
======================================================================
Year ended December 31, 1998 $ 248 $ 276 $(282) $ 242
======================================================================
Year ended December 31, 1999 $ 242 $ 118 $(123) $ 237
======================================================================
Deferred Tax Valuation Account
Year ended December 31, 1997 $ 339 $ (339) $ -- $ -- $ --
======================================================================
Year ended December 31, 1998 $ -- $ -- $6,653(1) $ -- $6,653
======================================================================
Year ended December 31, 1999 $6,653 $ 901 $ -- $ -- $7,554
======================================================================
Reserve for Contractual loss
Year ended December 31, 1997 $ -- $ -- $ -- $ -- $ --
======================================================================
Year ended December 31, 1998 $ -- $ -- $ -- $ -- $ --
======================================================================
Year ended December 31, 1999 $ -- $6,200 $ -- $ -- $6,200
======================================================================
</TABLE>
(1) Tax asset acquired in Freedom Group transaction for which management does
not believe realization of the tax benefit is more likely than not.
73
<PAGE> 74
American Retirement Corporation
Schedule IV - Mortgage Loans on Real Estate
<TABLE>
<CAPTION>
Principal amount
of loans subject
Final Periodic Carrying to delinquent
Interest Maturity Payment Face amount amount of principal
Description Rate Date Terms Prior liens of mortgages mortgages(3) or interest
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
First mortgage loan LIBOR+200 1-May-08 (1) $ -- $ 4,279 $ 4,279 $ --
First mortgage loan LIBOR+200 1-Oct-05 (1) -- 9,404 9,404 --
First mortgage loan LIBOR+200 1-Dec-09 (1) -- 17,069 17,069 --
First mortgage loan LIBOR+200 1-Jan-10 (1) -- 13,464 13,464 --
---------------------------------------------------------------
-- 44,216 44,216 --
---------------------------------------------------------------
Construction loans LIBOR+300 1-Jul-07 (2) -- 3,406 3,406 --
Construction loans LIBOR+300 1-Jul-07 (2) -- 3,601 3,601 --
Construction loans LIBOR+300 1-Jul-07 (2) -- 4,022 4,022 --
Construction loans LIBOR+300 1-Jul-07 (2) -- 4,699 4,699 --
Construction loans LIBOR+200 1-Jan-10 (2) -- 4,714 4,714 --
Construction loans LIBOR+200 1-Apr-07 (2) -- 4,782 4,782 --
Construction loans LIBOR+300 1-Dec-09 (2) -- 8,567 8,567 --
Construction loans LIBOR+200 1-Feb-10 (2) -- 7,500 7,500 --
Construction loans LIBOR+200 1-Jan-07 (2) -- 7,202 7,202 --
Other construction loans -- 4,527 4,527 --
---------------------------------------------------------------
-- 53,020 53,020 --
---------------------------------------------------------------
$ -- $97,236 $97,236 $ --
===============================================================
</TABLE>
(1) Principal payment based upon a 25-year amortization schedule with
outstanding principle due at maturity.
(2) Interest only through completion of construction. Upon completion of
construction principle payments will be based upon a 25-year amortization
schedule with outstanding principle due at maturity.
(3) The aggregate cost for federal income tax purposes is $97,236.
<TABLE>
<S> <C>
Balance at December 31, 1996 $ --
========
Balance at December 31, 1997 $ --
========
Additions during the period:
New mortgage loans $ 19,759
Deductions during the period:
Collections of principal (28)
----------------------
Balance at December 31, 1998 $ 19,731
========
Additions during period:
New mortgage loans 79,028
Deductions during period:
Collections of principal (174)
Write offs of impaired loans (1,349)
----------------------
Balance at December 31, 1999 $ 97,236
========
</TABLE>
See accompanying independent auditors' report.
74
<PAGE> 1
EXHIBIT 3.3
ARTICLES OF AMENDMENT TO THE CHARTER
OF
AMERICAN RETIREMENT CORPORATION
Pursuant to the provisions of Section 48-20-106 of the Tennessee
Business Corporation Act, the undersigned corporation adopts the following
Articles of Amendment (the "Articles of Amendment") to its Charter (the
"Charter"):
1. Name of Corporation. The name of the corporation is American
Retirement Corporation.
2. Article 8, Section (a) of the Charter is hereby deleted in its
entirety and replaced with the following:
(a). Two hundred million (200,000,000) shares of common
stock, par value $.01 per share, which shall be
entitled to one vote per share and, upon dissolution
of the corporation, shall be entitled to receive the
net assets of the corporation.
3. Adoption. These Articles of Amendment were duly adopted by the Board
of Directors on November 18, 1998, and by the shareholders of the corporation on
May 12, 1999.
4. Effective Date. These Articles of Amendment will be effective when
filed with the Secretary of State.
Date: May 12, 1999
AMERICAN RETIREMENT CORPORATION
By: /s/ W.E. Sheriff
------------------------------------
W.E. Sheriff, Chief Executive Officer
<PAGE> 1
AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
(Master Agreement)
ARC CAPITAL CORPORATION II, et al
as BORROWERS
BANK UNITED
as AGENT
February 11, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I ................................................................................................................ 2
DEFINITIONS ........................................................................................................... 2
Section 1.1 Certain Defined Terms ................................................................................. 2
Section 1.2 Accounting Terms and Other Definitional Provisions .................................................... 20
ARTICLE II ............................................................................................................... 21
BORROWING ............................................................................................................. 21
Section 2.1 The Loan .............................................................................................. 21
Section 2.2 Procedure for Advances ................................................................................ 23
Section 2.3 Fees .................................................................................................. 24
Section 2.4 Interest Rate Matters ................................................................................. 24
Section 2.5 Change in Basis Point Spread .......................................................................... 26
Section 2.6 Extensions ............................................................................................ 26
ARTICLE III .............................................................................................................. 26
COLLATERAL ............................................................................................................ 26
Section 3.1 Collateral ............................................................................................ 26
Section 3.2 Eligible Projects ..................................................................................... 27
Section 3.3 Note Assignment ....................................................................................... 27
Section 3.4 Guaranties ............................................................................................ 28
Section 3.5 Collateral for Obligations ............................................................................ 28
Section 3.6 Costs ................................................................................................. 28
ARTICLE IV ............................................................................................................... 28
GENERAL FINANCING PROVISIONS .......................................................................................... 28
Section 4.1 Conditions Precedent to Credit Facility Closing and Addition of Eligible Projects ..................... 28
Section 4.2 Additional Conditions Precedent to Accepting an Eligible Project That is Under Construction or to be
Constructed: ....................................................................................................... 31
Section 4.3 Additional Conditions Precedent to Accepting an Eligible Project That Has Been Constructed or Acquired:
34
Section 4.4 Additional Conditions Precedent to Accepting a Facility Subject to a Synthetic Lease Transaction as an
Eligible Project ................................................................................................... 37
Section 4.5 Conditions Precedent to Determining Additional Availability Under Borrowing Base ...................... 38
Section 4.6 Conditions Under Which an Eligible Project is a Completed Project ..................................... 41
Section 4.7 Verification of Operating Reserve Expenditures ........................................................ 42
Section 4.8 Assignments of Payments ............................................................................... 42
Section 4.9 Liability of the Lenders .............................................................................. 43
Section 4.10 Computation of Interest and Fees ..................................................................... 43
Section 4.11 Liens; Setoff ........................................................................................ 43
Section 4.12 Payment and Performance of Obligations ............................................................... 43
Section 4.13 Payments to Others for the Account of the Borrowers .................................................. 44
Section 4.14 Prepayment ........................................................................................... 44
Section 4.15 Delivery of Documents ................................................................................ 45
ARTICLE V ................................................................................................................ 45
REPRESENTATIONS AND WARRANTIES ........................................................................................ 45
Section 5.1 Good Standing ......................................................................................... 45
Section 5.2 Power and Authority ................................................................................... 45
Section 5.3 Binding Agreements .................................................................................... 45
Section 5.4 Litigation ............................................................................................ 45
</TABLE>
ii
<PAGE> 3
<TABLE>
<S> <C>
Section 5.5 No Conflicting Agreements ............................................................................. 46
Section 5.6 Financial Information ................................................................................. 46
Section 5.7 No Default Under Other Agreements ..................................................................... 47
Section 5.8 Taxes ................................................................................................. 47
Section 5.9 Place(s) of Business and Location of Collateral ....................................................... 47
Section 5.10 Title to Properties .................................................................................. 47
Section 5.11 Margin Stock ......................................................................................... 47
Section 5.12 ERISA ................................................................................................ 48
Section 5.13 Governmental Consent ................................................................................. 48
Section 5.14 Full Disclosure ...................................................................................... 48
Section 5.15 Business Names and Addresses ......................................................................... 48
Section 5.16 Licenses and Certifications .......................................................................... 49
Section 5.17 Operating Agreements and Management Contracts ........................................................ 49
Section 5.18 Participation Agreements and Resident Agreements ..................................................... 50
Section 5.19 Compliance with Laws ................................................................................. 50
Section 5.20 Presence of Hazardous Materials or Hazardous Materials Contamination ................................. 50
Section 5.21 Compliance in Zoning ................................................................................. 51
Section 5.22 Plans and Specifications ............................................................................. 51
Section 5.23 Building Permits; Other Permits ...................................................................... 51
Section 5.24 Utilities ............................................................................................ 51
Section 5.25 Access; Roads ........................................................................................ 51
Section 5.26 Other Liens .......................................................................................... 52
Section 5.27 Defaults ............................................................................................. 52
Section 5.28 Nature of Credit Facility; Usury; Disclosures ........................................................ 52
Section 5.29 Survival; Updates of Representations and Warranties .................................................. 52
Section 5.30 Accounts ............................................................................................. 52
Section 5.31 Single Purpose Entity ................................................................................ 53
ARTICLE VI ............................................................................................................... 53
CONDITIONS OF LENDING ................................................................................................. 53
Section 6.1 No Default ............................................................................................ 53
Section 6.2 Opinion of Counsel for the Borrower ................................................................... 53
Section 6.3 Approval of Counsel for the Lenders ................................................................... 53
Section 6.4 Supporting Documents .................................................................................. 54
Section 6.5 Financing Documents ................................................................................... 54
Section 6.6 Insurance ............................................................................................. 54
Section 6.7 Security Documents .................................................................................... 54
Section 6.8 Additional Borrower Joinder Supplement ................................................................ 54
ARTICLE VII .............................................................................................................. 55
AFFIRMATIVE COVENANTS OF BORROWER ..................................................................................... 55
Section 7.1 Financial Statements .................................................................................. 55
Section 7.2 Financial Covenants ................................................................................... 56
Section 7.3 Taxes and Claims ...................................................................................... 58
Section 7.4 Legal Existence ....................................................................................... 59
Section 7.5 Conduct of Business and Compliance with Laws .......................................................... 59
Section 7.6 Use of Proceeds ....................................................................................... 60
Section 7.7 Insurance ............................................................................................. 60
Section 7.8 Maintenance of Properties ............................................................................. 62
Section 7.9 Maintenance of the Collateral ......................................................................... 63
Section 7.10 Other Liens, Security Interests, etc ................................................................. 63
Section 7.11 Defense of Title and Further Assurances .............................................................. 63
Section 7.12 Subsequent Opinion of Counsel as to Recording Requirements ........................................... 63
Section 7.13 Books and Records .................................................................................... 63
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Section 7.14 Collections .......................................................................................... 64
Section 7.15 Notice to Account Debtors and Escrow Account ......................................................... 64
Section 7.16 Business Names ....................................................................................... 64
Section 7.17 ERISA ................................................................................................ 65
Section 7.18 Management ........................................................................................... 65
Section 7.19 Surveys .............................................................................................. 66
Section 7.20 Inspections; Cooperation; Payment of Inspecting Engineer ............................................. 67
Section 7.21 Vouchers and Receipts ................................................................................ 67
Section 7.22 Payments for Labor and Materials ..................................................................... 67
Section 7.23 Correction of Construction Defects ................................................................... 68
Section 7.24 Fees and Expenses; Indemnity ......................................................................... 68
Section 7.25 Governmental Surveys or Inspections .................................................................. 68
Section 7.26 Cost Reports ......................................................................................... 68
Section 7.27 Appraisals ........................................................................................... 68
Section 7.28 Notification of Certain Events, Events of Default and Adverse Developments ........................... 69
Section 7.29 Compliance with Environmental Laws ................................................................... 70
Section 7.30 Hazardous Materials; Contamination ................................................................... 70
Section 7.31 Participation in Reimbursement Programs .............................................................. 71
Section 7.32 Inspection and Other Reports and Notices ............................................................. 71
Section 7.33 Interest Rate for Assigned Notes ..................................................................... 72
ARTICLE VIII ............................................................................................................. 72
NEGATIVE COVENANTS OF BORROWER ........................................................................................ 72
Section 8.1 Borrowings ............................................................................................ 72
Section 8.2 Deeds of Trust and Pledges ............................................................................ 72
Section 8.3 Sale or Transfer of Assets ............................................................................ 72
Section 8.4 Other Liens; Transfers; "Due-on-Sale"; etc ............................................................ 72
Section 8.5 Advances and Loans .................................................................................... 73
Section 8.6 Contingent Liabilities ................................................................................ 73
Section 8.7 Licenses .............................................................................................. 73
Section 8.8 ERISA Compliance ...................................................................................... 73
Section 8.9 Transfer of Collateral ................................................................................ 74
Section 8.10 Sale of Accounts or Receivables ...................................................................... 74
Section 8.11 Amendments; Terminations ............................................................................. 74
Section 8.12 Prohibition on Hazardous Materials ................................................................... 75
Section 8.13 Subsidiaries ......................................................................................... 75
Section 8.14 Mergers or Acquisitions .............................................................................. 75
Section 8.15 Conditional Sales .................................................................................... 75
Section 8.16 Changes to Plans and Specification ................................................................... 75
Section 8.17 Construction Contract; Construction Management ....................................................... 75
Section 8.18 Line of Business ..................................................................................... 75
Section 8.19 Stock Redemption ..................................................................................... 76
Section 8.20 Single Purpose Entity ................................................................................ 76
Section 8.21 Limitation on Acquisition Projects ................................................................... 76
Section 8.22 Amendments to Synthetic Lease Transaction Documents .................................................. 76
ARTICLE IX ............................................................................................................... 76
EVENTS OF DEFAULT ..................................................................................................... 76
Section 9.1 Failure to Pay and/or Perform the Obligations ......................................................... 76
Section 9.2 Breach of Representations and Warranties .............................................................. 77
Section 9.3 Failure to Comply with Covenants ...................................................................... 77
Section 9.4 Failure to Comply with Financial Reporting or Books and Records ....................................... 77
Section 9.5 Other Defaults ........................................................................................ 77
Section 9.6 Default Under Other Financing Documents ............................................................... 77
</TABLE>
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Section 9.7 Receiver; Bankruptcy .................................................................................. 77
Section 9.8 Judgment .............................................................................................. 78
Section 9.9 Execution; Attachment ................................................................................. 78
Section 9.10 Default Under Other Borrowings ....................................................................... 78
Section 9.11 Change in Status or Ownership ........................................................................ 78
Section 9.12 Damage to Improvements ............................................................................... 78
Section 9.13 Mechanic's Lien ...................................................................................... 78
Section 9.14 Survey Matters ....................................................................................... 79
Section 9.15 General Contractor Default ........................................................................... 79
Section 9.16 Zoning ............................................................................................... 79
Section 9.17 Updated Appraisal .................................................................................... 79
Section 9.18 Default Under Synthetic Lease Transaction ............................................................ 79
ARTICLE X ................................................................................................................ 79
RIGHTS AND REMEDIES UPON DEFAULT ...................................................................................... 79
Section 10.1 DEMAND; ACCELERATION ................................................................................. 79
Section 10.2 Further Advances; Immediate Acceleration ............................................................. 80
Section 10.3 Further Advances; Material Adverse Change or Impairment of Position .................................. 80
Section 10.4 Specific Rights With Regard to Collateral ............................................................ 80
Section 10.5 Performance by Lenders ............................................................................... 82
Section 10.6 Uniform Commercial Code and Other Remedies ........................................................... 83
Section 10.7 Receiver or Other Court Order ........................................................................ 84
Section 10.8 License of Tradename ................................................................................. 84
ARTICLE XI ............................................................................................................... 84
MISCELLANEOUS ............................................................................................................ 84
Section 11.1 Notices ................................................................................................. 84
Section 11.2 Consents and Approvals .................................................................................. 85
Section 11.3 Remedies, etc. Cumulative ............................................................................... 85
Section 11.4 No Waiver of Rights by the Agent or Lenders ............................................................. 86
Section 11.5 Entire Agreement; Conflict with Agency Agreement ........................................................ 86
Section 11.6 Survival of Agreement; Successors and Assigns ........................................................... 86
Section 11.7 Expenses ................................................................................................ 87
Section 11.8 Counterparts ............................................................................................ 87
Section 11.9 Governing Law ........................................................................................... 87
Section 11.10 Modifications .......................................................................................... 87
Section 11.11 Illegality ............................................................................................. 88
Section 11.12 Gender, etc ............................................................................................ 88
Section 11.13 Headings ............................................................................................... 88
Section 11.14 Waiver of Trial by Jury ................................................................................ 88
Section 11.15 No Warranty by Lenders or Agent ........................................................................ 88
Section 11.16 Liability of the Lenders ............................................................................... 89
Section 11.17 No Partnership ......................................................................................... 89
Section 11.18 Third Parties; Benefit ................................................................................. 90
Section 11.19 Conditions; Verification ............................................................................... 90
Section 11.20 Signs; Publicity ....................................................................................... 90
Section 11.21 Mandatory Arbitration .................................................................................. 90
Section 11.22 Assignment By Lenders .................................................................................. 92
Section 11.23 Required Lenders ....................................................................................... 92
Section 11.24 Borrowers Approval of Lenders .......................................................................... 92
Section 11.25 Time of Essence ........................................................................................ 92
LIST OF EXHIBITS ......................................................................................................... 94
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AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT (the
"Agreement") is made this 11th day of February, 2000, but shall be effective as
of December 31, 1999 (except with regard to any provision herein specifying an
earlier effective date), by and among ARC CAPITAL CORPORATION II, a Tennessee
corporation ("ARCC"), the other Borrowers, if any, listed on the signature
pages hereof and BANK UNITED, as agent (the "Agent") for itself and for certain
additional Lenders (as hereinafter defined).
R E C I T A L S
A. The Lenders have provided to the Borrowers a credit facility
(such credit facility, as modified, increased, extended, restated or
substituted, is referred to hereinafter as the "Credit Facility" or the "Loan")
in the maximum principal sum of up to $100,000,000 or such greater amount not
to exceed $150,000,000 as the Lenders may from time to time commit to lend
pursuant to any Agency Agreement. Advances or readvances of the Loan have been
made pursuant to, and secured by, the provisions of that certain Financing and
Security Agreement dated June 8, 1999 by and between the Agent and ARC Capital
Corporation II, a Tennessee corporation (the "Original Financing Agreement").
B. The advances under the Loan are evidenced by promissory notes
made or to be made by one or more of the Borrowers for the benefit of each of
the Lenders in the aggregate principal sum of the then-applicable Credit
Facility Committed Amount (as amended, restated, renewed or resubstituted from
time to time, the "Notes"). The Notes are secured by, among other things,
certain Deeds of Trust (as defined in the Financing Agreement) from the
Borrowers in favor of the Agent for the benefit of the Lenders covering such
Borrowers' interest in the Land and the Improvements for the applicable
Facility (as defined in the Financing Agreement) or certain assignments to the
Lenders of Assigned Notes secured by Deeds of Trust payable to Borrowers in
connection with Synthetic Lease Transactions and Collateral Assignment and such
other real and personal property as shall be therein more particularly set
forth (collectively, the "Property"). The Credit Facility is evidenced, secured
and guaranteed by the Financing Documents (as defined in the Original Financing
Agreement).
C. Effective as of September 30, 1999, this Agreement has been
intended to be a wholesale warehouse mortgage agreement as described in Section
201.21 of the Florida Statutes.
D. Pursuant to an Additional Borrower Joinder Supplement
dated September 30, 1999, ARC Carriage Club of Jacksonville, Inc., a Tennessee
corporation, was added as a Borrower.
E. The Borrowers have requested and the Lenders have agreed to
modify certain provisions of the Original Financing Agreement. In connection
with such modifications to the Guaranty and other modifications to the Credit
Facility, the Original Financing Agreement is
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being amended and restated pursuant to the Amended and Restated Financing and
Security Agreement of even date herewith (as amended, restated or substituted
from time to time, the "Financing Agreement").
F. The Lenders have required, as a condition to continuing to
make available the Credit Facility, that the Borrowers execute and deliver this
Agreement to the Agent.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrowers and the
Lenders hereby agree that the Original Financing Agreement is amended and
restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms
As used herein, the terms defined in the Preamble and Recitals hereto
shall have the respective meanings specified therein, and the following terms
shall have the following meanings:
"Account," individually, and, "Accounts," collectively, mean with
respect to each Borrower and the Guarantor pertaining to all Eligible Projects,
all presently existing or hereafter acquired or created accounts, accounts
receivable, contract rights, notes, drafts, instruments, acceptances, chattel
paper, leases and writings evidencing a monetary obligation or a security
interest in or a lease of goods, all rights to receive the payment of money or
other consideration under present or future contracts arising out of or
relating to any and all Eligible Projects (including, without limitation, all
rights to receive the payment of money or other consideration from, or on
behalf of, any private pay patient), or by virtue of services rendered, loans
and advances made or other considerations given, by or set forth in, or arising
out of, any present or future chattel paper, note, draft, lease, acceptance,
writing, bond, insurance policy, instrument, document or general intangible,
and all extensions and renewals of any thereof, all rights under or arising out
of present or future contracts, agreements which gave rise to any or all of the
foregoing insofar as they pertain to the Eligible Projects, including all
claims or causes of action now existing or hereafter arising in connection with
or under any agreement or document or by operation of law or otherwise, all
collateral security of any kind (including real property mortgages) given by
any person with respect to any of the foregoing, including, without limitation,
all rights to receive payment of money or other consideration from, or on
behalf of, any private pay patient, all rights to receive payments under all
Resident Agreements, and all third-party payor contracts (including Medicare
and Medicaid to the extent permitted by Law), including, but not limited to,
the Veterans Administration, Participation Agreements, and any and all
depository accounts (other than resident trust accounts) into which the
proceeds of all or
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any portion of such accounts may be now or hereafter deposited, and all
proceeds (cash and non-cash) of the foregoing.
"Account Debtor" means any Person who is obligated on a Receivable and
"Account Debtors" mean all Persons who are obligated on the Receivables.
"Act of Bankruptcy" means the filing of a petition in bankruptcy under
the Bankruptcy Code or the other commencement of a proceeding under any other
applicable law concerning insolvency, reorganization or bankruptcy, now or
hereafter in effect.
"Acquisition Project" means a Facility purchased by a Borrower from a
third party as a Completed Project or such a Facility that a Borrower has
arranged to be purchased in a Synthetic Lease Transaction and which, in either
case, is not a Stabilized Project.
"Additional Borrower" means a Wholly Owned Subsidiary of ARCC or ARC
that is acceptable to the Agent and that has executed and delivered an
Additional Borrower Joinder Supplement and has otherwise complied with the
provisions of this Agreement, including but not limited to Section 4.1 hereof.
"Additional Borrower Joinder Supplement" means an Additional Borrower
Joinder Supplement in the form attached hereto as EXHIBIT F, with the blanks
appropriately completed and executed and delivered by an Additional Borrower
and by the Borrowers.
"Adjusted Total Capital" means the sum of Net Worth, Funded Debt,
Subordinated Debt and all equity of a joint venture of the Guarantor or any of
its subsidiaries, whether such joint venture is consolidated or unconsolidated
in accordance with GAAP.
"Affiliate" means an entity in which ARC (or another entity which ARC
controls) holds an ownership interest equal to or greater than fifty-one
percent (51%).
"Agency Agreement" means the Agency Agreement dated June 8, 1999
executed by and between the Agent and SouthTrust Bank, National Association, as
amended pursuant to the First Amendment to Agency Agreement dated October 1,
1999 and the Agency Agreement by and among all the Lenders, as the same may be
amended, restated or substituted from time to time and any other Agency
Agreements which may be executed in the future by and between the Agent and any
Lender or Lenders.
"Agent" means Bank United, its successors and assigns.
"Agreement" means this Amended and Restated Financing and Security
Agreement and all amendments, extensions, restatements, substitutions and
supplements hereto which may from time to time become effective in accordance
with the provisions of Section 11.10 hereof.
"Appraised Value" means the appraised value of a Facility as
stabilized, as reviewed by the Agent.
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"ARC" means American Retirement Corporation, a Tennessee corporation.
"ARCC" means ARC Capital Corporation II, a Tennessee corporation.
"Architect" means the architect named in an Architect's Contract, if
any, and his, her or its successors and permitted assigns.
"Architect's Contract" means an agreement by and between a Borrower,
as owner, or Synthetic Lessee and the Architect for a particular Facility, or
any contract for architectural services relating to the development of the Land
and/or the construction of the Improvements for each of the Eligible Projects
made by a Borrower or a Synthetic Lessee and an Architect and approved in
writing by the Agent, as the same may be amended from time to time with the
prior written approval of the Agent.
"Asset Value" of any Eligible Project shall be the least of (a) (i)
81.25% of its Deed of Trust Lien Amount (except that for Special Eligible
Projects, it shall be 93.75%) or (ii) the maximum principal amount of the
Assigned Note, (b) 65% of the Appraised Value of each Eligible Project other
than Special Eligible Projects and 75% of the Appraised Value of each Special
Eligible Project or (c) 65% of the Total Development Budget if it is a
Development Project; provided, however, that the "Asset Value" of any Completed
Project which is also a Pool A Project shall be the maximum amount actually
borrowed with respect to such Project as of the date of measurement.
"Assigned Note," individually, or "Assigned Notes," collectively means
one or more secured promissory notes and any amendments thereto or
substitutions therefor payable to ARCC or an Additional Borrower by a Synthetic
Lessor and assigned to the Agent for the benefit of the Lenders as security for
the Credit Facility pursuant to an Assignment of Transaction Documents or
similar assignment.
"Banking Day" means a day on which each of the Lenders is open for the
conduct of substantially all of its banking business at its office in the city
in which its Note is payable and must also be a day on which dealings are
carried on in the applicable interbank Eurodollar market.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C.
101 et seq.
"Borrower," individually, or "Borrowers," collectively means one or
more of ARCC, the other Borrowers, if any, listed on the signature pages
hereof, and any Additional Borrowers.
"Borrowing Base" means at any time an amount equal to the lesser of
(a) the lesser of the aggregate dollar amounts of (i) 81.25% (65% divided by
80%) of the Deed of Trust Lien Amounts (except that for Special Eligible
Projects it shall be 93.75% (75% divided by 80%) of the Deed of Trust Lien
amount) plus 100% of the outstanding aggregate principal amount of all Assigned
Notes, or (ii) 65% of the Appraised Value of each Pool A Project other than
Special
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Eligible Projects and 75% of the Appraised Value of each Special Eligible
Project which is also a Pool A Project, plus 50% of the Appraised Value of each
Pool B Project, plus 35% of the Appraised Value of each Pool C Project; or (b)
the combined aggregate dollar amount equal to 65% of the Costs Incurred to Date
for each Pool A Project that is a Completed Project (or for a Development
Project that is a Pool A Project after the Borrowers have invested 20% equity
in the project, 81.25% [or other lesser percentage calculated by the Agent as
may be necessitated by the Appraisal Value] of subsequent Costs Incurred to
Date but not to exceed at any time 65% of the Costs Incurred to Date in the
aggregate) other than Special Eligible Projects and 75% of the Costs Incurred
to Date of each Special Eligible Project, 50% of the Costs Incurred to Date for
each Pool B Project, and 35% of the Costs Incurred to Date for each Pool C
Project.
"Borrowing Base Deficiency" shall have the meaning set forth in
Section 2.1(h) hereof.
"Borrowing Base Report" shall have the meaning set forth in Section
2.1(d) hereof.
"Chattel Paper" means a writing or writings which evidence both a
monetary obligation and a security interest in or lease of specific goods, any
returned, rejected or repossessed goods covered by any such writing or writings
and all proceeds (in any form including, without limitation, accounts, contract
rights, documents, chattel paper, instruments and general intangibles) of such
returned, rejected or repossessed goods, and all proceeds (cash and non-cash)
of the foregoing but only to the extent that any of the foregoing relates to an
Eligible Project.
"Collateral" means each Borrower's Accounts, Equipment, General
Intangibles, documents, Chattel Paper, Instruments and Inventory, pertaining to
all Eligible Projects, all right, title and interest of each Borrower and the
Management Company in and to the Operating Agreements and Management Contracts
(including, without limitation, the Management Agreement), Resident Agreements
(to the extent and only to the extent the same can be pledged or assigned in
compliance with applicable law), Physician Contracts, Participation Agreements,
the Licenses (to the extent and only to the extent the same can be pledged or
assigned in compliance with applicable law) whether or not designated with
initial capital letters, and all other management contracts, operating
agreements, service agreements and any other agreements pertaining to any
Eligible Project, as those terms are defined herein and in the Uniform
Commercial Code as presently adopted and in effect in the State of Texas, and
shall also cover, without limitation, (i) any and all property specifically
included in those respective terms in this Agreement or in the Financing
Documents, (ii) all right, title and interest of each Borrower in and to Leases
or subleases, rents, royalties, issues, profits, revenues, earnings, income or
other benefits of the Property, or arising from the use or enjoyment of the
Property, or from any lease or other use and occupancy agreement pertaining to
the Property (to the extent and only to the extent the same can be pledged or
assigned in compliance with applicable law), (iii) all right, title and
interest of each Borrower, any other owner, ARC and any party obligated to
construct the Improvements, under all construction, architectural and design
contracts and plans and specifications, (iv) any and all property and/or
collateral described in any of the Security Documents, including, without
limitation, this Agreement and the Deeds of Trust, (v) any and all bank
accounts or other deposit accounts of each Borrower wherever located, (vi) the
Assigned
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Notes and the Note Collateral; and (vii) all proceeds (cash and
non-cash, including, without limitation, insurance proceeds) of the foregoing.
"Collateral Assignments" means, collectively, any Collateral
Assignment of Licenses, Participation Agreements and Resident Agreements among
a Borrower, the Management Company and the Agent, any Collateral Assignment of
Operating Agreements and Management Contracts among a Borrower, the Management
Company and the Agent any Collateral Assignment and Security agreement in
respect to contracts, Licenses and Permits from a Synthetic Lessee for the
benefit of a Synthetic Lessor and any Collateral Assignment and Security
Agreement in respect of Special Assignment in connection with a Synthetic Lease
Transaction, any Tradename License Agreement and any assignment of Transaction
Documents.
"Collateral Value Ratio" means, for any fiscal quarter, the ratio of
(a) the aggregate Asset Value of the Eligible Projects during such fiscal
quarter, divided by (b) the aggregate of the lesser of Appraised Value of the
Eligible Projects during such fiscal quarter or the cost of acquiring any
Acquisition Project or the actual cost of constructing any other Eligible
Project.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with a Borrower within the meaning
of Section 414(b) or (c) of the Internal Revenue Code of 1986, as amended and
the regulations promulgated or issued thereunder.
"Completion Guaranty" or "Completion Guaranties" means, individually
or collectively, a Guaranty of Completion executed by the Guarantor in favor of
the Lenders in connection with the Facility Closing for a Development Project
that is not a Completed Project and which is not the subject of a Synthetic
Lease Transaction.
"Completed Project" means an Eligible Project for which the Agent has
received all of the due diligence items listed in Section 4.6 hereof or has
expressly waived the receipt of the same.
"Construction Contract" or "Construction Contracts" means,
individually or collectively, the general contractor's agreements by and
between a Borrower or Synthetic Lessee as owner of a Facility, or ARC as the
Management Company and a general contractor for the development of any of the
Land and/or the construction of any of the Improvements as approved in writing
by the Agent, and as the same may be amended from time to time with the prior
written approval of the Agent.
"Contingent Funded Debt" means, as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing, or becoming
contingently liable for, in any manner any Funded Debt (the "primary
obligations") of any Person. The amount of any Contingent Funded Debt of any
guaranteeing person shall be deemed to be the maximum
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stated amount of the primary obligation relating to such Contingent Funded Debt
(or, if less, the maximum stated liability set forth in the instrument
embodying such Contingent Funded Debt).
"Costs Incurred to Date" means as to a Facility constructed or under
construction by a Borrower, actual costs expended by such Borrower, a Synthetic
Lessor or, Synthetic Lessee or ARC on behalf of any of the foregoing, under a
Total Development Budget and reported to the Agent through the requisition
process as verified by the Agent pursuant to the provisions of this Agreement;
provided, however, no cost overruns not otherwise covered by a contingency
category in the Total Development Budget will be included in the definition of
Costs Incurred to Date without the Agent's prior written consent. "Costs
Incurred to Date" for an Acquisition Project means the purchase price and
related expenses of acquisition.
"Credit Facility" means the revolving line of credit in a maximum
principal sum at any one time outstanding equal to the Credit Facility
Committed Amount.
"Credit Facility Closing" shall mean the date on which the Notes,
this Agreement and any other documents then evidencing and securing the Credit
Facility are executed and delivered to the Agent.
"Credit Facility Committed Amount" means $100,000,000 or such larger
amount, not to exceed $150,000,000, that the Lenders may from time to time
severally commit to lend to the Borrowers pursuant to the terms of the Agency
Agreement, any amendment to this Agreement and the Notes.
"Current Assets" means at any date, the amount which, in conformity
with GAAP, would be set forth opposite the caption "total current assets" (or
any like caption) on a consolidated balance sheet of the Guarantor, excluding
inventory, Prepaids (as defined by GAAP) and Restricted Cash (as defined by
GAAP).
"Current Liabilities" means at any date, the amount which in
conformity with GAAP, would be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of the
Guarantor, excluding balloon payments of principal greater than 300% of the
regularly scheduled amortization payment in connection with such indebtedness,
provided such indebtedness is refinanced with ninety (90) days of such balloon
payment.
"Current Ratio" means the ratio of (a) Current Assets to (b) Current
Liabilities.
"Debt Service" means for any period of determination the principal and
interest payments for the specified period required to fully amortize an
Eligible Project's then applicable availability within the Borrowing Base in
equal monthly installments of principal and interest based on a 25-year
amortization schedule and a rate equal to 300 basis points per annum in excess
of the then current rate for ten (10) year United States Treasury Notes, as
reported in the most recent Federal Reserve Statistical Release H.15(519) but
in no event shall the rate (as calculated as aforesaid) be less than 8% per
annum.
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"Debt Service Coverage Ratio" means the ratio of Net Operating Income
to Debt Service.
"Deed of Trust" or "Deeds of Trust" means one or more first lien
mortgages or deeds of trust in favor of the Agent on behalf of the Lenders as
security for the Obligations on a Borrower's fee simple interest in an Eligible
Project owned by such Borrower.
"Deed of Trust Lien Amount" means the dollar principal amount of the
Lien created by a Deed of Trust on a Borrower's fee simple interest in a
Eligible Project, (a) the amount being for any Development Project or any
Completed Project open less than twelve (12) months, the lesser of (i) 80% of
such Eligible Project's Appraised Value or (ii) 80% of such Eligible Project's
Total Development Budget and (b) the amount being for any Acquisition Project
or Completed Project open twelve (12) months or longer, the lesser of (i) 80%
of such Eligible Project's Appraised Value, (ii) 80% of the purchase price of
an Acquired Project or of the construction cost of a Facility built by a
Borrower or its Affiliates and open more than twelve (12) months or (iii) such
lesser dollar amount as the Borrowers elect to designate with the consent of
the Lenders.
"Default" means, with respect to each Financing Document, a default
which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default.
"Development Project" means a Facility being constructed by a
Borrower or being constructed in connection with a Synthetic Lease Transaction
arranged by a Borrower which has not become a Stabilized Project.
"EBITDAR" means earnings before interest, taxes, depreciation,
amortization, and Rent.
"Eligible Project" means a Facility approved by the Agent for any
location in the continental United States (a) which is a Development Project,
an Acquisition Project or a Stabilized Project; (b) for which the Agent has
received, reviewed and approved all applicable pre-closing due diligence items
as required by this Agreement or has waived receipt of the same; (c) for which
the Agent has received a Total Development Budget including a Pro Forma
Operating Statement acceptable to the Agent; (d) for which either a Facility
Closing has been completed and a Deed of Trust has been recorded or the
relevant Assigned Note has been assigned to the Agent; (e) for which the Agent
has received all other documentation necessary to perfect a lien on the
Collateral in favor of the Agent for itself and the other Lenders; and (f)
which is included in the Borrowing Base.
"Enforcement Costs" means all expenses, charges, costs and fees
whatsoever (including, without limitation, attorney's fees and expenses) of any
nature whatsoever paid or incurred by or on behalf of the Lenders in connection
with (a) the collection or enforcement of any or all of the Obligations, (b)
the preparation of or changes to this Agreement, the Notes, the Security
Documents and/or any of the other Financing Documents, (c) the creation,
perfection, collection, maintenance, preservation, defense, protection,
realization upon, disposition, sale or enforcement of all or any part of the
Collateral, including, without limitation, those sums paid or advanced, and
costs and expenses, more specifically described in Sections 3.6, 10.4, 10.5 and
11.7, (d) the
8
<PAGE> 14
monitoring, administration, processing, servicing of any or all
of the Obligations and/or the Collateral (e) post-judgment enforcement or
collection actions, and (f) bankruptcy proceedings of any Borrower, Guarantor
or Synthetic Lessee.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Equipment" means all equipment, machinery, furniture and fixtures
and supplies of every nature pertaining to an Eligible Project, presently
existing or hereafter acquired or created and wherever located, together with
all accessions, additions, fittings, accessories, special tools, and
improvements thereto and substitutions therefor and all parts and equipment
which may be attached to or which are necessary for the operation and use of
such personal property, whether or not the same shall be deemed to be affixed
to real property, and all rights under or arising out of present or future
contracts relating to the foregoing and all proceeds (cash and non-cash) of the
foregoing.
"Eurodollar Period" or "Eurodollar Periods" shall have the meaning
set forth in each Note.
"Eurodollar Rate" means, for any portion of the principal sum for any
Eurodollar Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London Time) three (3) Banking Days prior to the
first day of such Eurodollar Period for a term comparable to such Eurodollar
Period. If for any reason such rate is not available, the term "Eurodollar
Rate" shall mean, for any Eurodollar Loan for any Eurodollar Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London Time) three (3) Banking
Days prior to the first day of such Eurodollar Period for a term comparable to
such Eurodollar Period; provided, however, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean
of all such rates.
"Event(s) of Default" means the occurrence of any one or more of the
events specified in Part IX of this Agreement or in any other Financing
Document and the continuance of such event beyond the applicable grace and/or
cure periods therefor, if any, set forth in Part IX or in such other Financing
Document.
"Expansion Project" means a Facility constructed adjacent to other
Facilities owned or managed by ARC or its Affiliates but operating
independently of such other Facilities.
"Expense Payments" shall have the meaning set forth in Section
10.5Performance by Lenders hereof.
"Facility" and "Facilities" mean, individually or collectively, a
Senior Living Facility that is an Eligible Project.
9
<PAGE> 15
"Facility Closing" has the meaning set forth in Section 4.1Conditions
Precedent to Credit Facility Closing and Addition of Eligible Projects hereof.
"Fee Interest Deed of Trust" has the meaning set forth in Section
3.2Eligible Projects hereof.
"Financing Documents" means at any time, collectively, this Agreement,
the Notes, the Deeds of Trust, the Guaranty Agreement, any Completion Guaranty,
any Additional Borrower Joinder Supplement, any Management Fee Subordination
Agreement, the Security Documents, and any other instrument, agreement or
document previously, simultaneously or hereafter executed and delivered by any
Borrower and/or any other Person, singly or jointly with another Person or
Persons, evidencing, securing, guarantying or in connection with any of the
Obligations and/or in connection with this Agreement, the Notes and/or any of
the Security Documents, as the same may from time to time be amended, restated,
supplemented or otherwise modified.
"Funded Debt" of any Person at any time means the sum, without
duplication, at such time of (a) indebtedness for borrowed money or for the
deferred purchase price of property or services, (b) any obligations in respect
of letters of credit, banker's or other acceptances or similar obligations
issued or created for the account of any Person, (c) lease obligations which
have been or should be, in accordance with GAAP, capitalized on the books of
any Person, (d) all liabilities secured by any property owned by any Person to
the extent attached to the Person's interest in such property, even though the
Person has not assumed or become liable for the payment thereof, (e) in the
case of the Guarantor or any subsidiary, any obligation of the Guarantor or a
Commonly Controlled Entity to a Multiemployer Plan; and (f) all liabilities of
a joint venture of a Person whether such joint venture is consolidated or
unconsolidated, as determined in accordance with GAAP, but excluding (a) trade
and other accounts payable in the ordinary course of business in accordance
with customary trade terms and which are not overdue (as determined in
accordance with customary trade practices) or which are being disputed in good
faith by the Guarantor or any subsidiary and for which adequate reserves are
being provided on the books of a Person in accordance with GAAP, and (b)
Subordinated Debt.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time.
"General Contractor" or "General Contractors" means individually or
collectively the general contractors named in the Construction Contracts and
his, its or their respective successors and permitted assigns.
"General Intangibles" means any and all general intangibles of every
nature, whether presently existing or hereafter acquired or created arising out
of or relating to any Eligible Project, including without limitation all books,
correspondence, credit files, records, computer programs, computer tapes, cards
and other papers and documents in the possession or control of any Borrower or
the Guarantor, claims (including without limitation all claims for income tax
10
<PAGE> 16
and other refunds), choses in action, judgments, patents, patent licenses,
trademarks, trademark licenses, (excluding the following tradenames and
derivations thereof: "Homewood", ARC, and American Retirement Corporation)
licensing agreements, rights in intellectual property, goodwill, as that term
is defined in accordance with GAAP (including all goodwill of any Borrower's
business symbolized by, and associated with, any and all trademarks, trademark
licenses, copyrights and/or service marks), royalty payments, contractual
rights, rights as lessee under any lease of real or personal property, literary
rights, copyrights, service names, service marks, logos, trade secrets, all
amounts received as an award in or settlement of a suit in damages, deposit
accounts, interests in joint ventures or general or limited partnerships, all
Licenses, construction permits, Operating Agreements and Management Contracts,
Participation Agreements, Management Agreements and Resident Agreements, and
all proceeds (cash and non-cash) of the foregoing.
"Governmental Authority or Authorities" means any nation or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Ground Leases" means any and all leases to any Synthetic Lessor, as
ground lessee, and ARC, as fee owner and ground lessor.
"Guarantor" means ARC.
"Guaranty Agreement" means the Amended and Restated Guaranty of
Payment Agreement by the Guarantor of even date herewith.
"Hazardous Materials" means any flammable explosives, radioactive
materials, hazardous waste, toxic substances or related materials, including,
without limitation, asbestos, polychlorinated biphenyls, urea-formaldehyde,
radon, and any substance defined as or included in the definition of (a) any
"hazardous waste" as defined by the Resource Conservation Recovery Act of 1976,
as amended from time to time, and regulations promulgated thereunder; (b) any
"hazardous substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, and
regulations promulgated thereunder; (c) any "toxic substance" as defined by the
Toxic Substances Control Act, as amended from time to time, and regulations
promulgated thereunder; (d) any hazardous or infectious medical waste
including, but not limited to, cultures and stocks of infectious agents and
associated biologicals, pathological wastes, human and animal blood specimens
and blood products, anatomical materials, blood, blood-soiled articles,
contaminated materials, microbiological laboratory wastes, sharps, chemical
wastes, infectious wastes, chemotherapeutic wastes, and radioactive wastes; (e)
any substance, the presence of which on any property now or hereafter owned,
operated or acquired by any Borrower is prohibited or regulated under any
applicable Federal or state laws or regulations; and (f) any other substance,
pollutant, contaminant, chemical, or industrial toxic hazardous substance or
waste, including without limitation hazardous materials, which by law is
prohibited or is otherwise regulated as a hazardous material.
11
<PAGE> 17
"Hazardous Materials Contamination" means the contamination by,
release or spill of (whether presently existing or occurring after the date of
this Agreement), Hazardous Materials of or on any property owned, operated or
controlled by any Borrower, or for which any Borrower has responsibility,
including, without limitation, improvements, facilities, soil, ground water,
air or other elements on, or of, any property now or hereafter owned, operated
or acquired by any Borrower, and any other contamination by Hazardous Materials
for which any Borrower is, or is claimed to be, responsible.
"Hydric Soils" means any soil category upon which building would be
prohibited or restricted under applicable governmental requirements (including,
without limitation, those imposed by the U.S. Army Corps of Engineers based
upon its guidelines as to, among other things, soil, vegetation and effect on
the ecosystem).
"Improvements" means all site improvements, base building, building
systems, equipment or related fixtures not or hereafter existing on the Land.
"Inspecting Engineer" means such person or firm as the Agent may from
time to time appoint or designate for purposes related to the inspection of the
progress of the development of any of the Land and the construction of any of
the Improvements, conformity of construction with the applicable Plans and
Specifications, and for such other purposes as the Agent may from time to time
deem appropriate or as may be required by the terms of this Agreement.
"Instruments" means any and all notes, notes receivable, drafts,
acceptances, and similar instruments or documents, both now owned or hereafter
created or acquired arising out of or relating to any Facility (or any part
thereof).
"Interest" means the sum of all interest expense (as defined by GAAP
excluding, however, the amortization of prepaid financing costs) net of
interest income.
"Interest Rate Margin" means, effective as of September 30, 1999, two
hundred thirty-five (235) basis points per annum, and, thereafter, means the
interest rate margin per annum determined in accordance with the following
table:
<TABLE>
<CAPTION>
----------------------------------- --------------------
COLLATERAL VALUE RATIO INTEREST RATE MARGIN
----------------------------------- ---------------------
<S> <C>
Greater than 65% 235 basis points
----------------------------------- ---------------------
Equal to or Less than 65% 225 basis points
----------------------------------- ---------------------
</TABLE>
"Inventory" means any and all inventory and all right, title and
interest in, and to, all now owned and hereafter acquired goods, merchandise
and other personal property furnished under any contract of service or intended
for sale or lease arising out of or relating to any and all Eligible Projects,
including, without limitation, all supplies of any kind, nature or description
which are used or consumed in each Borrower's, each Synthetic Lessee's or the
Guarantor's business at such Facilities and all documents of title or documents
representing the same and all proceeds (cash and non-cash) and products of the
foregoing.
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<PAGE> 18
"Land" shall have the meaning described in each Deed of Trust or in
the Note Collateral.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs or decrees of any Governmental Authority or any court or
similar entity established by any thereof.
"Lease" shall have the meaning set forth in a Deed of Trust.
"Lenders" means collectively, except as the context may otherwise
indicate, the Agent and any and all additional lenders who are or shall be from
time to time participating as lenders under the Credit Facility pursuant to any
Agency Agreement. "Lender" means any of the Lenders individually.
"Lender Tax" means any present or future tax, levy, cost or charge of
any nature imposed by any Governmental Authority, excluding taxes on or
measured by the income of any Lender.
"Licenses" means any and all licenses, certificates of need, operating
permits, franchises, and other licenses, authorizations, certifications,
permits, or approvals, other than construction permits, issued by, or on behalf
of, any Governmental Authority now existing or at any time hereafter issued,
with respect to the acquisition, construction, renovation, expansion, leasing,
management, ownership and/or operation of any and all Facilities, accreditation
of any Facility, and/or the participation or eligibility for participation in
any third party payment or reimbursement programs to the extent any Borrower or
Synthetic Lessee is participating in such programs (but specifically excluding
any and all Participation Agreements to the extent required by law), any and
all operating licenses issued by any state Governmental Authority, any and all
pharmaceutical licenses and other licenses related to the purchase, dispensing,
storage, prescription or use of drugs, medications, and other "controlled
substances," any and all licenses relating to the operation of food or beverage
facilities or amenities, if any, and any and all certifications and eligibility
for participation in Medicare, Medicaid, Blue Cross and/or Blue Shield, or any
of the Managed Care Plans, private insurer, employee assistance programs or
other third party payment or reimbursement programs as the same may from time
to time be amended, renewed, restated, reissued, restricted, supplemented or
otherwise modified.
"Lien" means any mortgage, deed of trust, deed to secure debt, grant,
pledge, security interest, assignment, encumbrance, judgment, lien or charge of
any kind, whether perfected or unperfected, avoidable or unavoidable,
consensual or non-consensual, including, without limitation, any conditional
sale or other title retention agreement, filed or unfiled tax liens, any lease
in the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction.
"Liquid Assets" means cash, cash equivalents and marketable
securities.
"Liquidation Costs" shall have the meaning set forth in Section 10.6
hereof.
"Loan" shall have the meaning set forth in Section 2.1 hereof.
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<PAGE> 19
"Managed Care Plans" means any health maintenance organization,
preferred provider organization, individual practice association, competitive
medical plan, or similar arrangement, entity, organization, or Person.
"Management Agreement" means any and all Management Agreements
entered into or to be entered into by and between a Borrower, a Synthetic
Lessor and/or Synthetic Lessee or other owner of a Facility and the Management
Company relating to the management of an a Facility, as the same may from time
to time be amended, restated, supplemented or otherwise modified.
"Management Company" means ARC, its successors and assigns and any
other Person which may become the manager of the Facilities.
"Management Fee Subordination Agreement" shall have the meaning set
forth in Section 7.18 hereof.
"Material Lease" means a lease of a portion of any Facility which
represents 2,000 square feet or more of leaseable space or which has a term of
three (3) or more years.
"Maximum Construction Period" for a Development Project, including an
Expansion Project, means the construction period indicate in the original
projected construction schedule set forth in such Development Project's
Construction Contract plus three (3) months.
"Minimum Occupancy Requirement" means for a Development Project
including an Expansion Project shall have the meaning set forth in Section
7.2.2 (d), for a Stabilized Project, "Minimum Resident Occupancy" for such
Eligible Project shall mean 85% Resident Occupancy, measured on a quarterly
basis and for an "Acquisition Project" shall have the meaning set forth in
Section 7.2.2 (e).
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Operating Income" means total operating revenue less total
operating expenses (excluding interest, federal and state income taxes,
depreciation and amortization) but including a management fee to the Management
Company of five percent (5%) of gross revenues for the Facility for the period
in question as shown in financial information provided by the Borrowers.
"Net Operating Income Margin" of a Facility means its Net Operating
Income divided by its total revenue for such period.
"Net Worth" means Shareholders' Equity (as defined by GAAP).
"Note" or "Notes" shall have the meaning set forth in Section 2.1
hereof.
14
<PAGE> 20
"Note Collateral" means collectively, all of the following pledged
and assigned to the Agent for the benefit of the Lenders: (a) all Assigned
Notes payable to ARCC by a Synthetic Lessor, (b) the Assignments of the
Synthetic Lease and all ancillary contracts between the Synthetic Lessee and
the Synthetic Lessor and/or ARC (c) all other security for either of the
foregoing and (d) all other documents executed by ARCC, ARC, the Synthetic
Lessor or the Synthetic Lessee in connection with a Synthetic Lease
Transaction.
"Obligations" means all present and future debts, or any of them,
obligations, and liabilities, whether now existing or hereafter arising, of the
Borrowers to the Agent or any Lender under, arising pursuant to, in connection
with and/or on account of the provisions of this Agreement, the Notes, the
Deeds of Trust, each Security Document, and any of the other Financing
Documents, including, without limitation, the principal of, and interest on,
the Notes, late charges, Enforcement Costs, and other prepayment penalties (if
any), letter of credit fees or fees charged with respect to any guaranty of any
letter of credit, and also means all other present and future indebtedness, or
any of them, liabilities and obligations, whether now existing or hereafter
arising, of the Borrowers to the Lenders of any nature whatsoever regardless of
whether such debts, obligations and liabilities be direct, indirect, primary,
secondary, joint, several, joint and several, fixed or contingent, and any and
all renewals, extensions and rearrangements of any such debts, obligations and
liabilities.
"Operating Agreements and Management Contracts" means any and all
contracts and agreements previously, now or at any time hereafter at any time
entered into by any Borrower with respect to the acquisition, construction or
renovation of a significant nature, expansion, ownership, operation,
maintenance, use or management of any or all of the Facilities or otherwise
concerning the operations and business of any or all of the Facilities,
including, without limitation, any and all service and maintenance contracts,
any employment contracts, any and all management agreement other than the
Management Agreements, any and all consulting agreements, laboratory servicing
agreements, pharmaceutical contracts, physician, other clinician or other
professional services provider contracts, food and beverage service contracts,
and other contracts for the operation and maintenance of, or provision of
services to, a Facility, as the same may from time to time be amended,
restated, supplemented, renewed, or modified.
"Operating Month" means the second full calendar month after the
issuance of all required Licenses for any Facility or any calendar month
thereafter.
"Operating Reserve" means a reserve in an amount approved by the
Agent included in each Total Development Budget to cover the anticipated costs
of leasing up a Facility and initial operating deficits.
"Participation Agreements" means any and all third party payor
participation or reimbursement agreements now or at any time hereafter existing
for the benefit of any Borrower relating to rights to payment or reimbursement
from, and claims against, private insurers, Managed Care Plans, material
employee assistance programs, Blue Cross and/or Blue Shield, federal, state and
local Governmental Authorities, including without limitation, Medicare and
15
<PAGE> 21
Medicaid, and other third party payors, as the same may from time to time be
amended, restated, extended, supplemented or modified but only to the extent
that any of the foregoing relate to an Eligible Project.
"Permitted Liens" means: (a) Liens for Taxes that are not delinquent
or that the Agent has determined in the exercise of its sole and absolute
discretion (i) are being diligently contested in good faith and by appropriate
proceedings, (ii) the Borrowers have the financial ability to pay, with all
penalties and interest, at all times without materially and adversely affecting
any Borrower, and (iii) are not, and will not be with appropriate filing, the
giving of notice and/or the passage of time, entitled to priority over any Lien
of the Lenders; (b) deposits or pledges to secure obligations under workers'
compensation, social security or similar laws, or under unemployment insurance
in the ordinary course of business; (c) Liens in favor of the Lenders pursuant
to the Loan; (d) judgment Liens to the extent the entry of such judgment does
not constitute an Event of Default under the terms of this Agreement or result
in the sale of, or levy of execution on, any of the Collateral; and (e) such
other Liens, if any, as are identified as "Permitted Encumbrances" in a Deed of
Trust.
"Person" means and includes an individual, a corporation, a
partnership, a limited liability company, a joint venture, a trust, an
unincorporated association, any Governmental Authority or any other entity.
"Plans and Specifications" means any and all plans and specifications
prepared in connection with the development of the Land and/or the construction
of the Improvements for any Eligible Project which is a Development Project and
which are approved in writing by the Agent, as the same may from time to time
be amended with the prior written approval of the Agent, including but not
limited to, plans and specifications prepared by an Architect, a copy of which
have been initialed by the applicable Borrower and the Agent for identification
and delivered to the Agent.
"Pool A Project" means any Eligible Project which, at any time when
the Borrowing Base is computed, meets the applicable Pool A covenants set forth
in Section 7.2.2 hereof.
"Pool B Project" means any Eligible Project which, when the Borrowing
Base is computed, has not met the definition of a Pool A Project for the most
recent three (3) months and is not a Pool C Project.
"Pool C Project" means any Eligible Project which, when the Borrowing
Base is computed, has not met the definition of a Pool A Project for the most
recent six (6) months.
"Post Default Rate" means the interest rate on the Note in the
absence of an Event of Default plus two percent (2%) per annum.
"Prime Rate" shall have the meaning set forth in Section 2.4.2 hereof.
"Principal Sum" shall have the meaning set forth in the Notes.
16
<PAGE> 22
"Pro Forma Operating Statement" means a Borrower's projection for not
less than 36 months from the first Operating Month including occupancy
projections and projected operating expenses and operating losses plus the
first full year of operations as a Stabilized Project.
"Property" shall mean collectively the "Land" and the "Improvements".
"Receivables" means each Borrower's or Management Company's now or
hereafter owned, acquired or created Accounts, Chattel Paper, Contract Rights,
General Intangibles and Instruments, and all cash and noncash proceeds and
products thereof but only to the extent that they arise out of or are related
to an Eligible Project.
"Rent" means lease expense as defined pursuant to GAAP.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Requisition" or "Requisitions" shall have the meaning set forth in
Section 2.2 hereof.
"Resident Agreements" means any and all contracts, authorizations,
agreements and/or consents executed by, or on behalf of any resident or other
person seeking services from any Borrower pursuant to which any Borrower
provides or furnishes health or assisted living care and related services at
any and all of the Facilities, including the consent to treatment, assignment
of payment of benefits by third party, as the same may from time to time be
amended, restated, supplemented or modified.
"Resident Occupancy" means the number of residents who are paying fees
according to the normal fee schedule for such Facility pursuant to a Resident
Agreement for a Facility, expressed as a percentage of licensed capacity.
"Revolving Credit Expiration Date" means May 1, 2002, or any date to
which it may be extended from time to time pursuant to the terms of Section 2.6
hereof.
"Revolving Credit Termination Date" means the earlier of (a) the
Revolving Credit Expiration Date, or (b) the date on which the Credit Facility
is terminated pursuant to Article X hereof or otherwise.
"Security Documents" means, collectively, any assignment, including,
without limitation, the Collateral Assignments and any assignment, pledge
agreement, security agreement, mortgage, deed of trust (including the Deeds of
Trust), leasehold mortgage, leasehold deed of trust, deed to secure debt,
financing statement, initial transaction statement and any similar instrument,
document or agreement under or pursuant to which a Lien is now or hereafter
granted to, or for the benefit of, the Lenders on any collateral to secure the
Obligations, as the same may from time to time be amended, restated,
supplemented or otherwise modified.
17
<PAGE> 23
"Senior Living Facility" and "Senior Living Facilities" mean
individually or collectively, an assisted living facility, an independent
living facility, a dementia care facility for persons with Alzheimer's disease
and other forms of memory impairment or a skilled nursing facility containing
residential units and common facilities.
"Special Eligible Project" means an Acquisition Project which is a
Stabilized Project and has achieved a Debt Service Coverage Ratio of 1.4 to 1.0
for the twelve (12) consecutive months preceding its inclusion in the Borrowing
Base as a Special Eligible Project (regardless of whether or not it was
previously an Eligible Project in the Borrowing Base), and which has an average
Resident Occupancy of 85% or higher for the last six (6) consecutive months.
"Stabilized Project" means a Facility which has achieved Resident
Occupancy of at least 85% for three (3) consecutive months and a Debt Service
Coverage Ratio of not less than 1.25 to 1.00 measured for the same three (3)
consecutive months including a Facility which was a Development Project which
has satisfied the foregoing Resident Occupancy and Debt Service Coverage Ratio
requirements.
"Subordinated Debt" means any indebtedness of a person incurred at
any time the repayment of which is subordinated to other indebtedness of such
person pursuant to a written agreement and on which interest is chargeable at a
fixed rate and specifically including the Guarantor's 5.75% convertible
subordinated debentures due October 1, 2002 in the aggregate original principal
amount of $138,000,000.
"Survey" means a plat of the Land for any Facility which clearly
designates at least (i) the location of the perimeter of such Land by courses
and distances; (ii) the location of all easements, rights-of-way, alleys,
streams, waters, paths and encroachments; (iii) the location of all building
restriction lines and set-backs however established; (iv) the location of any
streets or roadways abutting such Land; and (v) the "as-built" locations of the
Improvements located on such Land and the relation of such Improvements by
courses and distances to the perimeter of such Land, building restriction lines
and set-backs, all in conformity with the Minimum Standard Detail Requirements
for Land Title Surveys adopted by the American Congress on Surveying and
Mapping (1992 Edition).
"Synthetic Lease Funded Debt" means any Funded Debt of any lessor
that has entered into a synthetic lease with ARC or its Affiliates, but only to
the extent that such Funded Debt relates to, is associated with, or is secured
by, the property that is subject to such synthetic lease. Notwithstanding the
foregoing, Synthetic Lease Funded Debt shall not include such Funded Debt owed
or due to Guarantor or any Guarantor's Affiliates.
"Synthetic Lease Pool" means a group of one or more Synthetic Lease
Transactions which have the same Synthetic Lessee or Synthetic Lessees which
are affiliated or is a Common Controlled Entity and are cross-defaulted.
"Synthetic Lease Transaction" means a transaction involving an
off-balance sheet transaction of ARC or its affiliates including what is
commonly referred to as a synthetic lease
18
<PAGE> 24
("Synthetic Lease") of a Facility for which costs of construction of the
Facility are being financed by a loan by ARCC evidenced by an Assigned Note and
which involves certain commitments from the Synthetic Lessee and ARC to build
and operate the facility and to finance the remaining costs of constructing and
operating the Facility in excess of the ARCC loan.
"Synthetic Lessee" means the single purpose entity which is the
tenant under a Synthetic Lease.
"Synthetic Lessor" means a single purpose entity which owns property
for a Facility or leases such Property under a Ground Lease, and leases such
property to a Synthetic Lessee pursuant to a Synthetic Lease and which is the
maker of an Assigned Note.
"Tangible Net Worth" means, at any time, the sum at such time of Net
Worth less the total of (a) all assets which would be classified as intangible
assets under GAAP, including goodwill, trademarks, trademark applications,
trade names, service marks, patent applications and licenses, and deferred
charges, (b) pre-opening costs, organizational costs and deferred financing
costs, and (c) advances or loans made to or receivables from any unconsolidated
affiliates of which the Guarantor owns less than fifty percent (50%) or any
stockholder of the Guarantor or any affiliate. All assets classified in the
Guarantor's financial statements as leaseholds of Senior Living Facilities or
leasehold acquisition costs related to Senior Living Facilities shall be
included as tangible assets in the calculation of its Tangible Net Worth.
"Taxes" means all taxes and assessments whether general or special,
ordinary or extraordinary, or foreseen or unforeseen, of every character
(including all penalties or interest thereon), which at any time may be
assessed, levied, confirmed or imposed by any Governmental Authority on any
Borrower or any of their properties or assets or any part thereof or in respect
of any of its franchises, businesses, income or profits.
"Total Capital" means the sum of Net Worth, Total Funded Debt,
Subordinated Debt, the Value of Assets Associated with Contingent Debt and all
equity of a joint venture of the Guarantor or any of its subsidiaries whether
such joint venture is consolidated or unconsolidated.
"Total Development Budget" means the development, construction and
opening operating expense budget or acquisition and opening operating expense
budget for an Eligible Project as reviewed and approved by the Agent.
"Total Funded Debt" of any Person at any time means the sum, without
duplication, at such time of (a) indebtedness for borrowed money or for the
deferred purchase price of property or services, (b) any obligations in respect
of letters of credit, banker's or other acceptances or similar obligation
issued or created for the account of any Person, (c) lease obligations which
have been or should be, in accordance with GAAP, capitalized on the books of
any Person, (d) all liabilities secured by any property owned by any Person to
the extent attached to the Person's interest in such property, even though the
Person has not assumed or become liable for the payment thereof, (e) in the
case of the Guarantor or any subsidiary, any obligation of the Guarantor or a
Commonly Controlled Entity to a Multiemployer Plan, (f) Synthetic Lease
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Funded Debt, (g) all liabilities of a joint venture of a Person whether such
joint venture is consolidated or unconsolidated, and (h) Contingent Funded
Debt, but excluding (i) trade and other accounts payable in the ordinary course
of business in accordance with customary trade terms and which are not overdue
(as determined in accordance with customary trade practices) or which are being
disputed in good faith by the Guarantor or any subsidiary and for which
adequate reserves are being provided on the books of a Person in accordance
with GAAP, and (ii) Subordinated Debt.
"Value of Assets Associated with Contingent Debt" means for any
period the product of (a) the aggregate pre-tax net income of Guarantor and/or
its Affiliates arising from, or out, of any lease(s) or management agreement(s)
that is entered into by Guarantor or its Affiliates in connection with any
Contingent Funded Debt, multiplied by (b) the contingent value multiplier. As
used herein, "contingent value multiplier" means either (x) eight (8), or (y)
if such lease or management agreement does not, at the time of measurement,
have a remaining term of at least twelve years, the product obtained by
multiplying (i) eight (8), by (ii) a fraction, the numerator of which is the
number of years of the remaining term, and the denominator of which is twelve
(12).
"Wholly Owned Subsidiary" or "Wholly Owned Subsidiaries" means one or
more subsidiaries, directly or indirectly, 100% owned by ARC or ARCC which is
or has been created for the sole purpose of acquiring or constructing and
owning and operating a Facility.
Section 1.2 Accounting Terms and Other Definitional Provisions
Unless otherwise defined in this Agreement, as used in this Agreement
and in any certificate, report or other document made or delivered pursuant
hereto, accounting terms not otherwise defined in this Agreement, and accounting
terms only partly defined in this Agreement, to the extent not defined, shall
have the respective meanings given to them under GAAP. Unless otherwise defined
in this Agreement, all terms used in this Agreement which are defined by the
Texas Uniform Commercial Code shall have the same meanings as assigned to them
by the Texas Uniform Commercial Code unless and to the extent varied by this
Agreement. The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, Section, subsection,
schedule and exhibit references are references to sections or subsections of,
or schedules or exhibits to, as the case may be, this Agreement unless
otherwise specified. As used in this Agreement, the singular number shall
include the plural, the plural the singular and the use of the masculine,
feminine or neuter gender shall include all genders, as the context may
require. Any reference to Land, the Improvements or the Property shall mean all
or any portion of each of the foregoing, respectively unless the context
indicates that such terms refer to an individual Facility. Reference to any one
or more of the Financing Documents and any of the Financing Documents shall
mean the same as the foregoing may from time to time be amended, restated,
substituted, extended, renewed, supplemented or otherwise modified.
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ARTICLE II
BORROWING
Section 2.1 The Loan
(a) The Lenders agree to lend to the Borrowers pursuant
to the terms and conditions of this Agreement and the Borrowers agree to borrow
on a revolving basis from the Lenders from time to time a principal amount (the
"Loan") not to exceed at any time outstanding the lesser of (i) the Credit
Facility Committed Amount, or (ii) the Borrowing Base.
(b) The obligation of the Borrowers to repay the Loan
shall be evidenced by certain promissory notes dated June 8, 1999 or October 1,
1999 payable to the respective Lenders in the form attached hereto as EXHIBIT A
and such other promissory notes which may be executed by the Borrowers in the
future payable to the Lenders in substantially the form set forth in EXHIBIT A
(as amended, restated, substituted, extended, renewed and otherwise modified
from time to time, individually, a "Note" and collectively the "Notes"). ARC
shall be a co-maker of the Notes but shall not be included in the term
"Borrower" for purposes of the terms and conditions, representations and
warranties and covenants set forth in this Agreement. ARC shall remain the
Guarantor. Each Note shall bear interest and shall be repaid by the Borrowers
in the manner and at the times set forth in such Note and this Agreement.
(c) The conditions precedent for making an advance under
the Loan shall be as set forth in this Agreement. Sums borrowed and repaid may
be readvanced under the terms and conditions of this Agreement.
(d) Not more frequently than twice monthly, but at least
quarterly, the Borrower will prepare a Borrowing Base Report (each a "Borrowing
Base Report") in the form attached hereto as EXHIBIT B which must be certified
by ARC and ARCC on behalf of the Borrowers calculating the Borrowing Base and
listing for each of such Eligible Project (i) the applicable Deed of Trust Lien
Amount or the maximum principal sum of an Assigned Note, (ii) the status of
such Eligible Project as a Development Project (including whether or not it is
an Expansion Project), an Acquisition Project or a Stabilized Project, (iii)
the Costs Incurred to Date, as described in the applicable Total Development
Budget, (iv) the length of time such Eligible Project has been under
construction (if applicable), and (v) such Eligible Project's status as of the
most recent reporting date as a Pool A Project, Pool B Project or Pool C
Project. The Borrowing Base Report will be reviewed, verified and approved by
the Agent based on the outcome of the cost verification procedures hereinafter
described, appraisals obtained by the Agent and other information on the
Eligible Projects provided by the Borrowers or obtained by the Agent. The
Borrowing Base shall be computed based on the Borrowing Base Report most
recently received and accepted by the Agent. In the event the Borrowers shall
fail to furnish other current reports or information as required, or in the
event the Agent believes that a Borrowing Base Report is no longer accurate,
the Agent may, in its sole and absolute discretion exercised from time to time
and without limiting its other rights and remedies under the Financing
Documents, upon notice to the Borrowers and the expiration of a cure period of
five (5) Banking Days, designate any Eligible Project as a Pool C Project or
suspend the making of or
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limit advances under the Loan. The Borrowing Base shall be subject to
appropriate reduction as a result of the following events: (i) the release of
an Eligible Project from the lien of the applicable Deed of Trust or the
release or repayment (in part or whole) or cancellation of any Assigned Note
applicable to an Eligible Project; (ii) the change of any Eligible Project's
status as a Pool A Project or Pool B Project to a Pool B Project or Pool C
Project, respectively, since the date of the most recent Borrowing Base Report,
as determined by the Agent; or (iii) the diminution in the value of an Eligible
Project based upon an appraisal obtained pursuant to Section 7.27Appraisals The
Borrowing Base shall be subject to appropriate increase as a result of the
following events: (i) the addition of an Eligible Project; (ii) an increase in
the verified Costs Incurred to Date as determined by the Agent during the
period since the last Borrowing Base Report; (iii) an increase in the principal
amount outstanding under any Assigned Note; or (iv) the change of an Eligible
Project's status as a Pool B Project or Pool C Project to a Pool A Project
since the date of the most recent Borrowing Base Report, as determined by the
Agent. No Eligible Project may remain in the Borrowing Base for more than a
period of thirty (30) full calendar months; however, such Eligible Project will
remain as Collateral unless released in accordance with this Agreement.
(e) No advances may be made or be outstanding under the
Credit Facility until and except during such times as eighty-five percent (85%)
of the Principal Sum outstanding is supported by availability in the Borrowing
Base from Pool A Projects. At any time fewer than eighty-five percent (85%) of
the Eligible Projects in the Borrowing Base are Pool A Projects, a breach of
this covenant may be cured by immediately paying down the Loan sufficiently so
that availability under the Borrowing Base from Pool A Projects is equal to at
least eighty five percent (85%) of the Principal Sum outstanding or by adding
additional Pool A Projects to the Borrowing Base.
(f) For purposes of determining Costs Incurred to Date, each
Total Development Budget may include the cost of (i) the acquisition by the
applicable Borrower of the Land which is the site of such Facility or, in the
case of an Acquisition Facility, the Land and the Facility's Improvements
including the purchase price paid and expenses incurred in connection with the
due diligence for and the closing of such acquisition; (ii) the construction on
the Land of a Facility which is not an Acquisition Facility; (iii) marketing,
staffing and similar pre-opening expenses; and (iv) an Operating Reserve.
(g) The Borrowers shall furnish to the Agent such schedules,
certificates, lists, records, reports, information and documents as required by
the Agent from time to time so that the Agent may, in its reasonable
discretion, determine the Borrowing Base.
(h) If at any time the aggregate principal amount of the Loan
outstanding exceeds the Borrowing Base, a borrowing base deficiency ("Borrowing
Base Deficiency") shall exist. Each time a Borrowing Base Deficiency exists,
the Borrowers shall within three (3) Banking Days of notice thereof from the
Agent either pay the amount of the Borrowing Base Deficiency and/or add
Eligible Projects (such that after such addition the requirements of Section
2.1 (e) and 7.2.1 are satisfied) to increase the Borrowing Base to an amount
which is at least equal to the aggregate principal amount outstanding under the
Loan.
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Section 2.2 Procedure for Advances
(a) The Agent will make advances not more frequently than
twice during each month upon receipt of a written request from the Borrowers in
the form of borrowing request attached hereto as Exhibit C (each a
"Requisition", and collectively, the "Requisitions").
(b) Each Requisition is subject to the Agent's determination
that after giving effect to such Requisition, the outstanding principal balance
of the Loan will not exceed the lesser of the then applicable Credit Facility
Committed Amount or the Borrowing Base. Each advance under the Loan shall be in
an amount of not less than $1,000,000, and in increments of $100,000 in excess
thereof. Advances shall be requested by the Borrower in writing by 10:00 A.M.
(Houston time) not less than five (5) Banking Days prior to the Banking Day on
which the funds will be advanced. The Agent shall have no obligation to make
any advance if at the time such advance is requested and/or is proposed to be
funded, there exists a Default or an Event of Default under any Financing
Document.
(c) Unless the Agent shall have received notice from a Lender
prior to the date on which such Lender is to provide funds to the Agent for an
advance to be made by such Lender that such Lender will not make available to
the Agent such funds, the Agent may assume that such Lender has made such funds
available to the Agent on the date of such advance in accordance with the terms
of the Agency Agreement and the Agent in its sole discretion may, but the Agent
shall not be obligated to, in reliance upon such assumption, make available to
the Borrowers on such date a corresponding amount.
(d) In addition, if the Agent has reason to believe a Default
or an Event of Default has occurred, each Borrower hereby irrevocably
authorizes the Lenders to make advances of the Loan at any time and from time
to time, without further request from or notice to any Borrower, which the
Lenders, in their sole and absolute discretion, deem necessary or appropriate
to protect the Lenders' interests under this Agreement or otherwise, including,
without limitation, advances of the Loan made to cover interest on the Loan,
fees, and/or Enforcement Costs, prior to, on, or after the termination of this
Agreement, regardless of whether the aggregate amount of the advances of the
Loan which the Lenders may make hereunder exceeds the Credit Facility Committed
Amount. The Lenders shall have no obligation whatsoever to make any advance
under this subsection and the making of one or more advances under this
subsection shall not obligate the Lenders to make other similar advances. Any
such advances will be evidenced by the Notes and secured by the Collateral and
the Deeds of Trust or the Assigned Notes.
(e) Any advance under the Loan to be used to reimburse ARCC
for any portion of an advance under an Assigned Note shall also comply with any
requirements for an advance under the Note Collateral and no default shall have
occurred and be continuing under the Assigned Note regardless of whether any
applicable cure period has expired in connection with such default.
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Section 2.3 Fees
The Borrowers shall pay to the Agent the fees described in the Fee
Agreement between the Borrowers and the Agent dated June 8, 1999 or in any
other supplementary agreement regarding fees.
Section 2.4 Interest Rate Matters
2.4.1 Lender Tax Adjustment.
Each payment made by the Borrowers under the Notes shall either (i) be
exempt from, and be made without reduction by reason of, any Lender Tax or (ii)
to the extent that any such payment shall be subject to any Lender Tax, be
accompanied by an additional payment by the Borrowers of such amount as may be
necessary so that the net amount received by each Lender (after deducting all
applicable Taxes) is the same as such Lender would have received had such
payment not been subject to such Lender Tax. Upon any payment of Lender Tax by
the Borrowers, the Borrowers shall promptly (and in any event within 30 days)
furnish to the Agent and applicable Lender or Lenders such tax receipts,
certificates an other evidence of such payment as the Borrowers may have or the
Agent or the applicable Lender or Lenders may reasonably request.
2.4.2 Inability to Determine Eurodollar Rate.
In the event that the Agent determines (which determination shall be
conclusive absent manifest error) that, by reason of circumstances affecting
the London interbank market, quotation of Eurodollar Rates for any portion of
the Notes are not being provided in the relevant amounts or for the relevant
maturities for the purpose of determining a Eurodollar Rate for any portion of
the Principal Sum, the Agent will give notice of such determination to the
Borrowers and each Lender at least one day prior to the date of an advance or
any subsequent Eurodollar Period for the Loan. If any such notice is given, no
Lender shall have any obligation to make any advance or maintain any principal
sum outstanding at a Eurodollar Rate. Until the earlier of the date any such
notice has been withdrawn by the Agent or the date when the Lenders and the
Borrowers have mutually agreed upon an alternate method of determining the
rates of interest payable on the Loan, as the case may be, the Borrowers shall
not have the right to have additional advances or maintain any portion of the
Credit Facility at a Eurodollar Rate and interest shall accrue on all sums then
outstanding under the Notes and on any additional advances at the fluctuating
prime rate of interest established and declared by the Agent from time to time
(the "Prime Rate") and shall be adjusted immediately and contemporaneously with
any change in the Prime Rate. Interest accruing at the Prime Rate shall be
computed for the actual number of days which have elapsed from the date of each
advance at the Prime Rate or the date of conversion to the Prime Rate on the
basis of a 360-day year. The Prime Rate does not necessarily represent the
lowest rate of interest charged by the Agent to borrowers.
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2.4.3 Illegality.
Notwithstanding any other provision of the Financing Documents to the
contrary, in the event that it shall become unlawful for any Lender to obtain
funds in the London interbank market or for such Lender to maintain the Loan at
the Eurodollar Rate, then, by written notice to the Borrowers and to the Agent,
such Lender may declare that advances will not thereafter be made or the Loan
maintained by such Lender hereunder at the Eurodollar Rate, whereupon the
Lenders and the Borrowers shall mutually agree upon an alternate method of
determining the rates of interest payable on the Loan or interest shall
immediately commence to accrue at the Prime Rate as provided in Section 2.4.2.
2.4.4 Increased Costs and Reduced Return.
(a) If any event shall occur (whether in the form of a
reserve requirement (not included in the definition of the Eurodollar Rate),
exchange control regulations, governmental charges, compliance with any
guideline or request from any central bank or other Governmental Authority,
changes in the London interbank market or the position of any Lender in such
market or otherwise) and the result of any such event is, in such Lender's
reasonable judgment, to increase the costs which such Lender determines are
attributable to its making or maintaining the Loan at the Eurodollar Rate, or
its obligation to make available the Loan at the Eurodollar Rate or to reduce
the amount of any sum received or receivable by such Lender under the Note,
then, within ten (10) days after demand by such Lender, the Borrowers hereby
agree to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.
(b) In addition to any amounts payable pursuant to Section
2.4.2 if any Lender shall have determined that the applicability of any law,
rule, regulation or guideline adopted pursuant to or arising out of the July
1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and
Capital Standards," or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the enforcement or interpretation or administration of
any of the foregoing by any court or any central bank or other Governmental
Authority, charged with the enforcement or interpretation or administration
thereof, or compliance by such Lender (or any lending office of such Lender) or
such Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's capital or on the capital of such Lender's
holding company, if any, as a consequence of its making or maintaining the Loan
or its incurring any obligations under this Agreement to a level below that
which such Lender or such Lender's holding company could have achieved but for
such applicability, adoption, change or compliance (taking into consideration
such Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then, upon demand by such Lender, the Borrowers hereby agree to pay to such
Lender from time to time such additional amount or amounts as will compensate
such Lender or such Lender's holding company for any such reduction suffered.
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(c) If any Lender shall seek payment of any amounts from the
Borrowers pursuant to this Section or under Section 2.4.2, it shall notify the
Borrowers and the Agent of the amount payable by the Borrowers to such Lender
hereunder. A certificate of such Lender seeking payment setting forth in
reasonable detail the factual basis for and the computation of the amount
specified, shall be conclusive and binding on all parties for all purposes,
absent manifest error, as to the amounts owned. The Borrowers' obligations
under this Section shall survive the termination of this Agreement and the
repayment of the Obligations.
Section 2.5 Change in Basis Point Spread
Any change in the Interest Rate Margin based on a change in the
Collateral Value Ratio and (b) the definition of Interest Rate Margin shall
take effect one (1) Banking Day following the closing on any Eligible Project
which has the effect of changing the Collateral Value Ratio. The Agent will
promptly advise the Lenders of the planned closing on any Eligible Project
which will change the applicable Interest Rate Margin. Effective retroactively
to September 30, 1999 until such time as the Collateral Value Ratio is reduced
to 65% or lower, the Interest Rate margin shall be 235 basis points. Anything
contained herein to the contrary notwithstanding, although any change in
Interest Rate Margin will be immediately applicable to any advance of the Loan
made in connection with the closing on Eligible Project which would change the
Interest Rate Margin; however, the Interest Rate Margin applicable to the
previously outstanding balance will not be reset until the end of a Eurodollar
Period.
Section 2.6 Extensions
Provided that no Event of Default has occurred and is then continuing,
at any time not later than sixty (60) days nor earlier than one hundred twenty
(120) days prior to the Revolving Credit Expiration Date or any anniversary of
the Credit Facility Closing, the Borrowers may request that the Agent and the
Lenders, in their sole discretion, may agree to extend the Revolving Credit
Expiration Date one or more times for a period of twelve (12) months each. The
Agent and the Lenders shall respond to such request within sixty (60) days.
ARTICLE III
COLLATERAL
Section 3.1 Collateral
As security for the payment of any and all of the Obligations and for
each Borrower's performance of, and compliance with, all of the terms,
covenants, conditions, stipulations and agreements contained in the Financing
Documents, each Borrower hereby assigns, grants and conveys to the Lenders, and
agrees that the Lenders shall have, to the extent permitted by law a perfected,
continuing security interest in, all of the Collateral. Each Borrower further
agrees that the Lenders shall have in respect of the Collateral all of the
rights and remedies of a secured party under the Texas Uniform Commercial Code
and the Uniform Commercial Code of those other states in which the Facilities
are located, whichever is applicable, and under other applicable Laws as well
as those provided in this Agreement. Each Borrower covenants and
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agrees to execute and deliver such financing statements and other instruments
and filings as are necessary in the opinion of the Agent to perfect such
security interest. Notwithstanding the fact that the proceeds of the Collateral
constitute a part of the Collateral, no Borrower may dispose of the Collateral,
or any part thereof, other than in the ordinary course of its business except
nothing herein shall permit the Borrower to dispose of Collateral to the extent
otherwise expressly limited by this Agreement or other Financing Documents.
Section 3.2 Eligible Projects
The Borrowers may from time to time with the consent of the Lenders
designate a Facility owned by a Borrower or a Synthetic Lease Transaction as an
Eligible Project to be included in the Borrowing Base pursuant to the terms
hereof. The Facilities which are then Eligible Projects shall be listed on any
future Borrowing Base Report. The Obligations shall be secured by all of the
following property and assets of each Borrower, each Synthetic Lessee, ARC or
any Affiliate, wherever situated with regard to each of the Eligible Projects:
(a) a Deed of Trust on the fee simple interest held by the applicable Borrower
in the premises of such Eligible Project and all other Improvements now or
hereafter located thereon; or an assignment of an Assigned Note and the related
Note Collateral pertaining to such Eligible Project which is the subject of a
Synthetic Lease Transaction; provided that ARC will provide to the Agent for
the benefit of the Lenders as additional Collateral for the applicable Assigned
Note a first lien deed of trust on its fee ownership of any Eligible Project
that is the subject of a Ground Lease in connection with a Synthetic Lease
Transaction (each a "Fee Interest Deed of Trust" as it may from time to time be
amended, restated or substituted); (b) a first lien security interest in all
fixtures, building materials and all other machinery, equipment and other
personality used or installed by any Borrower or the Synthetic Lessors or
Synthetic Lessees on the premises of such Eligible Project or in the
Improvements constructed thereon; and (c) all of the other Collateral relating
to such Eligible Project. In connection with a Synthetic Lease Transaction the
collateral described in (b) and (c) above may be assigned through and in
connection with the assignment to the Agent of the Note Collateral. The
Borrowers may obtain the release of an Eligible Project and all Collateral
associated therewith from the liens of the applicable Deed of Trust or
assignment of Assigned Note, Collateral Assignments, Security Documents and
other Financing Documents at any time provided no Default or Event of Default
has occurred and is continuing or would occur as a result of such release and
provided that the provisions of Section 2.1 (c) and Section 7.2.1 are satisfied
and provided that the Borrowers pay any resulting Borrowing Base Deficiency
before or contemporaneously with any such release.
Section 3.3 Note Assignment
In connection with each assignment of an Assigned Note, the Assigned
Note shall be endorsed and delivered to the Agent, the assignment of the
Assigned Note and the Note Collateral shall be recorded in the applicable land
records and financing statements describing the Assigned Note and the Note
Collateral shall be filed in the appropriate recording offices.
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Section 3.4 Guaranties
The Obligations are the subject of the Guaranty Agreement executed and
delivered by the Guarantor in favor of the Lenders and of one or more
Completion Guaranties which may from time to time be executed and delivered by
the Guarantor.
Section 3.5 Collateral for Obligations
Each Borrower acknowledges that it is the intention of the Borrowers
that the Collateral and all the Deeds of Trust be security for all of the
Obligations, both those now existing and those hereafter created or incurred by
future loans, advances, extensions of credit or otherwise and whether or not
currently contemplated by the Borrowers and/or the Lenders on or about the date
hereof.
Section 3.6 Costs
The Borrowers agree to pay on demand, to the fullest extent permitted
by applicable laws, all reasonable fees, commissions, costs, charges, travel
expenses and other expenses incurred by the Lenders, or any of them, in
connection with the review of information relating to Facilities or the taking,
perfection, preservation, protection and/or release of any security interest or
lien on any of the Collateral or Deeds of Trust, including, but not limited to,
reasonable fees and expenses of counsel for the Agent and any other Lender,
appraisal fees, fees of Inspecting Engineers, fees and charges for surveys,
environmental audits, examination of title of each of the Eligible Projects and
mortgagee title insurance thereon, insurance and bond premiums, mortgage taxes,
transfer taxes and all recording fees and charges. The foregoing
notwithstanding, the Borrowers shall not be obligated to pay the travel
expenses of the Lenders with the exception of travel expenses incurred in
connection with (a) an initial site inspection, (b) a site inspection upon
completion of any construction and (c) travel related to any enforcement
actions following the occurrence of an Event of Default.
ARTICLE IV
GENERAL FINANCING PROVISIONS
Section 4.1 Conditions Precedent to Credit Facility Closing and
Addition of Eligible Projects
The following requirements, along with the applicable requirements set
forth in Section 4.2, Section 4.3 or Section 4.4, shall be conditions precedent
to the Credit Facility Closing or to the addition of an Eligible Project to the
Borrowing Base (a "Facility Closing"):
(a) The Notes, this Agreement, the Guaranty, or the
assignments of any applicable Assigned Notes and the related Note Collateral
(the "Synthetic Lease Assignment"), the other Security Documents and the other
Financing Documents in connection with the Loan shall have been properly
executed and delivered to the Agent. Any applicable Deeds of Trust or Synthetic
Lease Assignments shall have been acknowledged and recorded in the appropriate
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public office or delivered to a representative of the title company for
recording, and payment shall have been made for all conveyancing and recording
in connection with the settlement of the Loan, and for any transfer or
documentary stamp taxes due under any federal, state or municipal law.
(b) The Agent shall have received and approved a copy of each
Borrower's and the Guarantor's fully executed by-laws, and a certified copy of
the charter or other organizational documents or, for a Facility Closing, a
certificate of no changes therein since the Credit Facility Closing. In
connection with the addition of an Additional Borrower or a new Assigned Note,
the Agent shall have received and approved copies of all organizational
documents for such Additional Borrower or the applicable Synthetic Lessor and
Synthetic Lessee, including certified copies of all documents on record with
the state in which such entity is organized.
(c) The Agent shall have received and approved certificates
executed by an authorized officer of each Borrower certifying as to the
validity of the resolutions of the boards of directors of such Borrower and the
Guarantors authorizing the execution and delivery of the Financing Documents
and consenting to the Loan and similar resolutions of any Additional Borrower.
(d) The Agent shall have received and approved a current
certificate of good standing and, if applicable, a certificate of authority to
do business in the state where each Eligible Project is located for the
applicable Borrower and, if applicable, for the Synthetic Lessor and Synthetic
Lessee and in connection with the addition of an Additional Borrower a
certificate of good standing, a certificate of authority to do business in the
state where such Eligible Project is located or certificate of fact from the
state in which any Additional Borrower is formed. The foregoing notwithstanding
the Agent may agree in its sole discretion to accept certificates of good
standing and certificates of authority to do business which are not current,
which were provided in connection with the closing of a Synthetic Lease
Transaction.
(e) The Agent shall have received and approved an opinion of
counsel for the Borrowers as to each Borrower's good standing, form, power and
authority and as to the validity, binding effect and enforceability of the
Financing Documents. In connection with any Synthetic Lease assignment, the
Agent may require that the law firm which gave the opinions of counsel in
connection with the closing of a Synthetic Lease Transaction either bring such
opinions current and/or re-address them to the Agent on behalf of the Lenders
or issue a letter to the Agent on behalf of the Lenders confirming that the
Lenders may rely upon the opinion previously given and advising of any material
changes in the applicable law since the prior opinion. The Agent may also
require an opinion of counsel for the Borrowers that the Synthetic Lease is a
lease and not an equitable mortgage. The Agent may also require an opinion of
local counsel for the Borrowers confirming that any Security Document including
an assignment of an Assigned Note and Note Collateral be in proper form and
enforceable under the law of the applicable jurisdiction.
(f) The Agent shall have received a properly executed
Additional Borrower Joinder Supplement from any Additional Borrower.
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(g) The Borrowers shall provide the Agent with the Management
Agreement entered into by a Borrower or a Synthetic Lessor and/or Synthetic
Lessee with the Management Company. The terms and provisions of the Management
Agreement shall be fully approved by the Agent prior to the Credit Facility
Closing.
(h) The Agent shall have received and approved a guaranty by
ARC of the operating deficits of any Eligible Project; provided, however, that
in connection with a Synthetic Lease Transaction, provisions for funding of
operating deficits shall be evidenced by the inclusion of such operating
deficits in the applicable Total Development Budget and the agreement of ARC in
favor of the Synthetic Lessee to fund operating deficits in excess of those the
Synthetic Lessee has agreed to fund so long as such Synthetic Lease is
collaterally assigned to secure an Assigned Note.
(i) At the time the Borrowers request the consent of the
Agent to the inclusion of a Facility as an Eligible Project, the Borrowers
shall have advised the Agent of the following information regarding the
proposed new Eligible Project (i) the type and tradename of the Facility, (ii)
its status as a Development Project, an Acquisition Project or a Stabilized
Project, (iii) whether it is an Expansion Project, (iv) the stage of
construction of any Facility under construction, (v) the location of the
Facility including street address, city, county and state, (vi) the name of the
entity which owns the Facility and its relationship to ARC or any Borrower, and
(vii) whether a Synthetic Lease is or will be applicable to the Facility. The
Lenders will determine whether the Facility will be added as an Eligible
Project to the Borrowing Base in accordance with the provisions of this
Agreement.
(j) the Agent shall have received a certified financial
statement in form and detail satisfactory to the Agent regarding any Additional
Borrower.
(k) The Agent shall have a period of not less than thirty
(30) days to review a Facility and decide whether to permit its inclusion in
the Borrowing Base.
(l) The Agent shall have received other information (actual
or projected as applicable) regarding each Facility, including the number of
units, types of units, payor mix or rate schedule.
(m) No Eligible Project that is not a Completed Project may
be added to the Borrowing Base if the maximum availability which could be added
to the Borrowing Base thereby would cause the maximum possible availability
under the Borrowing Base to exceed the then applicable Credit Facility
Committed Amount and no Eligible Project may be added to the Borrowing Base if
it would cause a default under Section 7.2.5 (Percentage of Stabilized
Projects).
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Section 4.2 Additional Conditions Precedent to Accepting an Eligible
Project That is Under Construction or to be Constructed:
The following requirements, along with applicable requirements of and
, shall be conditions precedent to a Facility Closing for an Eligible Project
that is under construction or to be constructed:
(a) The Facility Closing shall have been completed.
(b) The Agent shall have received a certificate of authority
to do business for the applicable Borrower in the jurisdiction where such
Eligible Project is located.
(c) The Total Development Budget for such Eligible Project
shall have been reviewed and approved in writing by the Agent. Each Total
Development Budget for a Development Project under construction or to be
constructed shall include (A) a project summary describing such proposed
Eligible Project in reasonable detail, (B) a detailed construction cost
estimate and a two-year estimated cash flow analysis (or such longer period as
is necessary to include at least twelve (12) complete calendar months of full
stabilized operation), (C) other cost, feasibility, demographic and marketing
information and analysis with respect to such Eligible Project, (D) a five
percent (5%) of "hard" costs included in the contingency line item; and (E) an
operating deficit/working capital category sufficient to equal the higher of
the amount set forth in the Borrower's Pro Forma Operating Statement or the
amount the Agent or its consultants believe such working capital requirements
should be; and all such material shall be satisfactory in all respects to the
Agent, in its sole discretion. Such Total Development Budget shall demonstrate
to the Agent's satisfaction that the Eligible Project qualifies and is likely
to continue to qualify as a Pool A Project. Such review for a Facility to be
constructed or under construction shall include a review of the Plans and
Specifications by an inspecting engineer selected by the Agent to verify that
the Improvements can be constructed for the amount set forth in the Total
Development Budget.
(d) The Pro Forma Operating Statement for such Eligible
Project shall have been reviewed and approved in writing by the Agent. Each Pro
Forma Operating Statement shall demonstrate to the Agent's satisfaction in its
sole discretion that the Eligible Project is likely to qualify and continue to
qualify as a Pool A Project.
(e) The Agent shall have received (A) a paid policy of title
insurance (American Land Title Association Standard Form "B" Loan
Policy-Current Edition) covering the Facility or a valid and enforceable
commitment to issue the same, together with such reinsurance agreements and
direct access agreements as may be required by the Agent and/or endorsements to
policies issued to the Agent in connection with the Credit Facility Closing, or
(B) an endorsement(s) to the Agent on behalf of the Lenders of the policy or
policies of insurance issued to the applicable Borrower as lender under a
Synthetic Lease Transaction and including such additional endorsements as the
Agent may require in connection with the Synthetic Lease assignments in the
dollar amount agreed upon by the Agent from a title insurance company
acceptable to the Agent and which may be endorsed or assigned to the successors
and assigns of the Lenders and to additional Lenders without additional cost,
insuring the liens of the Deeds of
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Trust or the Note Collateral, as applicable, to be valid first liens on the
Facility, free and clear of all defects, exceptions and encumbrances except
such as the Agent and its counsel shall have approved and with such
endorsements as Agent may require but without a creditor's rights exception and
(unless otherwise agreed by the Agent) containing affirmative insurance against
mechanic's liens.
(f) The Agent shall have received advice, in form and
substance and from a search company or other source satisfactory to the Agent,
to the effect that a UCC, judgment and tax lien search of the applicable public
records discloses no conditional sales contracts, chattel mortgages, leases of
personalty, financing statements or title retention agreements filed or
recorded against the Facility except such as the Agent shall have approved.
(g) The Agent shall have received ACORD Evidence forms
evidencing all policies of insurance required by the terms hereof and by the
other Financing Documents to be in effect from a company or companies and in
form and amount satisfactory to the Agent, including without limitation, flood
insurance (in the amount required by the applicable Deed of Trust or Note
Collateral or evidence that flood insurance is not available or otherwise
required with respect to the Facility), and with mortgagee and loss payee
provisions in favor of the Agent for the benefit of the Lenders, together with
written evidence, in form and substance satisfactory to the Agent, that all
fees and premiums due on account thereof have been paid in full.
(h) The Agent shall have received and approved an appraisal
of the Facility meeting the requirements set forth herein.
(i) The Agent shall have received from the Borrowers a
complete set of the Plans and Specifications for the Facility signed and sealed
by the architect, together with written evidence, in form and substance
satisfactory to the Agent, to the effect that the Plans and Specifications are
satisfactory to the Borrowers or the Synthetic Lessor and Synthetic Lessee, as
applicable, the General Contractor, the Inspecting Engineer and, to the extent
required by applicable law or any effective restrictive covenant, have been
approved by all Governmental Authorities having or claiming jurisdiction and by
the beneficiary of any such restrictive covenant, respectively.
(j) The Agent shall have approved the General Contractor for
any Eligible Project under construction or to be constructed. The Agent shall
have received and approved a fully executed copy of the applicable fixed-price
Construction Contract and the Architect's Contract as well as any information
regarding the General Contractor or the Architect which the Agent has
requested. The Agent shall have received a dual obligee payment and performance
bond or letter of credit for the account of each General Contractor or other
evidence of satisfactory credit of the General Contractor.
(k) The Agent shall have received and approved a copy of a
current Survey of the Land certified to the Agent and to the title insurance
company.
(l) The Agent shall have received and approved a site plan
for the Improvements approved by all appropriate Governmental Authorities.
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(m) The Agent shall have received from the Borrowers written
evidence, in form and substance satisfactory to the Agent, from all
Governmental Authorities having or claiming jurisdiction to the effect that all
building, construction and other permits required in connection with the
development of the Land and the construction of the Improvements have been
validly issued, that all fees and bonds required in connection therewith have
been paid in full or posted, as the circumstances may require, and that the
Improvements meet zoning requirements and all sewer and storm drain
requirements.
(n) The Agent shall have received and approved a report
setting forth a construction progress schedule in form and substance
satisfactory to the Agent, calling for the completion of the Improvements by a
date no later than the end of the applicable Maximum Construction Period, which
Maximum Construction Period must be acceptable to the Agent.
(o) If construction work of any kind has commenced upon the
Land or materials have been placed or stored upon the Land prior to the
recordation of the Deed of Trust among the Land Records where the Land is
located, the same shall be fully insured against by the title insurance
company.
(p) The Agent shall have received and approved evidence that
the applicable General Contractor carries public liability and property damage
insurance and workers' compensation insurance in form and amounts and issued by
companies acceptable to the Agent.
(q) The Agent shall have received and approved a Phase I
environmental audit of the applicable Facility prepared by a person or firm
acceptable to the Agent.
(r) The Agent shall have received evidence acceptable in all
respects through certification by the Architect or other source acceptable to
the Agent that the applicable Improvements, when constructed, will comply with
all legal requirements regarding access and facilities for handicapped or
disabled persons, including, without limitation and to the extent applicable to
assisted living facilities (or, if applicable, independent living facilities),
The Federal Architectural Barriers Act (42 U.S.C. ss. 4151 et seq.), The Fair
Housing Amendments Act of 1988 (42 U.S.C. Section 3601 et seq.), The Americans
With Disabilities Act of 1990 (42 U.S.C. ss. 12101 et seq.), The Rehabilitation
Act of 1973 (29 U.S.C. ss. 794) and any applicable state statutes relating to
access and facilities for handicapped or disabled persons.
(s) The Agent shall have received and approved soil reports
demonstrating that the soil conditions of the Property are suitable for
construction of the Improvements, which reports shall include evidence to the
Agent's satisfaction that there are no hydric soils on the Land.
(t) The Agent shall have received and approved copies of any
executed Material Leases of the applicable Facility or of any portion thereof
and subordination and attornment agreements acceptable to the (with
non-disturbance provisions if acceptable to the Agent) from each.
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(u) The Agent shall have received and approved an opinion of
Borrowers' outside or in-house regulatory counsel regarding licensing
requirements and the transferability of Licenses and an opinion of local
counsel in the jurisdiction where the applicable Facility is located on a form
provided by the Agent that the Financing Documents applicable to that Facility
are enforceable against the Borrowers in accordance with their terms and that
neither the making nor the servicing of the Loan will subject the Lenders to a
requirement of qualifying to do business or taxation (except ad valorem taxes
on the Property) in the state where the applicable Facility is located and that
the Loan is not usurious, which opinion must also inform the Agent (i) of the
cost and timing of foreclosure; (ii) of any limitations on the Agent's right to
obtain, or the amount of, a deficiency judgment; and (iii) the existence of and
details surrounding any redemption period enjoyed by the Borrowers following a
sale at foreclosure. Each opinion of local counsel will reflect such counsel's
understanding of the structure of the Credit Facility as a whole and the
enforceability of the documents for each jurisdiction as a part of such Credit
Facility structure. In connection with an Assigned Note, the Agent may agree in
its sole discretion to accept a letter from the lawyer or lawyers who issued
such opinions in connection with the Synthetic Lease Transaction confirming
that the Agent and the Lenders may rely upon such existing opinions and
advising of any material changes in the applicable law since the issuance of
such opinions.
(v) With regard to any Facility located in any state having
such requirement, the Agent shall have received evidence satisfactory to the
Agent that a Certificate of Need has been issued for such Facility.
(w) The Agent shall have received and approved any Management
Agreement then in place for the Facility.
(x) The Agent shall have received and approved a market
feasibility study for the Facility satisfactory to the Agent including, but not
limited to, information regarding market occupancy rates, proposed and existing
competition, monthly rates and a Claritas Senior Life Report (or other source
acceptable to the Agent) on the defined market area for the Facility. The
market feasibility study may be internally prepared; however, the Agent
reserves the right to require the Borrowers to provide a market feasibility
study prepared by a third party acceptable to the Agent.
(y) The Agent shall have received a copy of any acquisition
contract for the Facility.
(z) The Agent and/or one or more of the other Lenders shall
have inspected the Facility and finds it acceptable.
Section 4.3 Additional Conditions Precedent to Accepting an Eligible
Project That Has Been Constructed or Acquired:
The following requirements, along with the applicable requirements of
Section 4.1 and Section 4.4 and, shall be conditions precedent to a Facility
Closing for an Eligible Project that has been constructed or acquired:
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<PAGE> 40
(a) The Facility Closing shall have been completed.
(b) The Agent shall have received a certificate of authority
to do business for the applicable Borrower in the jurisdiction where such
Eligible Project is located.
(c) The Total Development Budget for such Eligible Project
shall have been reviewed and approved in writing by the Agent consistent with
the provisions of Section 2.1. Each Total Development Budget shall demonstrate
to the Agent's satisfaction in its sole discretion that such Eligible Project
will be designated as a Pool A Project.
(d) The Pro Forma Operating Statement and recent actual
operating statements for any such Eligible Project that is not a Stabilized
Project shall have been reviewed and approved in writing by the Agent. Each Pro
Forma Operating Statement shall demonstrate to the Agent's satisfaction in its
sole discretion that the Eligible Project will qualify and is likely to
continue to qualify as a Pool A Project.
(e) The Agent shall have received (A) a paid policy of title
insurance (American Land Title Association Standard Form "B" Loan
Policy-Current Edition) covering the Facility or a valid and enforceable
commitment to issue the same, together with such reinsurance agreements and
direct access agreements as may be required by the Agent and/or endorsements to
policies issued to the Agent in connection with the Credit Facility Closing, or
(B) an endorsement(s) to the Agent on behalf of the Lenders of the policy or
policies of insurance issued to the applicable Borrower as lender under a
Synthetic Lease Transaction and including such additional endorsements as the
Agent may require in connection with the Assigned Note assignments in the
dollar amount agreed upon by the Agent from a title insurance company
acceptable to the Agent and which may be endorsed or assigned to the successors
and assigns of the Lenders and to additional Lenders without additional cost,
insuring the liens of the Deeds of Trust or the Note Collateral, as applicable,
to be valid first liens on the Facility, free and clear of all defects,
exceptions and encumbrances except such as the Agent and its counsel shall have
approved and with such endorsements as Agent may require but without a
creditor's rights exception and (unless otherwise agreed by the Agent)
containing affirmative insurance against mechanic's liens.
(f) The Agent shall have received advice, in form and
substance and from a search company satisfactory to the Agent, to the effect
that a UCC, judgment and tax lien search of the applicable public records
discloses no conditional sales contracts, chattel mortgages, leases of
personality, financing statements or title retention agreements filed or
recorded against the Property except such as the Agent shall have approved.
(g) The Agent shall have received ACORD Evidence forms
evidencing all policies of insurance required by the terms hereof and by the
other Financing Documents to be in effect from a company or companies and in
form and amount satisfactory to the Agent, including without limitation, flood
insurance (in the amount required by the applicable Deed of Trust or evidence
that flood insurance is not available or otherwise required with respect to the
Property), and with mortgagee and loss payee provisions in favor of the Agent
for the benefit of the
35
<PAGE> 41
Lenders, together with written evidence, in form and substance satisfactory to
the Agent, that all fees and premiums due on account thereof have been paid in
full.
(h) The Agent shall have received and approved an appraisal
of the Facility.
(i) The Agent shall have received and approved a copy of a
current as-built Survey of the Land certified to the Agent and to the title
insurance company.
(j) The Agent shall have received and approved a Phase I
environmental audit of the applicable Facility prepared by a person or firm
acceptable to the Agent.
(k) The Agent shall have received evidence acceptable in all
respects through certification by the Architect or other source acceptable to
the Agent that the applicable Improvements comply with all legal requirements
regarding access and facilities for handicapped or disabled persons, including,
without limitation and to the extent applicable to assisted living facilities
(or, if applicable, independent living facilities), The Federal Architectural
Barriers Act (42 U.S.C. ss. 4151 et seq.), The Fair Housing Amendments Act of
1988 (42 U.S.C. ss. 3601 et seq.), The Americans With Disabilities Act of 1990
(42 U.S.C. ss. 12101 et seq.), The Rehabilitation Act of 1973 (29 U.S.C.
Section 794) and any applicable state statutes relating to access and
facilities for handicapped or disabled persons.
(l) The Agent shall have received and approved copies of any
executed Material Leases of the applicable Property or of any portion thereof
and subordination and attornment agreements acceptable to the Agent from each.
(m) The Agent shall have received and approved an opinion of
Borrowers' outside or in-house regulatory counsel regarding licensing
requirements and the transferability of licenses and an opinion of local
counsel in the jurisdiction where the applicable Facility is located that the
Financing Documents applicable to that Facility are enforceable and for the
Borrowers that neither the making nor the servicing of the Loan will subject
the Lenders to a requirement of qualifying to do business or taxation (except
ad valorem taxes on the Property) in the state where the applicable Facility is
located and that the Loan is not usurious, which opinion must also inform the
Agent (i) of the cost and timing of foreclosure; (ii) of any limitations on the
Agent's right to obtain, or the amount of, a deficiency judgment; and (iii) the
existence of and details surrounding any redemption period enjoyed by any
Borrower following a sale at foreclosure. In connection with as Assigned Note,
the Agent may agree in its sole discretion to accept a letter from the lawyer
or lawyers who issued such opinions in connection with the Synthetic Lease
Transaction confirming that the Agent and the Lenders may rely upon such
existing opinion and advising of any material changes in the applicable law
since the issuance of such opinions.
(n) With regard to any Deed of Trust for a Facility located
in any state having such requirement, the Agent shall have received evidence
satisfactory to the Agent that a Certificate of Need has been issued for such
Facility.
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(o) The Agent shall have received and approved a copy of the
fully executed Management Agreement for the Facility.
(p) If requested by the Agent, the Agent shall have received
and approved a physical assessment report prepared by a professional acceptable
to the Agent (unless the Agent accepts a report prepared by ARC) for any
Eligible Project which was not constructed by ARC or which has been completed
more than five (5) years.
(q) The Agent shall have received a market feasibility study
for the Facility satisfactory to the Agent including, but not limited to,
information regarding market occupancy rates, proposed and existing
competition, monthly rates and a Claritas Senior Life Report (or other source
acceptable to the Agent) on the defined market area for the Facility. The
market feasibility study may be internally prepared; however, the Agent
reserves the right to require the Borrowers to provide a market feasibility
study prepared by a third party acceptable to the Agent.
(r) The Agent shall have received a copy of any acquisition
contract for the Property.
(s) If applicable in the state where the Facility is located
or unless the Agent has consented to defer receipt thereof in connection with a
particular Facility, the Agent shall have received a certificate of occupancy
for the Improvements.
(t) The Agent shall have received a copy of an operating
License for the Facility or other evidence satisfactory to the Agent that the
Facility may be lawfully operated as contemplated by the Financing Documents.
(u) The Agent shall have received cost reports for the
Facility for the preceding two (2) years (if available).
(v) The Agent shall have received the most recent licensure
and reimbursement survey for the Facility, any statement of deficiencies and
the related plan of correction.
Section 4.4 Additional Conditions Precedent to Accepting a
Facility Subject to a Synthetic Lease Transaction as an Eligible Project
The following requirements, along with applicable requirements of
Section 4.1 and Section 4.2 or Section 4.3, shall be conditions precedent to a
Facility Closing for an Eligible Project subject to a Synthetic Lease
Transaction:
(a) The Agent shall have received written records
satisfactory to the Agent of the disbursement and payment history of and the
principal balance outstanding of the Assigned Note.
(b) The Agent shall have received and approved the Synthetic
Lease and all collateral for and guaranties of the Synthetic Lease. Rent from
such Synthetic Lease must be sufficient to pay debt service on its respective
Assigned Note or at least on a 1.0 to 1.0 basis.
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The Synthetic Lease shall provide that if interest is accruing at the default
rate, rent will be increased to cover such increased interest rate.
(c) The Agent shall have received and approved all of the
other Note Collateral and any and all other documents executed or provided in
connection with the Synthetic Lease Transaction.
(d) The Agent shall have received and approved estoppel
certificates from the Synthetic Lessor regarding the Assigned Note and the
Synthetic Lease and related documents, from the Synthetic Lessee regarding the
Synthetic Lease and related documents and from ARCC as Lender regarding the
Assigned Note, the Note Collateral and related documents.
(e) The Assigned Notes with a particular Synthetic Lessee (or
Entity under common control with such Synthetic Lessee) will be cross-defaulted
with each other. The Assigned Note and Note Collateral will secure all
obligations under the Credit Facility. No Synthetic Lessee will enter into a
Synthetic Lease Transaction with more than one Synthetic Lessor unless the
Agent determines to its satisfaction that such Synthetic Lease Transaction can
be cross-defaulted. Neither the Assigned Note nor the Note Collateral will be
amended, modified, substituted or cancelled without the Agent's prior written
consent. Any prepayment of principal outstanding under an Assigned Note shall
be paid to the Agent to be applied to the Obligations.
(f) No more than four (4) Synthetic Lease Pools may be
included in the Borrowing Base at any one time during the period that the
Credit Facility Committed Amount is $75,000,000 or less. One additional
Synthetic Lease Pool may be added for each additional $25,000,000 which is
added to the Credit Facility Committed Amount.
(g) The Borrower which is the payee on each Assigned Note
will continue to administer the loan to the applicable Synthetic Lessor
including, but not limited to, making advances thereunder, in accordance with
the Assigned Note and the loan documents in connection therewith. Such Borrower
will comply with and enforce the Assigned Note and the related loan documents
in accordance with their written terms. Such Borrower will give the Agent
notice of any default under the Assigned Note, the Synthetic Lease, the Note
Collateral or any other related documents.
(h) The Lender's title insurance policy being assigned as
part of the Note Collateral may not include a recharacterization exclusion.
Section 4.5 Conditions Precedent to Determining Additional
Availability Under Borrowing Base
The Lenders shall not be obligated to include any costs incurred by
any Borrower under a Total Development Budget in the calculation of the
Borrowing Base unless the conditions described in ,Section 4.1, Section 4.2,
Section 4.3, and/or Section 4.4, as applicable, and the following additional
conditions shall have been satisfied to the Agent's satisfaction:
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(a) Construction cost reports prepared by a construction
manager and certified by an officer of ARC showing the percentage of completion
and setting forth in trade breakdown form and in such detail as may be required
by the Agent, the amounts expended and/or costs incurred for work done and
necessary materials incorporated into the Improvements. The cost reports shall
also show the percentage of completion of each line item on the Borrowers' cost
breakdown approved by the Agent. The Borrowers shall submit with each cost
report a statement that the work completed to the date of such cost report is
of quality consistent with the applicable Plans and Specifications. In
connection with any Assigned Note the cost report shall also include a
statement of the principal sum of such Assigned Note advanced to date by ARCC.
In addition, at the time of delivery of each cost report by the Borrowers, the
Borrowers shall furnish to the Agent such additional information (such as paid
receipts, invoices, statements of accounts, etc.) as the Agent may reasonably
require to assure that amounts shown in the cost report have been paid by the
Borrowers.
(b) Cost reports verified by the Agent's Real Estate Loan
Administration group during the period since the issuance of the last Borrowing
Base Report will be included in the calculation of the next Borrowing Base
Report. Unless otherwise agreed to by the Agent and to the extent specifically
permitted by the Agent, the process of verification of Requisitions shall
confirm the payment by the Borrowers of the following costs and expenses
related to the development of the Land and the construction of the Improvements
and no others may be included in a Total Development Budget: (i) the payment of
interest when due without further authorization or consent of the Borrowers;
(ii) the actual cost of the Land and all labor, services, materials,
supervision, construction fees and the like reasonably incurred by the
Borrowers in connection with the construction upon the Land of the Improvements
in accordance with the Plans and Specifications; (iii) for the actual cost of
pre-opening expenses, marketing expenses and operations of the Facility to the
extent of operating deficits; (iv) for the actual cost of commitment fees,
extension fees, appraisal fees, closing or settlement costs, fees of attorneys,
engineers, architects and accountants, insurance and bond premiums, ad valorem
real estate taxes and other costs directly related to the development of the
Land and the construction, marketing, initial start-up operating of the
Improvements; (v) for reasonable development fees to ARC and (vi) for
pre-opening fees. Development fees shall be deemed incurred and included in
"Costs Incurred to Date" in the following manner: fifty percent (50%) of the
development fees paid to ARC shall be deemed incurred at the commencement of
the Development Project and the remaining balance shall be deemed incurred in
equal quarterly installments earned at the end of each three month period
during the projected construction period for a Facility constructed or under
construction. Construction management fees paid to third parties shall be
deemed incurred and included in "Costs Incurred to Date" in a percentage equal
to the approximate percentage of completion of the Facility constructed or
under construction.
(c) The cost verification procedure hereunder will be
administered by the Agent's Real Estate Loan Administration group. Validation
of Costs Incurred to Date for Development Projects (including Expansion
Projects) under construction or constructed by a Borrower shall be based upon
inspections and certifications by or on behalf of the Agent demonstrating that
the work included in Costs Incurred to Date shown in the most current reports
submitted by the Borrowers has been completed in a manner satisfactory to the
Agent and upon verification by the Agent that the Borrowers have paid for the
Costs Incurred to Date shown on
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<PAGE> 45
such requisition. Such inspections shall be performed when construction is
approximately one-third and two-thirds completed and at substantial completion
of the Improvements; provided, however, that the Agent shall have the right in
its sole discretion to conduct or cause to be conducted such inspections at any
other time or times. The Lender shall use the information so provided by the
Inspecting Engineer to verify that the construction disbursements which have
theretofore been made by the Borrowers accurately reflected the amount of
construction completed at such times. It shall not be a condition to issuing a
new Borrowing Base Report reflecting updated Costs Incurred to Date that the
Agent shall have actually received a report of the Inspecting Engineer
verifying that the actual construction completed and paid for conforms to the
percentage of completion reflected in the Borrowers' reports to the Agent.
Rather, it is anticipated that the Agent will use reasonable discretion in
scheduling the physical inspections and reports by the Inspecting Engineer so
that such reports may be used by the Agent as a periodic verification of the
information contained in the Borrowing Base Report; however, with regard to
Development Projects, the Agent shall have received confirmation from the
Inspecting Engineer of his review and approval of the AIA Form 702/703 referred
to in subsection (i) below. The Borrowers shall make arrangements for advance
payment or reimbursement by the Borrowers of the fees and expenses of the
Inspecting Engineer in making any such physical inspections. In addition:
(i) All reports of costs incurred shall be made on
forms approved by the Agent similar to construction loan requisition forms
detailing the purpose and application of the Costs Incurred to Date by Eligible
Project at such times as the Borrowers may determine, using (x) as to "hard
costs," AIA Form 0702, or such other standardized forms or formats for
information typically used by the Borrowers as shall be reasonably acceptable
to the Agent accompanied by a cost breakdown, the accuracy of which shall be
certified by ARC on behalf of the Borrowers, and (y) as to "soft costs," a
standardized request form, containing such information and/or documentation,
certified by ARC on behalf of the Borrowers, as the Agent may reasonably
require.
(ii) Costs Incurred to Date on Acquisition Projects
will be verified from the settlement sheet signed at the closing of the
acquisition and other records deemed acceptable by the Agent. Costs Incurred to
Date on Stabilized Projects constructed by the Borrowers will be verified from
applicable invoices and other payment records satisfactory to the Agent.
(iii) The Borrowers shall furnish the Agent with
lien waivers signed by the general
contractor for all construction work done and materials supplied that are
included in the current requisition. Such lien waivers will be in the form of
AIA forms G706 and G706A.
(iv) Validation of requisitions will also be
contingent upon receipt of the most current monthly report of title to all
Eligible Projects which are under construction or have been completed less than
120 days (or such longer period as the Agent shall deem necessary based on
applicable mechanics' lien laws), which must be satisfactory to the Agent. In
cases where the Eligible Project is not the subject of a Synthetic Lease
Transaction, the Agent shall have received an endorsement which shall have the
effect of advancing the effective date of the policy to the date of the
increase of the Borrowing Base then being made and increasing the
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coverage of the policy by an amount equal to the cost report being verified if
the policy does not by its terms provide for such an increase. The Agent shall
also have received an endorsement to any title policy issued in connection with
a Synthetic Lease Transaction each time there is an advance under an Assigned
Note.
(v) The Borrowers shall deliver to the Agent at
least monthly written evidence of
the principal sum then outstanding under each Assigned Note.
(d) No Default or Event of Default shall have occurred and be
continuing under any Note or any of the other Financing Documents.
(e) No Improvements shall have been materially damaged by
fire or other casualty unless the Agent shall have received proceeds of
insurance sufficient in the judgment of the Agent to effect a satisfactory
restoration of such Improvements in accordance with the terms of the applicable
Deed of Trust.
(f) The Agent shall have received written evidence, in form
and substance satisfactory to the Agent, in its reasonable discretion, to the
effect that all work requiring inspection by Governmental Authorities having or
claiming jurisdiction has been duly inspected and approved by such authorities
and by any rating or inspection organization, bureau, association or office
having or claiming jurisdiction.
(g) The representations and warranties made in ARTICLE V of
this Agreement shall be true and correct in all material respects on and as of
the date of the advance with the same effect as if made on such date.
(h) All terms and conditions of the Financing Documents
required to be met as of the date of consideration applicable cost report shall
have been met to the complete satisfaction of the Agent.
(i) In the reasonable judgment of the Agent, all work
completed on the applicable Eligible Project under construction at the time of
the application for an advance has been performed in a good and workmanlike
manner and all materials and fixtures usually furnished and installed at that
stage of construction have been furnished and installed. All costs covered by
the cost report have been paid by the Borrowers.
(j) The Agent shall have determined whether each Eligible
Project is a Pool A, Pool B or Pool C Project. Borrowers agree to provide
sufficient information to the Agent to permit the Agent to confirm which
Eligible Projects fall into each category.
Section 4.6 Conditions Under Which an Eligible Project is a Completed
Project
The Agent shall verify that an Eligible Project is a Completed Project
based on the satisfaction of the following additional conditions:
(a) Within sixty (60) days after the issuance of the
applicable certificate of occupancy, the Agent shall have received the final
"as built" Survey for the applicable Facility.
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(b) Within sixty (60) days after the issuance of the
applicable certificate of occupancy, the Agent shall have received written
evidence from the Architect or another qualified third party, in form and
substance satisfactory to the Agent, to the effect that the applicable
Improvements have been substantially completed in accordance with the
applicable Plans and Specifications.
(c) The Agent shall have received written evidence, in form
and substance satisfactory to the Agent, to the effect that requisite
certificates for permanent occupancy or completion of the Improvements have
been validly issued.
(d) Final waivers of liens of the General Contractor, and, if
required by the applicable title insurance company, subcontractors, laborers
and material suppliers have been furnished to the Agent or, as to any disputed
lien or claim of lien, a bond in form and substance acceptable to the Agent has
been provided or other arrangements satisfactory to the Agent have been made.
(e) The Agent shall have received a copy of an operating
License for the Facility or other evidence satisfactory to the Agent that the
Facility may be lawfully operated as contemplated by the Financing Documents.
Section 4.7 Verification of Operating Reserve Expenditures
No portion of any costs included in the Operating Reserve shall be
verified until both a certificate of occupancy has been issued by the
applicable Governmental Authorities and, if applicable to the Facility, an
operating License has been issued for the Facility by the appropriate
Governmental Authority or Authorities. Advances from the Operating Reserve
shall be for the sole purpose of paying a portion of the Debt Service on the
Loan or net operating losses as shown on a monthly financial report for such
Facility prepared in accordance with the requirements set forth in this
Agreement, and certified by the chief financial officer of the applicable
Borrower.
Section 4.8 Assignments of Payments
Each Borrower agrees not to transfer, assign, pledge or hypothecate
any right or interest in any payment or advance due under this Agreement, or
any of the other benefits of this Agreement, without the prior written consent
of the Agent. Any assignment made or attempted by any Borrower without the
prior written consent of the Agent shall be void and of no effect. No consent
by the Agent to an assignment by any Borrower shall release such Borrower as a
party primarily obligated and liable under the terms of this Agreement unless
such Borrower shall be released specifically by the Agent in writing. No
consent by the Agent to an assignment shall be deemed to be a waiver of the
requirement of prior written consent by the Agent with respect to each and
every further assignment and as a condition precedent to the effectiveness of
such assignment.
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Section 4.9 Liability of the Lenders
The Lenders shall in no event be responsible or liable to any person
other than the Borrowers for the disbursement of or failure to disburse the
Loan proceeds or any part thereof and neither the General Contractor nor any
subcontractor, laborer or material supplier shall have any right or claim
against the Lenders under this Agreement or the administration thereof. Neither
the Agent, any of the other Lenders nor any Inspecting Engineer shall be
responsible or liable for the construction methods or the quality of
construction employed in connection with a Facility or for any construction
defects but are merely reviewing construction or causing it to be reviewed in
connection with the verification of Costs Incurred to Date. Furthermore, all
verification of Costs Incurred to Date shall be for the sole benefit of Agent
and Lenders and neither any Borrower nor any other third party shall have the
right to rely thereon, and it shall be the sole responsibility of the Borrowers
and not the responsibility of the Lenders or the Agent to apply any Loan funds
to the payment of such costs.
Section 4.10 Computation of Interest and Fees
All applicable fees and interest shall be calculated on the basis of a
year of 360 days for the actual number of days elapsed pursuant to the terms of
each Note and interest shall be payable monthly in arrears.
Section 4.11 Liens; Setoff
Each Borrower hereby grants to the Lenders a continuing lien and
security interest for all the Obligations upon any and all monies, securities,
and other property of the Borrowers and the proceeds thereof, now or hereafter
held or received by or in transit to, the Lenders, or any affiliate of any of
the Lenders, from or for any Borrower, and also upon any and all deposits
(general or special) and credits of such Borrowers with any of the Lenders, if
any, at any time existing. During the continuance of any Event of Default under
this Agreement, each Lender is hereby authorized by each Borrower at any time
and from time to time, without notice to any Borrower, to set off, appropriate
and apply any or all items hereinabove referred to against all Obligations then
outstanding.
Section 4.12 Payment and Performance of Obligations
The payment and performance by the Borrowers of the Obligations shall
be absolute and unconditional, irrespective of any defense or any rights of
set-off, recoupment or counterclaim any Borrower might otherwise have against
the Lenders, or any of them, and the Borrowers shall pay absolutely net all of
the Obligations, free of any deductions and without abatement, diminution or
set-off; and until payment in full of all of the Obligations, the Borrowers:
(a) will not suspend or discontinue any payments provided for in the Notes, (b)
will perform and observe all of their other agreements contained in this
Agreement, including (without limitation) all payments required to be made to
the Agent, and (c) will not terminate or attempt to terminate this Agreement or
any of the other Financing Documents to which the Borrowers, or any of them,
are a party for any cause.
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Section 4.13 Payments to Others for the Account of the Borrowers
At the option of the Agent and without any request from any Borrower,
and without waiving any of its rights hereunder, the Agent may do the
following:
(a) Elect to cure or avoid any default by any Borrower under
the Financing Documents by applying amounts due hereunder or advancing the
Lenders' own funds to the satisfaction of the conditions of the Financing
Documents and any amounts so applied shall be part of the Loan and shall be
secured by the Deeds of Trust and the other Collateral. The Agent agrees to
endeavor to give the Borrowers notice of any such payment or performing such
act and the amount of any payment whether prior to or contemporaneously with
its making such payment or performance of such act; provided, however, that
failure to give such notice shall not constitute a waiver by the Lenders of, or
constitute a defense to, any of the rights of the Lenders under this Agreement,
or the Deeds of Trust, including (without limitation) the right of the Lenders
to repayment of the amount of such payment.
(b) Apply amounts due hereunder to the satisfaction of the
conditions of the Financing Documents and any amounts so applied shall be part
of the Loan and shall be secured by the Deeds of Trust and other Collateral. At
the option of the Agent, and without limiting the generality of the foregoing,
the Agent may pay directly from the Loan proceeds all interest bills rendered
by the Agent in connection with the Loan, and following the occurrence of an
Event of Default may make advances directly to the General Contractor, the
title insurance company, any subcontractor or materialmen, or to any of them
jointly, and the execution hereof by the Borrowers shall, and hereby does,
constitute an irrevocable authorization to so advance the proceeds of the Loan.
No further direction or authorization from any Borrower shall be necessary to
warrant such direct advances and all such advances shall satisfy pro tanto the
obligations of the Lenders hereunder and shall be secured by the Deeds of Trust
and other Collateral as fully as if made to the Borrowers, regardless of the
disposition thereof by the party or parties to whom such advances is made.
Section 4.14 Prepayment
The Borrowers shall have the right to prepay the Loan in full or in
part, at any time and from time to time, upon five (5) days' prior written
notice to the Agent without premium or penalty. The foregoing notwithstanding,
in connection with any prepayment of a principal sum on any day other than the
last day of the Eurodollar Period applicable thereto, the Borrowers shall pay
to the Agent upon request by the Agent, such amount as shall be sufficient to
compensate any of the Lenders for any and all losses or expenses which such
Lender may sustain or incur (including without limitation, any such loss or
expense arising from the redeployment of funds obtained by such Lender). Unless
an Event of Default has occurred, any partial prepayment shall be applied first
to such breakage costs, second to accrued and unpaid interest and third to the
outstanding principal balance of the Loan. The foregoing notwithstanding, at
all times prior to the repayment in full and termination of the Credit Facility
the provisions of Section 2.1 (e) and Section 7.2.1 shall be satisfied. Sums
borrowed and repaid may be readvanced. The obligations of the Borrowers under
this Section shall survive the termination of this Agreement and the repayment
of the Obligations.
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Section 4.15 Delivery of Documents
At the request of the Agent, the Borrowers shall promptly deliver to
any Lender or Lenders designated by the Agent copies of any document or
documents required by the Financing Documents to be provided to the Agent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to make available the Credit Facility, each
Borrower represents and warrants to the Lenders that:
Section 5.1 Good Standing
Each Borrower and the Management Company (a) is a legal entity duly
organized and existing and in good standing under the laws of its state of
formation, (b) has the power to own its property and to carry on its business
as now being conducted, and (c) is duly qualified to do business and is in good
standing in each jurisdiction in which each Facility it owns or operates is
located and in which the character of the properties owned by it therein or in
which the transaction of its business makes such qualification necessary.
Section 5.2 Power and Authority
Each Borrower has full power and authority to execute and deliver this
Agreement and each of the other Financing Documents executed and delivered by
it, to make the borrowing hereunder, and to incur the Obligations, all of which
have been duly authorized by all proper and necessary corporate action. No
consent or approval of holders of ownership interests in or lenders to any
Borrower, and no consent or approval of any Governmental Authority or any third
party payor on the part of any Borrower, is required as a condition to the
validity or enforceability of this Agreement or any of the other Financing
Documents executed and delivered by any Borrower or to the payment or
performance by any Borrower of the Obligations.
Section 5.3 Binding Agreements
This Agreement and each of the other Financing Documents executed and
delivered by the Borrowers, or any of them, have been properly executed by each
applicable Borrower, constitute valid and legally binding obligations of each
applicable Borrower, and are fully enforceable against each applicable Borrower
in accordance with their respective terms.
Section 5.4 Litigation
There are no proceedings pending before any court or arbitrator or
before or by any Governmental Authority which, in any one case or in the
aggregate, will cause a material adverse
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change in the financial condition or operations of any Borrower or affect the
authority of any Borrower to enter into this Agreement or any of the other
Financing Documents executed and delivered by the Borrowers, or any of them.
There is no pending revocation, suspension, termination, probation,
restriction, limitation or non-renewal of any License, Participation Agreement
or any similar accreditation or approval organization or Governmental Authority
for healthcare providers, including, without limitation, the issuance of any
provisional License or other License with a term of less than twelve (12)
months, as a consequence of any sanctions imposed by any Governmental
Authority, nor is there any pending assessment of any civil or criminal
penalties by any Governmental Authority, the outcome of which, if determined
adversely to any Borrower, or any other License holder, including any Synthetic
Lessee of the Management Company, could result in a material adverse change in
the business or financial condition of such Borrower or such other License
holder. None of the Borrowers has any appeals regarding rates or reimbursements
currently pending or contemplated before any Governmental Authority or any
administrator of any third party payor or preferred provider program or
referral source, the outcome of which, if determined adversely to such
Borrower, could result in a material adverse change in the financial condition
or operations of such Borrower. There are no Medicare or Medicaid recoupments
of any other third party payor being sought, requested or claimed, against any
Borrower, the outcome of which, if determined adversely to such Borrower, could
materially impair such Borrower's ability to pay the Obligations, except as
otherwise disclosed in writing to, and approved by, the Agent.
Section 5.5 No Conflicting Agreements
There is (a) no provision of any Borrower's Articles of Incorporation
or By-Laws and no provision of any existing mortgage, indenture, contract or
agreement binding on any Borrower or affecting any Borrower's property, and (b)
to the knowledge of each Borrower no provision of law or order of court binding
upon any Borrower, which would conflict with or in any way prevent the
execution, delivery, or performance of the terms of this Agreement or of any of
the other Financing Documents executed and delivered by the Borrowers, or which
would be violated as a result of such execution, delivery or performance, or,
if so, all necessary consents have been obtained.
Section 5.6 Financial Information
All financial statements or information hereto furnished to any of the
Lenders with respect to any Borrower, any Facility or the Guarantor is complete
and correct in all material respects and fairly presents the financial position
of such Borrower, such Facility or the Guarantor. There are no liabilities,
direct or indirect, fixed or contingent, of any Borrower or the Guarantor which
are not reflected in the their respective financial statements or in the notes
thereto except those incurred subsequently in the ordinary course of their
business. There has been no material adverse change in the financial condition
or operations of the Guarantor since the financial statements dated September
30, 1998 (and to each Borrower's and the Guarantor's knowledge, no such
material adverse change is pending), and neither any Borrower nor the Guarantor
has guaranteed the obligations of, or made any investments in or advances to,
any company, individual or other entity, except as disclosed in such
information and except those incurred subsequently in the ordinary course of
their business.
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Section 5.7 No Default Under Other Agreements
Neither any Borrower nor the Management Company is in default under or
with respect to any obligation under any agreement to which such Borrower is a
party in any respect which could result in a material adverse change in the
financial condition or operations of such Borrower or the Management Company.
Section 5.8 Taxes
Each Borrower and the Management Company has filed or has caused to be
filed all federal, state and local tax or informational returns which are
required by law to be filed, and has paid or caused to be paid all Taxes as
shown on such returns or on any assessment received by it, to the extent that
such Taxes have become due, or which are required by law to be paid, unless and
to the extent only that such Taxes, assessments and governmental charges are
currently contested in good faith and by appropriate proceedings by such
Borrower and adequate reserves therefor have been established as required under
GAAP.
Section 5.9 Place(s) of Business and Location of Collateral
The address of each Borrower's and the Management Company's chief
executive office is as specified in EXHIBIT C attached hereto and made a part
hereof and the address of each other place of business of each Borrower and the
Management Company, if any, is as disclosed in EXHIBIT C. The Collateral and
all books and records pertaining to the Collateral are and/or will be located
at the addresses indicated on EXHIBIT C. The Borrowers will immediately advise
the Agent in writing of the opening of any new place of business or the closing
of any existing place of business of any Borrower or the Management Company,
and of any change in the location of the places where the Collateral, or any
part thereof, or the books and records concerning the Collateral, or any part
thereof, are kept. EXHIBIT C may be modified from time to time to add the
locations of additional Facilities.
Section 5.10 Title to Properties
Each Borrower and the Management Company has good and marketable title
to all of its properties, including, without limitation, the Property and the
Collateral, and the Property and the Collateral are free and clear of
mortgages, pledges, liens, charges and other encumbrances other than the
Permitted Liens.
Section 5.11 Margin Stock
None of the proceeds of the Loan will be used, directly or indirectly,
by any Borrower for the purpose of purchasing or carrying, or for the purpose
of reducing or retiring any indebtedness which was originally incurred to
purchase or carry, any "margin security" within the meaning of Regulation G (12
CFR Part 207), or "margin stock" within the meaning of Regulation U (12 CFR
Part 221), of the Board of Governors of the Federal Reserve System (herein
called "margin security" and "margin stock") or for any other purpose which
might make the transactions contemplated herein a "purpose credit" within the
meaning of said Regulation G or Regulation
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U, or cause this Agreement to violate any other regulation of the Board of
Governors of the Federal Reserve System or the Securities Exchange Act of 1934
or the Small Business Investment Act of 1958, as amended, or any rules or
regulations promulgated under any of such statutes.
Section 5.12 ERISA
With respect to any "pension plan," as defined in Section 3(2) of
ERISA, which plan is now or previously has been maintained or contributed to by
any Borrower and/or by any Commonly Controlled Entity: (a) no "accumulated
funding deficiency" as defined in Code 412 or ERISA 302 has occurred, whether
or not that accumulated funding deficiency has been waived; (b) no "reportable
event" as defined in ERISA 4043 has occurred; (c) no termination of any plan
subject to Title IV of ERISA has occurred; (d) neither any Borrower nor any
Commonly Controlled Entity has incurred a "complete withdrawal" within the
meaning of ERISA 4203 from any multiemployer plan; (e) neither any Borrower nor
any Commonly Controlled Entity has incurred a "partial withdrawal" within the
meaning of ERISA 4205 with respect to any multiemployer plan; (f) no
multiemployer plan to which any Borrower or any Commonly Controlled Entity has
an obligation to contribute is in "reorganization" within the meaning of ERISA
4241 and no notice has been received by any Borrower or any Commonly Controlled
Entity that such a multiemployer plan will be placed in "reorganization."
Section 5.13 Governmental Consent
Neither the nature of any Borrower or of its business or properties,
nor any relationship between any Borrower and any other Person, nor any
circumstance in connection with the making of the Loan, or the offer, issue,
sale or delivery of the Notes is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority, on the part of any Borrower, as a condition to the
execution and delivery of this Agreement or any of the other Financing
Documents, the borrowing of the principal amounts of the Loan or the offer,
issue, sale or delivery of the Notes.
Section 5.14 Full Disclosure
The financial statements referred to in this Article V do not, nor
does this Agreement, nor do any written statements furnished by any Borrower to
the Agent in connection with the making available of the Credit Facility,
contain any untrue statement of fact or knowingly omit a material fact
necessary to make the statements contained therein or herein not materially
misleading. No Borrower has failed to disclose any fact to the Agent in writing
which materially adversely affects or, will or could prove to materially
adversely affect the properties, business, prospects, profits or condition
(financial or otherwise) of any Borrower or the ability of any Borrowers to
perform this Agreement or any of the other Financing Documents.
Section 5.15 Business Names and Addresses
Neither any Borrower nor the Management Company has conducted business
under any name other than its current name, and no Borrower has conducted its
business in any jurisdiction
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other than those listed on EXHIBIT C. The Borrowers intend to operate the
Facilities under the names set forth on EXHIBIT C. The Borrower shall promptly
notify the Agent of any change in the name of any Facility.
Section 5.16 Licenses and Certifications
With respect to any License any Borrower, any Synthetic Lessee or the
Management Company possesses or has applied for, (a) no default or event of
default has occurred or is continuing under the terms of any of the Licenses,
or any condition to the issuance, maintenance, renewal and/or continuance of
any License, (b) each Borrower has paid all fees, charges and other expenses to
the extent due and payable with respect to, and has provided all information
and otherwise complied with all material conditions precedent to, the issuance,
maintenance, renewal, and continuance of all Licenses, (c) no Borrower or other
License holder has received any notice from any Governmental Authority relating
to any actual or pending suspension, revocation, restriction, or imposition of
any probationary use, of any License, nor has any License been materially
amended, supplemented, rescinded, terminated, or otherwise modified except as
otherwise disclosed in writing to, and approved by, the Agent, (d) no Borrower
or other License holder has made any previous assignment of any of the Licenses
to any Person, and (e) no financing statement covering any of the Licenses is
on file in any public office except financing statements in favor of the Agent
on behalf of the Lenders. Without implying any limitation to the other
representations and warranties contained in this Agreement, neither any
Borrower nor any Synthetic Lessee required by any applicable Laws of any state,
county or city in which any of the Facilities is located to obtain a
Certificate of Need to operate any Facility for its intended purpose or such
Borrower has applied for and obtained such Certificate(s) of Need. Licenses to
operate are required in most states where the Facilities are located and
Certificates of Need are also required in the certain states.
Section 5.17 Operating Agreements and Management Contracts
The Borrowers have furnished to the Agent photocopies of all material
Operating Agreements and Management Contracts entered into with respect to the
Facilities, and all amendments, supplements and modifications thereto
including, without limitation, the Management Agreement. Each Borrower further
represents and warrants to the Lenders that (a) all of the material Operating
Agreements and Management Contracts are or will be at the time of execution and
delivery thereof valid and binding on the parties thereto and in full force and
effect, (b) no Default or Event of Default has occurred or is continuing under
the terms of any of the material Operating Agreements and Management Contracts,
and no party thereto has attempted or threatened to terminate any such
Management Contract or Operating Agreement, (c) no Borrower has made any
previous assignment of any Operating Agreements, Management Contracts,
Management Agreements or Management Lease to any Person, and (d) no financing
statement covering any of the Operating Agreements, Management Contracts,
Management Agreement or Management Leases is on file in any public office,
except financing statements in favor of the Lenders in connection with the
Credit Facility.
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Section 5.18 Participation Agreements and Resident Agreements
(a) The Agent has been furnished, on or before the applicable
Facility Closing, the form of Resident Agreement used with respect to such
Facility and, if requested by the Agent, copies of all current, executed
Resident Agreements.
(b) Each Borrower further covenants to the Lenders that, with
respect to the Participation Agreements, if any, (i) to the best of each
Borrower's knowledge, all Participation Agreements will be at the time of
execution and delivery thereof valid and binding on the parties thereto and in
full force and effect, and (ii) all Participation Agreements will provide for
payment to the applicable Borrower or the Management Company for services
rendered to residents. Each Borrower represents and warrants that as of the
date hereof no Participation Agreements have been entered into for any Facility
except as disclosed in writing to the Agent.
(c) To the extent any Borrower or other owner of an Eligible
Project participates or will participate in Medicare or Medicaid payment and
reimbursement programs, such Borrower or other owner has complied and will
comply with all notice and other requirements under Title XVIII and Title XIX
of the Social Security Act to enable such Borrower to participate in the
Medicare and Medicaid payment and reimbursement programs.
Section 5.19 Compliance with Laws
Neither the Borrowers nor the Management Company is in violation of
any applicable laws of any Governmental Authority pertaining to employment
practices, health standards or controls, environmental and occupational
standards or controls or order of any court or arbitrator, the violation of
which, considered in the aggregate, would result in a material adverse change
in the financial condition or operations of such Borrower. Each Borrower is in
compliance with all material accreditation standards and requirements to which
it is subject. Each Borrower, each Synthetic Lessee or the Management Company
has obtained or will obtain all Licenses necessary to the ownership of its
property or to the conduct of its activities which, if not obtained, could
materially adversely affect the ability of such Borrower to conduct its
activities of operating each Facility as a Senior Living Facility, including,
without limitation if and as required by any Governmental Authorities for the
dispensing, storage, prescription, disposal, and use of drugs, medications and
other "controlled substances" and for the maintenance of cafeteria and other
food and beverage facilities or services or the condition (financial or
otherwise) of such Borrower.
Section 5.20 Presence of Hazardous Materials or Hazardous Materials
Contamination
No Borrower has placed Hazardous Materials on any real property owned,
controlled or operated by such Borrower or for which such Borrower is
responsible. To the best of each Borrower's knowledge, no Hazardous Materials
are located on any real property owned, controlled or operated by any Borrower
or for which any Borrower is responsible, except for reasonable quantities of
necessary supplies for use by such Borrower in the ordinary course of its
current line of business and stored, used and disposed of in accordance with
applicable Laws, and no property owned, controlled or operated by any Borrower
has ever been used by any
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Borrower or, to the best of such Borrower's knowledge, by any other Person as a
manufacturing, storage, or dump site for Hazardous Materials nor is such
property affected by Hazardous Materials Contamination, except as may be
disclosed in any Phase I environmental assessment delivered to the Agent.
Section 5.21 Compliance in Zoning
The anticipated use of each Eligible Project complies with applicable
zoning ordinances, regulations and restrictive covenants affecting such Land,
all use requirements of any Governmental Authority having jurisdiction have
been satisfied, and no violation of any law or regulation exists with respect
thereto.
Section 5.22 Plans and Specifications
To the extent required by applicable law or any effective restrictive
covenant, the Plans and Specifications for each Eligible Project have been
approved by all Governmental Authorities having or claiming jurisdiction and by
any beneficiary of any such restrictive covenant.
Section 5.23 Building Permits; Other Permits
All building, construction and other permits then necessary or
required in connection with the development of the Land and the construction of
the Improvements have been or, will be on a timely basis, unless otherwise
agreed to by the Agent, validly issued and all fees and bonds required in
connection therewith have been paid or posted, as the circumstances may
require.
Section 5.24 Utilities
All utility services necessary for the development of all the Land and
the construction of the Improvements for each Eligible Project and the
operation thereof for their intended purpose are or will be available at the
boundaries of all the Land, including, without limitation, telephone service,
water supply, storm and sanitary sewer facilities, natural gas (if available)
and electric facilities.
Section 5.25 Access; Roads
All roads and other accesses necessary for the development of all the
Land and the construction of all the Improvements for all Eligible Projects and
full utilization thereof for their intended purposes have either been completed
or the necessary rights of way therefor have either been or will be acquired by
the appropriate Governmental Authorities or have been or will be dedicated to
public use and accepted by such Governmental Authorities and all necessary
steps have been taken by the Borrowers or such Governmental Authorities to
assure the complete construction and installation thereof by a date sufficient
to ensure the timely completion of the Improvements and in no event later than
the end of the applicable Maximum Construction Period.
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Section 5.26 Other Liens
Except as otherwise provided in the Financing Documents, no Borrower
or other owner or operator of the Facility has made any contract or arrangement
of any kind the performance of which by the other party thereto would give rise
to a lien on any Eligible Project.
Section 5.27 Defaults
There is no default on the part of any Borrower under the Financing
Documents and no event has occurred and is continuing which, with notice or the
passage of time, or both, would constitute a default under the Notes or any of
the other Financing Documents.
Section 5.28 Nature of Credit Facility; Usury; Disclosures
Each Borrower is a business or commercial organization, and the Credit
Facility is being made solely for the purpose of carrying on or acquiring a
business or commercial enterprise. The rate or rates of interest charged on the
Notes do not, and will not, violate any applicable usury Law or interest rate
limitation. The Credit Facility is not subject to the federal Consumer Credit
Protection Act (15 U.S.C. 1601 et. seq.) nor any other federal or state
disclosure or consumer protection laws. The Credit Facility is being transacted
solely for business or commercial purposes and not for personal, family or
household purposes.
Section 5.29 Survival; Updates of Representations and Warranties
Each Requisition shall constitute an affirmation that the foregoing
representations and warranties of each Borrower and those set forth in the
other Financing Documents are true and correct as of the date thereof and,
unless the Agent is notified to the contrary in writing prior to the
disbursement of an advance, will be so as of the date thereof. All
representations and warranties contained in or made under or in connection with
this Agreement and the other Financing Documents shall survive the date of this
Agreement and the Loan made hereunder. The Lenders acknowledge and agree that
any and all representations and warranties contained in, or made under, or in
connection with, this Agreement may be amended, changed or otherwise modified
by the Borrowers at any time and from time to time after the date of this
Agreement so as to accurately reflect the matters represented and warranted
therein; provided, that such amendments, changes and/or modifications are
disclosed in writing to the Agent. The Lenders shall have no obligation to
waive any Event of Default due to any present or future inaccuracy of such
representation or warranty or to agree to any amendment, change or modification
of any such representation or warranty.
Section 5.30 Accounts
With respect to the Accounts (a) they are genuine, and in all respects
what they purport to be, and are not evidenced by a judgment, an instrument, or
chattel paper (unless such judgment has been assigned and such instrument or
chattel paper has been endorsed and delivered to the Agent); (b) they represent
undisputed, bona fide transactions completed in accordance with the terms and
provisions contained in the invoices relating thereto; (c) the services
rendered which
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resulted in the creation of the Accounts have been delivered or rendered to and
accepted by the Account Debtor; (d) the amounts shown on each Borrower's,
Synthetic Lessee's or the Management Company books and records, with respect
thereto are actually and absolutely owing to each Borrower, Synthetic Lessee,
or the Management Company and are not contingent for any reason; (e) there are
no set-offs, counterclaims or disputes known by any Borrower or asserted with
respect thereto, and no Borrower has made any agreement with any Account Debtor
thereof for any deduction or discount of the sum payable thereunder except
regular discounts allowed by such Borrower in the ordinary course of its
business for prompt payment; (f) there are no facts, events or occurrences
known to any Borrower which in any way impair the validity or enforcement
thereof or tend to reduce the amount payable thereunder; (g) all Account
Debtors thereof, to the best of each Borrower's knowledge, have the capacity to
contract; (h) the services furnished giving rise thereto are not subject to any
Liens other than Permitted Liens; and (i) no Borrower has any knowledge of any
fact or circumstance which would impair the validity or collectibility thereof.
Section 5.31 Single Purpose Entity
ARCC owns no assets other than the Assigned Notes and has no business
operations other than its loans to Synthetic Lessors in connection with the
Synthetic Lease Transactions. Each Additional Borrower is also a single purpose
entity.
ARTICLE VI
CONDITIONS OF LENDING
The making of any advance under the Loan is subject to the conditions
set forth under this Agreement and the following conditions precedent:
Section 6.1 No Default
No Default and no Event of Default Event of Default has occurred and
is existing and all representations and warranties set forth herein or in the
other Financing Documents are true and correct.
Section 6.2 Opinion of Counsel for the Borrower
At the Facility Closing and when a lien on an Eligible Project is
subsequently granted by the Borrowers, the Lenders shall receive a written
opinion of counsel for the Borrowers and the Guarantor satisfactory in all
respects to the Agent.
Section 6.3 Approval of Counsel for the Lenders
All legal matters incident to the Loan and all documents necessary in
the opinion of the Agent to make the Loan or the addition of either an Eligible
Project to the Borrowing Base or add such Deeds of Trust and related Collateral
shall be satisfactory in all material respects to counsel for the Lenders.
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Section 6.4 Supporting Documents
The Agent shall receive from the Borrowers at the Credit Facility
Closing and in connection with any subsequent Facility Closing: (a) a
certificate of a duly authorized officer of each applicable Borrower, in a form
acceptable to the Agent in all respects, dated as of the date hereof and
certifying (i) that attached thereto is a true, complete and correct copy of
resolutions duly adopted by board of directors of such Borrower authorizing the
execution and delivery of this Agreement, the Note and the other Financing
Documents, the borrowing thereunder, and the performance of the Obligations, and
(ii) as to the incumbency and specimen signature of the authorized officer of
such Borrower executing this Agreement, the Note and the other Financing
Documents; (b) such other documents as the Agent may reasonably require such
Borrower to execute, in form and substance acceptable to the Agent; and (c) such
additional information, instruments, opinions, documents, certificates and
reports as the Agent may reasonably deem necessary.
Section 6.5 Financing Documents
All of the Financing Documents required by the Agent whether at the
Credit Facility Closing or any subsequent Facility Closing shall be executed,
delivered and, if deemed necessary by the Agent, recorded, all at the sole
expense of the Borrowers.
Section 6.6 Insurance
The Borrower shall have satisfied the Agent that any and all insurance
required by this Agreement is in effect as of the date of this Agreement or as
of the date of the addition of a Deed of Trust and related Collateral, and that,
to the extent required by the Financing Documents, the Agent on behalf of the
Lenders have been named as an insured lienholder.
Section 6.7 Security Documents
In order to perfect the lien and security interest created by this
Agreement, the Borrowers shall have executed and delivered to the Agent all
Security Documents (in form and substance acceptable to the Agent in its sole
discretion) deemed necessary by the Agent, in a sufficient number of
counterparts for recordation, and, at the Borrowers' sole expense, shall record
all such financing statements and Security Documents, or cause them to be
recorded, in all public offices deemed necessary by the Agent.
Section 6.8 Additional Borrower Joinder Supplement
In order to add an Additional Borrower under the Credit Facility,
confirm that such additional Borrower is jointly and severally liable with
existing Borrowers for all the Obligations, and perfect the lien and security
interest of the Lenders in the Collateral related to the construction and
operation of any Facility encumbered by a Deed of Trust provided by an
Additional Borrower, such Additional Borrower shall execute and deliver to the
Agent an Additional Borrower Joinder Supplement joining in the Notes, this
Agreement, such assignments
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of Collateral and such other Security Documents as the Agent may require and in
sufficient number of counterparts for recordation, and, at the Borrowers' sole
expense, shall make available for recording all such financing statements and
other Security Documents, or cause them to be recorded, in all public offices
deemed necessary to the Agent.
ARTICLE VII
AFFIRMATIVE COVENANTS OF BORROWER
Until payment in full and the performance of all of the Obligations
hereunder, each Borrower agrees that:
Section 7.1 Financial Statements
The Borrowers will, with respect to each Borrower, furnish to each of
the Lenders:
(a) as soon as available, but in no event more than one
hundred twenty (120) days after the close of each of the Borrowers' fiscal
years, (i) a copy of the Borrowers' financial statements for the year in
question, in form and detail satisfactory to the Agent, prepared in accordance
with GAAP, and prepared by the Borrower in a manner consistent with the
Guarantor, which financial statements shall include a balance sheet, as of the
end of such fiscal year, and a certificate of compliance signed by each
Borrower's chief financial officer regarding the covenants contained in the
Financing Documents and whether there has been an event which constitutes an
Event of Default under the Financing Documents, or which would constitute such
an Event of Default with the giving of notice or the lapse of time or both, and,
if so, stating the facts with respect thereto, and (ii) the related statements
of operations and retained earnings and cash statements for such fiscal year in
a format acceptable to the Agent. The foregoing notwithstanding, the Agent
reserves the right to request that the Borrowers provide audited annual
financial statements prepared by an independent certified public accountant
satisfactory to the Agent;
(b) as soon as available, but in no event more than
forty-five (45) days after the close of each of such Borrower's fiscal quarters,
internally prepared, consolidated and consolidating financial statements of such
Borrower, as of the close of such period and an income and expense statement for
such period, and including a certificate of compliance with the Financing
Documents, certified as to accuracy by the chief financial officer of such
Borrower; provided, however, that this requirement may be met by the receipt of
the consolidating quarterly statements of the Guarantor.
(c) beginning with the first Operating Month, as soon as
available, but in no event more than thirty (30) days after the last day of each
such calendar month, operating statements for each Eligible Project for such
month, including an income and expense statement for such period and certified
rent roll with respect to each Eligible Project then operating for such period;
and
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(d) with reasonable promptness, such additional information,
reports or statements as the Agent may from time to time reasonably request.
All required financial statements required under (a) hereof shall be
accompanied by a certificate of compliance with the applicable financial
covenants signed by the chief financial officer of such Borrower or other
officer acceptable to the Agent and shall include the Borrower's computation of
such covenants.
(e) In addition, the Borrowers will provide to the Agent,
within thirty (30) days of the end of each fiscal quarter of the Borrowers and
the Guarantor, a certificate of compliance with financial covenants applicable
to the Borrowers and the Guarantor in the form attached hereto as Exhibit D,
duly certified by an authorized officer of ARCC on behalf of the Borrowers and
an authorized officer of the Guarantor.
Section 7.2 Financial Covenants
7.2.1 Minimum Pool A Projects.
At least eighty-five percent (85%) of the Principal Sum outstanding is
supported by availability in the Borrowing Base from Pool A Projects.
7.2.2 Pool A Project Covenants.
The following provisions shall determine whether a Facility qualifies
as a Pool A Project under applicable circumstances. If any Eligible Project does
not qualify as a Pool A Project, it shall be classified as a Pool B Project or a
Pool C Project based upon the length of time that it has failed to satisfy the
applicable criteria for a Pool A Project.
(a) Each Development Project, including any Expansion
Project, shall be a Pool A Project; provided that such Facility shall cease to
be a Pool A Project if it does not become a Completed Project within the
applicable Maximum Construction Period or if it fails to timely satisfy the
requirements of subsection (d) of this Section. The construction period shall be
measured from the date of commencement of construction as reported by the
applicable Borrower and verified by the Agent.
(b) Each Stabilized Project shall maintain an 85% Minimum
Occupancy Requirement, and a Debt Service Coverage Ratio equal to not less than
1.25 to 1.0 as of the end of each fiscal quarter beginning with the first fiscal
quarter after the first Operating Month after the Eligible Project becomes a
Stabilized Project measured on a cumulative rolling basis, as set forth below:
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<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Stabilized Projects 1Q 2Q 3Q 4Q Thereafter
- ----------------------------------------------------------------------------------------------------------------
Debt Service
Coverage
Ratio 1.25x 1.25x 1.25x 1.25x 1.25x
- ----------------------------------------------------------------------------------------------------------------
Rolling
Historical
Operations 3 month test 6 month test 9 month test 12 month test 12 month test
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(c) Each Acquisition Project, in order to qualify as a
Pool A Project, shall maintain a Debt Service Coverage Ratio equal to not less
than .75 to 1.0 for three (3) full months prior to its acquisition and equal to
the ratio set forth below as of the end of each full fiscal quarter ending after
its acquisition, as set forth below:
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Acquisition 1Q 2Q 3Q 4Q 5Q Thereafter
Projects
-------------------------------------------------------------------------------------------------------
Debt Service
Coverage
Ratio 1.0x 1.0x 1.25x 1.25x 1.25x 1.25x
-------------------------------------------------------------------------------------------------------
Rolling 3 months 3 months 3 months 6 months 9 months 12 months
Historical
Operations
-------------------------------------------------------------------------------------------------------
</TABLE>
(d) Each Development Project, in order to qualify as a
Pool A Project, shall satisfy the following "Minimum Occupancy Requirement". A
minimum Resident Occupancy of at least 24 residents by the end of its first six
Operating Months plus an average of a net additional four (4) residents per
month thereafter (measured quarterly and averaged for all three-month periods)
until 85% Resident Occupancy is first reached; provided that 85% Resident
Occupancy is achieved within 24 Operating Months for Eligible Projects of 100
units or more. For each quarter beginning with the quarter after 85% Resident
Occupancy Issue the Minimum Occupancy Requirement is achieved, each Development
Project in order to qualify as a Pool A Project shall also achieve a Debt
Service Coverage of not less than 1.25 to 1.0 measured for three (3) consecutive
months of such quarter and for such quarter shall also maintain such 85%
Resident Occupancy (and, upon satisfying such criteria, shall be classified as a
Stabilized Project.)
(e) Each Acquisition Project, in order to qualify as a
Pool A Project, shall satisfy the "Minimum Occupancy Requirement" as of the end
of each quarter after it enters the Borrowing Base, measured on a rolling daily
average, as set forth below:
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<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Acquisition 1Q 2Q 3Q 4Q Thereafter
Projects
-----------------------------------------------------------------------------------------
Resident No Minimum No Minimum 75% 80% 85%
Occupancy
-----------------------------------------------------------------------------------------
Rolling 3 months 3 months 3 months 3 months 3 months
Historical
Occupancy
-----------------------------------------------------------------------------------------
</TABLE>
7.2.3 Debt Service Coverage.
All Stabilized Projects and all Acquisition Projects in the Borrowing
Base shall maintain an aggregate Debt Service Coverage Ratio of not less than
1.25 to 1.0 measured quarterly and each Stabilized Project or Acquisition
Project shall maintain a Debt Service Coverage Ratio of 1.0 to 1.0. The
foregoing notwithstanding, a breach of this covenant may be cured by the
Borrowers' eliminating any such Eligible Project from the calculation of the
Borrowing Base which causes a breach of the Debt Service Charge Ratio provided
the requirement for the minimum percentage of Pool A Projects is satisfied. The
foregoing notwithstanding, no Acquisition Project shall be included in the
measurement under this Section until it has been held for three (3) fiscal
quarters or has otherwise met the 1.25 to 1.0 Debt Service Coverage Ratio for
one (1) fiscal quarter.
7.2.4 License.
Each Development Project shall have received its License to operate as
the type of Facility originally designated within sixty (60) days of issuance of
its certificate of occupancy.
7.2.5 Percentage of Stabilized Projects.
By June 30, 1999, at least 10%, by September 30, 1999 at least 17.5%
and by March 31, 2000, at least 30% of the total maximum which could be
available under the Borrowing Base (based on the Eligible Projects then in the
Borrowing Base as if completed) shall be supported by maximum availability in
the Borrowing Base from Pool A Projects which are also Stabilized Projects.
Section 7.3 Taxes and Claims
Each Borrower will pay and discharge and cause the Management Company
to pay and discharge all taxes, assessments and governmental charges or levies
imposed upon it or any of its income or properties prior to the date on which
penalties attach thereto, and all lawful claims which, if unpaid, might become a
lien or charge upon any of its properties; provided, however, no Borrower or the
Management Company shall be required to pay any such tax, assessment, charge,
levy or claim, the payment of which is being contested in good faith and by
proper proceedings.
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Section 7.4 Legal Existence
Each Borrower will maintain its legal existence in good standing in the
state of its formation and in each jurisdiction where it is required to register
or qualify to do business.
Section 7.5 Conduct of Business and Compliance with Laws
7.5.1 Maintenance of Agreements.
Each Borrower will do or cause to be done and will cause each Synthetic
Lessee and the Management Company to do or cause to be done all things necessary
to obtain, enter into, preserve and to keep in full force and effect its
material rights and its trade names, patents, trademarks and Licenses,
Participation Agreements, and Operating Agreements and Management Contracts
which are necessary for the operation of each Facility as contemplated by any
such party.
7.5.2 Maintenance of Line of Business.
Each Borrower will engage in and continue to engage substantially only
in the business of owning and operating Senior Living Facilities and related
services in compliance with all applicable laws of the state in which the
applicable Facilities are located or any other Governmental Authority having
jurisdiction over any such Facility or in the business of making acquisition and
construction loans to Synthetic Lessors.
7.5.3 Compliance with Laws Governing Participation
Agreements.
Each Borrower will comply with and will cause the Management Company to
comply with all applicable Laws, including, without limitation, regulations
issued under the Omnibus Budget Reconciliation Act of 1987 (OBRA'87) (Pub.L.No.
100-203), as amended, and observe the valid requirements of Governmental
Authorities, and perform the terms of all Participation Agreements to which it
is a party, the noncompliance with or the nonobservance of which might
materially interfere with the performance of its Obligations or the proper or
prudent conduct of its business or the applicable Property.
7.5.4 Other Operating Covenants.
In addition, each Borrower covenants and agrees that each Borrower will
or will cause the Synthetic Lessee or Management Company to:
(a) obtain and maintain in full force and effect all
Licenses necessary to the acquisition and/or ownership and/or operation of each
Facility including, without limitation, Licenses and other approvals related to
the storage, dispensation, use, prescription and disposal of drugs, medications
and other "controlled substances" and, to the extent offered, the maintenance of
cafeteria and other food and beverage facilities or services;
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(b) administer, maintain and operate (or will cause to be
administered, maintained and operated) each Facility as a revenue-producing
Senior Living Facility;
(c) to the extent any Borrower, Synthetic Lessee or
Management Company participates in any such programs, maintain and operate each
Facility to meet the standards and requirements and to provide healthcare of
such quality and in such manner as would enable such Person to participate in,
and provide services in connection with, recognized medical and healthcare
insurance programs;
(d) obtain, maintain and comply with all conditions for
the continuance of all Licenses, including without limitation, Licenses which
may at any time be required by the state in which the applicable Facility is
located or other appropriate governmental entity, necessary or desirable for the
operation of each Facility as its applicable Senior Living Facility;
(e) to the extent any Borrower, Synthetic Lessee or
Management Company presently participates or in the future will participate in
such programs, obtain, maintain and comply with all conditions for the
continuance of certification from each applicable Governmental Authority that
such Person meets all conditions for participation in the Medicare and Medicaid
programs; and
(f) construct the Improvements entirely on the Land
without encroaching upon any easement or right-of-way or upon the land of others
in accordance with all applicable (whether present or future) laws, ordinances,
rules, regulations, requirements and orders of any Governmental Authority having
or claiming jurisdiction, including all applicable building restriction lines
and set-backs, all use or other restrictions and the provisions of any prior
agreements, declarations, covenants and all applicable zoning and subdivision
ordinances and regulations unless a variance shall have been obtained.
Section 7.6 Use of Proceeds
Each Borrower will use the proceeds of the Loan for the purpose or
purposes set forth in Section 2.1 and, without the prior written consent of the
Agent for no other purpose or purposes.
Section 7.7 Insurance
Each Borrower will provide or cause to be provided and will cause any
Synthetic Lessee, the Management Company or any other owner of any Facility to
provide or cause to be provided to the Agent and maintain in full force and
effect at all times during the term of the Loan, such policies of insurance as
may be required by the terms of the Financing Documents from a company or
companies, and in form and amounts satisfactory to the Agent including, by way
of example and not by way of limitation, at least the following:
7.7.1 Builder's Risk Insurance; Hazard Insurance.
During any period of construction on an Eligible Project, builder's
risk, fire and extended coverage insurance, including vandalism and malicious
mischief endorsements covering the
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Improvements in the form of an "all risk", 100% non-reporting policy and
containing such other extended coverage as may be required by the agent in an
amount to be designated by the Agent as to the insurable value of the Property,
which policy, for any Eligible Project on which construction is complete, shall
be converted to a standard hazard insurance policy with extended coverage
endorsement and insurance for boiler or pressure vessel explosion (if there are
boilers or pressure vessels located on the property). The policy shall indicate
the Agent's interest as first mortgagee, shall prohibit cancellation or
reduction in coverage upon less than thirty (30) days prior written notice to
the Agent and shall be in form and issued by companies acceptable to the Agent.
In no event shall such insurance contain a co-insurance provision;
7.7.2 Liability Insurance.
Comprehensive public liability and property damage insurance in limits
of not less than $5,000,000 aggregate for each Eligible Project shall be in form
and issued by companies acceptable to the Agent, shall name the Agent as a
certificate holder and shall prohibit cancellation or reduction in coverage upon
less than thirty (30) days prior written notice to the Agent;
7.7.3 Worker's Compensation Insurance.
Workers' compensation insurance in accordance with the requirements of
applicable law or regulation naming the Agent on behalf of the Lenders as loss
payee thereunder;
7.7.4 Business Interruption Insurance.
Business interruption insurance naming the Lenders as additional
insureds with respect to each Facility once a certificate of occupancy has been
issued for such Facility in an amount equal to at least twelve (12) months' debt
service on the applicable Deed of Trust Lien Amounts and in form and issued by a
company acceptable to the Agent in all respects;
7.7.5 Professional Liability Insurance.
To the extent that healthcare professionals are employed at an Eligible
Project by the Management Company or the Borrowers, medical liability,
malpractice and other healthcare professional liability insurance protecting the
Borrowers and the Management Company, as the case may be, against claims arising
from the professional services performed by the Borrowers or the Management
Company, as the case may be, with limits of (a) not less than One Million
Dollars ($1,000,000.00) with respect to injury or death for each person or
occurrence, and (b) an umbrella policy insuring against such liability in an
aggregate amount of not less than Ten Million Dollars ($10,000,000.00). In
addition, the Borrowers or the Management Company, as the case may be, shall
ensure that all healthcare providers with whom the Borrowers or the Management
Company, as the case may be, contract to provide services at any Facility are
insured against claims arising from such services with limits as set forth
above.
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7.7.6 Flood Insurance.
If, on the date of inclusion of the Borrowing Base or at any time
thereafter, any Eligible Project is in an area that has been identified by the
Federal Emergency Management Agency as having special flood and mud slide
hazards and in which the sale of flood insurance has been made available under
the Flood Disaster Protection Act of 1973, or if it is otherwise in a flood
hazard area, the Borrowers shall procure a flood insurance policy for such
property in form and amount satisfactory to the Agent. For those Facilities that
are not in an area having special flood and mud slide hazards, the Borrowers
shall deliver to the Agent, or the Agent shall obtain at the expense of the
Borrowers, prior to the inclusion of a Facility as an Eligible Project, evidence
satisfactory to the Agent that flood insurance is not required by the terms
hereof.
7.7.7 General Insurance Provisions.
The Borrowers will file with the Agent, upon its request, a detailed
list of the insurance then in effect and stating the names of the insurance
companies, the amounts and rates of the insurance, dates of the expiration
thereof and the properties and risks covered thereby. Each policy of insurance
shall (a) be issued by one or more recognized, financially sound and responsible
insurance companies approved by the Agent and which are qualified or authorized
by the laws of the state in which the applicable Facility is located to assume
the risk covered by such policy, (b) with respect to the insurance described
under the preceding subsections 7.7.1 and 7.7.5, have attached thereto standard
noncontributing, non-reporting mortgagee clauses in favor of and entitling the
Lenders without contribution to collect any and all proceeds payable under such
insurance, (c) provide that such policy shall not be canceled or modified
without at least thirty (30) days prior written notice to the Agent, and (c)
provide that any loss otherwise payable thereunder shall be payable
notwithstanding any act or negligence of any Borrower which might, absent such
agreement, result in a forfeiture of all or a part of such insurance payment.
Unless an escrow account has been established for insurance premiums pursuant to
the provisions of a Deed of Trust, the Borrowers shall promptly pay all premiums
when due on such insurance and, on or prior to the expiration date of each such
policy, the Borrowers shall deliver to the Agent a renewal policy or policies
marked "premium paid" and ACORD evidence of insurance or other evidence of
payment satisfactory to the Agent. The Borrowers shall immediately give the
Agent notice of any cancellation of, or change in, any insurance policy. The
Lenders shall not individually or collectively, because of accepting, rejecting,
approving or obtaining insurance, incur any liability for (i) the existence,
nonexistence, form or legal sufficiency thereof, (ii) the solvency of any
insurer, or (iii) the payment of losses.
Section 7.8 Maintenance of Properties
Each Borrower will keep and will cause the Management Company to keep
its properties, whether owned in fee or otherwise, or leased, including, without
limitation, all of the Property, in good operating condition; make all proper
repairs, renewals, replacements, additions and improvements thereto needed to
maintain such properties in good operating condition; comply with the provisions
of all leases to which it is a party or under which it occupies property so as
to prevent any loss or forfeiture thereof or thereunder; and comply with all
laws, rules, regulations and orders applicable to its properties or business or
any part thereof.
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Section 7.9 Maintenance of the Collateral
No Borrower will permit anything to be done to the Collateral which may
impair the value thereof. Any of the Lenders or an agent designated by such
Lender shall be permitted upon prior notice to the Borrowers to enter the
premises of any Borrower and examine, audit and inspect the Collateral at any
reasonable time and from time to time without notice. The Lenders shall not have
any duty to, and each Borrower hereby releases the Lenders from, all claims of
loss or damage caused by the delay or failure to collect or enforce any of the
Accounts or Receivables or to preserve any rights against any other party with
an interest in the Collateral.
Section 7.10 Other Liens, Security Interests, etc.
Each Borrower will keep the Collateral and the Property free from all
liens, security interests and claims of every kind and nature, other than
Permitted Liens.
Section 7.11 Defense of Title and Further Assurances.
Each Borrower will, at its expense, defend the title to the Collateral
(or any part thereof), and promptly upon request execute, acknowledge and
deliver any financing statement, renewal, affidavit, deed, assignment,
continuation statement, security agreement, certificate or other document the
Agent may reasonably require in order to perfect, preserve, maintain, protect,
continue and/or extend any lien or security interest granted to the Lenders
under this Agreement or any of the Security Documents and its priority. Each
Borrower shall pay to the Agent, on demand all taxes, costs and expenses
incurred by any of the Lenders, in connection with the preparation, execution,
recording and filing of any such document or instrument.
Section 7.12 Subsequent Opinion of Counsel as to Recording
Requirements
Each Borrower will provide to the Agent a subsequent opinion of counsel
as to the filing, recording and other requirements with which such Borrower has
complied to maintain the liens and security interests in favor of the Lenders in
the Collateral in the event that any Borrower shall transfer its principal place
of business or the office where it keeps its records pertaining to the Accounts
and Receivables.
Section 7.13 Books and Records
Each Borrower will and will cause the Management Company to:
(a) keep and maintain accurate books and records;
(b) make entries on such books and records in form
reasonably satisfactory to the Agent disclosing the Lenders' assignment of, and
security interest in and lien on, the Collateral and all collections received by
each Borrower or the Management Company, as applicable, on its Accounts;
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(c) furnish to the Agent promptly upon request such
information, reports, contracts, invoices, lists of purchases of Inventory
(showing names, addresses and amount owing) and other data concerning Account
Debtors and Accounts and Inventory and all contracts and collection(s) relating
thereto as the Agent may from time to time specify; and
(d) unless the Agent shall otherwise consent in writing,
keep and maintain all such books and records mentioned in (a) above only at the
addresses listed in EXHIBIT C, and (a) permit any person designated by any of
the Lenders to enter the premises of any Borrower or the Management Company upon
prior notice to the Borrowers and the Management Company and examine, audit and
inspect the books and records at any reasonable time and from time to time.
Section 7.14 Collections
Until such time as the Agent shall notify the Borrower of the
revocation of such privilege following an Event of Default, each Borrower will
at its own expense exercise the privilege for the account of and in trust for
the Lenders of collecting its Accounts and receiving in respect thereto all
items of payment and shall otherwise completely service all of the Accounts,
including (i) the billing, posting and maintaining of complete records
applicable thereto, and (ii) the taking of such action with respect to such
Accounts as the Agent may reasonably request or in the absence of such request,
as the Borrower may deem advisable; and in its discretion, grant, in the
ordinary course of business, to any Account Debtor, any rebate, refund or
adjustment to which the Account Debtor may be lawfully entitled. The Agent may,
at its option but solely in accordance with applicable law, at any time or from
time to time after the occurrence of an Event of Default hereunder, revoke the
collection privilege given to each Borrower herein by either giving notice of
its assignment of, and lien on the Collateral, subject to the provisions of
Section 7.1 (e) hereof, to the Account Debtors or giving notice of such
revocation to the Borrowers.
Section 7.15 Notice to Account Debtors and Escrow Account
In the event that (a) a Default or an Event of Default exists, or (b)
demand has been made for any or all of the Obligations, each Borrower will
promptly upon the request of the Agent, in such form and at such times as
reasonably specified by the Agent, give notice of the Lenders' lien on the
Accounts to the Account Debtors, requiring those Account Debtors that are
permitted by applicable law to make payments thereon directly to the Agent.
Section 7.16 Business Names
Each Borrower will immediately notify the Agent of any change in the
name or names under which it or any other Person executing a Security Agreement
conducts its business or any change in its principal place of business or state
of incorporation and will execute for filing at the Borrowers' expense any
financing statements or amendments to existing financing statements as the Agent
shall require.
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Section 7.17 ERISA
With respect to any pension plan which any Borrower and/or any Commonly
Controlled Entity maintains or contributes to, either now or in the future: (a)
such bonding as is required under ERISA 412 will be maintained; (b) as soon as
practicable and in any event within 15 days after such Borrower or any Commonly
Controlled Entity knows or has reason to know that a "reportable event" has
occurred or is likely to occur, such Borrower will deliver to the Agent a
certificate signed by each chief financial officer setting forth the details of
such "reportable event"; (c) neither such Borrower nor any Commonly Controlled
Entity will: (i) engage in or permit any "prohibited transaction" (as defined in
ERISA 406 or Code 4975) to occur; (ii) cause any "accumulated funding
deficiency" as defined in ERISA 302 and/or Code 412; (iii) terminate any pension
plan in a manner which could result in the imposition of a lien on the property
of such Borrower pursuant to ERISA 4068; (iv) terminate or consent to the
termination of any multiemployer plan; (v) incur a complete or partial
withdrawal with respect to any multiemployer plan within the meaning of ERISA
4203 and 4205; and (d) within 15 days after notice is received by such Borrower
or any Commonly Controlled Entity that any multiemployer plan has been or will
be placed in "reorganization" within the meaning of ERISA 4241, such Borrower
will notify the Agent to that effect. Upon the Agent's request, the Borrowers
will deliver to the Agent a copy of the most recent actuarial report, financial
statements and annual report completed with respect to any "defined benefit
plan," as defined in ERISA 3(35).
Section 7.18 Management
(a) Prior to the Credit Facility Closing, the Borrowers
will provide the Agent with a proposed form of Management Agreement to be
entered into by each Borrower with the Management Company. The terms and
provisions of the Management Agreement shall be fully approved by the Lender
prior to the Credit Facility Closing. The interest of each Borrower in the
Management Agreement shall be assigned to the Agent on behalf of the Lenders as
security for the Loan. In the case of a Synthetic Lease Transaction, such
assignment may be made through and in connection with an assignment to the Agent
of the Note Collateral.
(b) Pursuant to the terms of a management fee
subordination agreement by and among a Borrower, the Management Company and the
Agent executed in connection with each Facility Closing except in connection
with a Synthetic Lease Transaction, the payment of management fees to the
Management Company pursuant to the Management Agreement (the "Management Fees")
will be subordinate to payment of the Obligations, provided, however, that
payments of Management Fees may be made as contracted for (but not prior to
accrual) until the occurrence of an Event of Default.
(c) Each Management Agreement, except those entered into
in connection with a Synthetic Lease Transaction, shall provide that the
applicable Borrower or subsequent owner may terminate such agreement, at the
discretion of such Borrower, upon thirty (30) days' prior written notice to the
Management Company. Each Management Agreement entered into in connection with a
Synthetic Lease Transaction shall provide that the holder of an Assigned Note
who is in possession of the Facility following the occurrence of an event of
default under the Assigned Note or a new owner as the result of a foreclosure
proceeding may terminate such
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agreement upon thirty (30) days' prior written notice to the Management Company.
The Management Company shall acknowledge and consent in writing to the
assignment by each Borrower of its rights under the Management Agreement to the
Agent. Pursuant to the Financing Documents, each Borrower and the Management
Company shall agree to enter into a consulting agreement acceptable to the Agent
with an independent company selected by the Agent if and as and when directed by
the Agent if an Event of Default under the Credit Facility has occurred and is
continuing; and it shall constitute an Event of Default under the Financing
Documents if any Borrower fails to do so. Any Management Agreement and any other
applicable synthetic lease documents in connection with a Synthetic Lease
Transaction shall provide that the Management Company cannot be changed without
the prior written consent of the Agent. Each Management Agreement between the
Management Company and a Synthetic Lessee shall provide that an event of default
under a financing for which the Management Company has direct or contingent
liability in excess of a committed principal sum of $25,000,000 shall constitute
a default under such Management Agreement. The Financing Documents shall provide
that upon the occurrence of an Event of Default under this Agreement all income
of all Facilities shall be paid at the option of the Agent by the Management
Company to a lockbox for the payment of scheduled payments under the Assigned
Notes prior to the payment of operating expenses of such Facilities. In
connection with any Deed of Trust in the Borrowing Base, each Borrower shall
agree to enter into a Management Agreement with an independent manager, selected
by the Agent, as and when directed by the Agent if the Management Agreement has
been terminated pursuant to the terms of this paragraph or if an Event of
Default has occurred and is continuing; and it shall constitute an Event of
Default under the Loan Documents if any Borrower fails to do so. The Financing
Documents shall provide that termination of the Management Agreement without the
prior written consent of the Agent shall constitute an Event of Default under
the Financing Documents. No consent of the Agent shall be required for the
termination of a Management Agreement if it is required to meet an obligation
for a License and (a) the Management Company remains a Borrower, ARC or a Wholly
Owned Subsidiary of ARC, and (b) any additional assignments of such Management
Agreements required by the Agent are executed and delivered to the Agent. The
foregoing notwithstanding, in connection with a Synthetic Lease Transaction, the
Management Company must be ARC unless otherwise consented to in writing by the
Agent.
Section 7.19 Surveys
Not less than twenty (20) business days prior to the inclusion of any
Eligible Project in the Borrowing Base, the Borrowers shall furnish to the
Agent, for approval by the Agent, six (6) copies of a survey of such Facility
not more than ninety (90) days old (or more current if required for the title
insurance company to delete the survey exception) and any recent recorded
subdivision plats relating thereto. The foregoing notwithstanding, for a
Development Project for which construction of building foundations has been
completed, an ALTA foundation survey shall be required. The surveys shall be
certified to the title company and to the Agent in the form provided by the
Agent and shall comply with the survey requirements provided by the Agent. At
the completion of construction of any Eligible Project, the Borrowers shall
provide the Agent with an additional "as-built" survey.
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Section 7.20 Inspections; Cooperation; Payment of Inspecting Engineer
Each Borrower or other owner of any Facility will permit the Lenders
and their duly authorized representatives (including, without limitation, the
Inspecting Engineer) to enter upon any of the Land, to inspect the Improvements
and any and all materials to be used in connection with the development of any
of the Land and/or the construction of the Improvements, to examine all detailed
plans and shop drawings and similar materials as well as all records and books
of account maintained by or on behalf of such Borrower or other owner of a
Facility relating thereto and to discuss the affairs, finances and accounts
pertaining to any Facility and any of the Improvements with representatives of
such Borrower or other owner of such Facility. Each Borrower and any other owner
of a Facility shall at all times cooperate and cause the General Contractor and
each and every one of its subcontractors and materialmen to cooperate with the
Lenders and their duly authorized representatives (including, without
limitation, the Inspecting Engineer) in connection with or in aid of the
performance of the Agent's or Lenders' functions under this Agreement. The
reasonable fees of any Inspecting Engineer engaged or employed by the Agent in
connection with or in aid of the performance of the Agent's or the Lenders'
functions under this Agreement shall be paid by the Borrowers or such other
owner of a Facility.
Section 7.21 Vouchers and Receipts
Each Borrower or other owner of a Facility will furnish to the Agent,
promptly on demand, any contracts, bills of sale, statements, receipted vouchers
or agreements pursuant to which the Borrowers, or any of them, have any claim of
title to any materials, fixtures or other articles delivered or to be delivered
to the Land or incorporated or to be incorporated into any of the Improvements.
The Borrowers or other owner of a Facility shall furnish to the Agent, promptly
on demand, a verified written statement, in such form and detail as the Agent
may require, showing all amounts paid for labor and materials and all items of
labor and materials furnished or to be furnished for which payment has not been
made and the amounts to be paid therefor.
Section 7.22 Payments for Labor and Materials
Each Borrower or other owner of a Facility will pay when due all bills
for services or labor performed and materials supplied in connection with the
development of the Land and the construction of the Improvements. In the event
any mechanics' lien or other lien or encumbrance shall be filed or attached
against the Property without the prior written consent of the Agent in each
instance, each Borrower covenants and agrees that, within twenty (20) days after
the filing of such lien, the Borrowers or other owner of a Facility will
promptly discharge the same by payment or filing bond or otherwise as permitted
by law; and if the Borrowers fail to do so, the Agent may, at its option, in
addition to, and not in limitation of, all other rights and remedies of the
Agent in the Event of Default by the Borrowers, and without regard to the
priority of said mechanics' lien or other lien or encumbrance, pay the same, and
all amounts expended by the Agent for such purpose shall constitute loans to the
Borrowers and shall be secured by the Deed of Trust and the other Financing
Documents, and be due and payable forthwith by the Borrower to the Agent with
interest thereon at the Reimbursement Rate provided for in the Deed of Trust.
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Section 7.23 Correction of Construction Defects
Each Borrower or other owner of a Facility will promptly following any
demand by the Agent, correct or cause the correction of any structural defects
in the Improvements and any material departures or deviations from the Plans and
Specifications, as determined by the Agent in its sole but reasonable
discretion, not approved in writing by the Agent.
Section 7.24 Fees and Expenses; Indemnity
Each Borrower will pay all reasonable fees, charges, costs and expenses
required to satisfy the conditions of the Financing Documents. Each Borrower
shall hold the Lenders harmless and indemnify the Lenders against all claims of
brokers and "finders" arising by reason of the execution and delivery of the
Financing Documents or the consummation of the transaction contemplated hereby.
Neither party is aware of any broker having a claim for payment.
Section 7.25 Governmental Surveys or Inspections
Each Borrower will furnish to the Agent copies of any and all annual
inspections performed by any Governmental Authority or accreditation or
certification organization with respect to any Facility.
Section 7.26 Cost Reports
Each Borrower will prepare and file all applicable cost reports to all
third-party payors, if any, to the extent required by any such third-party payor
and, within thirty (30) days thereafter, notify the Agent of any settlement of
any cost report disclosed to the Agent as being open or unsettled as of the
Credit Facility Closing Date to the extent any such cost report would have a
materially adverse effect on any Borrower. Copies of any such cost reports will
be furnished to the Agent.
Section 7.27 Appraisals
(a) The Agent's obligation to make available the Loan
shall be subject to the receipt by the Agent of an appraisal of each Eligible
Project from an appraiser designated by the Agent. The basis of the appraisal
calculation shown on the appraisal report and all other aspects of the appraisal
report must be satisfactory to the Agent in all material respects and shall
comply with all requirements of FIRREA. The Borrowers shall reimburse the Agent
for all costs and expenses incurred by the Agent in connection with the
preparation and review of such appraisal.
(b) In addition, the Agent shall have the right but not
the obligation to require updated appraisals of any or all of the Eligible
Projects, which appraisals shall be prepared by an appraiser or appraisers
designated by the Agent and shall be in all respects reasonably acceptable to
the Agent. The Borrowers shall reimburse the Agent upon demand for all costs and
expenses incurred by any of the Lenders with respect to the preparation and
review of all future appraisals
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required pursuant to the terms hereof not to exceed one (1) future appraisal
per Eligible Project per annum. The costs of any future appraisal in excess of
one (1) future appraisal per Eligible Project per annum shall be borne by the
Lenders.
(c) Appraisals shall include, if deemed necessary by the
Agent, in its sole discretion, updated discounted cash flow analysis,
inspections of and commentary on the physical status of the applicable Facility
and an engineering review. The basis of the appraisal calculations shown on such
appraisal reports and all other aspects of the appraisal reports must be
satisfactory to the Agent in all material respects. If the Borrowers have paid
the cost of the appraisal, a copy of the appraisal will be provided to the
Borrower upon its signing of the Agent's standard appraisal release letter.
(d) A Default shall occur, if upon receipt of an updated
appraisal, the value of the Facility, as determined by the Agent based upon its
review of such appraisal is less than that required pursuant to this Agreement;
provided, however, that the Borrowers will have three (3) days to cure such
Default after notice thereof by the Agent.
Section 7.28 Notification of Certain Events, Events of Default and
Adverse Developments
Each Borrower will promptly notify the Agent upon obtaining knowledge
of the occurrence of any of the following:
(a) any Default or Event of Default under the Financing
Documents;
(b) any default under a Synthetic Lease or any Assigned
Note and/or Note Collateral;
(c) any event, development or circumstance whereby the
financial statements furnished under the Financing Documents fail in any
material respect to present fairly the financial condition and operational
results of any Borrower;
(d) any judicial, administrative or arbitral proceeding
pending against any Borrower or any judicial or administrative proceeding known
by any Borrower to have been threatened against it in a written communication,
which threatened proceeding, if adversely decided, could materially adversely
affect any Borrower's financial condition or operations (present or
prospective);
(e) the revocation, suspension, probation, restriction,
limitation or refusal to renew, or any administrative procedure then in process
for the revocation, suspension, probation, restriction, limitation, or refusal
to renew, of any License, or the decertification, revocation, suspension,
probation, restriction, limitation, or refusal to renew, or the pending
decertification, revocation, suspension, probation, restriction, limitation, or
refusal to renew any participation or eligibility in any third party payor
program in which any Borrower elects to participate, including, without
limitation, Medicare, Medicaid or other private insurer programs, or any
accreditation of any Borrower, or the issuance or pending issuance of any
License for a period of
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less than twelve (12) months as a consequence of sanctions imposed by any
Governmental Authority, or the assessment or pending assessment of any civil or
criminal penalties by any Governmental Authority, any third party payor or any
accreditation organization or Person, which could materially adversely affect
the financial condition or operations of any Borrower or any Affiliate (present
or prospective) as determined by the Agent in its sole discretion;
(f) any other development in the business or affairs of
any Borrower which may be a material adverse change in the business or
operations of any Borrower;
(g) any action, including, but not limited to, the filing
of any certificate of need application if required by law, the amendment of any
Facility License or certification, or the issuance of any new License or
certification for any Facility, under which any Borrower proposes (i) to develop
a new Facility or service, and/or (ii) eliminate, materially expand or
materially reduce any service;
(h) any actual contingent liability or a potential
contingent liability of any Borrower of $50,000 or more individually or in the
aggregate;
(i) In each case described in (a) through (h) above, such
notification shall describe in detail satisfactory to the Agent the nature
thereof and the action the Borrowers propose to take with respect thereto or a
statement that the Borrowers intend to take no action and an explanation of the
reasons for such inaction. In addition, each Borrower will furnish to the Agent
immediately after receipt thereof copies of all administrative notices material
to such Borrower's business and operation of any Facility and all responses by
or on behalf of such Borrower with respect to such administrative notices.
Section 7.29 Compliance with Environmental Laws
If any Hazardous Materials are used, present or generated on any real
property owned or controlled by any Borrower or any other owner of a Facility or
for which any Borrower or any other owner of a Facility is responsible, such
Person will use, process, distribute, handle, maintain, treat, store, dispose of
and transport such substance in compliance with all applicable laws, including,
but not limited to, those regulating PCB, underground storage tanks, radon and
medical waste tracking, as well as any laws that are enacted after the date of
this Agreement.
Section 7.30 Hazardous Materials; Contamination
Each Borrower will:
(a) Give notice to the Agent within five (5) Banking Days
of such Borrower's; acquiring knowledge of the presence of any Hazardous
Materials on any property owned or controlled by any Borrower or any Synthetic
Lessee or for which any Borrower or Synthetic Lessee is responsible or of any
Hazardous Materials Contamination with a full description thereof, except for
reasonable quantities of necessary supplies for use by such Borrower in the
ordinary course of its current line of business and stored, used and disposed of
in accordance with applicable Laws;
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(b) promptly comply with any laws requiring special
handling, maintenance, servicing, removal, treatment or disposal of Hazardous
Materials or Hazardous Materials Contamination and provide the Agent upon
request with satisfactory evidence of such compliance;
(c) provide the Agent, within thirty (30) days after a
demand by the Agent, with a bond, letter of credit or similar financial
assurance evidencing to the Agent's satisfaction that funds are available to pay
the cost of removing, treating, and disposing of such Hazardous Materials or
Hazardous Materials Contamination and discharging any lien which may be
established as a result thereof on any property owned, operated or controlled by
any Borrower or Synthetic Lessee or for which any Borrower or Synthetic Lessee
is responsible; and
(d) defend, indemnify and hold harmless the Lenders and
each of their agents, employees, trustees, successors and assigns from any and
all claims which may now or in the future (whether before or after the
termination of this Agreement) be asserted as a result of the presence of any
Hazardous Materials on any property owned, operated, controlled or managed by
the Borrowers or Synthetic Lessee or for which any of the Borrowers or Synthetic
Lessee are responsible for any Hazardous Materials Contamination.
Section 7.31 Participation in Reimbursement Programs
In the event any Borrower, any Synthetic Lessee or the Management
Company elects to participate in any plans and/or programs for third-party
payment and/or reimbursement, and the revenues derived from a single plan or
program exceed ten percent (10%) of the gross revenues of the applicable
Facility, such Borrower will continue its participation in any and all such
plans and/or programs for third-party payment and/or reimbursement from, and
claims against, private insurers or programs for payment and/or reimbursement
from federal, state and local governmental agencies and/or private or
quasi-public insurers, including, without limitation, Managed Care Plans,
Medicaid and Medicare and the Veterans Administration (as determined by the
Borrowers in the good faith exercise of their prudent and commercially
reasonable business judgment). While participating in such plans, such Borrower,
Synthetic Lessee or Management Company shall comply in all material respects
with any and all rules, regulations, standards, procedures and decrees necessary
to maintain such party's participation in any such third party payment or
reimbursement program or plan.
Section 7.32 Inspection and Other Reports and Notices
Each Borrower will furnish to the Agent copies of any and all annual
inspections performed by any Governmental Authority or accreditation or
certification organization with respect to any Facility. Each Borrower will also
furnish to the Agent copies of all reports or notices from any Governmental
Authority or other organization pertaining to the licensure of or Participation
Agreements or Operating Agreements for any Eligible Project which (a) cite any
deficiency, (b) indicate that a penalty will be imposed unless a corrective
action is taken, (c) impose a penalty (including, but not limited to, a monetary
penalty, a ban on admissions or a suspension of a license) or (d) would be
otherwise materially adverse to the business or
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operations of such Facility, together with Borrower's written response to any
such report or notice.
Section 7.33 Interest Rate for Assigned Notes
Each Assigned Note shall bear interest at a rate not less than the
LIBOR Rate (as defined in the Assigned Notes) plus 300 basis points per annum
but in no event less that eight percent (8%) per annum.
ARTICLE VIII
NEGATIVE COVENANTS OF BORROWER
Until payment in full and the performance of all of the Obligations,
without the prior written consent of the Agent as permitted pursuant to the
Agency Agreement, no Borrower will directly or indirectly:
Section 8.1 Borrowings
Create, incur, assume or suffer to exist any liability for borrowed
money other than the Loan or loans from Affiliates that are bearing interest at
a rate no higher than that then applicable to the Loan and are unsecured and
subordinated as to payment of principal and interest (either by their terms or
by separate written agreement) to the Loan; provided, however, that so long as
no Event of Default has occurred, the Borrowers may make scheduled payments of
interest on such debt.
Section 8.2 Deeds of Trust and Pledges
Create, incur, assume, permit or suffer to exist any deed of trust,
mortgage, pledge, Lien or other encumbrance of any kind upon, or any security
interest in, any of its property or assets, including the Collateral or impair
the value thereof, whether now owned or hereafter acquired.
Section 8.3 Sale or Transfer of Assets
Enter into any arrangement whereby such Borrower shall sell, lease,
transfer, assign or otherwise dispose of any of its assets other than (a) sales
or other disposition of assets in the ordinary course of business for value,
provided the proceeds thereof are used to pay down the Loan, or the asset sold
or disposed of is replaced by one of equal or greater value, or (b) the transfer
of an Eligible Project or the sale of an Eligible Project or the transfer of an
Assigned Note, in either case, in which case the Borrowing Base will be reduced
by the availability attributed to such Facility.
Section 8.4 Other Liens; Transfers; "Due-on-Sale"; etc.
Without the prior written consent of the Agent, create or permit to be
created or remain with respect to any of the Property or any part thereof or
income therefrom, any mortgage,
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pledge, lien, encumbrance or charge, or security interest, or conditional sale
or other title retention agreement, whether prior or subordinate to the lien of
the Financing Documents, other than in connection with the Financing Documents
or as otherwise provided or permitted therein. Except for any grant, conveyance,
sale, assignment or transfer in the ordinary course of any Borrower's business
and which is specifically conditioned upon the release of record of the lien of
the Deed of Trust and the other Financing Documents as to that Eligible Project
granted, conveyed, sold, assigned or transferred as otherwise permitted
hereunder, no Borrower will, without the prior written consent of the Agent,
make, create, permit or consent to any conveyance, sale, assignment or transfer
of any of the Property or any part thereof, other than in connection with the
Financing Documents or as otherwise provided or permitted therein.
Section 8.5 Advances and Loans
Make loans or advances to any Person, including, without limitation,
any Affiliates, partners or employees of any Borrower except for loans evidenced
by the Assigned Notes.
Section 8.6 Contingent Liabilities
Assume, guarantee, endorse, contingently agree to purchase or otherwise
become liable upon the obligation of any Person, except by the endorsement of
negotiable instruments for deposit and collection or similar transactions in the
ordinary course of business.
Section 8.7 Licenses
Allow any License, permit, right, franchise or privilege necessary for
the ownership or operation of any Facility for the purposes for which any
Facility is intended to be used to lapse, be suspended, be revoked, be denied
renewal, be forfeited or be placed on probation unless solely due to
administrative delay by the licensing authority.
Section 8.8 ERISA Compliance
(a) Restate or amend any Plan established and maintained
by any Borrower or any Commonly Controlled Entity and subject to the
requirements of ERISA, in a manner designed to disqualify such Plan and its
related trusts under the applicable requirements of the Code;
(b) permit any partners of any Borrower or any Commonly
Controlled Entity to materially adversely affect the qualified tax-exempt status
of any Plan or related trusts of any Borrower or any Commonly Controlled Entity
under the Code;
(c) engage in or permit any Commonly Controlled Entity to
engage in any Prohibited Transaction;
(d) incur or permit any Commonly Controlled Entity to
incur any Accumulated Funding Deficiency, whether or not waived, in connection
with any Plan;
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(e) take or permit any Commonly Controlled Entity to take
any action or fail to take any action which causes a termination of any Plan in
a manner which could result in the imposition of a lien on the property of any
Borrower or any Commonly Controlled Entity pursuant to Section 4068 of ERISA;
(f) fail to notify the Agent that notice has been
received of a "termination" (as defined in ERISA) of any Multiemployer Plan to
which any Borrower or any Commonly Controlled Entity has an obligation to
contribute;
(g) incur or permit any Commonly Controlled Entity to
incur a "complete withdrawal" or "partial withdrawal" (as defined in ERISA) from
any Multiemployer Plan to which any Borrower or any Commonly Controlled Entity
has an obligation to contribute; or
(h) fail to notify the Agent that notice has been
received from the administrator of any Multiemployer Plan to which any Borrower
or any Commonly Controlled Entity has an obligation to contribute that any such
Plan will be placed in "reorganization" (as defined in ERISA).
Section 8.9 Transfer of Collateral
Transfer, or permit the transfer, to another location of any of the
Collateral or the books and records related to any of the Collateral; provided,
however, that the Borrowers may transfer the Collateral or the books and records
related thereto to another location if the Borrowers shall have provided to the
Agent prior to such transfer an opinion of counsel addressed to the Agent to the
effect that the Lenders' perfected security interest shall not be affected by
such move or if it shall be affected, setting forth the steps necessary to
continue the Lender's perfected security interest together with the commencement
of such steps by the Borrowers at their expense.
Section 8.10 Sale of Accounts or Receivables
Sell, discount, transfer, assign or otherwise dispose of any of its
Accounts or Receivables of any Facility, such as accounts receivable, notes
receivable, installment or conditional sales agreements or any other rights to
receive income, revenues or moneys, however evidenced.
Section 8.11 Amendments; Terminations
Except as otherwise provided herein, amend or terminate or agree to
amend or terminate any License, Participation Agreement which exceeds ten
percent (10%) of the gross revenue of the applicable Facility, any Management
Agreement, or, except in the ordinary course of business any other Management
Contracts and Operating Agreements which may have been entered into by any
Borrower with respect to any Facility and which exceeds ten percent (10%) of the
gross revenue of the applicable Facility, or consent to or waive any material
provisions thereof.
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Section 8.12 Prohibition on Hazardous Materials
Place, manufacture or store or permit to be placed, manufactured or
stored, any Hazardous Materials on any property owned, controlled or operated by
any Borrower or any Wholly Owned Subsidiary or for which any Borrower or any
Wholly Owned Subsidiary is responsible, except for reasonable quantities of
necessary supplies for use by any Borrower or any Wholly Owned Subsidiary in the
ordinary course of its current line of business and stored, used and disposed of
in accordance with applicable Laws.
Section 8.13 Subsidiaries
Create or acquire any Subsidiaries other than Wholly Owned Subsidiaries
of which the Agent has approved in the exercise of their sole and absolute
discretion, which approval may be conditioned, among other things, on the
execution and delivery of an Additional Borrower Joinder Supplemental and such
other Financing Documents as the Agent may require.
Section 8.14 Mergers or Acquisitions
Enter into any merger or consolidation or amalgamation, wind up or
dissolve itself (or suffer any liquidation or dissolution), or acquire all or
substantially all of the assets of any person, firm, joint venture or
corporation except to acquire a Wholly Owned Subsidiary.
Section 8.15 Conditional Sales
Incorporate in the Improvements any property acquired under a
conditional sales contract, or lease, or as to which the vendor retains title or
a security interest without the prior written consent of the Agent.
Section 8.16 Changes to Plans and Specification
After review and approval of a Total Development Budget by the Agent,
permit any change order increasing the price of the Improvements for an Eligible
Project by more than $50,000 for any one change order or by more than $50,000 in
the aggregate or materially altering the scope of the Improvements, without the
prior written consent of the Agent which consent will not be unreasonably
withheld.
Section 8.17 Construction Contract; Construction Management
Execute any contract or agreement or become a party to any arrangement
for the construction of any Improvements or for construction management services
with respect to any Property without the prior written consent of the Agent.
Section 8.18 Line of Business
Allow any Borrower, the Guarantor or any Subsidiary of any of them to
enter into any lines or areas of business if as a result, the general nature of
the business, taken on a consolidated
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basis, which would be engaged in by the Borrowers or the Guarantor individually
or on a consolidated basis with its subsidiaries, would be substantially changed
from the general nature of the business engaged in by the Borrowers and the
Guarantor on the date hereof.
Section 8.19 Stock Redemption
Repurchase, redeem or retire any stock or partnership interest in any
Borrower.
Section 8.20 Single Purpose Entity
Engage in any activity which would cause any Borrower to be other than
a single purpose entity for the purpose of the Loan.
Section 8.21 Limitation on Acquisition Projects
Acquire any Acquisition Project for a purchase price in excess of
$25,000,000.
Section 8.22 Amendments to Synthetic Lease Transaction Documents
Amend, modify, substitute or terminate any Assigned Note or any Note
Collateral, including but not limited to any Synthetic Lease or Management
Agreement.
ARTICLE IX
EVENTS OF DEFAULT
The occurrence of one or more of the following events shall be an
"Event of Default" under this Agreement, and the term "Event of Default" shall
mean, whenever it is used in this Agreement, any one or more of the following
events:
Section 9.1 Failure to Pay and/or Perform the Obligations
The Borrowers shall fail to:
(a) make any payment of interest on the Notes within five
(5) calendar days of the date when due, or
(b) pay any of the other Obligations including but not
limited to the Expense Payments and Liquidation Costs within five (5) calendar
days of the date when due, except with regard to payment of (a) any Borrowing
Base Deficiency which shall be due as provided in Section 2.1 (h) hereof, and
(b) amounts due at maturity for which no notice or cure period shall be required
to be given.
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Section 9.2 Breach of Representations and Warranties
Any material representation or warranty made in this Agreement or in
any report, certificate, opinion (including any opinion of counsel for the
Borrowers), financial statement or other instrument furnished in connection with
the Obligations or with the execution and delivery of any of the Financing
Documents, shall prove to have been false or misleading when made (or, if
applicable, when reaffirmed) in any material respect.
Section 9.3 Failure to Comply with Covenants
Default shall be made by any Borrower in the due observance and
performance of any covenant, condition or agreement contained in Article VII
hereof (except for Section 7.8Maintenance of Properties, Section 7.9Maintenance
of the Collateral, Section 7.12Subsequent Opinion of Counsel as to Recording
Requirements, Section 7.13Books and Records, Section 7.17ERISA, Section
7.19Surveys, Section 7.20Inspections; Cooperation; Payment of Inspecting
Engineer, Section 7.24Fees and Expenses; Indemnity, Section 7.27Appraisals, or
in ARTICLE VIII hereof.
Section 9.4 Failure to Comply with Financial Reporting or Books and
Records
Default shall be made by any Borrower in the due observance or
performance of Section 7.1 or Section 7.13, which default shall remain
unremedied, for more than ten (10) days after written notice thereof to the
Borrowers by the Agent.
Section 9.5 Other Defaults
Default shall be made by any Borrower in the due observance or
performance of any other term, covenant or agreement of this Agreement other
than as set forth in this Article IX, which default shall remain unremedied for
more than thirty (30) days after written notice thereof to the Borrowers by the
Agent.
Section 9.6 Default Under Other Financing Documents
A Default shall occur under any of the other Financing Documents, and
such Default is not cured within any applicable grace period provided therein.
Section 9.7 Receiver; Bankruptcy
An Act of Bankruptcy occurs with respect to any Borrower or any
Borrower becomes generally unable to pay its debts as they become due; provided,
however, if a proceeding with respect to an Act of Bankruptcy is filed or
commenced against any Borrower, the same shall not constitute an Event of
Default if such proceeding is dismissed within sixty (60) days from the date of
such Act of Bankruptcy.
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Section 9.8 Judgment
Unless adequately insured in the reasonable opinion of the Agent, the
entry of a final judgment against any Borrower of $1,000,000 or more or any
attachment or other levy against the property of any Borrower remains unpaid,
unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty
(30) days.
Section 9.9 Execution; Attachment
Any execution or attachment shall be levied against the Collateral, or
any part thereof, and such execution or attachment shall not be set aside,
discharged or stayed within thirty (30) days after the same shall have been
levied.
Section 9.10 Default Under Other Borrowings
(a) A Default which continues beyond any applicable grace
period shall occur under any obligation of or guaranteed by any Borrower equal
to or greater than $100,000, or any recourse obligation of or guaranteed by the
Guarantor equal to or greater than $1,000,000, if the effect of such default is
to accelerate the maturity of such obligation or to permit the holder or obligee
thereof to cause such obligation to become due prior to its stated maturity;
(b) A Default shall occur under any obligation of a
consolidated Affiliate equal to or greater than $10,000,000, which is otherwise
non-recourse to each Borrower and the Guarantor.
Section 9.11 Change in Status or Ownership
Any Borrower is dissolved, merged, consolidated or reorganized, or any
change occurs in the ownership of the outstanding stock of any Borrower without
the prior written consent of the Agent.
Section 9.12 Damage to Improvements
At any time prior to the issuance of a certificate of occupancy or
completion therefor, any of the Improvements are substantially damaged or
destroyed by fire or other casualty and the Agent determines in good faith that
such Improvements cannot be restored and completed in accordance with the terms
and provisions of the Deed of Trust unless the Borrowers exclude the affected
Eligible Project from the calculation of the Borrowing Base.
Section 9.13 Mechanic's Lien
A lien for the performance of work or the supply of materials which is
perfected against any of the Land remains unsatisfied or un-bonded or for which
no other arrangements satisfactory to the Agent have been made for a period of
twenty (20) days after the date of perfection unless the Borrowers exclude the
affected Eligible Project from the calculation of the Borrowing Base.
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Section 9.14 Survey Matters
Any Survey required by the Lenders during the period of construction
shows any matters not approved by the Agent and such matters not approved are
not removed within thirty (30) days after Notice thereof by the Agent to the
Borrowers unless the Borrowers exclude the affected Eligible Project from the
Borrowing Base.
Section 9.15 General Contractor Default
The General Contractor shall have defaulted under any Construction
Contract, which default the Agent, in its sole discretion, shall deem
substantial, and the Borrowers, after thirty (30) days notice from the Agent,
shall fail to commence exercising any resulting right or remedy to which it may
be entitled thereunder and diligently pursue such right or remedy unless the
Borrowers exclude the affected Eligible Project from the calculation of the
Borrowing Base.
Section 9.16 Zoning
Any change in any zoning ordinance or any other public restriction is
enacted, limiting or defining the uses which may be made of any of the Property
or a part thereof, such that the use of any of the Property, as specified
herein, would be in material violation of such restriction or zoning change
unless the Borrowers exclude the affected Eligible Project from the calculation
of the Borrowing Base.
Section 9.17 Updated Appraisal
The value of any Facility, as determined by the Agent based on its
review of an updated appraisal provided pursuant to Section 7.27, is less than
that required pursuant to the terms hereof; provided, however, that the
Borrowers shall have three (3) days to cure such Default after notice thereof by
the Agent.
Section 9.18 Default Under Synthetic Lease Transaction
A default or event of default shall occur under any Assigned Note or
Note Collateral and continue beyond any applicable cure period; provided,
however, that a default in the payment of interest due on the Assigned Note
alone will not constitute an Event of Default hereunder unless such default
continues for ninety (90) days or longer.
ARTICLE X
RIGHTS AND REMEDIES UPON DEFAULT
Section 10.1 DEMAND; ACCELERATION
THE OCCURRENCE OR NONOCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS
AGREEMENT SHALL IN NO WAY AFFECT OR CONDITION THE RIGHT
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OF THE LENDERS TO DEMAND PAYMENT AT ANY TIME OF ANY OF THE OBLIGATIONS WHICH ARE
PAYABLE ON DEMAND REGARDLESS OF WHETHER OR NOT AN EVENT OF DEFAULT HAS OCCURRED.
Upon the occurrence of an Event of Default, and in every such event and at any
time thereafter, the Agent may declare the Obligations due and payable, without
presentment, demand, protest, or any notice of any kind, all of which are hereby
expressly waived, anything contained herein or in any of the other Financing
Documents to the contrary notwithstanding.
Section 10.2 Further Advances; Immediate Acceleration
Following a Default or an Event of Default the Agent may from time to
time without notice to any Borrower suspend, terminate or limit any further
advances under the Loan or other extensions of credit under this Agreement and
under any of the other Financing Documents. Further, upon the occurrence of an
Event of Default or Default specified in Article IX above, the unpaid principal
amount of the Notes (with accrued interest thereon) and all other Obligations
then outstanding, shall immediately become due and payable in the Agent's sole
discretion without further action of any kind and without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by each
Borrower.
Section 10.3 Further Advances; Material Adverse Change or Impairment of
Position
If the Agent determines in its reasonable discretion that (a) a
material adverse change has occurred in the financial condition or operation of
the Guarantor or any Borrower or an event has occurred which impairs the
prospect of payment of the obligations and/or the value of the Facilities or the
Collateral (in either case, regardless of whether it would constitute an Event
of Default under this Agreement), the Agent may from time to time without notice
to any Borrower suspend, terminate or limit any further advances under the Loan
or other extensions of credit under this Agreement and refuse to include any
additional Eligible Projects in the Borrowing Base.
Section 10.4 Specific Rights With Regard to Collateral
Following an Event of Default, in addition to all other rights and
remedies provided in this Agreement, the Deed of Trust, and any of the other
Financing Documents, and all other rights and remedies as shall exist at law or
in equity from time to time, the Agent may, without further notice to the
Borrowers and subject to the terms of the Agency Agreement:
(a) assign any and all Operating Agreements and
Management Contracts to any Person designated by the Agent, and/or exercise all
rights and privileges of the applicable Borrowers under such contracts and
agreements for the purpose of realizing on the Collateral and to the extent and
for the time required to realize the value of the Collateral;
(b) to the extent permitted by applicable law,
(i) enter into possession of any of the
Property and perform any and all work and labor necessary to complete the
development of the Land and the construction of
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the Improvements thereon (whether or not in accordance with the Plans and
Specifications thereon);
(ii) employ watchmen to protect the Property and
the Improvements; and
(iii) assume such management, operation and control
of the Property to the extent and for the time
necessary to realize the value of the Collateral;
(c) cause any Borrower to engage, contract with, and/or
hire qualified service, billing, collection and other such agents, organizations
and companies acceptable to the Agent to collect and/or realize upon any or all
of the Collateral and to remit the proceeds to the Agent;
(d) subject to applicable state and federal laws
pertaining to resident confidentiality, request any Account Debtor obligated on
any of the Accounts to make payments thereon directly to the Agent to the extent
permitted by applicable law, with the Agent taking control of the cash and
non-cash proceeds thereof and/or direct any Borrower to (and such Borrower
shall) turn over to the Agent immediately following receipt all payments with
respect to the Collateral in the form received (with the addition of all
necessary endorsements) and not to deposit, negotiate or otherwise deal with
those payments;
(e) compromise, extend or renew any of the Collateral or
deal with the same as it may deem advisable;
(f) make exchanges, substitutions or surrenders of all or
any part of the Collateral;
(g) remove from any Borrower's places of business all
books, records, ledger sheets, correspondence, invoices and documents, relating
to or evidencing any of the Collateral or without cost or expense to the
Lenders, make such use of any Borrower's places of business as may be reasonably
necessary to administer, control and collect the Collateral;
(h) demand, collect, receipt for and give renewals,
extensions, discharges and releases of any of the Collateral;
(i) institute and prosecute legal and equitable
proceedings to enforce collection of, or realize upon, any of the Collateral;
(j) settle, renew, extend, compromise, compound,
exchange or adjust claims in respect of any of the Collateral or any legal
proceedings brought in respect thereof;
(k) endorse the name of any Borrower upon any
items of payment relating to the Collateral or on any Proof of Claim in
Bankruptcy against an Account Debtor; and
(l) notify the post office authorities to change the
address for the delivery of mail to any Borrower to such address or post office
box as the Agent may designate and receive and open all mail addressed to any
Borrower.
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(m) Notify any Synthetic Lessor to make payments
on any Assigned Note directly to the Agent.
In addition, each Borrower shall, following an Event of Default
promptly, upon request, execute and deliver to the Agent written assignments, to
the extent permitted by applicable law, in form and content acceptable to the
Agent, of specific Accounts or groups of Accounts; provided, however, that the
lien and/or security interest granted to the Lenders under this Agreement shall
not be limited in any way to or by the inclusion or exclusion of Accounts within
such assignments. Such Accounts shall secure payment of the Obligations and are
not sold to the Lenders whether or not any assignment thereof, which is separate
from this Agreement, is in form absolute.
Following an Event of Default, the Lenders may also direct any Borrower
to appoint a manager for any or all of the Facilities and enter into a
Management Agreement with one or more management companies approved by the
Lenders, the terms of which agreement shall be approved by the Lenders.
Section 10.5 Performance by Lenders
Following an Event of Default, the Agent without the necessity of prior
notice to or demand upon any Borrower and without waiving or releasing any of
the Obligations or any Event of Default, may (but shall be under no obligation
to) at any time thereafter make such payment or perform such act for the account
and at the expense of any Borrower, and may enter upon the premises of any
Borrower for that purpose and take all such action thereon as the Agent may
consider necessary or appropriate for such purpose. The Agent will give the
Borrowers notice following any such performance by the Agent. All sums so paid
or advanced by the Agent and all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred in connection
therewith (the "Expense Payments") together with interest thereon from the date
of payment, advance or incurring until paid in full at the Post Default Rate
shall be paid by the Borrowers to the Agent on demand and shall constitute and
become a part of the Obligations and be secured by the Deed of Trust. For this
purpose, each Borrower hereby constitutes and appoints the Lenders, or the Agent
on behalf of the Lenders, its true and lawful attorney-in-fact with full power
of substitution to complete work on any Eligible Project in the name of such
Borrower, and hereby empowers said attorney or attorneys as follows:
(a) To use any funds of such Borrower including any
balance which may be held in escrow and any funds which may remain un-advanced
under the Loan for the purpose of completing the development of any of the Land
and the construction of any of the Improvements, whether or not in the manner
called for in the Plans and Specifications;
(b) To make such additions and changes and corrections to
any of the Plans and Specifications which shall be necessary or desirable in the
judgment of the Agent to complete the development of any of the Land and the
construction of any of the Improvements;
(c) To employ such contractors, subcontractors,
agents, architects and inspectors as shall be necessary or desirable for said
purpose;
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(d) To pay, settle or compromise all existing bills and
claims which are or may be liens against any of the Property, or may be
necessary or desirable for the completion of the work or the clearance of title
to any of the Property;
(e) To execute all applications and certificates which
may be required in the name of such Borrower; and
(f) To do any and every act with respect to the
development of the Land and the construction of the Improvements which such
Borrower may do in its own behalf.
It is understood and agreed that this power of attorney shall be deemed
to be a power coupled with an interest which cannot be revoked. Said
attorney-in-fact shall also have the power to prosecute and defend all actions
or proceedings in connection with the development of the Land and the
construction of the Improvements and to take such actions and to require such
performance as the Lenders may deem necessary.
Section 10.6 Uniform Commercial Code and Other Remedies
Upon the occurrence of an Event of Default (and in addition to all of
their other rights, powers and remedies under this Agreement), the Agent shall
have all of the rights and remedies of a secured party under the applicable
Uniform Commercial Code and other applicable laws, and the Lenders are
authorized to offset and apply to all or any part of the Obligations all moneys,
credits and other property of any nature whatsoever of any Borrower now or at
any time hereafter in the possession of, in transit to or from, under the
control or custody of, or on deposit with, any of the Lenders; and upon demand
by the Agent, the Borrowers shall assemble the Collateral and make it available
to the Agent, at a place designated by the Agent; and the Lenders or their
agents may enter upon the Borrower's premises to take possession of the
Collateral, to remove it, to render it unusable, or to sell or otherwise dispose
of it.
Any written notice of the sale, disposition or other intended action by
the Agent with respect to the Collateral including but not limited to any
Assigned Note which is sent by certified mail, postage prepaid, to the Borrowers
at the address set forth herein, or such other address of the Borrowers which
may from time to time be shown on the Agent's records, at least ten (10) days
prior to such sale, disposition or other action, shall constitute reasonable
notice to the Borrowers. The Borrowers shall pay on demand all costs and
expenses, including, without limitation, attorneys' fees and expenses, incurred
by or on behalf of the Lenders, or any of them, in preparing for sale or other
disposition, selling, managing, collecting or otherwise disposing of, the
Collateral. All of such costs and expenses (the "Liquidation Costs") together
with interest thereon from the date incurred until paid in full at the Post
Default Rate, shall be paid by the Borrowers to the Agent on demand and shall
constitute and become a part of the Obligations. Any proceeds of sale or other
disposition of the Collateral will be applied by the Lenders to the payment of
the Liquidation Costs and Expense Payments, and any balance of such proceeds
will be applied by the Lenders to the payment of the balance of the Obligations
in such order and manner of application as the Lenders may from time to time in
their sole discretion determine. After such application of the proceeds, any
balance shall be paid to the Borrowers or to any other party entitled thereto.
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Section 10.7 Receiver or Other Court Order
Following an Event of Default, as a matter of right, following ten
(10) days notice and without regard to the adequacy of the security, and upon
application to a court of competent jurisdiction, the Agent shall be entitled
to the immediate appointment of a receiver for all or any part of the
Collateral, and of the payments and proceeds thereof and therefrom, whether
such receivership be incidental to a proposed sale of the Collateral or
otherwise, and each Borrower hereby consents to the appointment of such a
receiver and to an order of court directing that payments, including Medicare
and Medicaid payments, be made directly to the receiver. The Borrowers will pay
to the Agent, upon demand, all expenses, including receiver's fees, attorney's
fees, costs and agents compensation, advanced by any of the Lenders and
incurred pursuant to the provisions contained in this Section.
Section 10.8 License of Tradename
Each Borrower does hereby grant to the Agent for the benefit of the
Lenders and their affiliates, any trustee under a Deed of Trust and their
management company a license to use the applicable Borrower's name, and the
name "Homewood" or any other additional tradename used now or in the future in
connection with any Eligible Project during the term of the Credit Facility and
any marks associated therewith in the operation of a Facility upon such
Lender's or trustee's taking of possession or taking over management of a
Facility or acquiring title thereto at a foreclosure sale which license shall
be in effect for a period of twenty-four (24) months from the date thereof but
shall be extended for any period up to an additional six (6) months if the
Borrowers take any action to delay or obstruct the Lenders' exercise of their
remedies under the Financing Documents. Each Borrower further agrees that a
third-party purchaser of a Facility may continue to operate the Facility under
the applicable Borrower's name unless the Borrowers object in writing thereto.
In connection herewith, the Borrowers have caused or shall cause ARC to grant a
similar license.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Notices
All notices, certificates or other communications hereunder shall be
deemed given when delivered by hand or courier, the following Banking Day after
delivery by Federal Express or similar overnight delivery service, or three (3)
Banking Days after being mailed by certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Agent
or the Lenders: Bank United
3200 Southwest Freeway, Suite 2904
Houston, TX 77027
Attn: William B. Roberson
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and
David Jones, Esq.
Office of General Counsel
Bank United
3200 Southwest Freeway, Suite 1610
Houston, Texas 77027
With a courtesy
copy to: Mays & Valentine L.L.P.
8201 Greensboro Drive, Suite 800
McLean, Virginia 22102
Attn: Margaret Ann Brown, Esq.
if to the Borrowers: c/o American Retirement Corporation
111 Westwood Place, Suite 402
Brentwood, Tennessee 37027
Attn: George Hicks, Chief Financial Officer
With a courtesy T. Andrew Smith, Esq.
copy to: Bass, Berry & Sims
2700 First American Center
Nashville, Tennessee 37238
Section 11.2 Consents and Approvals
If any consent, approval, or authorization of any Governmental
Authority or of any Person having any interest therein, should be necessary to
effectuate any sale or other disposition of the Collateral, each Borrower
agrees to execute all such applications and other instruments, and to take all
other action, as may be required in connection with securing any such consent,
approval or authorization.
Section 11.3 Remedies, etc. Cumulative
Each right, power and remedy of the Agent or Lenders as provided for
in this Agreement or in any of the other Financing Documents or now or
hereafter existing at law or in equity or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power
or remedy provided for in this Agreement or in any of the other Financing
Documents or now or hereafter existing at law or in equity, by statute or
otherwise, and the exercise or beginning of the exercise by the Lenders of any
one or more of such rights, powers or remedies shall not preclude the
simultaneous or later exercise by the Lenders of any or all such other rights,
powers or remedies. In order to entitle the Lenders to exercise any remedy
reserved to it herein, it shall not be necessary to give any notice, other than
such notice as may be expressly required in this Agreement.
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Section 11.4 No Waiver of Rights by the Agent or Lenders
No failure or delay by the Agent or the Lenders to insist upon the
strict performance of any term, condition, covenant or agreement of this
Agreement or of any of the other Financing Documents, or to exercise any right,
power or remedy consequent upon a breach thereof, including foreclosure on the
Property under the Deed of Trust shall constitute a waiver of any such term,
condition, covenant or agreement or of any such breach or preclude the Agent or
the Lenders from exercising any such right, power or remedy at any later time
or times. By accepting payment after the due date of any amount payable under
this Agreement or under any of the other Financing Documents, neither the Agent
nor the Lenders shall be deemed to waive the right either to require prompt
payment when due of all other amounts payable under this Agreement or under any
of the other Financing Documents, or to declare a Default or Event of Default
for failure to effect such prompt payment of any such other amount.
Section 11.5 Entire Agreement; Conflict with Agency Agreement
The Financing Documents shall completely and fully supersede all other
agreements, both written and oral, between the Lenders and the Borrowers, or
any of them, relating to the Obligations. Neither the Lenders nor any Borrower
shall hereafter have any rights under such prior agreements but shall look
solely to the Financing Documents for definition and determination of all of
their respective rights, liabilities and responsibilities relating to the
Obligations. In the event of a conflict between this Agreement and the Agency
Agreement, this Agreement shall govern; provided, however, that the Borrowers
hereby acknowledge and agree that although this Agreement refers to the Agent's
rights, remedies and authority to give a consent or to act in connection with
the Credit Facility, the Agency Agreement requires that the Agent obtain the
approval of or act in accordance with the direction of some or all of the
Lenders and such requirement shall not be considered a conflict with this
Agreement.
Section 11.6 Survival of Agreement; Successors and Assigns
All covenants, agreements, representations and warranties made by each
Borrower herein and in any certificate, in the Financing Documents and in any
other instruments or documents delivered pursuant hereto shall survive the
making by the Lenders of the Loan and the execution and delivery of the Notes,
and shall continue in full force and effect so long as any of the Obligations
are outstanding and unpaid. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and assigns of such party; and all covenants, promises and agreements by or on
behalf of each Borrower, which are contained in this Agreement shall inure to
the benefit of the respective successors and assigns of each of the Lenders,
and all covenants, promises and agreements by or on behalf of the Lenders which
are contained in this Agreement shall inure to the benefit of the permitted
successors and permitted assigns of each Borrower, but this Agreement may not
be assigned by any Borrower without the prior written consent of the Lenders.
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Section 11.7 Expenses
The Borrowers agree to pay all reasonable out-of-pocket expenses of
the Lenders (including the reasonable fees and expenses of the legal counsel of
the Agent or any other Lender) in connection with the preparation of this
Agreement, the making of the Loan hereunder, the recordation of all financing
statements and such other instruments as may be required by the Agent at the
time of, or subsequent to, the execution of this Agreement to secure the
Obligations (including any and all recordation tax and other costs and taxes
incident to recording), the protection or preservation of Collateral or the
Lenders' interest therein, the administration of the Loan (not otherwise
contemplated by any fee paid by the Borrowers), any future modification of the
Financing Documents, the addition of Eligible Projects to the Borrowing Base,
or the enforcement of any provision of this Agreement and the collection of the
Obligations. The Borrowers agree to indemnify and save harmless the Lenders
from any liability resulting from the failure to pay any required recordation
tax, transfer taxes, recording costs or any other expenses incurred by the
Lenders in connection with the Obligations. The provisions of this Section
shall survive the execution and delivery of this Agreement and the repayment of
the Obligations. The Borrowers further agree to reimburse the Lenders upon
demand for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and legal expenses and travel expenses) incurred by the
Lenders, or any of them, in enforcing any of the Obligations or any security
therefor or incurred in connection with any bankruptcy proceeding or in any
post-judgment enforcement or collection action, together with interest at the
Post Default Rate which agreement shall survive the termination of this
Agreement and the repayment of the Obligations.
Section 11.8 Counterparts
This Agreement may be executed in any number of counterparts all of
which together shall constitute a single instrument.
Section 11.9 Governing Law
This Agreement and all of the other Financing Documents shall be
governed by and construed in accordance with the laws of the State of Texas;
provided, however, any Deed of Trust and any financing statements covering
fixtures securing the Loan shall be governed by, and construed in accordance
with, the laws of the state in which the applicable Facility is located.
Section 11.10 Modifications
No modification or waiver of any provision of this Agreement or of any
of the other Financing Documents, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice to
or demand on any Borrower in any case shall entitle any Borrower to any other
or further notice or demand in the same, similar or other circumstance.
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Section 11.11 Illegality
If fulfillment of any provision hereof or any transaction related
hereto or to any of the other Financing Documents, at the time performance of
such provision shall be due, shall involve transcending the limit of validity
prescribed by law, then ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provisions herein
contained other than the provisions hereof pertaining to repayment of the
Obligations operates or would prospectively operate to invalidate this
Agreement in whole or in part, then such clause or provision only shall be
void, as though not herein contained, and the remainder of this Agreement shall
remain operative and in full force and effect; and if such provision pertains
to repayment of the Obligations, then, at the options of the Lenders, all of
the Obligations of the Borrowers to the Lenders shall become immediately due
and payable.
Section 11.12 Gender, etc.
Whenever used herein, the singular number shall include the plural,
the plural the singular and the use of the masculine, feminine or neuter gender
shall include all genders.
Section 11.13 Headings
The headings in this Agreement are for convenience only and shall not
limit or otherwise affect any of the terms hereof.
Section 11.14 Waiver of Trial by Jury
EACH BORROWER, THE AGENT AND EACH LENDER HEREBY JOINTLY AND SEVERALLY
WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH ANY OF THEM MAY BE
PARTIES, NOT GOVERNED BY THE ARBITRATION PROVISIONS HEREOF OR OF ANY OF THE
OTHER FINANCING DOCUMENTS, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS
AGREEMENT, (B) ANY OF THE FINANCING DOCUMENTS, OR (C) THE COLLATERAL. THIS
WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES
TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT
PARTIES TO THIS AGREEMENT.
This waiver is knowingly, willingly and voluntarily made by each
Borrower and each Lender, and each Borrower and each Lender hereby represent
that no representations of fact or opinion have been made by any individual to
induce this waiver of trial by jury or to in any way modify or nullify its
effect. Each Borrower and each Lender further represent that they have been
represented in the signing of this Agreement and in the making of this waiver
by independent legal counsel, selected of their own free will, and that they
have had the opportunity to discuss this waiver with counsel.
Section 11.15 No Warranty by Lenders or Agent
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<PAGE> 94
By accepting or approving anything required to be observed, performed
or fulfilled by any Borrower or to be given to the Agent or the Lenders
pursuant to this Agreement, including, without limitation, any certificate,
balance sheet, statement of profit and loss or other financial statement,
Survey, receipt, appraisal or insurance policy, the Lenders shall not be deemed
to have warranted or represented the sufficiency, legality, effectiveness or
legal effect of the same, or of any term, provision or condition thereof and
any such acceptance or approval thereof shall not be or constitute any warranty
or representation with respect thereto by the Lenders.
Section 11.16 Liability of the Lenders
No Lender shall be liable for another Lender's failure to fund its
ratable share of any advance under the Loan. The Lenders shall not be liable
for any other act or omission by the Lenders, or any of them (INCLUDING ANY ACT
OR OMISSION CONSTITUTING, CAUSED BY OR RESULTING FROM THE ORDINARY NEGLIGENCE
OF THE LENDERS), pursuant to the provisions of this Agreement in the absence of
fraud or gross negligence. The Lenders shall incur no liability to the
Borrowers or any other party in connection with the acts or omissions of any of
the Lenders in reliance upon any certificate or other paper believed by the
Lenders to be genuine or with respect to any other thing which the Lenders may
do or refrain from doing, unless such act or omission amounts to fraud or gross
negligence. The Borrowers hereby agree that the Lenders shall not be chargeable
for any negligence, mistake, act or omission of any accountant, examiner,
agency or attorney employed by the Lenders, or any of them, (except for the
gross negligence or willful misconduct of any person, corporation, partnership
or other entity employed by any of the Lenders) in making examinations,
investigations or collections, or otherwise in perfecting, maintaining,
protecting or realizing upon any lien or security interest or any other
interest in the Collateral or other security for the Obligations. In connection
with the performance of their duties pursuant to this Agreement, the Lenders
may consult with counsel of their own selection, and do anything which the
Lenders may do or refrain from doing, in good faith, in reliance upon the
opinion of such counsel shall be full justification and protection to the
Lenders. THE BORROWERS SHALL INDEMNIFY, DEFEND AND HOLD THE LENDERS AND THEIR
SUCCESSORS AND ASSIGNS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
SUITS, LOSSES, DAMAGES, ASSESSMENTS, FINES, PENALTIES, COSTS OR OTHER EXPENSES
(INCLUDING REASONABLE ATTORNEY'S FEES AND COURT COSTS) ARISING FROM OR IN
CONNECTION WITH THIS AGREEMENT CAUSED BY OR RESULTING FROM THE ORDINARY
NEGLIGENCE OF THE AGENT OR ANY OTHER LENDER. Any indemnity provision for the
benefit of the Lenders set forth herein or in any of the Financing Documents
shall extend to any other lender who becomes a Lender under the Credit
Facility. The provisions of this Section shall survive the termination of the
Credit Facility.
Section 11.17 No Partnership
Nothing contained in this Agreement shall be construed in a matter to
create any relationship between any Borrower and any Lender other than the
relationship of borrower and lender, and no Borrower and any Lender shall be
considered partners or co-venturers for any purpose on account of this
Agreement.
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<PAGE> 95
Section 11.18 Third Parties; Benefit
All conditions to the obligation of the Lenders to make advances
hereunder are imposed solely and exclusively for the benefit of the Lenders and
their assigns and no other persons shall have standing to require satisfaction
of such conditions in accordance with their terms or be entitled to assume that
the Lenders will refuse to make advances in the absence of strict compliance
with any or all thereof and no other person shall, under any circumstances, be
deemed to be the beneficiary of such conditions, any or all of which may be
freely waived in whole or in part by the Agent at any time in the sole and
absolute exercise of its discretion pursuant to its agreements with the
Lenders. The terms and provisions of this Agreement are for the benefit of the
parties hereto and, except as herein specifically provided, no other person
shall have any right or cause of action on account thereof.
Section 11.19 Conditions; Verification
Any condition of this Agreement that requires the submission of
evidence of the existence or non-existence of a specified fact or facts implies
as a condition to the existence or non-existence, as the case may be, of such
fact or facts that the Lenders shall, at all times, be free independently to
establish to their satisfaction and in its absolute discretion such existence
or non-existence.
Section 11.20 Signs; Publicity
At the Agent's request, but at the expense of the Agent, the Borrowers
shall place a sign acceptable to the Borrowers at a location on each of the
Development Projects satisfactory to the Agent, which sign shall recite, among
other things, that the Lenders are financing the construction of the
Improvements. Each Borrower expressly authorizes the Agent to prepare and to
furnish to the news media for publication from time to time news releases with
respect to each Eligible Project, specifically to include but not limited to,
releases detailing the Agent's and the Lenders' involvement with the financing
of the Eligible Project, and all subject to prior review by the Borrowers.
Section 11.21 Mandatory Arbitration
To the maximum extent not prohibited by law, any controversy, dispute
or claim arising out of, in connection with, or relating to this Agreement or
any other Financing Documents or any transaction provided for therein,
including but not limited to any claim based on or arising from an alleged tort
or an alleged breach of any agreement contained in any of the Financing
Documents, shall, at the request of any party to the Financing Documents
(either before or after the commencement of judicial proceedings) be settled by
arbitration pursuant to Title 9 of the United States Code, which the parties
acknowledge and agree applies to the transaction involved herein, and in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA"). In any such arbitration proceeding: (i) all statutes
of limitation which would otherwise be applicable shall apply; and (ii) the
proceeding shall be conducted in Houston, Texas, by a single arbitrator, if the
amount in controversy is $1 million or less, or by a panel of three arbitrators
if the amount in controversy is over $1 million. All arbitrators shall be
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<PAGE> 96
selected by the process of appointment from a panel pursuant to Section 13 of
the AAA Commercial Arbitration Rules and each arbitrator will have AAA
acknowledged expertise in the appropriate subject matter. Any award rendered in
any such arbitration proceeding shall be final and binding, and judgment upon
any such award may be entered in any court having jurisdiction.
If any party to this Agreement or other Financing Documents files a
proceeding in any court to resolve any such controversy, dispute or claim, such
action shall not constitute a waiver of the right of such party or a bar to the
right of any other party to seek arbitration under the provisions of this
Section of that or any other claim, dispute or controversy, and the court
shall, upon motion of any party to the proceeding, direct that such
controversy, dispute or claim be arbitrated in accordance with this Section.
Notwithstanding any of the foregoing, no arbitrator or panel of
arbitrators shall possess or have the power to (i) assess punitive damages,
(ii) dissolve, rescind or reform (except that the arbitrator may construe
ambiguous terms) any Financing Document to which the Borrower or the Guarantor
is a party, (iii) enter judgment on the debt, (iv) exercise equitable powers or
issue or enter any equitable remedies or (v) allow discovery of attorney/client
privileged information. The Commercial Arbitration Rules of the AAA are hereby
modified to this extent for the purpose of arbitration of any dispute,
controversy or claim arising out of, in connection with, or relating to any
Financing Document to which the Borrower or the Guarantor is a party. The
parties further waive, each to the other, any claims for punitive damages, and
agree that neither an arbitrator nor any court shall have the power to assess
such damages.
No provisions of, or the exercise of any rights under, this Section
shall limit or impair the right of any party to the Financing Documents before,
during or after any arbitration proceeding to take any of the following actions
or contest any of the following actions: (i) exercise self-help remedies such
as set off or repossession, (ii) cease making advances under the Loan, (iii)
foreclose (judicially or otherwise) any lien on or security interest in any
real or personal property collateral; or (iv) obtain emergency relief from a
court of competent jurisdiction to prevent the dissipation, damage,
destruction, transfer, hypothecation, pledging or concealment of assets or of
collateral securing any indebtedness, obligation or guaranty referenced in the
Financing Documents. Such emergency relief and action to contest the same shall
include equitable relief and may be in the nature of, but is not limited to:
pre-judgment attachments, garnishments, sequestrations, appointments of
receivers, or other emergency injunctive relief to preserve the status quo.
In the event applicable law prohibits the submission of a particular
controversy, dispute or claim arising out of or in connection with any of the
Financing Documents or transactions contemplated therein to arbitration, the
parties agree that any actions or proceedings in connection therewith shall be
tried and litigated only in the state and federal courts located in the
jurisdiction in which the Property is located or any other court in which the
Agent shall initiate legal or equitable proceedings that has subject matter
jurisdiction over the matter in controversy and to the extent permitted by
applicable law, waive any right to assert the doctrine of forum non-conveniens
or to object to the venue to the extent any proceeding is brought in accordance
with this paragraph.
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Section 11.22 Assignment By Lenders
The Lenders may, sell, assign or transfer to or participate with any
person or persons all or any part of the Credit Facility obligations pursuant
to the following terms. Assignments will be permitted with the consent of the
Agent and the Borrowers which approval will not be unreasonably withheld
provided the Borrowers shall not have the right to consent if an Event of
Default has occurred and is continuing. In connection with any assignment, the
Agent will retain not less than $25,000,000, each assignment shall be for not
less than $10,000,000 and no Lender shall hold less than $5,000,000. The
foregoing notwithstanding, the Agent and SouthTrust Bank, National Association
shall agree that provided no Event of Default has occurred and is continuing,
they will retain their original committed amounts until the earlier of nine (9)
months following the date of this Agreement or the date on which an additional
$75,000,000 has been added to the Credit Facility Committed Amount.
Participations will not require consent, however, the Lender participating its
interest shall remain fully liable for its pro rata share of the Credit
Facility. The Agent shall have no obligation with regard to a participant. In
connection with any sale, assignment, transfer or participation to a person who
is an affiliate or successor of the Agent, the Agent shall give notice to
Borrowers of such transaction either before or after the transaction has
occurred as the Agent shall determine.
Section 11.23 Required Lenders
During such time as the Agent and SouthTrust Bank, National
Association are the only Lenders, the Agent and SouthTrust Bank, National
Association must both agree in connection with any decision to be made by the
Lenders in connection with the Credit Facility (including the decision to
include a Facility as an Eligible Project in the Borrowing Base). During such
time as there are additional Lenders in the Bank Group, all decisions to be
made by the Lenders in connection with the Credit Facility (including the
decision to include a Facility as an Eligible Project in the Borrowing Base)
will require an affirmative vote of the Lenders holding at least 66.67% of the
pro rata shares of the Credit Facility Committed Amount. The foregoing
notwithstanding, certain major changes or actions with regard to the Credit
Facility (as determined by separate agreement among the Lenders and Agent) will
require the consent of all Lenders. If requested by the Agent, the Borrowers
will provide to the Lenders copies of any documents or other information
required to be delivered to the Agent hereunder.
Section 11.24 Borrowers Approval of Lenders
Provided no Event of Default has occurred and is continuing, the
Borrowers shall have the right to approve any additional Lender (other than
Agent and SouthTrust Bank, N.A., which have been approved as Lenders).
Section 11.25 Time of Essence
Time shall be of the essence for each and every provision of this
Agreement of which time is an element.
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IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement on the day and year first above written.
WITNESS/ATTEST: ARC CAPITAL CORPORATION II
a Tennessee corporation
By: (SEAL)
- --------------------------- -----------------------------------
George T. Hicks
Executive Vice President
ARC CARRIAGE CLUB OF
JACKSONVILLE, INC, a Tennessee corporation
By: (SEAL)
- --------------------------- -----------------------------------
Name:
Title:
WITNESS: BANK UNITED,
as Agent for the Lenders
By: (SEAL)
- --------------------------- -----------------------------------
Name:
Title:
93
<PAGE> 1
Exhibit 21
SUBSIDIARIES OF THE REGISTRANT
1. ARC Greenwood Village, Inc., a Tennessee corporation
2. ARC Rossmoor, Inc., a Tennessee corporation
3. Plaza Professional Pharmacy, Inc., a Virginia corporation
4. Assisted Care of the Villages, a Florida general partnership
5. Maryarc LLC, a Tennessee limited liability company
6. ARC Bahia Oaks, Inc., a Tennessee corporation
7. ARC Wilora Lake, Inc., a Tennessee corporation
8. ARC Tarpon Springs, Inc., a Tennessee corporation
9. ARC Imperial Plaza, Inc., a Tennessee corporation
10. ARC Imperial Services, Inc., a Tennessee corporation
11. ARC Sun City Center Inc., a Tennessee corporation
12. Lebarc, L.P., a Tennessee limited partnership
13. Fort Austin Limited Partnership, a Texas limited partnership
14. ARC Fort Austin Properties, Inc., a Tennessee corporation
15. ARCLP-Charlotte, LLC, a Tennessee limited liability company
16. ARC Management Corporation, a Tennessee corporation
17. ARC Management, LLC, a Tennessee limited liability company
18. ARC Corpus Christi, Inc., a Tennessee corporation
19. Trinity Towers Limited Partnership, a Tennessee limited partnership
20. ARC Partners, Inc., a Florida corporation
21. ARC Services, L.P., a Tennessee limited partnership
22. Pioneer Merger Corporation, a Tennessee corporation
23. ARC Park Regency, Inc., a Tennessee corporation
24. ARC Capital Corporation, a Tennessee corporation
25. ARC San Antonio, Inc., a Tennessee corporation
26. ARC Richmond Place, Inc., a Tennessee corporation
27. ARC Freedom, Inc., a Tennessee corporation
28. Freedom Group-Naples Management Company, Inc., a Tennessee corporation
29. Freedom Group Management Company, Inc., a Tennessee corporation
30. Freedom Group Development Company, Inc., (d/b/a Freedom Development
Corporation), a Tennessee corporation
31. S&S Building Materials of Pinellas, Inc., a Tennessee corporation
32. ARC Holland, Inc., a Tennessee corporation
33. Freedom Village of Holland, a Michigan general partnership
34. ARC Seminole, Inc., a Tennessee corporation
35. Lake Seminole Square Management Company, Inc., a Tennessee corporation
36. Freedom Group-Lake Seminole Square, Inc., a Tennessee corporation
37. Freedom Village of Sun City Center, Ltd., a Florida limited partnership
38. ARC SCC, Inc., a Tennessee corporation
39. Flint Michigan Retirement Housing, LLC, a Tennessee limited liability
company
40. ARC Flint, Inc., a Tennessee corporation
73
<PAGE> 2
41. ARC Lady Lake, Inc., a Tennessee corporation
42. ARC Charlotte, Inc., a Tennessee corporation
43. ARC Heritage Club, Inc., a Tennessee corporation
45. ARC Santa Catalina, Inc., a Tennessee corporation
46. ARC Brandywine, Inc., a Tennessee corporation
47. ARC Brandywine Management, Inc., a Tennessee corporation
48. ARC Carriage Club of Jacksonville, Inc., a Tennessee corporation
49. ARC Capital Corporation II, Inc., a Tennessee corporation
50. ARC Lifemed, Inc., a Tennessee corporation
51. ARC Oakhurst, Inc., a Tennessee corporation
52. ARC Parklane, Inc., a Tennessee corporation
74
<PAGE> 1
Exhibit 23
ACCOUNTANTS' CONSENT
The Board of Directors
American Retirement Corporation
We consent to incorporation by reference in the Registration Statement Nos.
333-28657, 333-66821 and 333-94747 on Form S-8 of American Retirement
Corporation of our report dated March 14, 2000, relating to the consolidated
balance sheets of American Retirement Corporation and subsidiaries as of
December 31, 1999 and 1998, and the related consolidated statements of
operations, changes in partners'/shareholders' equity, and cash flows for each
of the years in the three-year period ended December 31, 1999, and all related
schedules, which report appears in the December 31, 1999 annual report on Form
10-K of American Retirement Corporation.
/s/ KPMG LLP
Nashville, Tennessee
March 30, 2000
75
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AMERICAN
RETIREMENT CORPORATION'S FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1999, AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-K.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 21,881
<SECURITIES> 0
<RECEIVABLES> 12,746
<ALLOWANCES> 0
<INVENTORY> 950
<CURRENT-ASSETS> 63,185
<PP&E> 471,312
<DEPRECIATION> 39,752
<TOTAL-ASSETS> 740,411
<CURRENT-LIABILITIES> 39,595
<BONDS> 435,988
0
0
<COMMON> 171
<OTHER-SE> 147,997
<TOTAL-LIABILITY-AND-EQUITY> 740,411
<SALES> 0
<TOTAL-REVENUES> 175,270
<CGS> 0
<TOTAL-COSTS> 160,211
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 23,668
<INCOME-PRETAX> 3,309
<INCOME-TAX> 1,257
<INCOME-CONTINUING> 2,052
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,052
<EPS-BASIC> 0.12
<EPS-DILUTED> 0.12
</TABLE>
