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EXHIBIT 10.16
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LOAN AGREEMENT
between
FORT AUSTIN LIMITED PARTNERSHIP,
as Borrower
and
GENERAL ELECTRIC CAPITAL CORPORATION
as Lender
January ___, 1996
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TABLE OF CONTENTS
Page No.
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ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
COMMITMENT TO LEND
Section 2.1 Commitment to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.2 Interest Rate; Late Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 3
TERMS OF PAYMENT
Section 3.1 Terms of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 4
CONDITIONS PRECEDENT TO THE INITIAL ADVANCE
Section 4.1 Conditions Precedent to the Initial Advance . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 5
RESERVES, HOLDBACKS AND ADVANCES
Section 5.1 Subsequent Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.2 Capital Expenditures Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.3 Monthly Principal Reductions and Advances for Ad Valorem Taxes . . . . . . . . . . . . . . 22
Section 5.4 Existing Reserves for Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 6
CERTAIN RIGHTS OF LENDER
Section 6.1 Remedies Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.2 Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.3 Indemnification of Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7
OTHER AGREEMENTS
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Section 7.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.2 Limitation on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.3 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.5 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.6 Lender Not in Control; No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.7 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.8 Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.10 Promotional Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.11 Right of First Offer for Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.12 Substitution and Replacement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.13 Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 8
COVENANTS
Section 8.1 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.2 Liens, Mortgages, Encumbrances, Transfers . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.3 Operating Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.4 Rent Rolls, Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.5 Site Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.6 Noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.7 Consultant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.8 Annual Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.9 Reserves, Deposits, Escrows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.10 Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.12 Cash Operating Reserve Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.13 Security Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.14 Cash Flow Summaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.15 Limitation on Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.16 Legal Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.17 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.19 Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.20 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.21 Key Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.22 Medicare Certification, Licenses and Compliance . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.23 Immediate Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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LIST OF DEFINED TERMS
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Additional Facilities Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARC, LP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARC, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARC Fort Austin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Assignment of Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Assignment of Management Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Assignment of Rents and Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Broadway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Purpose Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Expenditures Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Capital Expenditures Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Expenditures Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Cash on Cash Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Service Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Deed of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Excess Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Existing Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Facility Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Fourth Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GENEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Hampton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Hazardous Substances Indemnity Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Holdbacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Immediate Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Initial Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Loan Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Loan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Net Revenues Available for Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Note 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Note 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Operating Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Parkplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Preceding Loan Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
REIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Residency Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Resident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Santa Catalina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Deposit Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Subsequent Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Summit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Total Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Westlake Village . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Yield Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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LOAN AGREEMENT
This Loan Agreement (this "AGREEMENT") is entered into as of January
4, 1996 between GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
("LENDER"), and FORT AUSTIN LIMITED PARTNERSHIP, a Texas limited partnership
("BORROWER"). In consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lender and Borrower agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 CERTAIN DEFINITIONS. As used herein, the following
terms have the meanings indicated:
"ARC" means American Retirement Corporation, a Tennessee
corporation.
"AFFILIATE" means ARC, ARC Fort Austin Properties, Inc., a
Tennessee corporation ("ARC FORT AUSTIN"), American Retirement
Communities, L.P., a Tennessee limited partnership ("ARC, LP"), and
American Retirement Communities, L.L.C., a Tennessee limited liability
company ("ARC, LLC") and any person which, directly or indirectly,
controls or is controlled by or is under common control with Borrower,
and/or any one of ARC, ARC Fort Austin, ARC, LP and ARC, LLC. For the
purpose of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or
cause the direction of management and policies, whether through the
ownership of voting securities or interests or by contract or otherwise
and shall include, without limitation, any and all constituent partners
(at any tier), at any time, comprising a partnership.
"AGREEMENT" means this Loan Agreement, which is in complete
substitution for and replacement of each earlier Loan Agreement
between Borrower and Lender and between Borrower and GENEL.
"ASSIGNMENT OF RENTS AND LEASES" means, collectively, and as
amended, the following Assignments of Rents and Leases:
(a) Assignment of Rents and Leases dated June 14,
1994, executed by Borrower, recorded in Docket 9814, Page 1959
in the Real Property Records of Pima County, Arizona, relating
to Santa Catalina, assigned to Lender and modified to relate
to the Loan;
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(b) Assignment of Rents and Leases dated April 1,
1992, executed by Borrower recorded in Volume 10585, Page
1435, et seq., of the Real Property Records of Tarrant County,
Texas, and in Volume 11656, Page 0665, et seq., of the Real
Property Records of Xxxxxx County, Texas, assigning to Lender
all of the rents and leases of Broadway and Summit, as
modified;
(c) the Assignments of Rents and Leases dated of
even date herewith, executed by Borrower, filed in the Real
Property Records of Cuyahoga County, Ohio, for Westlake
Village, filed in the Real Property Records of Denver County,
Colorado for Parkplace, and filed in the office of the County
Clerk of Xxxxxx County, Texas for Hampton, assigning to Lender
all of the rents and leases of Parkplace, Hampton, and
Westlake Village; and
(d) any other assignment of rents and leases in
favor of Lender and pertaining to the rents and leases of the
Projects.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" means, collectively,
those agreements styled Assignment and Subordination of Management
Agreement, in form and substance satisfactory to Lender, executed by
Borrower and A.R.C. Management Corporation, assigning to Lender the
management agreements for the Projects.
"ASSIGNMENT OF CONTRACTS" means, collectively, those
agreements styled Assignment and Subordination of Service Contract, in
form and substance satisfactory to Lender, executed by Borrower and
contractors under service agreements for the operation of the
Projects.
"BROADWAY" means Broadway Plaza at Cityview Retirement Center,
consisting of approximately 126 independent residential living units,
88 villas, 40 assisted living units, and a 122-bed skilled/
intermediate care health center on 20.013 acres located at 0000 Xxxxxx
Xxxxx Xxxx, Xxxx Xxxxx, Xxxxx, including parking for 355 automobiles,
and more particularly described on Exhibit A.
"BUSINESS DAY" means any day that is not a Saturday, Sunday,
or day on which banks are required or permitted to be closed in the
State of New York.
"CAPITAL EXPENDITURES" means any costs approved in writing by
Lender, including the Immediate Repairs described on Exhibit D, for
(a) replacing or correcting damages, or defects (as opposed to normal
repairs and recurring expenses) to any Project, including, but not
limited to, roofing, foundation work, exterior painting, parking lot
and structures, kitchen appliances, carpeting, furnishings, fixtures,
equipment, vehicles, office equipment, landscaping, heating,
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ventilating and air conditioning systems, plumbing, electrical and
mechanical systems, and (b) any additions constructed in, on, about,
or under such Projects, provided, further that none of the costs for
any Capital Expenditures shall be paid from any Loan proceeds and no
costs incurred for or amounts included as Capital Expenditures shall
be included as a part of Total Expenses.
"CAPITAL EXPENDITURES RESERVE" has the meaning assigned to
such term in Article 5 of this Agreement.
"CASH ON CASH RETURN" means the amount, expressed as a
percentage, equal to annualized Net Revenues Available for Debt
Service divided by the outstanding principal balance on the Loan.
"COMMITMENT" means the commitment letter, dated December 21,
1995, issued by Lender to Borrower and accepted by Borrower on
December 21, 1995.
"COMMITMENT FEE" means a fee in the amount of $245,000,
payable to Lender in consideration for the Commitment and payable as
provided in Section 8.1.
"DEBT SERVICE" means the aggregate principal payments (other
than payments of Excess Cash Flow applied to reduction of principal),
interest payments and other payments by Borrower on the Loan, other
than required additions to the Capital Expenditures Reserve and any
other reserves deemed necessary by Lender, and on all other
outstanding permitted indebtedness (other than indebtedness evidenced
by the Subordinated Notes), if any, relating to the Projects for the
period of time for which calculated.
"DEBT SERVICE COVERAGE" means the ratio of total Net Revenues
Available for Debt Service to total Debt Service.
"DEED OF TRUST" means, collectively, and as amended, the
following Deeds of Trust:
(a) First Deed of Trust and Security Agreement,
dated April 1, 1992, executed by Borrower for the benefit of
Lender, recorded at Volume 10585, Page 1351, et. seq., of the
Real Property Records of Tarrant County, Texas, and recorded
at Volume 11656, Page 0625, et. seq., of the Real Property
Records of Xxxxxx County, Texas, encumbering Broadway and
Summit, and amended by (i) First Modification Agreement dated
May 27, 1993, among Lender, Borrower, and ARC; (ii) Second
Renewal, Extension and Modification Agreement dated June 14,
1994, among Lender, Borrower and ARC, recorded at Volume
12209, Page 0555, et seq., of the Real Property Records of
Tarrant County, Texas and
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recorded at Volume 12209, Page 0555, et seq., of the Real Property
Records of Xxxxxx County, Texas; and (iii) the Third Modification and
(iv) the Fourth Modification;
(b) First Deed of Trust and Security Agreement,
dated October 31, 1994, executed by Borrower for the benefit
of GENEL, recorded in Docket 9814, Page 1910, et seq., of the
Real Property Records of Pima County, Arizona, encumbering
Santa Catalina, assigned to Lender and modified to secure the
Loan;
(c) Second Deed of Trust and Security Agreement,
dated of even date herewith, executed by Borrower for the
benefit of Lender and encumbering Broadway and Summit;
(d) First Deed of Trust and Security Agreement,
dated of even date herewith, executed by Borrower for the
benefit of Lender and encumbering Parkplace, and filed for
recording in the Real Property Records of Denver County,
Colorado;
(e) First Deed of Trust and Security Agreement,
dated of even date herewith, executed by Borrower for the
benefit of Lender, encumbering Hampton and filed in the Office
of the County Clerk of Xxxxxx County, Texas;
(f) Open-End Mortgage and Security Agreement,
dated of even date herewith, executed by Borrower for the
benefit of Lender, encumbering Westlake Village and filed in
the Real Property Records of Cuyahoga County, Ohio; and
(g) any other deed of trust, mortgage or similar
instrument encumbering the Projects as security for the Loan.
"DEFAULT" means an Event of Default as defined in the Deed of
Trust or any event of default (however defined), arising under any of
the other Loan Papers or in any other document or instrument
evidencing or securing the Loan.
"DEFAULT RATE"means the lesser of (i) the maximum rate of
interest allowed by applicable law, or (ii) five percent (5%) per
annum in excess of the Floating Rate.
"EXCESS CASH FLOW" means with respect to the Projects in any
period, the Net Revenues Available for Debt Service for such period,
less any required additions to the Capital Expenditures Reserve and
any other additions to reserves deemed necessary by Lender, less the
Debt Service for such period. As such term is used in Note 1, "Excess
Cash Flow" shall mean total Excess Cash Flow
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multiplied by a fraction, the numerator of which shall be the
principal balance of Note 1 and the denominator of which shall be the
total principal balance of the Loan; as such term is used in Note 2,
"Excess Cash Flow" shall mean total Excess Cash Flow multiplied by a
fraction, the numerator of which shall be the principal balance of
Note 2 and the denominator of which shall be the total principal
balance of the Loan.
"FACILITY CAPACITY" means the total number of independent
living units and the total number of assisted living units and skilled
nursing beds in the Projects.
"FIXED RATE" shall mean the rate of interest equal to eight
and twenty one-hundredths percent (8.20%) per annum for the principal
balance under the Initial Advance, and, as applicable, the rate of
interest under any Fixed Rate Election.
"FIXED RATE ELECTION" shall mean Borrower's election to have a
portion of the principal balance of the Loan bear interest at a Fixed
Rate under Section 2.2.
"FLOATING RATE" shall mean the rate of interest equal to two
and sixty-five one hundredths percent (2.65%) per annum in excess of
the GECC Composite Commercial Paper Rate (defined below). "GECC
COMPOSITE COMMERCIAL PAPER RATE " shall mean the Average
Interest Expense (defined below) on the actual principal amount of the
GECC Composite Commercial Paper outstanding for Lender for the full
fiscal month preceding the interest billing month. " GECC COMPOSITE
COMMERCIAL PAPER" shall mean GECC's outstanding commercial paper for
terms of nine (9) months or less from sources within the United States
but excluding the current portion of GECC's long term debt and GECC
Financial Corporation's borrowings and interest expense. " AVERAGE
INTEREST EXPENSE" shall mean the percentage obtained by dividing the
interest expense on GECC Composite Commercial Paper for such fiscal
month by the average daily principal amount of GECC Commercial Paper
outstanding during such fiscal month, divided by the actual number of
days in such fiscal month and multiplied by the actual number of days
in the calendar year. The GECC Composite Commercial Paper Rate shall
be determined by Lender and evidenced by a certificate issued by an
authorized employee of Lender.
"FOURTH MODIFICATION" means the Fourth Renewal, Extension and
Modification Agreement, of even date herewith, between Lender,
Borrower, and Guarantors, modifying, renewing and extending the
indebtedness evidenced by Note 1 and the documents securing or
otherwise pertaining to Note 1.
"GENEL" means GENEL Company, Inc., an Oregon corporation.
"GUARANTORS" means ARC, ARC Fort Austin, ARC, LP, and ARC,
LLC.
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"GUARANTY" means that Unconditional Guaranty of
Payment and Performance, of even date herewith, executed by
Guarantors for the benefit of Lender and guarantying the payment and
performance of all indebtedness, obligations and liabilities of
Borrower under and with respect to the Loan and the Loan Papers.
"HAMPTON" shall mean The Hampton at Post Oak Road Retirement
Community, consisting of 149 independent residential living units, 21
assisted living units on 1.357 acres located at 0000 Xxxx Xxx
Xxxxxxxxx in Houston, Texas, including adequate parking for
automobiles, and more particularly described on Exhibit A.
"HAZARDOUS SUBSTANCES INDEMNITY AGREEMENT" means,
collectively, those Hazardous Substances Indemnity Agreements relating
to environmental conditions of the Projects, executed by Borrower,
ARC, Fort Austin Associates and ARC Fort Austin for the benefit of
Lender.
"IMMEDIATE REPAIRS" means those repairs to the Projects
described on Exhibit D.
"INDEMNITY" means the Indemnity, of even date herewith,
executed by ARC, Fort Austin Associates and ARC Fort Austin,
indemnifying Lender against certain losses relating to the Loan and
the Projects.
"LETTER OF CREDIT" means the unconditional, irrevocable letter
of credit in the amount of $650,000, in form and substance
satisfactory to Lender, from a national banking association
satisfactory to Lender, and having an expiration date not earlier than
one year following the date of issuance, as the same may be renewed,
extended, or replaced.
"LOAN PAPERS" means: (a) this Agreement, (b) the Note, (c) the
Guaranty, (d) the Letter of Credit, (e) the Indemnity, (f) the Deed of
Trust, (g) the Assignment of Rents and Leases, (h) the Assignment of
Management Agreement, (i) the Assignment of Contracts, (j) financing
statements, (k) the Commitment, (l) the Hazardous Substances Indemnity
Agreement, (m) the Fourth Modification, and (n) any and all other
documents evidencing, securing, governing or otherwise pertaining to
the Loan or the Obligations.
"LOAN YEAR" shall mean the period between the date hereof and
December 31, 1996 for the first Loan Year and the period between each
succeeding January 1 and December 31 until the Maturity Date.
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"MATURITY DATE" means December 31, 2002, or any earlier date
on which the entire Loan is required to be paid in full, by
acceleration or otherwise, under this Agreement or any of the other
Loan Papers.
"NET REVENUES AVAILABLE FOR DEBT SERVICE" means, as to any
period of time, all Revenues minus Total Expenses of Borrower
(including reserves in an amount equal to one percent (1%) of
Revenues, other than depreciation, amortization and interest, all as
determined on an actual or pro forma and consolidated or combined
basis, as appropriate. As such term is used in Note 1, "Net Revenues
Available for Debt Service" shall mean total Net Revenues Available
for Debt Service multiplied by a fraction, the numerator of which
shall be the principal balance of Note 1 and the denominator of which
shall be the total principal balance of the Loan; as such term is used
in Note 2, "Net Revenues Available for Debt Service" shall mean total
Net Revenues Available for Debt Service multiplied by a fraction, the
numerator of which shall be the principal balance of Note 2 and the
denominator of which shall be the total principal balance of the Loan.
"NET WORTH" means, as to any period of time, total assets
(after adding back accumulated depreciation, amortization, and other
reasonable non-cash charges determined in accordance with generally
accepted accounting principles), less total liabilities determined on
a book basis in accordance with generally accepted accounting
principles.
"NOTE" means, collectively, the following Promissory Notes:
(a) Promissory Note dated April 1, 1992, in the stated principal
amount of $24,000,000, executed by Borrower, payable to the order of
Lender, as modified by First Modification Agreement dated May 27,
1993, among Lender, Borrower and ARC, as assigned and endorsed payable
to the order of GENEL, as further modified by Second Renewal,
Extension and Modification Agreement dated June 14, 1994 among GENEL,
Borrower and ARC, as further modified by the Third Modification, as
assigned and endorsed payable to the order of Lender, and as further
modified by the Fourth Modification (as modified, "NOTE 1"), and (b)
Promissory Note of even date herewith, in the stated principal amount
of $73,500,000.00, executed by Borrower and payable to the order of
Lender as therein provided ("NOTE 2").
"PARKPLACE" means Parkplace Retirement Community, consisting
of approximately 173 independent residential living units, and 53
assisted living units on 1.623 acres located at 000 Xxxxxxx Xxxxxx in
Denver, Colorado, including adequate parking for automobiles, and more
particularly described on Exhibit A.
"PROJECTS" means, collectively, Broadway, Summit, Santa
Catalina, Parkplace, Hampton, Westlake Village, and any other
retirement communities
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acquired, constructed or developed by Borrower from proceeds of
Subsequent Advances, and the term "PROJECT" shall mean and refer to
any of the Projects and all related facilities other amenities,
fixtures, and personal property owned by Borrower and any improvements
now or hereafter located on the real property related thereto.
"RESIDENCY AGREEMENT" means (a) any lease, residency or other
rental agreement for the occupancy of residential living units of any
Project, (b) any admission and financial agreement for the use and
occupancy of an assisted living unit of any Project, (c) any health
center admission and financial agreement (private payment) or health
center admission agreement (Medicare payment) and (d) any other
express or implied agreement for the occupancy of nursing beds in a
Project or for space in or use of the Project.
"RESIDENT" means any resident of a Project under a Residency
Agreement.
"REVENUES" means for any period, all revenues actually
received by Borrower from its operations of the Projects, including
(a) gross resident service revenues less contractual allowances and
provisions for uncollectible accounts, free care and discounted care,
if any, plus (b) other operating revenues, plus (c) non-operating
revenues, plus (d) entrance fees actually paid, if any, net of
refunds; however, that no determination thereof shall take into
account (1) income derived from irrevocable deposits, (2) any gain or
loss resulting from the early extinguishment of indebtedness or the
sale, exchange or other disposition of properties not in the ordinary
course of business, (3) gifts, grants, bequests or donations
restricted as to use by the donor or grantor for a purpose
inconsistent with the payment of Debt Service and (4) insurance (other
than business interruption) and condemnation proceeds. For purposes
of any calculation that is made with reference to both Revenues and
Total Expenses, any deduction from gross resident service revenues
otherwise required by the preceding provisions of this definition
shall not be made if and to the extent that the amount of such
deduction is included in Total Expenses.
"SANTA CATALINA" means Santa Catalina Villas Retirement
Community, consisting of approximately 148 independent residential
living units, and 15 assisted living units, on 11 acres located at
0000 Xxxxx Xxxxx Xxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000, including
adequate parking for automobiles, and more particularly described on
Exhibit A.
"SUBORDINATED NOTES" means those Non-Negotiable Promissory
Notes in the aggregate principal amount of $10,000,000, issued by
Borrower to various investors in Borrower.
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"SUMMIT" means Summit at Westlake Hills Retirement Community
consisting of approximately 149 independent residential living units,
30 assisted living units, and a 90-bed skilled/intermediate care
health center on 14.003 acres located at 0000 Xxxxxxx Xxxxxxx, Xxxxxx,
Xxxxx, including parking for 212 automobiles, and more particularly
described on Exhibit A.
"TOTAL EXPENSES" means, for any period, the total operating
and non-operating expenses of Borrower relating to the Projects,
determined on an actual or pro forma consolidated or combined basis,
as appropriate; however, "Total Expenses" shall not include any
required additions to the Capital Expenditures Reserve and any
additions to the other reserves deemed necessary by Lender.
"WESTLAKE VILLAGE" means Westlake Village Retirement
Community, consisting of approximately 212 independent residential
living units, and 56 assisted living units on 19.6906 acres located at
00000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxx, including parking for
201 automobiles, and more particularly described on Exhibit A.
"YIELD MAINTENANCE" shall mean, with respect to that portion
of the Loan for which the calculation is to be made, the sum of the
Present Value on the date of prepayment of each Monthly Interest
Shortfall for the remaining term of the loan discounted at the monthly
Replacement Treasury Yield. The Monthly Interest Shortfall is
calculated for each monthly payment date as follows: (i) the positive
difference, if any, of the Fixed Rate less the Treasury Yield, plus
the Break Contract Fee of 20 basis points; (ii) divided by 12; (iii)
multiplied by the portion of the Loan for which the calculation is to
be made on the date of prepayment. The Present Value is then
determined by discounting each Monthly Interest Shortfall at the
Replacement Treasury Yield divided by 12. The "BREAK CONTRACT FEE"
shall be 20 basis points at all times. The "REPLACEMENT TREASURY
YIELD" shall mean the rate of interest equal to the yield to maturity
of the most recently issued U.S. Treasury security as quoted in the
Wall Street Journal on the prepayment date. If the remaining term is
less than one year, the Replacement Treasury Yield will equal the
yield for 1-Year Treasury's. If the remaining Term is 1-Year, 2-Year,
etc., then the Replacement Treasury Yield will equal the yield for the
Treasury's with a maturity equaling the remaining term. If the
remaining Term is longer than one year but does not equal one of the
maturities of the Treasury's being quoted, then the Replacement
Treasury Yield will equal the yield for the Treasury's with a maturity
closest to but not exceeding the remaining term. If the
Wall Street Journal (i) quotes more than one such rate, the
highest of such quotes shall apply, or (ii) ceases to publish such
quotes, the U.S. Treasury security shall be determined from such
financial reporting service or source as Lender shall determine.
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ARTICLE 2
COMMITMENT TO LEND
Section 2.1 COMMITMENT TO LEND. Subject to and upon the terms
and conditions of this Agreement, Lender agrees to advance to Borrower up to
NINETY-SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($97,500,000.00)
(the "LOAN") in one or more advances ("ADVANCES") in accordance with the
Approved Budget attached hereto as Exhibit C and made a part hereof and as
hereinafter provided, for the purposes of (1) refinancing of Broadway, Summit,
Santa Catalina, Parkplace, Hampton, and Westlake Village, (2) providing up to
an additional $17,000,000 in financing for Borrower's acquisition and
construction of additional senior living facilities, acquisition of land for
construction of new senior living facilities, and/or expansion of the existing
and new Projects as described in Section 5.1(a), (3) providing up to
$18,000,000 in financing for Borrower's general business purposes as described
in Section 5.1(b), and (4) providing funds for Borrower's payment of the
Commitment Fee and other costs of closing the Loan as described in Section
5.1(c). The initial Advance of the Loan (the "INITIAL ADVANCE") shall be made
on Borrower's satisfaction of conditions to the Initial Advance described in
Article 4. Advances subsequent to the Initial Advance ("SUBSEQUENT ADVANCES")
shall be made on Borrower's satisfaction of condition to Subsequent Advances
set forth in Article 5.
Section 2.2 INTEREST RATE; LATE CHARGE. The outstanding principal
balance of the Loan arising from the Initial Advance, including the entire
outstanding principal balance of Note 1, shall bear interest at the Fixed Rate,
and the Fixed Rate shall be effective as of November 1, 1995, and the
outstanding principal balance of the Loan arising from Subsequent Advances
shall bear interest at the Floating Rate; provided, however, that so long as no
Event of Default exists, Borrower may on a one-time basis at any time on or
before the expiration of the third Loan Year, December 31, 1998, and on at
least five (5) Business Days prior written notice to Lender make an election,
specifying the Business Day, not less than five (5) Business Days after the
notice, on which the election is to be effective, to have all or any portion of
the existing principal balance of the Loan (other than as arising from the
Initial Advance) bear interest at a rate of interest equal to 2.65% per annum
in excess of the closing price (yield to maturity) of the most recently issued
U.S. Treasury security having a maturity of December 31, 2002 (or a date as
closely corresponding to that date as is possible), as quoted in the Wall
Street Journal on the Business Day on which the election becomes effective. If
the Wall Street Journal (i) quotes more than one such U.S. Treasury security,
the higher or highest of such quotes shall apply, (ii) publishes a retraction
or correction of any such quote, the quote in the retraction or correction
shall apply, or (iii) ceases to publish such quotes, the U.S. Treasury security
shall be determined from such financial reporting service or source as Lender
shall determine. Lender shall endeavor to communicate the applicable Fixed
Rate to Borrower as soon as possible after the Fixed Rate Election. Interest
shall be computed on the basis of a fraction, the denominator of which is three
hundred sixty (360) and the numerator of which is the actual number of days
elapsed from the date of the Initial Advance or the date of the preceding
interest installment due date, as the case may be, to the date of the next
interest installment due date or the Maturity Date. If Borrower fails to pay
any installment of interest or principal within five (5) days after the date on
which the same is due, Borrower shall
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pay to Lender a late charge on such past-due amount, as liquidated damages and
not as a penalty, equal to the greater of (a) interest at the Default Rate on
such amount from the date when due until paid, or (b) five percent (5%) of such
amount, but not in excess of the maximum amount of interest allowed by
applicable law. While any Default exists, the Loan shall bear interest at the
Default Rate.
ARTICLE 3
TERMS OF PAYMENT
Section 3.1 TERMS OF PAYMENT. The Loan and the interest thereon
shall be evidenced by, and be payable as hereinafter provided (the Loan and the
interest thereon, together with any other sums payable by Borrower under the
Loan Papers, are herein collectively called the "OBLIGATIONS");
(1) INTEREST. Commencing on February 1, 1996, Borrower
shall pay interest in arrears at the rate or rates set forth in
Section 2.2 on the first day of each month until all amounts due under
the Loan Papers are paid in full. The February 1, 1996 payment will
be adjusted to reflect the Fixed Rate of interest effective as of
November 1, 1995.
(2) PRINCIPAL AMORTIZATION. In addition to monthly
payments of interest hereunder, commencing February 1, 1996, adjusted
to be effective as of November 1, 1995, and continuing on the first
day of each month thereafter, to and including December 1, 2002,
Borrower shall pay to Lender, in reduction of the principal balance of
the Loan an amount equal to twelve one hundredths percent (.12%) of
the total of all amounts which have been advanced under the Loan;
provided, however, that if during any 90-consecutive day period,
either (i) the Cash on Cash Return is less than twelve and ninety-five
one hundredths percent (12.95%), or (ii) the Net Worth of ARC, LP is
less than $10,000,000, then, in addition to regular monthly
installments of principal and interest, Borrower shall pay to Lender,
in reduction of the principal balance of the Loan, on the twentieth
(20th) day of each month, fifty percent (50%) all Excess Cash Flow for
the preceding month until for a 90-consecutive day period the Cash on
Cash Return equals or exceeds 12.95% and the Net Worth of ARC, L.P.
equals or exceeds $10,000,000. The February 1, 1996 payment will be
adjusted to include amortization payments commencing November 1, 1995.
(3) MATURITY. On the Maturity Date, Borrower shall pay
to Lender all outstanding principal, accrued and unpaid interest, and
any other amounts due under the Loan Papers.
(4) PREPAYMENT. Borrower may not prepay the Loan in
whole or in part at any time before the expiration of the second Loan
Year. From and after January 1, 1998, the commencement of the third
Loan Year, Borrower may prepay the Loan in whole or in part, upon ten
(10) days prior written notice to Lender, and on any regularly
scheduled
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interest payment due date, by paying Lender all or a portion of the
principal balance of the Loan, plus a prepayment premium, equal to
either:
(i) two percent (2%) of the entire principal
amount of any prepayment made during the third Loan Year
(January 1, 1998 through December 31, 1998),
(ii) one percent (1%) of the entire principal
amount of any prepayment made during the fourth Loan Year
(January 1, 1999 through December 31, 1999), or
(iii) zero percent (0%) of the entire principal
amount of any prepayment made after the end of the fourth Loan
Year, December 31, 1999.
Each prepayment shall be applied first in reduction of that portion of
the Loan which bears interest at the Floating Rate until all of the
principal balance which bears interest at the Floating Rate has been
paid in full, after which prepayment amounts shall be applied in
reduction of that portion of the principal balance of the Loan which
bears interest at the Fixed Rate. In addition to any prepayment fees
outlined above, upon repayment prior to the Maturity Date of any
portion of the Loan which bears interest at a Fixed Rate, Borrower
shall also pay to Lender the Yield Maintenance for the portion of the
Loan prepaid that bears interest at the Fixed Rate.
(5) APPLICATION OF PAYMENTS. All payments received by
Lender under the Loan Papers shall be applied: first, to any fees and
expenses due to Lender under the Loan Papers; second, to any Default
Rate interest or late charges; third, to accrued and unpaid
interest; fourth, to the principal sum which is payable at the Floating
Rate, and fifth, to the principal sum which is payable at a Fixed Rate
and other amounts due under the Loan Papers. Lender reserves the right
to require any payment on this Note, whether such payment is of a
regular installment or represents a prepayment or final payment, to be
by wired federal funds or other immediately available funds.
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ARTICLE 4
CONDITIONS PRECEDENT TO THE INITIAL ADVANCE
Section 4.1 CONDITIONS PRECEDENT TO THE INITIAL ADVANCE. The
Initial Advance shall not exceed $97,500,000 less the Holdbacks under Section
5.1 of this Agreement (collectively, the "HOLDBACKS"). Lender shall not be
obligated to make the Initial Advance unless and until Borrower shall have
delivered to lender of the following, all of which shall be in form and
substance satisfactory to Lender:
(a) The fully-executed Note and the other Loan Papers;
(b) The Guaranty;
(c) The Letter of Credit;
(d) The Commitment Fee of $245,000, to the extent the
Commitment Fee is required to be paid under Section 8.1.
(e) ALTA or equivalent loan or mortgagee policy(ies) of
title insurance, or written undertaking(s) by a title insurance
company to provide said policy(ies) within seven (7) days, in form and
substance and in amount acceptable to Lender and insuring that the
liens and security interests created by the Deed of Trust constitute
valid first priority and second priority liens, as applicable,
encumbering the Projects, subject to no exceptions other than those
approved in writing by Lender;
(f) The limited partnership agreement of Borrower, and
all amendments thereto, the articles of organization and regulations
of ARC, LLC, and all amendments thereto, the certificate of limited
partnership for each of Borrower and ARC, LP, and the articles of
incorporation, bylaws, certificates of good standing (Tennessee,
Texas, Arizona, Ohio and Colorado), certificates of authority to do
business (Texas, Arizona, Ohio and Colorado), certificate of
incumbency and authorizing resolution for ARC Fort Austin;
(g) Legal opinion(s) issued by Borrower's counsel, in
form and content acceptable to Lender and Lender's counsel, as to the
valid existence of Borrower and each of Guarantors and the due
authorization, execution, delivery, enforceability and validity of
this Agreement and the other Loan Papers executed and delivered by
Borrower and Guarantors; that the Loan is not usurious; that
Borrower's counsel has no knowledge and has received no notice that
any of the Projects is in violation of any zoning, building, health,
fire, traffic, environmental, wetlands, coastal or other rules,
regulations, ordinances, statutes and requirements applicable to the
Projects; and that the Loan Papers do not create or constitute a
partnership, joint venture or other trust or fiduciary relationship
between Borrower and Lender; and as to such other matters as Lender or
Lender's counsel reasonably may specify;
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(h) Current UCC searches for Borrower and the immediately
preceding owner of each of the Projects, in form and content
acceptable to Lender;
(i) Evidence of insurance as described in the Deed of
Trust, including, without limitation, all- risk casualty insurance,
use and occupancy insurance covering rental income loss, and
comprehensive general liability insurance, in form and substance and
from issuing companies acceptable to Lender, naming Lender as an
additional or named insured, as its interests may appear, and
conforming in all respects to the requirements of the Commitment;
(j) Evidence of professional liability or medical
malpractice insurance in form and amount and from an insurer
satisfactory in all respects to Lender;
(k) Current "as-built" surveys for each Project prepared
by a surveyor or engineer acceptable to Lender and certified to
Lender's benefit in form and substance acceptable to Lender;
(l) Engineering reports or architect's certificates, in
form and content acceptable to Lender with respect to the Projects,
covering, among other matters, inspection of heating and cooling
systems, roof and structural details and showing no failure of
compliance with building plans and specifications (which must be
approved by Lender) or with any applicable local, state or federal
law, a schedule of which engineering reports or architect's
certificates are listed on Exhibit E attached hereto and made a part
hereof;
(m) Environmental engineering reports with respect to the
Projects, in form and content acceptable to Lender, conducted by an
engineer and in a manner both of which are satisfactory to Lender,
based upon an investigation relating to toxic or hazardous wastes,
waste products, or substances on the Projects;
(n) Evidence acceptable to Lender that all requisite
certificates of occupancy, building permits, and other licenses,
certificates, approvals or consents required of any regulatory
authority having jurisdiction over the Projects have been issued
without variance or condition and that there is no litigation, action,
citation, injunctive proceedings, or like matter pending or threatened
with respect to the validity of such matters;
(o) A current rent roll of each of the Projects,
certified by Borrower or the current owner of each of the Projects,
and copies of all Residency Agreements, and a copy of each standard
lease form, admission agreement, or occupancy or other residency
agreement form to be used by Borrower in leasing space in the
Projects, or conducting a retirement home business in the Projects, in
form satisfactory to and approved by Lender;
(p) Copies of all management agreements for the Projects,
approved by Lender and certified by Borrower;
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(q) Evidence satisfactory to Lender (based on Lender's
audit, at Borrower's expense, of all income and expenses of the
Projects) that the Net Revenues Available for Debt Service generated
by the Projects equals or exceeds $11,270,000 on an annualized basis
from Residency Agreements for not more than ninety-five percent (95%)
of the units of the Projects after application of a management fee
equal to three percent (3%) of Revenues and a Capital Expenditures
Reserve of one percent (1%) of Revenues per annum;
(r) Evidence satisfactory to Lender that Borrower is and
has at all relevant times been in all respects in compliance with all
requirements of the Social Security Act of 1965, the regulations
promulgated thereunder, and, as applicable, all conditions of
participation in the Medicare program thereunder, including, without
limitation, those imposed by the States of Texas, Arizona, Ohio and
Colorado, the Texas Department of Health, the Texas Department of
Human Services, the Arizona Department of Health Services, the Ohio
Department of Health, the Ohio Department on Aging, Colorado
Department of Public Health and Environment, the Colorado Department
of Healthcare Policy and Financing and the United States Department of
Health and Human Services;
(s) Certified copies of (i) Medicare provider agreements,
as applicable, issued under Title XVIII and Title XIX of the Social
Security Act of 1965, with current provider numbers, (ii) as
applicable, Nursing Home Licenses (or "long-term-care licenses")
issued by the Texas Department of Health, or the Texas Department of
Human Services for Broadway and Summit, and the Arizona Department of
Health Services for Santa Catalina, (iii) a Personal Care Facilities
License issued by the Texas Department of Health, or the Texas
Department of Human Services, for Broadway, Summit and Hampton, the
Arizona Department of Health Services for Santa Catalina, the Ohio
Department of Health or the Ohio Department on Aging for Westlake
Village, and the Colorado Department of Public Health and Environment,
the Colorado Department of Healthcare Policy and Financing for
Parkplace, and (iv) all licenses, permits and approvals required or
convenient for the operation of the Projects as retirement communities
under applicable laws and regulations, such certifications to state
that such agreements, licenses, permits and approvals are in full
force and effect;
(t) Evidence satisfactory to Lender that the Projects and
the operation thereof comply with all covenants and restrictions of
record and applicable laws, ordinances, rules and regulations,
including, without limitation, the Americans with Disabilities Act and
regulations thereunder;
(u) Evidence satisfactory to Lender that there shall have
been no change in the financial condition of Borrower or in the Net
Revenues Available for Debt Service which materially and adversely
affects Borrower's ability to perform its obligations under the Note
or under any of the other Loan Papers;
(v) Evidence satisfactory to Lender that no condemnation
or adverse zoning or usage change proceedings shall have been
commenced or threatened against any of the
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Projects, that the Projects shall not have suffered any damage in
excess of $100,000 by fire or other casualty, and no law, regulation,
ordinance, moratorium, injunctive proceeding, restriction or similar
matter shall have been enacted, adopted or threatened by any federal,
state or local government or any board, authority, commission, agency
or department asserting jurisdiction over the subject matter, and no
litigation, action, citation or similar proceeding or matter shall be
pending or threatened against Borrower or any Project, which would
have the effect, in Lender's judgment, of materially and adversely
affecting the financial condition of Borrower or any Project, its
operation or the anticipated benefits to be derived by Borrower
therefrom or by Lender in connection with its assisting Borrower in
refinancing any Project for any reason, whether because of Borrower's
being prohibited or delayed in converting any Project to usage other
than its present usage or otherwise;
(w) Evidence satisfactory to Lender that the
representations and warranties made in the Loan Papers are true and
correct in all material respects on the date of the Initial Advance,
and that Borrower shall have performed all acts required by the Loan
Papers to have been previously performed by Borrower;
(x) Evidence satisfactory to Lender that there is no
lien, other encumbrance or other title matter encumbering any Project
and not approved by Lender (other than for taxes not yet due and
payable and title matters permitted by the Deed of Trust) and that
there has been no other change in the state of title to any Project;
(y) Evidence that all fees and commissions payable to
real estate brokers, mortgage brokers, or any other brokers or agents
in connection with the Loan or the acquisition of the Projects have
been paid, such evidence to be accompanied by any waivers or
indemnifications deemed necessary by Lender; and
(z) Such other documents or items as Lender or its
counsel reasonably may require.
ARTICLE 5
RESERVES, HOLDBACKS AND ADVANCES
Section 5.1 SUBSEQUENT ADVANCES. Up to $35,400,000 of the Loan
is allocated for Subsequent Advances, including up to $17,000,000 which is to
be advanced for Borrower's acquisition of additional senior living facilities,
Borrower's acquisition of land for new senior living facilities, Borrower's
construction of new senior living facilities, and the expansion of the existing
Projects, as approved by Lender and as described below (the "ADDITIONAL
FACILITIES HOLDBACK"), up to $18,000,000 for general corporate or partnership
purposes as approved by Lender and as described below (the "BUSINESS PURPOSE
HOLDBACK"), and up to $400,000 for financing costs of closing the Loan
(including but not limited to costs of title insurance, professional fees, all
credit and legal evaluations, evaluating collateral and the like, travel
expenses, fees and costs of appraisers, attorneys and engineers and other
out-of-pocket expenses
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incurred by Lender) and paying the Commitment Fee (the "TRANSACTION
COSTS HOLDBACK"). The Additional Facilities Holdback, the Business Purpose
Holdback, and the Transaction Costs Holdback are to be advanced on the following
terms and conditions:
(a) ADDITIONAL FACILITIES ADVANCES. The Additional
Facilities Holdback shall be disbursed in several advances
("ADDITIONAL FACILITIES ADVANCES") to be made periodically on
the following terms and conditions:
(1) Additional retirement communities acquired by
Borrower through Additional Facilities Advances, any
renovation or expansion of any such retirement community, any
construction of a new retirement community, and any
acquisition of land for construction of a new retirement
community through Additional Facilities Advances shall be
subject in all respects to Lender's underwriting and due
diligence review, it being understood that Lender may
determine not to make advances for any such acquisition,
renovation, expansion, new construction, or land acquisition
in its sole and absolute discretion;
(2) Lender shall not be obligated to make any
Additional Facilities Advance after December 31, 1998;
(3) Lender shall have no obligation to make any
Additional Facilities Advance in an amount less than $500,000,
except for the last Additional Facilities Advance which may be
in the amount of the then remaining amount of the Additional
Facilities Holdback;
(4) Lender shall not be obligated to make any
Additional Facilities Advance unless, after giving effect to
such Additional Facilities Advance (and, on or before December
31, 1997, any unfunded portion of the Business Purpose
Holdback), (i) Debt Service Coverage is at least 1.30:1
calculated on the then current interest rates (a blending of
Fixed Rates and the Floating Rate, as appropriate), and (ii)
the Cash on Cash Return is at least 14%. Calculation of Debt
Service Coverage and Cash on Cash Return will be based on
Lender's audit (using Lender's normal audit procedures), at
Borrower's sole cost and expense, of the Projects then
securing the Loan (excluding any released Project) and of any
Project which is being acquired by Borrower through such
Additional Facilities Advance, and the minimum required Cash
on Cash Return and the minimum required Debt Service Coverage
will be calculated based on Lender's audit of the twelve
(12)-month period immediately preceding the requested
Additional Facilities Advance;
(5) Lender shall have a first deed of trust or
mortgage, an assignment of rents and leases, and perfected
Uniform Commercial Code security interests, on each new
retirement community for which any Additional Facilities
Advance is made. Each mortgage or other security instrument
on any retirement community in addition to the existing
Projects shall be cross-collateralized and cross- defaulted
with the Deed of Trust and all other Loan Papers;
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(6) Borrower shall give Lender a written notice
of each request for an Additional Facilities Advance at least
ten (10) Business Days prior to the date on which such
requested Additional Facilities Advance is to be made and
shall include in such notice the amount of the Additional
Facilities Advance being requested and Lender may, at
Borrower's expense, conduct an audit, inspection, or review of
the Projects to confirm the amount of the requested Additional
Facilities Advance;
(7) All renovation or construction work by
Borrower on any Project or on any other retirement community
or land acquired by Borrower prior to the date an Additional
Facilities Advance is requested for such work shall be
completed to the satisfaction of Lender in accordance with (i)
the plans therefor, if any, approved by Lender, and (ii) all
applicable laws, regulations, ordinances, and other
requirements of any municipality or governmental agency having
jurisdiction over the Projects (or such other retirement
community);
(8) Borrower shall not use any Additional
Facilities Advance, or any portion of any Additional
Facilities Advance, for payment of any other cost or expense
except as specifically set forth in a budget approved by
Lender and in a request for a Additional Facilities Advance
approved by Lender in writing. Lender shall have no duty or
obligation to fund any Additional Facilities Advance except in
accordance with this Agreement and a budget approved by
Lender, and only for expenses incurred in arrears. Borrower
shall promptly furnish to Lender true and correct copies of
all proposed changes, amendments, or supplements to any such
budget, and Borrower shall not be permitted to make any such
change, amendment, or supplement without the prior written
consent of Lender;
(9) Requests for Additional Facilities Advances
shall specify the amount requested, shall be on forms
satisfactory to Lender, and shall be accompanied by
appropriate invoices, bills paid affidavits, lien waivers,
title updates and title endorsements satisfactory to Lender,
and other documents required by Lender. Additional Facilities
Advances may be made either (i) in reimbursement for costs and
expenses paid by Borrower, or (ii) for payment of costs and
expenses incurred and invoiced but not yet paid by Borrower,
and shall be made within ten (10) business days following
request therefor and satisfaction of all conditions specified
herein;
(10) Lender shall have the right, but not the
obligation, to disburse and apply the proceeds of any
Additional Facilities Advances to the satisfaction of any of
Borrower's obligations hereunder (other than Borrower's
obligations which are being diligently contested by Borrower
in accordance with the Deed of Trust, and for which Borrower
has provided Lender security in accordance with the Deed of
Trust) directly to any contractor or subcontractor,
materialman, title company, and any other person or firm to
whom payment is due under this Agreement or under any other
Loan Papers. Any Additional Facilities Advances made by
Lender for such purpose shall be part of the Loan and shall be
secured by the Loan Papers.
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No further direction or authorization from Borrower shall be necessary
to warrant such direct Additional Facilities Advances and all such
Additional Facilities Advances shall satisfy pro tanto the obligations
of Lender hereunder and shall be secured by the Loan Papers as fully
as if made directly to Borrower. Notwithstanding the other provisions
of this Section 5.1, nothing in this Agreement is intended to be for
the benefit of, nor may be enforced by, nor should be relied upon by,
any person, firm or corporation other than Borrower, its partners,
successors, or assigns; and
(11) All certificates of occupancy, building
permits, licenses, certificates, approvals or consents
required for the Projects shall continue to be valid and
issued without variance or condition; and there shall be no
litigation, action, citation, injunctive proceeding or like
matter pending or threatened with respect to any such matter
and, if requested by Lender, any of such certificates of
occupancy, building permits, licenses, certificates, approvals
and consents shall be delivered to and approved by Lender.
(b) BUSINESS PURPOSE ADVANCES. The Business Purpose
Holdback shall be disbursed in several advances ("BUSINESS PURPOSE
ADVANCES") to be used for general corporate or partnership purposes of
Borrower and its Affiliates approved by Lender in its sole and
absolute discretion, including up to $10,000,000 to satisfy the
Subordinated Notes, up to $8,000,000 for payment of taxes and other
corporate and partnership purposes as approved by Lender, including
$517,061 which is allocated specifically for the completion of the
Immediate Repairs (as detailed in Exhibit D), and otherwise for
acquisition, construction, or renovation of new retirement communities
(including the acquisition of raw land for the construction thereof)
and expansion of the existing Projects. Business Purpose Advances
shall be made on the following terms and conditions:
(1) Lender shall not be obligated to make any
Business Purpose Advances after December 31, 1997;
(2) Lender shall not be obligated to make any
Business Purpose Advance if annualized Net Revenues Available
for Debt Service are less than $11,270,000; and
(3) Business Purpose Advances for acquisition,
renovation and construction of new retirement communities,
acquisition of land for construction of new retirement
communities, and expansions of the existing Projects shall be
subject to Lender's approval in its sole and absolute
discretion, and further subject to the Advance conditions of
Subsections 5.1(a)(5) through 5.1(a)(11), including Lender
being furnished with a first deed of trust or mortgage, an
assignment of rents and leases and perfected Uniform
Commercial Code security interests on each new retirement
community. Each mortgage or other security instrument on each
retirement community in addition to the Projects shall be
cross-collateralized and cross-defaulted with the Deed of
Trust and all other Loan Papers;
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(4) Until completion of the Immediate Repairs,
Lender shall hold back the unfunded portion of the amount of
the Business Purpose Holdback which is allocated for the
Immediate Repairs;
(5) On completion of the Immediate Repairs in a
manner satisfactory to Lender and Lender's engineer, any
unfunded portion of the amount of the Business Purpose
Holdback which is allocated for the Immediate Repairs
automatically shall be reallocated to be available for other
general corporate or business purposes as approved by Lender.
(c) TRANSACTION COSTS HOLDBACK. The Transaction Costs
Holdback shall be disbursed in one or more Advances for payment of
bona fide costs of closing the Loan which have been approved by Lender
in its sole and absolute discretion, and for payment of the Commitment
Fee, as and when the Commitment Fee is due and payable under Section
8.1 of this Agreement. When the Commitment Fee and all costs of
closing have been paid in full, any unfunded portion of the
Transaction Costs Holdback automatically shall be reallocated to the
Additional Facilities Holdback.
(d) ALL SUBSEQUENT ADVANCES. All Subsequent Advances
shall be subject to the following terms and conditions:
(1) There shall exist no Default and no event or
condition which, with notice or the passage of time, or both,
could constitute a Default;
(2) There shall have been no change in the
financial condition of Borrower or of the Projects taken as a
whole which materially and adversely affects Borrower's
ability to perform its obligations under the Note or the other
Loan Papers;
(3) No condemnation or zoning or usage change
proceedings shall have been commenced or threatened against
any Project which, in Lender's judgment, would materially
adversely affect the operation or financial performance of the
Projects taken as a whole, no Project shall have suffered any
significant damage by or other casualty, and no law,
regulation, ordinance, moratorium, injunctive proceedings,
restriction, litigation, action, citation or similar
proceeding or matter shall be pending or threatened against
Borrower or any Project, which would have the effect, in
Lender's judgment, of materially and adversely affecting the
financial condition of Borrower or the Projects taken as a
whole, their operation or the anticipated benefits to be
derived by Borrower therefrom or by Lender in connection with
its assisting Borrower in financing the Projects for any
reason, whether because of Borrower's being prohibited or
delayed in converting a Project to usage other than its
present usage or otherwise;
(4) The representations and warranties made in
the Loan Papers will be true and correct in all material
respects on the date of each such request for a
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Subsequent Advance, and Borrower shall have performed all acts
required by the Loan Papers to have been previously performed
by Borrower;
(5) Borrower shall give Lender a written notice
of each request for a Subsequent Advance at least thirty (30)
days prior to the date on which such disbursement is to be
made and shall include the amount of the Subsequent Advance
being requested, accompanied by such invoices, lien waivers
and other documents as Lender shall request, and Lender may at
Borrower's expense conduct an audit of the Projects to confirm
the amount of the requested Subsequent Advance; and
(6) There shall be no lien, other encumbrance or
other title matter not approved by Lender (other than for
taxes not yet due and payable and title matters permitted by
the Deed of Trust) and there shall be no other change in the
state of title to any Project. Lender may require title
insurance date-down endorsements to insure no change in the
state of title.
Section 5.2 CAPITAL EXPENDITURES RESERVE. Borrower shall make
monthly payments to Lender on the first day of each month in the amount of two
percent (2%) of Revenues for the preceding month, such payments to be applied
in reduction of the principal balance of Note 2 (without premium, penalty or
Yield Maintenance), and the amount of such principal reduction shall constitute
a reserve to be advanced for Capital Expenditures (the "CAPITAL EXPENDITURES
RESERVE"). Borrower shall submit to Lender annually a budget for Capital
Expenditures for the Projects for the next succeeding year (the "CAPITAL
EXPENDITURES BUDGET"), and Lender shall approve or disapprove, or request
changes in the Capital Expenditures Budget at Lender's reasonable discretion.
Items contained within an approved Capital Expenditures Budget shall be deemed
approved for disbursements from the Capital Expenditures Reserve during the
applicable budget period. Borrower may, not more frequently than once every
month, and in amounts of not less than $25,000 for each Project, request Lender
to make Advances (or readvance) the Capital Expenditures Reserve ("CAPITAL
EXPENDITURES ADVANCES") to reimburse Borrower for, pay, or provide funds for
Borrower's payment of, the cost of completed Capital Expenditures at any
Project, subject to the conditions to Subsequent Advances under Subsection
5.1(d) and the following terms and conditions:
(a) Lender shall have approved the Capital Expenditures
and all plans and specifications therefor and all work for which a
Capital Expenditures Advance has been requested shall have been
completed in a manner satisfactory to Lender and Lender's engineer;
and
(b) Advances of the Capital Expenditures Reserve shall be
evidenced by Note 2 and shall bear interest at the Floating Rate.
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Section 5.3 MONTHLY PRINCIPAL REDUCTIONS AND ADVANCES FOR AD
VALOREM TAXES. In addition to any other principal reductions, Lender and
Borrower agree that, notwithstanding any contrary term of the Note or the Deed
of Trust, monthly deposits by Borrower required under the Deed of Trust for ad
valorem taxes and assessments shall be applied in reduction of the principal
balance of the Note (without premium, penalty or Yield Maintenance), and re-
advanced to Borrower or to the applicable taxing authorities, subject to the
conditions to Subsequent Advances in Subsection 5.1(d)(1) and the requirement
that there shall be no change in the state of title, as insured by title
insurance date-down endorsements as required by Lender, for payment of such
taxes and assessments as and when taxes and assessments are due and owing on
the Projects. Advances for ad valorem taxes and assessments shall be evidenced
by Note 2 and shall bear interest at the Floating Rate.
Section 5.4 EXISTING RESERVES FOR CAPITAL EXPENDITURES. Lender
shall continue to hold all reserves for Capital Expenditures currently held by
Lender and shall disburse the same prior to any Capital Expenditures Advances
under Section 5.2 to reimburse Borrower for the cost of Capital Expenditures,
provided such Capital Expenditures and all plans and specifications therefor
shall have been approved by Lender, all work for which a Capital Expenditures
disbursement has been requested shall have been completed in a manner
satisfactory to Lender and Lender's engineer, and provided further that all of
the conditions to Subsequent Advances in Subsection 5.1(d) shall have been
satisfied. Upon the occurrence of any Default and the expiration of any
applicable period of grace or notice and cure, Lender may, at Lender's option,
apply any undisbursed portion of such reserves for Capital Expenditures in
reduction of the amount owing on the Loan.
ARTICLE 6
CERTAIN RIGHTS OF LENDER
Section 6.1 REMEDIES UPON DEFAULT. Should a Default occur and be
continuing after the expiration of any applicable period of grace or notice and
cure, Lender shall have all the rights and remedies provided in the Loan
Papers.
Section 6.2 LETTER OF CREDIT. If a Default should occur and be
continuing after the expiration of any applicable period of grace or notice and
cure, Lender may, in addition to and not in limitation on Lender's rights under
the Letter of Credit, present a draft or drafts on the Letter of Credit for any
unpaid amounts owing to Lender under the Loan Papers up to the full amount of
the Letter of Credit, and may apply amounts disbursed under the Letter of
Credit to the payment of any sums owing under the Loan Papers; however, the (a)
honor and payment of any such draft to Lender, or Lender's application of any
such payment to sums owing under the Loan Papers, shall not cure or be deemed
to have cured such Default, (b) Lender shall continue to have all the rights
and remedies provided in the Loan Papers on account of such Default, including
the right to accelerate the maturity of the indebtedness evidenced by the Note
and foreclose the liens and security interests created under the Deed of Trust,
unless and until the issuer of the Letter of Credit provides to Lender such
amendments or modifications to the Letter of Credit as are necessary in
Lender's sole judgment to restore the Letter of Credit to its original
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amount such that Lender may draw on the Letter of Credit as if no prior draft
had been honored and paid.
Section 6.3 INDEMNIFICATION OF LENDER. Borrower shall indemnify,
defend and hold Lender harmless from and against any and all liabilities
(including, without limitation, any and all taxes and special assessments
levied against the Projects, or personal property located thereon),
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature which may be imposed
on, incurred by, or asserted against Lender, in any way relating to, or arising
out of (i) any brokerage commissions or finder's fees claimed by any broker or
other party in connection with the Commitment or the Loan, (ii) any failure by
Borrower to comply with provisions of the Loan Papers (other than provisions
relating to the payment of principal, interest or late charges), (iii) any
breach of any representation, warranty or covenant set forth in Section 8.22,
or (iv) any professional malpractice or negligence relating to the operation of
any Project.
ARTICLE 7
OTHER AGREEMENTS
Section 7.1 GOVERNING LAW. THE LOAN PAPERS ARE BEING EXECUTED
AND DELIVERED, AND ARE INTENDED TO BE PERFORMED, IN THE STATE OF TEXAS AND THE
LAWS OF SUCH STATE AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS
AND DUTIES OF THE PARTIES HERETO AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT
AND INTERPRETATION OF THE LOAN PAPERS, EXCEPT TO THE EXTENT OTHERWISE SPECIFIED
IN ANY OF THE LOAN PAPERS. ALL OBLIGATIONS OF BORROWER UNDER THE LOAN PAPERS
SHALL BE PERFORMABLE IN DALLAS COUNTY, TEXAS, UNLESS LENDER DESIGNATES ANOTHER
PLACE FOR PERFORMANCE.
Section 7.2 LIMITATION ON INTEREST. All agreements between
Borrower and Lender, whether now existing or hereafter arising and whether
written or oral, are hereby expressly limited so that in no event, whether by
reason of acceleration of the maturity of the Note or otherwise, shall the
amount paid or agreed to be paid to Lender or charged by Lender for the use,
forbearance or detention of the money to be lent hereunder or otherwise, exceed
the maximum amount allowed by law. If fulfillment of any provision of this
Agreement or any of the Loan Papers at the time performance of such provision
shall be due, shall involve transcending the limit of validity prescribed by
law (including the laws of the United States and the State of Texas), then ipso
facto, the terms and provisions of the Note limiting the amount of interest
which shall be paid to, agreed to be paid to or charged by Lender under the
Loan shall be applied and followed.
Section 7.3 INVALID PROVISIONS. If any provision of this
Agreement or any of the other Loan Papers is held to be illegal, invalid or
unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable; the appropriate Loan Paper shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part thereof; and the remaining provisions thereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance
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therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as a part of such Loan Paper a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible to be legal, valid and enforceable.
Section 7.4 EXPENSES. All costs and expenses of closing,
including, without limitation, the reasonable fees and actual expenses of
Lender's counsel, shall be paid by Borrower.
Section 7.5 COMMITMENT. This Agreement includes the terms and
conditions of the Commitment and the same are hereby incorporated herein by
reference and made a part hereof; however, if any conflict or inconsistency
exists between the Commitment and this Agreement or any of the Loan Papers, the
terms of the Commitment shall control.
Section 7.6 LENDER NOT IN CONTROL; NO PARTNERSHIP. None of the
covenants or other provisions contained in this Agreement shall, or shall be
deemed to, give Lender the right or power to exercise control over the affairs
and/or management of Borrower, the power of Lender being limited to the rights
to exercise the remedies referred to in the Loan Papers. No covenant or
provision of the Loan Papers is intended, nor shall it be deemed or construed,
to create a partnership, joint venture, agency or common interest in profits or
income between Lender and Borrower or to create an equity in the Projects in
Lender or to make Lender in any way responsible for the debts or losses of
Borrower or with respect to the Projects. Lender and Borrower disclaim any
intention to create any partnership, joint venture, agency or common interest
in profits or income between Lender and Borrower, or to create an equity in the
Projects in Lender, or any sharing of liabilities, losses, costs or expenses.
Section 7.7 TIME OF THE ESSENCE. Time is of the essence with
respect to the provisions of this Agreement.
Section 7.8 LIMITATION ON LIABILITY. Reference is made to the
limitation of liability provisions contained in the Note, which provisions are
incorporated herein and made a part hereof.
Section 7.9 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of Lender and Borrower and the respective
successors and assigns of Lender and Borrower, provided that no party
comprising Borrower may, without the prior written consent of Lender, assign
any rights, duties or obligations hereunder.
Section 7.10 PROMOTIONAL MATERIAL. Borrower authorizes Lender to
issue press releases, advertisements and other promotional materials in
connection with Lender's own promotional and marketing activities, and
describing the Loan in general terms or in detail and Lender's participation in
the Loan. All references to Lender contained in any press release,
advertisement or promotional material issued by Borrower shall be approved in
writing by Lender in advance of issuance.
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Section 7.11 RIGHT OF FIRST OFFER FOR CREDIT FACILITY. If
Borrower or ARC or any Affiliate desires to form a real estate investment trust
which will include the Projects (the "REIT"), Lender shall have a right of
first offer with respect to any acquisition and/or revolving credit facility to
be established by the REIT ("CREDIT FACILITY"). Under such right of first
offer, Lender may offer terms for a Credit Facility to the REIT either on its
own initiative or on request by the REIT within thirty (30) days of the REIT's
request. The REIT may accept or decline such terms, provided that if the
Credit Facility terms offered by Lender are declined by the REIT, the REIT
shall not accept any other Credit Facility on terms that are materially less
favorable than those offered by Lender without first requesting such Credit
Facility terms from Lender.
Section 7.12 SUBSTITUTION AND REPLACEMENT. Reference is made to
the Loan Agreement dated April 1, 1992 between Lender and Borrower, the Loan
Agreement dated July 14, 1994 between GENEL and Borrower, and the Loan
Agreement dated October 31, 1994 between GENEL and Borrower (collectively, the
"PRECEDING LOAN AGREEMENT") pertaining to financing for Borrower's acquisition,
refinancing, and development of Broadway, Summit, Santa Catalina, Parkplace,
Hampton, and Westlake Village (the "EXISTING LOAN"). The Existing Loan is
included within and as part of the Loan, as such term is defined herein; and is
being increased, renewed, extended and modified under this Agreement and the
Loan Papers. This Agreement is made in complete substitution for and
replacement of the Preceding Loan Agreement for all purposes, and the terms of
this Agreement shall control and govern the Loan, notwithstanding any contrary
or different terms of the Preceding Loan Agreement.
Section 7.13 RELEASES. Lender agrees that from and after January
1, 1998, but not before January 1, 1998, Lender will release one or more
Projects from the liens, assignments and security interests of the Deed of
Trust and the other Loan Papers if:
(a) There exists no Default and no event or condition
which, with notice or passage of time, or both, would constitute a
Default;
(b) Borrower shall have delivered notice to Lender of any
requested release of a Project at least thirty (30) days prior to the
scheduled date of such release;
(c) Borrower shall pay to Lender, in reduction of the
principal balance of the Loan, an amount equal to 1.15 times the
principal amount of the Loan related to the Project(s) to be released,
calculated by Lender on the basis of (i) the amount which according to
Lender and Lender's records has been advanced under the Loan for such
Project(s), less (ii) the pro rata portion of any principal
amortization payments on the Note related to such Project(s) (each
Project's pro rata portion being the sum of all principal amortization
payments multiplied by a fraction, the numerator of which is the
outstanding amount which has been advanced under the Loan for such
Project and the denominator of which is the total of all Advances
under the Loan) (the "RELEASE AMOUNT") with respect to each of the
Projects as it is subject to being released; and shall pay to Lender
the
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additional amount, if any, required to be paid in order that the
Projects which have not been released will satisfy the requirements of
Subsection 7.13(f) of this Agreement, together with any prepayment
premium or Yield Maintenance (as applicable) (the sum of the Release
Amount and any such additional amount being herein called the "MINIMUM
RELEASE AMOUNT");
(d) Borrower shall pay all costs and expenses of Lender
arising in connection with the release of the Deed of Trust and the
other Loan Papers, including, but not limited to, reasonable legal
fees of Lender's counsel, and all other costs arising in connection
with the execution and delivery of the release;
(e) Borrower shall deliver to Lender evidence
satisfactory to Lender that all amounts owing to any parties as a
result of the release of such Project(s) have been paid in full, or
are simultaneously being paid in full at closing; and
(f) After application of the Minimum Release Amount, (i)
the remaining outstanding principal balance (as determined by Lender
in its sole discretion) must be greater than $45,000,000, and (ii) the
Projects which have not been released must be generating annualized
Net Revenues Available for Debt Service equal to at least 14% of the
outstanding principal balance of the Loan from leases of not more than
95% occupancy of the Projects, as determined by Lender's audit of the
Projects at Borrower's sole cost and expense.
ARTICLE 8
COVENANTS
Borrower warrants, represents, covenants and agrees with Lender as
follows:
Section 8.1 COMMITMENT FEE. The Commitment Fee is fully earned
by Lender effective on Borrower's acceptance of the Commitment. Borrower shall
pay the Commitment Fee to Lender as follows:
(a) at the time of each Advance (excluding Advances for
Capital Expenditures under Section 5.2 and Advances for ad valorem
taxes and assessments under Section 5.3) in excess of $73,000,000,
$.01 for every $1.00 advanced, and
(b) to the extent the Commitment Fee has not sooner been
paid, on the earlier of (i) the Maturity Date, or (ii) the date on
which Borrower repays any part of the principal balance of the Loan
(excluding principal reductions for Capital Expenditures and ad
valorem taxes and assessments under Sections 5.2 and 5.3).
Section 8.2 LIENS, MORTGAGES, ENCUMBRANCES, TRANSFERS. Borrower
shall not create or permit (a) the imposition of any lien, mortgage or other
encumbrance against any of the Projects, except for the Deed of Trust, (b) the
termination of any Lender-approved management
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agreement relating to the operation and management of any Project, (c) the
transfer of ownership of any Project, or (d) the transfer of ownership of any
other collateral or of any stock or general partnership interest in Borrower;
however, that Lender shall not unreasonably withhold its consent or impose any
transfer fee (other than out-of-pocket transaction costs) if Borrower desires
to transfer one or more of the Projects or interests in Borrower to an
Affiliate, so long as (i) there exists no Default, event or condition which,
with notice or the passage of time or both, could constitute a Default, (ii)
any transferee of the Projects assumes Borrower's obligations under the Loan,
(iii) the net worth and liquidity of any transferee of the Projects are
equivalent to or better than those of Borrower on the date of this Agreement,
and (iv) the proposed transferee is considered, in Lender's reasonable
discretion, to be capable of managing and maintaining the marketability of the
Projects.
Section 8.3 OPERATING STATEMENTS. Borrower shall provide Lender
with annual and monthly operating statements on each of the Projects, including
income from all sources, and annual financial statements on Borrower, in scope
and detail satisfactory to Lender with all such statements to be certified by
the chief financial officer of Borrower, prepared on a review basis and
certified by a certified public accountant within ninety (90) days after the
end of each fiscal year for annual statements. Monthly income/expense
statements and statements of cash flow and balance sheets shall be delivered
within thirty (30) days of the end of each calendar month, shall be certified
as true and correct by the chief financial officer of Borrower, shall be in
such form and substance as Lender may request, and shall be accompanied by such
supporting documentation as Lender may request. In addition, from time to
time, Borrower shall provide appropriate reports as to its operating results as
requested by Lender. Lender's employees or agents shall have the right to
audit, at any time, Borrower's financial statements and records pertaining to
the Projects.
Section 8.4 RENT ROLLS, LEASES. Borrower shall provide Lender
with certified copies of all rent rolls relating to the Projects. If
requested, Lender shall be furnished with certified copies of all existing
Residency Agreements. In addition a requirement that all present and future
Residency Agreements shall be approved as to form and content by Lender and no
material modifications thereof shall be made without Lender's prior written
approval.
Section 8.5 SITE INSPECTIONS. Lender shall be entitled, upon
request, to make periodic site inspections of the Projects; in addition,
Borrower shall pay, upon request, all expenses incurred by Lender during the
term of the Loan to conduct financial audits, site inspections, title updates,
the filing of UCC continuation statements and other reasonable loan
administration expenses.
Section 8.6 NONCOMPLIANCE. Borrower shall promptly deliver to
Lender copies of all reports and other documents with respect to any
inspections, surveys, investigations, or on-site visits of, or certification
actions regarding, the Projects by any federal, state, or local licensing and
regulatory authority having jurisdiction over the Projects, including, without
limitation, any inspections by the Texas Department of Health, the Texas
Department of Human Services, the Arizona Department of Health Services, the
Ohio Department of Health, the Ohio Department on Aging, the State of Ohio Fire
Xxxxxxxx/local fire department, or the Colorado Department of
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33
Public Health and Environment, the Colorado Department of Healthcare Policy and
Financing. Lender shall have the right to retain a consultant, at Borrower's
expense, to evaluate and review such reports and documents. Borrower shall
promptly correct any deficiency and comply with all remedial actions and
recommendations set forth in such reports or specified by the consultant
retained by Lender. Borrower will promptly notify Lender of (i) any
noncompliance, or (ii) any event which, with notice or lapse of time or both,
would result in noncompliance, with any statute, law, ordinance, order,
judgment, decree, regulation, direction or requirement concerning Borrower, its
operations, or any of the Projects, of which Borrower is aware, or in
connection with which Borrower has received any notice, correspondence other
communication to or from any federal, state or local governmental official,
body, board, department or regulatory authority. If any such notice or
communication of a material nature is received by Borrower, Borrower shall
engage an independent consultant as described in Section 8.7 below and shall
provide Lender with a statement of Borrower setting forth its proposed action
or response to the noncompliance situation. Borrower will promptly notify
Lender of any proposed local, state or federal law that, if enacted, would
materially and adversely affect Borrower's current operation of any of the
Projects.
Section 8.7 CONSULTANT. If (a) Borrower fails to maintain at all
times a Debt Service Coverage of at least 1.20:1, calculated by taking the
ratio of Net Revenues Available for Debt Service to Debt Service calculated on
an interest only basis, or (b) the consolidated occupancy level of the Projects
is less than (i) 80% for three consecutive months before December 31, 1997, or
(ii) 87% by December 31, 1997, or (c) Borrower receives any notice,
correspondence or other communication of a material nature from any federal,
state or local governmental official, body, board, department or regulatory
authority citing violations of or lack of compliance with any statue, ordinance
and/or regulation concerning Borrower, its operations, or any of the Projects,
then Borrower will, at its expense, retain an independent consultant selected
from a list of independent consultants designated by Lender from time to time,
which independent consultant is to make recommendations to increase the Debt
Service Coverage to at least 1.30:1 calculated on an interest only basis,
increase the occupancy level to at least 90%, or make recommendations to
address the violation and/or noncompliance situation, as the case may be. With
regard to a notice of violation or noncompliance received by Borrower as
described in Section 8.7(c) above, if such violation or noncompliance can be
cured by Borrower within thirty (30) days from the date of receipt of the
notice or other communication relating thereto, then the independent
consultant's engagement may be limited to a review of Borrower's proposed plan
to cure such noncompliance. Such independent consultant will provide a copy of
its report to Borrower and to Lender. Borrower further agrees that its
compliance with this covenant and/or the independent consultant's
recommendation will not limit any of Lender's rights and remedies upon
Borrower's default or excuse Borrower from any Default whether by reason of its
failure to maintain the above-specified Debt Service Coverage or occupancy
level, or the receipt of a notice of noncompliance or for any other reason.
Section 8.8 ANNUAL BUDGET. Within sixty (60) days prior to the
commencement of each fiscal year during the term of the Loan, Borrower will
provide to Lender its proposed annual budget for such fiscal year for review
and approval by Lender. Thereafter, within thirty (30) days following the end
of each calendar month, Borrower will provide to Lender a monthly statement
28
34
setting forth any variance from such annual budget. As a part of its budget
process, Borrower will prepare a pro forma calculation of the effect the
proposed budget will have on the Debt Service Coverage for such fiscal year.
Section 8.9 RESERVES, DEPOSITS, ESCROWS. Borrower shall at all
times maintain all reserves, deposits and/or escrows required by Lender or
state statutes applicable from time to time to Borrower by virtue of the nature
of Borrower's business.
Section 8.10 MANAGEMENT. Lender and Borrower agree that Borrower,
or an Affiliate, shall serve as manager of the Projects. Such manager, if other
than Borrower, shall be entitled to receive a management fee of three percent
(3%) of Revenues pursuant to a management agreement approved by Lender, in
Lender's sole and absolute discretion. No management fee shall be payable if
Borrower manages the Projects. If Borrower seeks to replace the manager, Lender
retains full and absolute approval right over such substitute manager,
management fee and management agreement. Lender shall approve all managers and
management contracts, both presently existing and prior to entering into such
contracts in the future; in addition, all management fees payable under any
management contract shall be subordinate to and be paid following full payment
of all Debt Service payments on the Loan in each fiscal year. Any change in
ownership or control of the manager shall be cause for Lender to re-approve
such manager and management contract. Each manager shall hold and maintain all
necessary licenses, certifications and permits required by law, and shall enter
a non-competition agreement to the effect that such manager will not acquire,
construct, operate or manage any facility similar to the Projects (i.e., an
independent living units facility or an assisted living facility) within a
5-mile radius of any Project at any time while any portion of the Loan is
outstanding (except for the Heritage Club of Denver which ARC, LP owns and
manages). Borrower shall strictly comply with the Management Standards set
forth in Exhibit B attached hereto, and shall not enter into, modify, amend, or
terminate any existing management agreement, except in accordance with the
Management Standards.
Section 8.11 ERISA. Borrower shall comply with the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder from time to time ("ERISA"), in all material
respects. Without limiting the generality of the foregoing, Borrower shall
cause all or any defined benefit pension plan, including both single employer
and multi-employer plans, subject to Title IV of ERISA (a "PLAN"), to be funded
in accordance with the minimum funding standards of ERISA, if applicable, and
shall make in a timely manner all contributions due to any Plan.
Section 8.12 CASH OPERATING RESERVE FUND. During the term of the
Loan, Borrower will maintain a cash operating reserve fund (the "OPERATING
RESERVE") in which Lender will take a security interest, in an amount
representing 21 days' of estimated, routine Total Expenses. If monies from the
Operating Reserve are withdrawn and used by Borrower to pay ordinary operating
expenses, Borrower shall replenish the Operating Reserve within 60 days of such
withdrawal, by depositing an amount sufficient to restore the Operating Reserve
to its full amount.
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Section 8.13 SECURITY DEPOSITS. Borrower covenants and agrees
with Lender that it will maintain a separate account for each of Broadway and
Summit ("SECURITY DEPOSIT ACCOUNTS") into which it will deposit all security
deposits and other deposits received by Borrower under the Residency Agreements
for such Projects. Borrower shall make all disbursements from the appropriate
Security Deposit Account in accordance with the terms of the Residency
Agreements, the Loan Documents and all applicable state and local statutes,
ordinances and regulations, if any, and Borrower will continue to comply with
Lender's requirements, the terms of the Residency Agreements, and all
applicable state and local statutes, ordinances and regulations regarding
maintenance of such Security Deposit Accounts. To the extent allowed by
applicable law, Borrower pledges, and grants Lender a security interest in, the
Security Deposit Accounts and all funds therein to Lender as security for the
Loan and agrees that upon the occurrence of a Default and the expiration of any
applicable grace or notice and cure period, Lender may withdraw funds from the
Security Deposit Accounts and apply such funds to satisfy any of the
indebtedness and obligations of Borrower under the Loan Papers. With respect
to security deposits and other deposits received by Borrower under Residency
Agreements for Santa Catalina, Parkplace, Westlake Village and Hampton,
Borrower has provided the Guaranty in lieu of maintaining Security Deposit
amounts.
Section 8.14 CASH FLOW SUMMARIES. Borrower shall annually provide
to Lender a certified cash flow summary which includes certifications that
Borrower has and will continue to (a) preserve its partnership or other
separate legal existence, (b) preserve all its rights and licenses to the
extent necessary or desirable in the operation of its business and affairs and
(c) be and remain qualified to do business and conduct its affairs in each
jurisdiction where its ownership of Projects or the conduct of its business
affairs requires such qualification.
Section 8.15 LIMITATION ON OTHER INDEBTEDNESS. Borrower shall
not, without the prior written consent of Lender, incur any indebtedness
(whether personal or non-recourse, secured or unsecured) other than the Loan
and customary trade payables which are payable and are actually paid within
sixty (60) days after they are incurred (or such longer period as may be
allowed by trade creditors) and equipment or automobile lease obligations of
not more than $50,000 for any single lease obligation and of not more than
$350,000 for all such lease obligations in the aggregate, and the Subordinated
Notes.
Section 8.16 LEGAL EXISTENCE. Borrower shall preserve its
separate legal existence and shall not, without the prior written consent of
Lender, merge or consolidate with any other person or entity or sell or convey,
except as otherwise permitted in the Deed of Trust, all or substantially all of
its assets to any other person or entity, such consent not to be unreasonably
withheld with respect to any merger or consolidation (a) which involves only
ARC, LP wholly-owned subsidiaries and Affiliates, and (b) from which the
surviving merged or consolidated entity is a single-purpose entity which owns
only the Projects and which is in compliance with Section 8.15 of this
Agreement.
Section 8.17 NET WORTH. ARC, LP shall at all times maintain a Net
Worth of at least $10,000,000.
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Section 8.18 OPERATION. Broadway and Summit shall be operated as
continuing care retirement communities comprised of independent living units,
assisted living units, and skilled nursing beds, and Parkplace, Hampton,
Westlake Village, Santa Catalina shall be operated as an independent living and
assisted living facility. All of the Projects shall be operated in such a
manner so as to maximize the number of Residency Agreements and other occupancy
agreements in effect and to maintain a favorable reputation for the Projects.
Borrower shall fully and faithfully perform, in all material respects, all of
its covenants, agreements and obligations under the Residency Agreements and
under any management agreement (and under any replacement instruments to the
foregoing which are permitted pursuant to the terms of this Agreement.)
Section 8.19 SERVICES. Borrower shall maintain and continue to
provide throughout the term of the Loan the same services to Residents as are
currently being provided at the Projects by Borrower or otherwise on the date
hereof; Borrower shall not materially change such services or change the
Facility Capacity without the prior written consent and approval of Lender.
Section 8.20 NON-COMPETITION. Borrower will not acquire,
construct, operate or manage any congregate care facility, assisted living
facility, skilled or intermediate nursing facility, adult day care facility,
home health care agency, or any business comprised of any combination of the
aforementioned, to the extent revenues derived therefrom are not included in
Project's Revenues, within a 5-mile radius of any Project at any time while any
portion of the Loan is outstanding (except for the Heritage Club at Denver
which ARC, LP owns and manages).
Section 8.21 KEY PERSONS. Borrower will promptly notify Lender if
persons or entities key to Borrower's operations, as designated by Lender from
time to time, are terminated or cease providing services to Borrower.
Section 8.22 MEDICARE CERTIFICATION, LICENSES AND COMPLIANCE.
Borrower further represents, warrants and covenants to Lender that:
(a) Broadway is certified for participation in the
Medicare program of the Social Security Act of 1965, and the
regulations promulgated thereunder, and is not in violation of any
condition of participation in such Medicare program;
(b) Borrower is currently a party to a provider agreement
for Broadway with the Secretary of the United States Department of
Health and Human Services with respect to its participation in the
Medicare program with the State of Texas, which provider agreement is
currently in full force and effect;
(c) All licenses, permits and approvals required for the
operation of the Projects as nursing home and personal care facilities
under applicable law have been issued and are in good standing,
including, without limitation, the Social Security Act of 1965, the
regulations promulgated thereunder, and for Broadway and Summit all
conditions of participation in the Medicare program thereunder imposed
by the State of Texas and the United States Department of Health and
Human Services, including, without limitation,
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(i) Medicare provider agreements issued under Title XVIII and Title
XIX of the Social Security Act of 1965 (as applicable to the
Projects), with current provider numbers; (ii) Nursing Home Licenses
issued by, as applicable, the Texas Department of Health, the Texas
Department of Human Services, and the Arizona Department of Health
Services; and (iii) Personal Care Facilities Licenses issued by, as
applicable the Texas Department of Health, the Texas Department of
Human Services, the Arizona Department of Health Services, the State
of Ohio Department of Health, Ohio Department on Aging, the State of
Ohio Fire Xxxxxxxx/local fire department, and the Colorado Department
of Public Health and Environment, the Colorado Department of
Healthcare Policy and Financing which are currently in full force and
effect; and
(d) Borrower shall comply with all local, state or
federal laws or regulations governing the operation of each Project as
a nursing home and a personal care facility, including but not limited
to, the requirements of the Texas
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Department of Health, the Texas Department of Human Services, the
Arizona Department of Health Services, the State of Ohio Department of
Health, Ohio Department on Aging, the State of Ohio Fire
Xxxxxxxx/local fire department, the Colorado Department of Public
Health and Environment, the Colorado Department of Healthcare Policy
and Financing or the United States Department of Health and Human
Services, and any applicable requirements under the Medicare program.
Section 8.23 IMMEDIATE REPAIRS. Borrower shall complete all of
the Immediate Repairs to the satisfaction of Lender and Lender's inspecting
architect/engineer and shall pay all costs and expenses therefor prior to
December 31, 1996.
EXECUTED as of the date first written above.
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION, an
New York corporation
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxx, Senior Investment
Manager
BORROWER:
FORT AUSTIN LIMITED PARTNERSHIP, a Texas
limited partnership
By: ARC Fort Austin Properties, Inc., a
Tennessee corporation, General Partner
By: /s/ W. E. Sheriff
--------------------------------------------
W. E. Sheriff, Chief Executive Officer
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EXHIBIT A
[DESCRIPTION OF PROJECTS]
A-1
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EXHIBIT B
MANAGEMENT STANDARDS
1. If Borrower desires to enter into, modify, amend or terminate
any management agreement, leasing agreement or any other agreement relating to
management, leasing or operation of the Projects, Borrower will submit such
proposed modification or change to Lender in writing for Lender's prior
approval, which approval shall be given or withheld in Lender's sole
discretion. Lender shall respond to such requests for approval within a
reasonable period of time.
2. Upon Lender's request, Borrower shall, and shall cause its
on-site administrator to, (i) meet with Lender at least quarterly to discuss
the financial and physical condition of the Projects and the management of the
Projects, including personnel, resident satisfaction, marketing and other
issues pertinent to the success of the Projects, and (ii) at Lender's
reasonable request, provide Lender with reports relating to such information.
3. Borrower's agreements with its management and leasing agents
shall be written so that:
(a) If Lender acquires ownership of the Projects, Lender
can, without cost or liability to Lender, within sixty days' of
Lender's notice, terminate the management and leasing agreement, and
the on-site administrator and director of leasing.
(b) If, commencing three months following closing, there
are fewer than eighty percent (80%) of the total number of units
leased for each of three (3) consecutive months, the leasing and
management agents for the Projects may be terminated.
B-1
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EXHIBIT C
APPROVED BUDGET
Refinance Existing Loan $62,100,000
Transaction Costs 400,000
------------
Initial Advance $62,500,000
Additional Facilities Holdback 17,000,000
Business Purpose Holdback 18,000,000
------------
Commitment $97,500,000
C-1
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EXHIBIT D
IMMEDIATE REPAIRS (1)
PROPERTY ITEM COST
-------- ---- ----
Santa Catalina Villas Sitework $ 7,550.00
Architectural Work $ 2,500.00
ADA Compliance $ 250.00
------------
TOTAL SANTA CATALINA VILLAS $ 10,300.00
Broadway Plaza Gutters & Downspouts $ 7,500.00
Fascia boards Repair & Paint $ 18,500.00
Steel Masonry Lintels $ 3,000.00
Other Deferred Maintenance $ 1,300.00
------------
TOTAL BROADWAY PLAZA $ 30,300.00
Forum at Westlake Hills Sidewalk Repairs $ 550.00
Paving/Erosion Repairs $ 10,000.00
Acoustical Ceiling Tiles $ 3,000.00
Ceramic Tile $ 3,000.00
Other Deferred Maintenance $ 3,600.00
------------
TOTAL FORUM AT WESTLAKE HILLS $ 20,150.00
Westlake Village Exterior Restaining $ 378,176.00
Guardrail $ 1,200.00
------------
TOTAL WESTLAKE VILLAGE $ 379,376.00
Hampton at Post Oak Cooling Tower $ 64,000.00
Other Deferred Items $ 775.00
Water Damage - Garage $ 2,500.00
------------
TOTAL HAMPTON AT POST OAK $ 67,275.00
Park Place Sealcoat Parking Lot $ 1,000.00
Carbon-Monoxide Monitoring $ 4,000.00
Electrical Outlets $ 4,660.00
TOTAL PARK PLACE $ 9,660.00
Grand Total All Properties $ 517,061.00
(1) AS MORE FULLY DESCRIBED IN THE ENGINEERING REPORTS
D-1
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EXHIBIT E
1. BROADWAY
AECC, Inc. Property Update dated October 30, 1995 and prepared by Xxxx
Xxxxxxxx (AECC, Inc. Project No. 95325).
2. SUMMIT
AECC, Inc. Property Update dated October 27, 1995 and prepared by Xxxxx
Xxxxxxxx (AECC, Inc. Project No. 95324).
3. SANTA CATALINA
Abacus Project Management Abbreviated Physical Audit dated October 30,
1995.
4. PARKPLACE
Xxxxxxx Consultants, Inc. Property Condition Report Update dated October
31, 1995 (Comm. No. 95-D15-113-01).
5. HAMPTON
Xxxxxxx Consultants, Inc. Property Condition Report Update dated October
27, 1995 (Comm. No. 95-D15-113-02).
6. WESTLAKE VILLAGE
Xxxxxxx Consultants, Inc. Property Condition Report Update dated October
27, 1995 (Comm. No. 95-D15-113-03).
E-1
