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EXHIBIT 10.1
SECOND AMENDMENT TO AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED FINANCING AND SECURITY
AGREEMENT (this "Agreement") is made as of the 8th day of August, 2001,
effective as of June 30, 2001, by and among ARC CAPITAL CORPORATION II, a
Tennessee corporation ("ARCC"), the other Borrowers, if any, listed on the
signature pages hereof (the "Additional Borrower", collectively with the
Original Borrower, the "Borrowers") and WASHINGTON MUTUAL BANK, FA, successor by
merger to Bank United, as agent (the "Agent") as agent for itself and the other
lenders who are or shall be from time to time participating as lenders
(collectively, the "Lenders") hereunder pursuant to the Agency Agreements dated
June 8, 1999 and October 1, 1999 or any amendment thereto (as amended, restated
or substituted from time to time the "Agency Agreement").
RECITALS
A. The Lenders have provided to the Borrowers a credit facility (such
credit facility, as modified, increased, extended, restated or substituted, is
referred to hereinafter as the "Credit Facility" or the "Loan") in the maximum
principal sum of up to $100,000,000 or such greater amount not to exceed
$150,000,000 as the Lenders may from time to time commit to lend pursuant to any
Agency Agreement. Advances or readvances of the Loan have been made pursuant to,
and secured by, the provisions of that certain Amended and Restated Financing
and Security Agreement dated February 11, 2000 by and between the Agent and ARC
Capital Corporation II, a Tennessee corporation (the "Financing Agreement").
B. The advances under the Loan are evidenced by promissory notes made
or to be made by one or more of the Borrowers for the benefit of each of the
Lenders in the aggregate principal sum of the then-applicable Credit Facility
Committed Amount (as amended, restated, renewed or substituted from time to
time, the "Notes"). Each of the Notes has been amended pursuant to the terms of
a First Amendment to Promissory Note dated November 7, 2000 and is being amended
pursuant to the terms of a Second Amendment to Promissory Note of even date
herewith. The Notes are secured by, among other things, certain Deeds of Trust
(as defined in the Financing Agreement) from the Borrowers in favor of the Agent
for the benefit of the Lenders covering such Borrowers' interest in the Land and
the Improvements for the applicable Facility (as defined in the Financing
Agreement) or certain assignments to the Lenders of Assigned Notes secured by
Deeds of Trust payable to Borrowers in connection with Synthetic Lease
Transactions and Collateral Assignments and such other real and personal
property as shall be therein more particularly set forth (collectively, the
"Property"). The Credit Facility is evidenced, secured and guaranteed by the
Financing Documents (as defined in the Financing Agreement).
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C. The Borrowers obligations under the Credit Facility are guaranteed
by American Retirement Corporation, a Tennessee corporation (the "Guarantor"),
pursuant to the terms of the Amended and Restated Guaranty of Payment Agreement
dated February 11, 2000 as amended pursuant to the First Amendment to Amended
and Restated Guaranty of Payment Agreement dated November 7, 2000 and the Second
Amendment to Amended and Restated Guaranty of Payment Agreement of even date
herewith (as amended, restated, renewed or substituted from time to time, the
"Guaranty").
D. The Borrowers have requested and the Lenders have agreed to modify
certain provisions of the Financing Agreement and the Guaranty.
E. The Lenders have required, as a condition to continuing to make
available the Credit Facility, that the Borrowers execute and deliver this
Agreement to the Agent.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Agent hereby
agree as follows:
1. The above Recitals are a part of this Agreement. Unless otherwise
expressly defined in this Agreement, terms defined in the Financing Agreement or
the Construction Agreement shall have the same meaning under this Agreement.
2. The Financing Agreement is hereby amended as follows:
(a) Effective as of the date of signature of this Agreement and
continuing through the Revolving Credit Termination Date, amounts repaid under
the Credit Facility may not be reborrowed (including but not limited to any
repayment arising from the Boynton Beach Facility being classified as a Pool B
Project), despite the use of the term "revolving" in the Financing Documents and
no additional advances may be made except advances for working capital where
availability exists in such category under a Total Development Budget. Any
additional Eligible Project provided as Collateral for the Credit Facility will
not create any additional availability under the Borrowing Base. No additional
availability under the Borrowing Base will be allowed from the Santa Catalina
Facility if it qualifies as a Special Eligible Project; provided, however, that
if the Santa Catalina Facility so qualifies, the higher Borrowing Base
availability for Special Eligible Projects shall be used for the sole purpose of
calculations under Section 7.2.5 (Percentage of Stabilized Projects).
(b) The following definitions in Section 1.1 of the Financing
Agreement are amended and restated in their entirety as follows:
"Credit Facility Committed Amount" means $93,419,500.
"Interest Rate Margin" means, effective as of August 1, 2001
and thereafter, the applicable interest rate margin per annum shall be
determined in accordance with the following table for the applicable
time period:
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PERIOD INTEREST RATE MARGIN
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August 1, 2001 through December 31, 2001 300 basis points
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January 1, 2002 through March 31, 2002 312.5 basis points
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April 1, 2002 through June 30, 2002 325 basis points
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July 1, 2002 and thereafter until paid in 350 basis points
full
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"Revolving Credit Expiration Date" means August 2, 2002, or
any date to which it may be extended from time to time pursuant to the
terms of Section 2.6 hereof.
"Tangible Net Worth" means, at any time, the sum at such time
of Net Worth less the total of (a) all assets which would be classified
as intangible assets under GAAP, including goodwill, trademarks,
trademark applications, trade names, service marks, patent applications
and licenses, and deferred charges, (b) pre-opening costs,
organizational costs and deferred financing costs, and (c) advances or
loans made to or receivables from any unconsolidated affiliates of
which the Guarantor owns less than fifty percent (50%) or any
stockholder of the Guarantor or any affiliate. The following items (a)
through (e) will also be excluded from Tangible Net Worth: (a) non-cash
"xxxx to market" adjustments related to the Guarantor's two existing
interest rate swap instruments with X.X. Xxxxxx and SunTrust Bank,
respectively (the "X.X. Xxxxxx and SunTrust Swaps") not to exceed
$1,200,000 in the aggregate net of taxes over the life of the X. X.
Xxxxxx and SunTrust Swaps, (b) the $1,227,000 in pre-tax loss for debt
prepayment penalty and $762,000 pre-tax ordinary loss each in
connection with the sale of the Rossmoor Regency Facility, (c) the
one-time $1,200,000 expense for liability insurance "nose coverage"
paid to Technical Risk, Inc., (d) any gain or loss on the sale of the
Pecan Park Facility or any other Facility identified to be sold in the
Capital Formation Plan (as hereinafter defined) during fiscal quarters
ending June 30, 2001 or September 30, 2001 and (e) extraordinary losses
arising from prepayments of debt during fiscal quarters ending June 30,
2001 or September 30, 2001. All assets classified in the Guarantor's
financial statements as leaseholds of Senior Living Facilities or
leasehold acquisition costs related to Senior Living Facilities shall
be included as tangible assets in the calculation of its Tangible Net
Worth with the exception of leasehold acquisition costs, if any, for
the Senior Living Facility known as "Freedom Plaza Peoria".
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(c) Section 2.1(c) of the Financing Agreement is hereby amended and
restated in its entirety as follows:
The conditions precedent for making an advance under the Loan shall
be as set forth in this Agreement. Sums borrowed and repaid may not
be readvanced.
(d) Section 2.5 of the Financing Agreement is hereby intentionally
deleted in its entirety.
(e) The following new Section 2.7 (Mandatory Prepayment) is hereby
added to the Financing Agreement:
Section 2.7 Mandatory Prepayment. On or before May 1, 2002, the
Principal Sum outstanding under the Credit Facility shall be
permanently reduced by not less than $10,000,000 and such reduced
Principal Sum shall then constitute the Credit Facility Committed
Amount. One or more Eligible Projects may be released from the
Borrowing Base in connection with such prepayment of the Credit
Facility subject to the Lenders' right to approve the release of an
Eligible Project pursuant to provisions of Section 4.16 (Consent to
Releases) hereof.
(f) Section 4.17 (Operating Deficiency Reserve Account) to the
Financing Agreement is hereby amended and restated in its entirely as follows:
Section 4.17 Operating Deficiency Reserve Account.
In the event that the Agent determines that an Operating Deficiency
(as hereinafter defined) exists pursuant to the provisions of Section
4.18(b) below, the Borrowers shall have delivered to the Agent funds
equal to the then applicable Operating Deficiency (the "Operating
Deficiency Reserve") to be deposited with the Agent in an account (the
"Operating Deficiency Reserve Account") pledged to the Agent on behalf
of the Lenders to secure the Borrowers' Obligations pursuant to the
Assignment of Deposit Account dated November 7, 2000. The Agent alone
shall have the authority to make advances from the Operating Deficiency
Reserve Account pursuant to Section 4.18.
(g) Section 4.18 (Funding of Operating Deficiencies and Limitations
on Advances) is hereby amended and restated as follows:
Section 4.18 Funding of Operating Deficiencies and Limitations on
Advances.
(a) For all Eligible Projects in the Borrowing Base as of the date
hereof, no additional availability in the Borrowing Base or
reimbursement will be given for construction hard or soft costs.
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(b) On or before the last Banking Day of each fiscal quarter,
beginning with the quarter ending September 30, 2001, the Borrowers
shall submit a report projecting the aggregate dollar amount of
operating deficits until all Eligible Projects reach break-even
operations, net of aggregate remaining budgeted availability in the
Credit Facility from such Eligible Projects which are not Stabilized
Projects. If necessary as a result of such report after review and
acceptance by the Lenders and based upon the aggregate difference
between projected operating deficits and remaining budget availability
(such then applicable amount being referred to herein as an "Operating
Deficiency"), the amount of Operating Deficiency Reserve will be
established, replenished and/or increased (as applicable) by the
Borrowers upon demand by the Agent. Failure to deliver such funds to
the Agent within three (3) Banking Days of demand shall constitute an
Event of Default under the Financing Documents.
(c) At such time or times as an Operating Deficiency Reserve has
been posted, the Borrowers may request advances from the Operating
Reserve Deficiency Account (without eligibility for reimbursement under
the Credit Facility) until it is exhausted.
(h) Section 4.19 (Release of Operating Deficit Reserve) is hereby
intentionally deleted from the Financing Agreement.
(i) The following new Section 7.34 (Capital Formation Plan) is
hereby added to the Financing Agreement:
7.34 Capital Formation Plan.
Not later than the close of business on September 1, 2001, the
Borrowers shall deliver to the Lenders a written plan describing the
amount of capital to be raised by the Borrowers, the Guarantor and
their Affiliates and describing the methods by which such capital shall
be raised from real estate assets and equity sources (the "Capital
Formation Plan"). The Capital Formation Plan shall be in a form and
with sufficient detail to allow the Lenders to analyze and evaluate
Borrower's capital formation plans. Without limiting the generality of
the foregoing, the Capital Formation Plan shall include detailed
descriptions of the actions planned and the dates by which such actions
shall be taken. The Capital Formation Plan shall demonstrate that
$30,000,000 in capital will be raised by January 31, 2002. The
Borrowers, the Guarantor and their Affiliates shall consummate the
Capital Formation Plan to the extent necessary to raise $30,000,000 by
January 31, 2002. Simultaneously with the delivery of the Capital
Formation Plan, the Borrowers shall deliver to the Lenders a pro forma
balance sheet, income projection and pro forma covenant compliance
certificates in form and detail satisfactory to the Requisite Lenders
reflecting the projected impact of successful completion of the Capital
Formation Plan for each applicable fiscal quarter. The Borrowers shall
also deliver to the Lenders every sixty (60)
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days, beginning November 1, 2001, an updated, written status report of
steps taken in furtherance of the Capital Formation Plan since the last
status report.
(j) The following new Section 7.35 (Payment of Bonds) is hereby
added to the Financing Agreement:
Section 7.35 Payment of Bonds.
The Borrowers shall provide to the Lenders evidence by July 1, 2002
satisfactory to the Agent that the Guarantor has repaid its convertible
subordinated debentures due October 1, 2002 or has sufficient capital
resources (cash and cash equivalents) to repay such convertible
subordinated debentures prior to their maturity.
(k) The Guarantor Certificate and Attachments 1 through 6 attached
to Exhibit E to the Financing Agreement are hereby replaced by the amended and
restated schedules attached hereto as Exhibit B to be completed by the Guarantor
and delivered to the Agent at the times required by the Financing Agreement.
3. The agreements of the Agent under this Agreement are subject to the
following terms and conditions, time being of the essence:
(a) Execution and delivery by the Borrower and/or the Guarantor as
applicable of each of the following documents (collectively the "Modification
Agreements"):
(i) This Agreement;
(ii) The Second Amendment to Amended and Restated Guaranty of
Payment Agreement;
(iii) A Second Amendment to Promissory Note for each of the
Notes.
(b) Payment by the Borrowers to the Lenders of their pro rata share
of a fee in consideration for the Modification Agreements of .125% of the Credit
Facility Committed Amount.
(c) The Agent shall have received an opinion of counsel for the
Borrowers and Guarantor in form and substance satisfactory to the Agent and all
due diligence items listed on the closing checklist.
(d) The Borrowers have paid all costs and expenses of the agent and
the other Lenders, including, but not limited to, legal fees in connection with
the preparation and execution of Modification Agreements.
4. Release of Claims. The Borrowers and the Guarantor, for themselves
and for each of their respective successors and assigns, hereby release and
waive all claims and/or defenses they now or hereafter may have against the
Lenders and their successors and assigns on account
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of any occurrence relating to the Credit Facility, the Financing Documents
and/or the Property which accrued prior to the date hereof, including, but not
limited to, any claim that the Lenders (a) breached any obligation to the
Borrowers and/or the Guarantor in connection with the Credit Facility, (b) was
or is in any way involved with the Borrowers and/or the Guarantor as a partner,
joint venturer, or in any other capacity whatsoever other than as a lender, (c)
failed to fund any portion of the Loan or any other sums as required under any
document or agreement in reference thereto, or (d) failed to timely respond to
any offers to cure any defaults under any document or agreement executed by the
Borrowers, the Guarantor or any third party or parties in favor of the Lenders
(INCLUDING ANY ACT OR OMISSION CONSTITUTING, CAUSED BY OR RESULTING FROM THE
ORDINARY NEGLIGENCE OF THE LENDERS). This release and waiver shall be effective
as of the date of this Agreement and shall be binding upon the Borrowers and the
Guarantor and each of their respective successors and assigns, and shall inure
to the benefit of the Lenders and their successors and assigns. The term
"Lenders" as used herein shall include, but shall not be limited to, their
present and former officers, directors, employees, agents and attorneys.
5. Except as specifically set forth herein, the terms, provisions and
covenants of the Financing Agreement are hereby ratified and confirmed and
remain in full force and effect.
6. This Agreement may be executed in any number of duplicate originals
or counterparts, each of such duplicate originals or counterparts shall be
deemed to be an original and all taken together shall constitute but one and the
same instrument.
7. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, without regard to principles of
choice of law.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered under seal by their duly authorized representatives as of
the date and year first written above.
BORROWER:
WITNESS/ATTEST: ARC CAPITAL CORPORATION II
a Tennessee corporation
By: (SEAL)
----------------------- ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
WITNESS/ATTEST: ARC CARRIAGE CLUB OF JACKSONVILLE, INC,
a Tennessee corporation
By: (SEAL)
----------------------- ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
WITNESS/ATTEST: ARC SANTA CATALINA, INC., a Tennessee
corporation
By: (SEAL)
----------------------- ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
AGENT:
WITNESS/ATTEST: WASHINGTON MUTUAL BANK, FA,
as Agent for the Lenders
By: (SEAL)
----------------------- ----------------------------------
Name:
Title:
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AGREEMENT OF GUARANTOR
The undersigned is the "Guarantor" under an Amended and Restated Master
Guaranty of Payment Agreement, dated February 11, 2000 as amended pursuant to
the First Amendment to Amended and Restated Guaranty of Payment Agreement dated
November 7, 2000 and the Second Amendment to Amended and Restated Guaranty of
Payment Agreement of even date herewith (as amended, modified, substituted,
extended and renewed from time to time, the "Guaranty"), in favor of the Agent
on behalf of the Lenders. In order to induce the Lender to enter into the
foregoing Agreement, the undersigned (a) consents to the transactions
contemplated by, and agreements made by the Borrower under, the foregoing
Agreement, and (b) ratifies, confirms and reissues the terms, conditions,
promises, covenants, grants, assignments, security agreements, agreements,
representations, warranties and provisions contained in the Guaranty, and the
other Financing Documents entered into by the Guarantor.
WITNESS signature and seal of the undersigned as of the date of the
Agreement.
WITNESS/ATTEST: AMERICAN RETIREMENT CORPORATION
a Tennessee corporation
By: (SEAL)
----------------------- ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
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Exhibit A
List of Eligible Projects Not Stabilized as of August 1, 2001
Project Name Location
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1. Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxx Xxxxxx,
2. Homewood Residence at Boynton Beach Boynton Beach, Florida Palm Beach
County
3. Homewood Residence at Coconut Creek Coconut Creek, Florida Broward
County
4. Homewood Residence at Richmond Heights Richmond Heights, Ohio, Cuyahoga
County
5. Homewood Residence at Delray Delray Beach, Florida, Palm Beach
6. Broadway Plaza at Pecan Park
(Xxxxxxx Place) Arlington, Texas, Tarrant County
7. Homewood Residence at Shavano Park Shavano Park, Texas, Bexar County
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EXHIBIT B
GUARANTOR CERTIFICATE
The undersigned, being the duly elected, qualified and acting
______________ of the Guarantor, on behalf of the Guarantor, hereby certifies
and warrants that:
1. He or she is the _____________ of the Guarantor and that, as such,
he or she is authorized to execute this certificate on behalf of the Guarantor.
2. As of the (fiscal quarter) (fiscal year) ending as of
________________, ____:
(a) The Guarantor is not in default of any of the provisions of
the Amended and Restated Guaranty of Payment dated February
11, 2000, as amended, modified or restated from time to
time;
(b) The Guarantor's Tangible Net Worth was $_______________ as
computed on Attachment 1 hereto;
(c) The Guarantor's ratio of Total Funded Debt to Total Capital
was ____% as computed on Attachment 2 hereto;
(d) The Guarantor's ratio of Funded Debt to Adjusted Total
Capital was ___% as computed on Attachment 3 hereto;
(e) The Guarantor's ratio of EBITDAR to Interest and Rent was
__________ to 1.0 on a rolling four (4) quarters basis as
computed on Attachment 4 hereto;
(f) The Guarantor's ratio of EBITDAR to Interest and Rent was
_____ to 1.0 on a single quarter basis as computed on
attached 4 hereto.
(g) The Guarantor's Current Ratio was _____ as computed on
Attachment 5 hereto.
(h) The value of the Guarantor's Liquid Assets was $_____ as
computed on Attachment 6 hereto.
(i) The Guarantor's Fixed Charge Coverage Ratio was ____ to 1.0
as computed on Attachment 7 hereto.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
certificate, this ______ day of ______________, 200_.
GUARANTOR:
AMERICAN RETIREMENT CORPORATION
By:
----------------------------------------
Name:
Title:
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ATTACHMENT 1
Period Ending: __________, 200_
Tangible Net Worth*:
1. Net Worth $__________
less
2. (a) all intangible assets $__________
(b) pre-opening costs, organization costs
and deferred financing costs $__________
(c) loans to or receivables from
unconsolidated affiliates $__________
Actual Tangible Net Worth = $_______________
Required Tangible Net Worth = $88,000,000 as of June 30, 2001, and beginning
with the quarter ending September 30, 2001 = $88,000,000 plus 50% of Guarantor's
Net Income (if positive) of $__________, plus seventy-five percent (75%) of the
net proceeds to Guarantor of any equity capital (or equity equivalent)
securities offering received during such period ($_______ x .75 = $_________)
(subject to deductions permitted under the definition of Tangible Net Worth but
in no event less than $75,000,000).
"Tangible Net Worth" means, at any time, the sum at such time of Net Worth less
the total of (a) all assets which would be classified as intangible assets under
GAAP, including goodwill, trademarks, trademark applications, trade names,
service marks, patent applications and licenses, and deferred charges, (b)
pre-opening costs, organizational costs and deferred financing costs, and (c)
advances or loans made to or receivables from any unconsolidated affiliates of
which the Guarantor owns less than fifty percent (50%) or any stockholder of the
Guarantor or any affiliate. The following items (a) through (e) will also be
excluded from Tangible Net Worth (provided, however, that after deduction
therefor, Tangible Net Worth shall not be less than $75,000,000): (a) non-cash
"xxxx to market" adjustments related to the Guarantor's two existing interest
rate swap instruments obtained from X.X. Xxxxxx and SunTrust Bank, respectively
(the "X.X. Xxxxxx and SunTrust Swaps") not to exceed $1,200,000 in the
aggregate, net of taxes, over the life of the X. X. Xxxxxx and SunTrust Swaps,
(b) the $1,227,000 in pre-tax loss for debt prepayment penalty and $762,000
pre-tax ordinary loss each in connection with the sale of the Rossmoor Regency
Facility, (c) the one-time $1,200,000 expense for liability insurance "nose
coverage" paid to Technical Risk, Inc., (d) any gain or loss on the sale of the
Pecan Park Facility or any other Facility identified to be sold in the Capital
Formation Plan (as defined in the Financing Agreement) during the fiscal
quarters ending June 30, 2001 or September 30, 2001 and (e) extraordinary losses
arising from prepayments of debt during fiscal quarters ending June 30, 2001 or
September 30, 2001. All assets classified in the Guarantor's financial
statements as leaseholds of Senior Living Facilities or leasehold acquisition
costs related to Senior Living Facilities shall be included as tangible assets
in the calculation of its Tangible Net Worth with the exception of leasehold
acquisition costs, if any, for the Senior Living Facility known as "Freedom
Plaza Xxxxxx".
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ATTACHMENT 2
Period Ending: ______________, 200_
Ratio of Total Funded Debt to Total Capital
1. Total Funded Debt $___________*
2. Total Capital $___________**
Ratio: _____%
Required Ratio: not greater than 70%
* "Total Funded Debt" means the sum of the following but shall exclude trade and
other accounts payable in the ordinary course of business in accordance with
customary trade terms and which are not overdue (as determined in accordance
with customary trade practices) or which are being disputed in good faith by the
Guarantor and for which adequate reserves are being provided on the books of the
Guarantor in accordance with GAAP:
(a) indebtedness for borrowed money ($______) or for the
deferred purchase price of property, or services ($________) $________
(b) obligations in respect of letters of credit, banker's or other
acceptances or similar obligations issued or created for the
account of the Guarantor $________
(c) lease obligations which have been or should be, in accordance
with GAAP, capitalized on the books of the Guarantor $________
(d) liabilities secured by any property owned by the Guarantor
to the extent attached to the Guarantor's interest in such
property even though Guarantor is not liable for the payment
thereof $________
(e) any obligation of the Guarantor or a commonly Controlled
Entity to a Multiemployer Plan $________
(f) Synthetic Lease Funded Debt (as defined in the Financing
Agreement) $________
(g) all liabilities of a joint venture whether such joint
venture is consolidated or unconsolidated $________
(h) Contingent Funded Debt (as defined in the Financing
Agreement) $________
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** "Total Capital" means the sum of the following:
(a) Net Worth $________
(b) Total Funded Debt $________
(c) Subordinated Debt $________
(d) Value of Assets Associated with Contingent Debt $________
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ATTACHMENT 3
Period Ending: ___________, 200__
Ratio of Funded Debt* to Adjusted Total Capital
1. Funded Debt $__________*
2. Adjusted Total Capital $__________**
Ratio: _____%
Required Ratio: not greater than 70%
* "Funded Debt" means the sum of the following but shall exclude trade and other
accounts payable in the ordinary course of business in accordance with customary
trade terms and which are not overdue (as determined in accordance with
customary trade practices) or which are being disputed in good faith by the
Guarantor and for which adequate reserves are being provided on the books of the
Guarantor in accordance with GAAP:
(a) indebtedness for borrowed money ($______) or for the
deferred purchase price of property, or services ($________) $________
(b) obligations in respect of letters of credit, banker's or other
acceptances or similar obligations issued or created for the
account of the Guarantor $________
(c) lease obligations which have been or should be, in accordance
with GAAP, capitalized on the books of the Guarantor $________
(d) liabilities secured by any property owned by the Guarantor
to the extent attached to the Guarantor's interest in such
property even though Guarantor is not liable for the payment
thereof $________
(e) any obligation of the Guarantor or a commonly Controlled
Entity to a Multiemployer Plan $________
(f) all liabilities of a joint venture whether such joint
venture is consolidated or unconsolidated $________
** "Adjusted Total Capital" means the sum of the following:
(a) Net Worth $________
(b) Funded Debt $________
(c) Subordinated Debt $________
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ATTACHMENT 4
A. Four (4) consecutive quarters ending: _______________, 200__
Ratio of EBITDAR, to Interest plus Rent
1. EBITDAR* $____________ (calculated as follows)
Net Income $_____________
Plus Net Interest $_____________
Plus Taxes $_____________
Plus Depreciation $_____________
Plus Amortization $_____________
Plus Rent $_____________
2. Interest $__________________
(Interest expense [excluding amortization of prepaid financing
costs] of $_______ net of interest income of $_________ equals $______________.)
Rent $_________
Total of Interest plus Rent $_________
Ratio: _____ to 1.0
Required Ratio:
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Period Ending Ratio
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June 30, 2001 1.10 to 1.00
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September 30, 2001 1.15 to 1.00
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December 31, 2001 1.20 to 1.00
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March 31, 2002 1.30 to 1.00
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June 30, 2002 1.40 to 1.00
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B. One (1) quarter ending: ____________, 200__ Ratio of EBITDAR to
Interest Plus Rent:
1. EBITDAR* $____________ (calculated as follows)
Net Income $_____________
Plus Net Interest $_____________
Plus Taxes $_____________
Plus Depreciation $_____________
Plus Amortization $_____________
Plus Rent $_____________
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2. Interest $__________________
(Interest expense [excluding amortization of prepaid financing
costs] of $_______ net of interest income of $_________ equals $______________.)
Rent $_________
Total of Interest plus Rent $_________
Ratio: _____ to 1.0
Required Ratio:
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Period Ending Ratio
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June 30, 2001 1.15 to 1.00
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September 30, 2001 1.20 to 1.00
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December 31, 2001 1.30 to 1.00
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March 31, 2002 1.40 to 1.00
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June 30, 2002 1.50 to 1.00
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*EBITDAR means earnings before interest, taxes, depreciation, amortization, and
Rent. Any calculation of such ratio shall at all times (i) exclude non-cash
reserves for general and/or professional liability claims and the costs
associated therewith, (ii) exclude all non-cash income arising from the
contribution of assets to a joint venture, (iii) except as provided in (vi)
hereafter, include cash payments made for general and/or professional liability
claims and the costs associated therewith (iv) exclude non-cash "xxxx to market"
adjustments related to the X.X. Xxxxxx and SunTrust Swaps not to exceed
$1,200,000 in the aggregate, net of taxes, over the life of the X.X. Xxxxxx and
SunTrust Swaps, (v) exclude the $1,227,000 in pre-tax loss for debt prepayment
penalty and $762,000 pre-tax ordinary loss each in connection with the sale of
the Rossmoor Regency Facility, (vi) exclude the one-time $1,200,000 expense for
liability insurance "nose coverage" paid to Technical Risk, Inc., (vii) exclude
any gain or loss on the sale of the Pecan Park Facility or any other Facility
identified to be sold in the Capital Formation Plan (as defined in the Financing
Agreement) during the fiscal quarters ending June 30, 2001 or September 30, 2001
and (viii) exclude extraordinary losses arising from prepayments of debt during
fiscal quarters ending June 30, 2001 or September 30, 2001.
18
ATTACHMENT 5
Period Ending: ________, 200__
Current Ratio
1. Current Assets $____________*
2. Current Liabilities $____________**
Ratio of Current assets to Current Liabilities: ____ to ____
Required Ratio: not less than 1.0 to 1.0
* "Current Assets" means at the date hereof, the amount which, in conformity
with GAAP, would be set forth opposite the caption "total current assets" (or
any like caption) on a consolidated balance sheet of the Guarantor, excluding
inventory, Prepaids (as defined by GAAP) and Restricted Cash (as defined by
GAAP).
** "Current Liabilities" means at the date hereof, the amount which, in
conformity with GAAP, would be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of the
Guarantor, excluding balloon payments of principal greater than 300% of the
regularly scheduled amortization payment in connection with such indebtedness,
provided such indebtedness is refinanced within ninety (90) days of such balloon
payment.
19
ATTACHMENT 6
Period Ending: ________, 200__
Liquid Assets
Value of cash, cash equivalents and marketable securities $_______________
Required Value: not less than the greater of (a) ten percent (10%) of Tangible
Net Worth (as computed on Attachment 1) or (b) $13,514,000 as of June 30, 2001
plus (c) $.50 for every $1.00 (the "Additional Required Liquidity") of net
equity capital that is invested after the date hereof by the Guarantor or its
Subsidiaries in any of the new investments described in subparts (i) through (v)
below (individually, a "New Investment" or, collectively, the "New
Investments").
(i) acquisition of Guarantor's convertible subordinated debentures
$__________
(ii) voluntary prepayments of debt balances other than payments
currently scheduled or required pursuant to the terms of the documents
evidencing such indebtedness (including without limitation, prepayments
associated with the sale or refinancing of assets) $__________
(iii) acquisitions of Senior Living Facilities $__________
(iv) the dollar amount spent on new (i.e., first initiated after the
effective dated hereof) construction either for expansion of existing or
development of new Senior Living Facilities $__________
(v) the dollar amount spent to acquire the ownership of "black box"
Synthetic Lessees $__________
The foregoing notwithstanding the following limitations shall apply to
the Additional Required Liquidity: (1) New Investments must exceed $500,000 in a
fiscal quarter in order to give rise to commensurate Additional Required
Liquidity and thereafter, the Additional Required Liquidity shall be calculated
on the amount of New Investments in excess of $500,000 in such quarter (Dollar
amount of New Investments this period $_______); and (2) in all events, the
minimum Liquid Assets requirement shall not exceed $25,000,000 (except to the
extent 10% of the Guarantor's Tangible Net Worth exceeds $25,000,000).
Notwithstanding the foregoing, the following New Investments shall not
give rise to any Additional Required Liquidity: (1) the acquisition by the
Guarantor or any Subsidiary of any Senior Living Facility which is currently a
leasehold (except as provided in (v) above) (Dollar amount this period
$________); or (2) the cost of proposed expansion of the Senior Living Facility
knows as "Park Regency" (Dollar amount this period $________).
In addition, with regard to the sale of an asset the proceeds of which
are invested in a new asset pursuant to a 1031 exchange transaction, only 50% of
the net capital in excess of the 1031 sale proceeds included in the New
Investment will be subject to the Additional Required Liquidity (Dollar amount
of Net Capital in excess of 1031 proceeds this period $__________).
20
ATTACHMENT 7
Four (4) Consecutive Quarters Ending ________, 200__.
Fixed Charge Coverage Ratio:
Ratio of EBITDAR $________
to
Interest $________
plus
Scheduled or Required
Principal Payments $________
Rent $________
Total of Interest Plus
Scheduled or Required
Principal Payments Rent $________
Ratio: ____ to 1.0
Required Ratio: 1.05 to 1.0
*EBITDAR has been calculated in the same way as described on Attachment 4.
21
SECOND AMENDMENT TO AMENDED AND
RESTATED GUARANTY OF PAYMENT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED GUARANTY OF PAYMENT
AGREEMENT (this "Agreement") is made this 8th day of August, 2001, effective as
of June 30, 2001 by and between AMERICAN RETIREMENT CORPORATION, a Tennessee
corporation (the "Guarantor") and WASHINGTON MUTUAL BANK, FA, successor by
merger to Bank United (the "Agent") as agent for itself and the other lenders
who are or shall be from time to time participating as lenders (collectively,
the "Lenders") hereunder pursuant to the Agency Agreement dated June 8, 1999 and
October 1, 1999 or any amendment thereto (as amended, restated or substituted
from time to time the "Agency Agreement").
RECITALS
A. The Lenders have provided to ARC Capital Corporation II, a Tennessee
corporation, and the other Borrowers a credit facility (such credit facility, as
modified, increased, extended, restated or substituted, is referred to
hereinafter as the "Credit Facility" or the "Loan") in the maximum principal sum
of up to $100,000,000 or such greater amount not to exceed $150,000,000 as the
Lenders may from time to time commit to lend pursuant to any Agency Agreement.
Advances or readvances of the Loan have been made pursuant to, and secured by,
the provisions of that certain Amended and Restated Financing and Security
Agreement dated February 11, 2000 by and between the Agent and the Borrowers, as
amended pursuant to the First Amendment to Amended and Restated Financing and
Security Agreement dated November 7, 2001 and the Second Amendment to Amended
and Restated Financing and Security Agreement of even date herewith (as further
amended, restated, renewed or substituted from time to time, the "Financing
Agreement").
B. The advances under the Loan are evidenced by promissory notes made
by one or more of the Borrowers for the benefit of each of the Lenders in the
aggregate principal sum of the then-applicable Credit Facility Committed Amount
(as amended, restated, renewed or substituted from time to time, the "Notes").
Each of the Notes has been amended pursuant to the terms of a First Amendment to
Promissory Note dated November 7, 2000 and is being amended pursuant to the
terms of a Second Amendment to Promissory Note of even date herewith. The Notes
are secured by, among other things, certain Deeds of Trust (as defined in the
Financing Agreement) from the Borrowers in favor of the Agent for the benefit of
the Lenders covering such Borrowers' interest in the Land and the Improvements
for the applicable Facility (as defined in the Financing Agreement) or certain
assignments to the Lenders of Assigned Notes secured by Deeds of Trust payable
to Borrowers in connection with Synthetic Lease Transactions and Collateral
Assignments and such other real and personal property as shall be therein more
particularly set forth (collectively, the "Property"). The Credit Facility is
evidenced, secured and guaranteed by the Financing Documents (as defined in the
Financing Agreement).
C. The Borrowers obligations under the Credit Facility are guaranteed
by the Guarantor pursuant to the terms of the Amended and Restated Guaranty of
Payment Agreement dated February 11, 2000 as amended pursuant to the First
Amendment to Amended and Restated Guaranty of Payment Agreement dated November
7, 2000 (the "Guaranty").
22
D. The Borrowers have requested and the Lenders have agreed to modify
certain provisions of the Financing Agreement and the Guaranty.
E. The Lenders have required, as a condition to continuing to make
available the Credit Facility, that the Guarantor execute and deliver this
Agreement to the Agent.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Agent hereby
agree as follows:
1. The above Recitals are a part of this Agreement. Unless otherwise
expressly defined in this Agreement, terms defined in the Financing Agreement or
the Guaranty shall have the same meaning under this Agreement.
2. The Guaranty is hereby amended as follows: Subsections (a), (d) and
(f) of Section 3.2 of the Guaranty are hereby amended and restated in their
entirety as follows:
(a) Minimum Tangible Net Worth. Maintain, on a consolidated
basis with all subsidiaries, at all times during the term of the Credit
Facility measured quarterly, a minimum Tangible Net Worth of not less
than $88,000,000 as of June 30, 2001 and beginning with the quarter
ending September 30, 2001 a minimum Tangible Net Worth of not less than
the sum of $88,000,000 plus fifty percent (50%) of the Guarantor's net
income (if positive) for each subsequent quarter plus seventy-five
(75%) of the net cash proceeds to the Guarantor of any equity capital
(or equity equivalent) securities offering received during such
quarter, excluding the dollar amount of any such equity offering issued
in connection with any acquisition, merger or business combination
which is attributed to the purchase of the goodwill of the acquired
entity. "Tangible Net Worth" means, at any time, the sum at such time
of Net Worth less the total of (a) all assets which would be classified
as intangible assets under GAAP, including goodwill, trademarks,
trademark applications, trade names, service marks, patent applications
and licenses, and deferred charges, (b) pre-opening costs,
organizational costs and deferred financing costs, and (c) advances or
loans made to or receivables from any unconsolidated affiliates of
which the Guarantor owns less than fifty percent (50%) or any
stockholder of the Guarantor or any affiliate. The following items (a)
through (e) will also be excluded from Tangible Net Worth (provided,
however, that after deduction therefor, Tangible Net Worth shall not be
less than $75,000,000): (a) non-cash "xxxx to market" adjustments
related to the Guarantor's two existing interest rate swap instruments
obtained from X.X. Xxxxxx and SunTrust Bank, respectively (the "X.X.
Xxxxxx and SunTrust Swaps") not to exceed $1,200,000 in the aggregate,
net of taxes, over the life of the X. X. Xxxxxx and SunTrust Swaps, (b)
the $1,227,000 in pre-tax loss for debt prepayment penalty and $762,000
pre-tax ordinary loss each in connection with the sale of the Rossmoor
Regency Facility, (c) the one-time $1,200,000 expense for liability
insurance "nose coverage" paid to Technical Risk, Inc., (d) any gain or
loss on the sale of the Pecan Park Facility or any other Facility
identified to be sold in the Capital Formation Plan (as defined in the
Financing Agreement)
2
23
during fiscal quarters ending June 30, 2001 or September 30, 2001 and
(e) extraordinary losses arising from prepayments of debt during fiscal
quarters ending June 30, 2001 or September 30, 2001. All assets
classified in the Guarantor's financial statements as leaseholds of
Senior Living Facilities or leasehold acquisition costs related to
Senior Living Facilities shall be included as tangible assets in the
calculation of its Tangible Net Worth except leasehold acquisition
costs, if any, for the Senior Living Facility known as "Freedom Plaza
Peoria".
(d) Ratio of EBITDAR to Interest and Rent. Maintain on a
consolidated basis a minimum ratio of EBITDAR to the sum of Interest
plus Rent as shown below for the period or periods indicated; provided,
however, that any calculation of such ratio shall at all times (i)
exclude non-cash reserves for general and/or professional liability
claims and the costs associated therewith, (ii) exclude all non-cash
income arising from the contribution of assets to a joint venture,
(iii) except as provided in (vi) hereafter, include cash payments made
for general and/or professional liability claims and the costs
associated therewith, (iv) exclude non-cash "xxxx to market"
adjustments related to the X.X. Xxxxxx and SunTrust Swaps not to exceed
$1,200,000 in the aggregate, net of taxes, over the life of the X.X.
Xxxxxx and SunTrust Swaps, (v) exclude the $1,227,000 in pre-tax loss
for debt prepayment penalty and $762,000 pre-tax ordinary loss each in
connection with the sale of the Rossmoor Regency Facility, (vi) exclude
the one-time $1,200,000 expense for liability insurance "nose coverage"
paid to Technical Risk, Inc., (vii) exclude any gain or loss on the
sale of the Pecan Park Facility or any other Facility identified to be
sold in the Capital Formation Plan (as defined in the Financing
Agreement) during fiscal quarters ending June 30, 2001 or September 30,
2001 and (viii) exclude extraordinary losses arising from prepayments
of debt during fiscal quarters ending June 30, 2001 or September 30,
2001.
(i) Measured on a rolling four (4) fiscal quarter basis as
follows:
----------------------------------------------------------------------
Period Ending Ratio
----------------------------------------------------------------------
June 30, 2001 1.10 to 1.00
----------------------------------------------------------------------
September 30, 2001 1.15 to 1.00
----------------------------------------------------------------------
December 31, 2001 1.20 to 1.00
----------------------------------------------------------------------
March 31, 2002 1.30 to 1.00
----------------------------------------------------------------------
June 30, 2002 1.40 to 1.00
----------------------------------------------------------------------
3
24
(ii) Measured on a single fiscal quarter basis as follows:
----------------------------------------------------------------------
Period Ending Ratio
----------------------------------------------------------------------
June 30, 2001 1.15 to 1.00
----------------------------------------------------------------------
September 30, 2001 1.20 to 1.00
----------------------------------------------------------------------
December 31, 2001 1.30 to 1.00
----------------------------------------------------------------------
March 31, 2002 1.40 to 1.00
----------------------------------------------------------------------
June 30, 2002 1.50 to 1.00
----------------------------------------------------------------------
(f) Minimum Liquidity. Maintain on a consolidated basis Liquid
Assets of not less than the greater of (i) (aa) ten percent (10%) of
its Tangible Net Worth or (bb) $13,514,000 as of June 30, 2001,
measured quarterly plus (ii) $.50 for every $1.00 (the "Additional
Required Liquidity") of net equity capital that is invested after the
date hereof by the Guarantor or its Subsidiaries in any of the new
investments described in subparts (i) through (v) below (individually,
a "New Investment" or, collectively, the "New Investments"):
(i) acquisition of Guarantor's convertible subordinated
debentures,
(ii) voluntary prepayments of debt balances, other than
payments currently scheduled or required pursuant to the terms of the
documents evidencing such indebtedness (including, without limitation,
prepayments associated with the sale or refinancing of assets),
(iii) acquisitions of Senior Living Facilities;
(iv) the dollar amount spent on new (i.e., first initiated
after September 30, 2000) construction either for expansion of existing
or development of new Senior Living Facilities; and
(v) the dollar amount of cash spent to acquire the ownership
of "black box" Synthetic Lessees.
The foregoing notwithstanding, the following limitations shall
apply to the Additional Required Liquidity: (1) New Investments must
exceed $500,000 in a fiscal quarter in order to give rise to
commensurate Additional Required Liquidity and thereafter, the
Additional Required Liquidity shall be calculated on the amount of New
Investments in excess of $500,000 in such quarter; and (2) in all
events, the minimum Liquid Assets requirement shall not exceed
$25,000,000 (except to the extent 10% of the Guarantor's Tangible Net
Worth exceeds $25,000,000).
Notwithstanding the foregoing, the following New Investments
shall not give rise to any Additional Required Liquidity: (1) the
acquisition by the Guarantor or any Subsidiary of any Senior Living
Facility which is currently a
4
25
leasehold (except as provided in Section 3.2(f)(v)); or (2) the cost of
proposed expansion of the Senior Living Facility knows as "Park
Regency".
In addition, with regard to the sale of an asset the proceeds
of which are invested in a new asset pursuant to a 1031 exchange
transaction, only 50% of the net capital in excess of the 1031 sale
proceeds included in the New Investment will be subject to the
Additional Required Liquidity.
3. Except as specifically set forth herein, the terms, provisions and
covenants of the Guaranty are hereby ratified and confirmed and remain in full
force and effect.
4. This Agreement may be executed in any number of duplicate originals
or counterparts, each of such duplicate originals or counterparts shall be
deemed to be an original and all taken together shall constitute but one and the
same instrument.
5
26
WITNESS the signatures and seals of the Guarantor and the Agent on
behalf of the Lenders under seal by their duly authorized representatives as of
the day and year first above written.
WITNESS OR ATTEST: AMERICAN RETIREMENT CORPORATION,
a Tennessee corporation
By: (SEAL)
------------------------ ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
STATE/COMMONWEALTH OF _______________
COUNTY/CITY OF ______________, TO WIT:
I HEREBY CERTIFY, that on this ___ day of August, 2001, before me, the
undersigned Notary Public of said State/Commonwealth, personally appeared Xxxxxx
X. Xxxxx, who acknowledged himself to be the Executive Vice President of
American Retirement Corporation, known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument, and acknowledged
that he executed the same for the purposes therein contained as the duly
authorized officer of said corporation by signing the name of the corporation by
himself as Executive Vice President.
WITNESS my hand and Notarial Seal.
------------------------------
Notary Public
My Commission Expires:
6
27
WITNESS: WASHINGTON MUTUAL BANK, FA,
as Agent on behalf of the Lenders
By: (SEAL)
------------------------ ----------------------------------
Name:
Title:
STATE/COMMONWEALTH OF _______________
COUNTY/CITY OF ______________, TO WIT:
I HEREBY CERTIFY, that on this ___ day of August, 2001, before me, the
undersigned Notary Public of said State/Commonwealth, personally appeared
____________________, who acknowledged himself to be the ______________________
of Washington Mutual Bank, FA, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument, and acknowledged that
he executed the same for the purposes therein contained as the duly authorized
officer of said bank by signing the name of the bank by himself as ____________.
WITNESS my hand and Notarial Seal.
------------------------------
Notary Public
7
28
SECOND AMENDMENT TO PROMISSORY NOTE
THIS SECOND AMENDMENT TO PROMISSORY NOTE (this "Agreement") is made as
of August 8, 2001, but shall be effective as of June 30, 2001 by ARC CAPITAL
CORPORATION II, a Tennessee corporation, ARC SANTA CATALINA, INC., a Tennessee
corporation and ARC CARRIAGE CLUB OF JACKSONVILLE, INC, a Tennessee corporation
(collectively, the "Borrowers") and WASHINGTON MUTUAL BANK, FA, successor by
merger to Bank United (the "Lender").
RECITALS
A. The Borrowers and the Lender are parties to that certain Amended and
Restated Financing and Security Agreement dated February 11, 2000 by and between
Bank United as Agent, the Lenders party thereto and the Borrowers (the
"Financing Agreement") pursuant to which the Lenders party thereto extended to
the Borrowers a credit facility (such credit facility, as modified, increased,
extended, restated or substituted, is referred to hereinafter as the "Loan") in
the maximum principal sum of up to $100,000,000 or such greater amount not to
exceed $150,000,000 as the Lenders may from time to time commit to lend pursuant
to any Agency Agreement (as defined in the Financing Agreement).
B. The advances of the Loan made by the Lender are evidenced by the
Borrowers' Promissory Note dated June 8, 1999 as amended pursuant to the First
Amendment to Promissory Note dated November 7, 2000 (the same, as further
amended, modified, restated, substituted, extended, and renewed from time to
time, the "Note").
C. The Borrowers have requested modifications to certain provisions of
the Financing Agreement and the Guaranty.
D. The Agent and the Lenders have agreed to modify certain provisions
of the Financing Agreement and the Guaranty on the condition, among others, that
the Borrowers execute and deliver this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers and the Lender
hereby agree as follows:
1. The Borrowers and the Lender agree that the Recitals above are a
part of this Agreement. Unless otherwise expressly defined in this Agreement,
terms defined in the Financing Agreement shall have the same meaning under this
Agreement.
2. Section 1 (Interest) of the Note is hereby amended and restated in
its entirety effective as of August 1, 2001:
29
"1. Interest.
Interest on the outstanding Principal Sum shall accrue and be
calculated based upon the Eurodollar Rate (as defined in the Financing
Agreement) for periods of thirty (30) days each (each a "Eurodollar
Period"), which rate shall be adjusted for any Federal Reserve Board
reserve requirements imposed upon the Lender from time to time, plus
the then applicable Interest Rate Margin (as defined in the Financing
Agreement) determined pursuant to the terms of the Financing Agreement
but in no event shall the interest rate payable hereunder be less than
6.75% per annum. Interest shall be computed for the actual number of
days which have elapsed from the date of each advance of a portion of
the Principal Sum calculated on the basis of a 360-day year. The
Eurodollar Rate and the rate of interest applicable to this Note shall
be determined on the date of this Note and shall be in effect to the
end of and including such calendar month and shall be recalculated on
the first (1st) day of each successive calendar month and remain in
effect to and including the last date of each such calendar month."
3. Section 2(d) of the Note is hereby amended and restated in its
entirety as follows:
(d) Unless otherwise extended pursuant to terms hereof, the
Credit Facility shall mature and the entire outstanding principal
balance of the Loan, together with all accrued and unpaid interest
thereon, shall be due and payable on August 2, 2002 (the "Maturity
Date").
4. The Borrowers and the Lender agree that this Agreement is not
intended to and shall not cause a novation with respect to the Loan and/or any
or all of the other obligations evidenced or secured by the Financing Documents
(as defined in the Financing Agreement). Except as expressly modified herein,
the terms, provisions and covenants of the Note are in all other respects hereby
ratified and confirmed and remain in full force and effect.
5. This Agreement may be executed in any number of duplicate originals
or counterparts, each of such duplicate originals or counterparts shall be
deemed to be an original and all taken together shall constitute but one and the
same instrument. The Borrowers agree that the Lender may rely on a telecopy of
any signature of any Borrower. The Lender agrees that the Borrower may rely on a
telecopy of this Agreement executed by the Lender.
[SIGNATURES ON FOLLOWING PAGES]
2
30
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement on the day and year first above written.
WITNESS: WASHINGTON MUTUAL BANK, FA,
successor by merger to Bank United
By: (SEAL)
------------------------ ----------------------------------
Name:
Title:
WITNESS OR ATTEST: ARC CAPITAL CORPORATION II
By: (SEAL)
------------------------ ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
WITNESS: ARC CARRIAGE CLUB OF JACKSONVILLE, INC.
By: (SEAL)
------------------------ ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
WITNESS/ATTEST: ARC SANTA CATALINA, INC., a Tennessee
corporation
By: (SEAL)
------------------------ ----------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
3
