EXHIBIT 10.2
AMENDMENT NO. 1 TO PLEDGE AGREEMENT
THIS AMENDMENT, dated as of March 27, 1997, by (i) each of the Pledgors
which is a party to the Pledge Agreement referred to below (the "ORIGINAL
PLEDGORS"); and (ii) the following additional Subsidiaries of the Borrower,
namely, ATRIA COMMUNITIES SOUTHEAST, INC., a Delaware corporation which is the
surviving corporation of a merger with American ElderServe Corporation, a
Georgia corporation, AMERICAN ELDERSERVE OF TEXAS, INC., a Texas corporation,
AMERICAN ELDERSERVE OF ALABAMA, INC., a Georgia corporation, and SOUTHERN CARE,
INC., a Georgia corporation (each, together with its successors and assigns, an
"ADDITIONAL PLEDGOR", and collectively, the "ADDITIONAL PLEDGORS"); with (iii)
PNC BANK, NATIONAL ASSOCIATION, a national banking association, as Collateral
Agent under the Credit Agreement (herein, together with its successors and
assigns in such capacity, the "PLEDGEE"):
PRELIMINARY STATEMENTS:
(1) The Original Pledgors have heretofore entered into the Pledge
Agreement, dated as of August 15, 1996, in favor of the Collateral Agent as the
Pledgee thereunder (the "PLEDGE AGREEMENT"; with the terms defined therein, or
the definitions of which are incorporated therein, being used herein as so
defined).
(2) The parties hereto desire to amend certain of the terms and provisions
of the Pledge Agreement, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. JOINDER OF ADDITIONAL PLEDGORS. Effective upon the execution and
delivery of this Amendment, each Additional Pledgor hereby joins in and becomes
a party to the Pledge Agreement, as amended hereby, as a Pledgor thereunder as
fully as if it had been an original signatory to the Pledge Agreement. All
representations, warranties, covenants, agreements and waivers contained in the
Pledge Agreement, as amended hereby, applicable to Pledgors thereunder shall
apply to the Additional Pledgors from and after the date of execution and
delivery of this Amendment.
2. REPLACEMENT OF SECTIONS 2 AND 3 OF PLEDGE AGREEMENT. In order, among
other things, to incorporate terms and provisions applicable to the pledge of
interests in limited liability companies, sections 2 and 3 of the Pledge
Agreement are amended and restated to read in their entirety as follows:
2. DEFINITION OF STOCK, NOTES, SECURITIES,
PARTNERSHIP INTERESTS, MEMBERSHIP INTERESTS, ETC.
As used herein, (i) the term "STOCK" shall mean all of the issued and
outstanding shares of stock at any time owned by any Pledgor of any
corporation; (ii) the term "NOTES" shall mean all promissory notes from
time to time issued to, or held by, any Pledgor other than Cash
Equivalents; (iii) the term "SECURITIES" shall mean all of the Stock and
Notes; (iii) the term "PARTNERSHIP INTERESTS" shall mean the entire
partnership interest at any time owned by any Pledgor in any general or
limited partnership (a "PLEDGED PARTNERSHIP"); (iv) the term "MEMBERSHIP
INTEREST" shall mean the entire membership interest at any time owned by
any Pledgor in any limited liability company (a "PLEDGED LLC"); and (v) the
term "PLEDGED ENTITY" shall mean either a Pledged Partnership or a Pledged
LLC, as applicable.
Each Pledgor represents and warrants that on the date hereof: (a) each
Subsidiary of such Pledgor and the direct ownership thereof is listed on
Annex A hereto; (b) the Stock consists of the number and type of shares of
the stock of the corporations as described in Annex B hereto; (c) such
Pledgor is the holder of record with respect to any Subsidiary and sole
beneficial owner of such Stock; (d) such Stock constitutes that percentage
of the issued and outstanding capital stock of the issuing corporation as
is set forth in Annex B hereto; (e) the Notes held by such Pledgor consist
of the promissory notes described in Annex C hereto; (f) the Partnership
Interests and Membership Interests, as the case may be, held by such
Pledgor constitutes that percentage of the entire interest of each Pledged
Partnership and Pledged LLC, as the case may be, as is set forth on Annex D
hereto; and (g) on the date hereof, no Pledgor owns or possesses any other
Securities or Partnership Interests or Membership Interests.
3. PLEDGE OF SECURITIES, GRANT OF SECURITY INTERESTS, ETC.
3.1. PLEDGE. To secure the Obligations and for the purposes set forth
in section 1, each Pledgor hereby pledges and grants to the Pledgee a first
priority continuing security interest in, and as part of such grant and
pledge, hereby transfers and assigns to the Pledgee all of the following
whether now existing or hereafter acquired (the "COLLATERAL"):
(a) such Pledgor's (x) Partnership Interest and all of such
Pledgor's right, title and interest in each Pledged Partnership and
(y) Membership Interest and all of such Pledgor's right, title and
interest in each Pledged LLC, in each case including, without
limitation:
(i) all the capital thereof and its interest in all
profits, losses and other distributions to which such Pledgor
shall at any time be entitled in respect of such Partnership
Interest and/or Membership Interest;
(ii) all other payments due or to become due to such
Pledgor in respect of such Partnership Interest and/or Membership
Interest, whether under any partnership agreement, limited
liability company agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(iii) all of its claims, rights powers, privileges,
authority, options security interest, liens and remedies, if any,
under any partnership agreement or limited liability company
agreement or at law or otherwise in respect of such Partnership
Interest and/or Membership Interest;
(iv) all present and future claims if any, of the Pledgor
against any Pledged Partnership and any Pledged LLC for moneys
loaned or advanced, for services rendered or otherwise;
(v) all of such Pledgor's rights under any partnership
agreement, limited liability company agreement or at law to
exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to the Partnership
Interest and/or Membership Interest including any power to
terminate, cancel or modify any partnership agreement or limited
liability company agreement, to execute any instruments and to
take any and all other action on behalf of and in the name of
such Pledgor in respect of the Partnership Interest and any
Pledged Partnership and the Membership Interest or any Pledged
LLC, to make determinations, to exercise any election (including,
but not limited to, election of remedies) or option or to give or
receive any notice, consent, amendment,
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waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing, to enforce or execute any checks, or other instruments
or orders, to file any claims and to take any action in
connection with any of the foregoing;
(vi) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof; and
(vii) to the extent not otherwise included, all proceeds of
any or all of the foregoing;
(b) all Securities owned by such Pledgor on the date hereof, if
any, and such Pledgor hereby pledges and deposits as security with the
Pledgee and delivers to the Pledgee certificates or instruments
therefor duly endorsed in blank in the case of Notes and accompanied
by undated stock powers duly executed in blank by such Pledgor in the
case of Stock, or such other instruments of transfer as are acceptable
to the Pledgee; and
(c) all of such Pledgor's right, title and interest in and to
such Securities (and in and to all certificates or instruments
evidencing such Securities), which such Pledgor hereby assigns,
transfers, hypothecates, mortgages, charges and sets over to the
Pledgee, to be held by the Pledgee, upon the terms and conditions set
forth in this Agreement.
3.2. SUBSEQUENTLY ACQUIRED SECURITIES, PARTNERSHIP INTERESTS AND
MEMBERSHIP INTERESTS. If a Pledgor shall acquire (by purchase, stock
dividend or otherwise) any additional Securities, Partnership Interests
and/or Membership Interests at any time or from time to time after the date
hereof which are represented by certificates or instruments, such Pledgor
will forthwith pledge and deposit such Securities, Partnership Interests
and/or Membership Interests as security with the Pledgee and deliver to the
Pledgee certificates or instruments thereof, duly endorsed in blank in the
case of Notes and accompanied by undated stock powers duly executed in
blank in the case of Stock, by such Pledgor or such other instruments of
transfer as are acceptable to the Pledgee, and will promptly thereafter
deliver to the Pledgee a certificate executed by a principal executive
officer of such Pledgor describing such Securities, Partnership Interests
and/or Membership Interests and certifying that the same have been duly
pledged with the Pledgee hereunder.
3.3. UNCERTIFICATED SECURITIES, PARTNERSHIP INTERESTS AND/OR
MEMBERSHIP INTERESTS. Notwithstanding anything to the contrary contained
in sections 3.1 and 3.2, if any Securities, Partnership Interests and/or
Membership Interests (whether or not now owned or hereafter acquired) are
uncertificated securities, a Pledgor shall promptly notify the Pledgee
thereof, and shall promptly take all actions required to perfect the
security interest of the Pledgee under applicable law (including, in any
event, under sections 8-313 and 8-321 of the Uniform Commercial Code if
applicable). Each Pledgor further agrees to take such actions as the
Pledgee deems reasonably necessary or desirable to effect the foregoing and
to permit the Pledgee to exercise any of its rights and remedies hereunder,
and agrees to provide an opinion of counsel reasonably satisfactory to the
Pledgee with respect to any such pledge of uncertificated securities,
Partnership Interests and/or Membership Interests promptly upon the request
of the Pledgee.
3.4. DEFINITIONS OF PLEDGED STOCK, PLEDGED NOTES, AND PLEDGED
SECURITIES AND COLLATERAL. All Stock at any time pledged or required to be
pledged hereunder is hereinafter called the "PLEDGED STOCK"; all Notes at
any time pledged or required to be pledged hereunder are hereinafter called
the "PLEDGED NOTES"; and all Pledged Stock and Pledged Notes together are
called the "PLEDGED SECURITIES".
3. DIVIDENDS AND OTHER DISTRIBUTIONS. Section 5 of the Pledge Agreement
is amended by inserting ", membership interests" after the words "partnership
interests" in each place where such words appear in clause (i), (ii) and (iii)
of section 5 of the Pledge Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. Clauses
(v) through (xiii) of section 15(a) of the Pledge Agreement are deleted and
replaced by the following:
(v) it will defend the Pledgee's right, title and interest in
and to the Partnership Interests, the Membership Interests and in and
to the Collateral pledged by it pursuant hereto or in which it has
granted a security interest pursuant hereto against the claims and
demands of all other
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persons whomsoever, and such Pledgor covenants and agrees that it will
have like title to and right to pledge any other property at any time
hereafter pledged to the Pledgee as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the
Pledgee and the Secured Creditors;
(vi) it is the legal and beneficial owner of and has good title
to its Partnership Interests and Membership Interests and has good
title to all of the other Collateral pledged by it pursuant hereto or
in which it has granted a security interest pursuant hereto, free and
clear of all claims, pledges, liens, encumbrances and security
interests of every nature whatsoever, except such as are created
pursuant to this Agreement, and has the unqualified right to pledge
and grant a security interest in the same as herein provided without
the consent of any other person, firm, association or entity which has
not been obtained;
(vii) it has full power, authority and legal right to pledge the
Partnership Interests and the Membership Interests pledged by it
pursuant to this Agreement and such Partnership Interests and
Membership Interests have been validly acquired and are fully paid for
and are duly and validly pledged hereunder;
(viii) it is not in default in the payment of any portion of
any mandatory capital contribution, if any, required to be made under
any partnership agreement or limited liability company agreement to
which such Pledgor is a party, and such Pledgor is not in violation of
any other material provisions of any partnership agreement or limited
liability company agreement to which such Pledgor is a party, or
otherwise in default or violation thereunder, no Partnership Interest
or Membership Interest is subject to any defense, offset or
counterclaim, nor have any of the foregoing been asserted or alleged
against such Pledgor by any person with respect thereto and as of the
date of pledge hereunder, there are no certificates, instruments,
documents or other writings (other than the partnership agreements and
certificates, if any, and limited liability company agreements
delivered to the Collateral Agent) which evidence any Partnership
Interest or Membership Interest of such Pledgor;
(ix) the pledge and assignment of the Partnership Interests and
the Membership Interests pursuant to this Agreement, together with the
relevant filings, consents or recordings (which filings and recordings
have been made or obtained), creates a valid, perfected and continuing
first security interest in such Partnership Interests and membership
Interests and the proceeds thereof, subject to no prior lien or
encumbrance or to any agreement purporting to grant to any third party
a lien or encumbrance on the property or assets of such Pledgor which
would include the Collateral;
(x) there are no currently effective financing statements
under the UCC covering any property which is now or hereafter may be
included in the Collateral and such Pledgor will, without the prior
written consent of the Pledgee, execute and, until the Termination
Date, there will not ever be on file in any public office any
enforceable financing statement or statements covering any or all of
the Collateral, except financing statements filed or to be filed in
favor of the Pledgee as secured party;
(xi) it shall give the Pledgee prompt notice of any written
claim relating to the Collateral and shall deliver to the Pledgee a
copy of each other demand, notice or document received by it which may
adversely affect the Pledgee's interest in the Collateral promptly
upon, but in any event within 10 days after, such Pledgor's receipt
thereof;
(xii) it shall not withdraw as a partner of any Pledged
Partnership or member of any Pledged LLC, or file or pursue or take
any action which may, directly or indirectly, cause a dissolution or
liquidation of or with respect to any Pledged Partnership or Pledged
LLC or seek a partition of any property of any Pledged Partnership or
Pledged LLC, except as permitted by the Credit Agreement;
(xiii) a notice in the form set forth in Annex E attached hereto
and by this reference made a part hereof (such notice the "PARTNERSHIP
NOTICE"), appropriately completed, notifying each Pledged Partnership
of the existence of this Agreement and a certified copy of this
Agreement have been delivered by such Pledgor to the relevant Pledged
Partnership, and such Pledgor has received and delivered to the
Pledgee an acknowledgment in the form set forth in Annex E attached
hereto (such acknowledgement, the "PARTNERSHIP ACKNOWLEDGEMENT"), duly
executed by the relevant Pledged Partnership; and
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(xiv) a notice in the form set forth in Annex F attached hereto
and by this reference made a part hereof (such notice the "LLC
NOTICE"), appropriately completed, notifying each Pledged LLC of the
existence of this Agreement and a certified copy of this Agreement
have been delivered by such Pledgor to the relevant Pledged LLC, and
such Pledgor has received and delivered to the Pledgee an
acknowledgment in the form set forth in Annex F attached hereto (such
acknowledgement, the "LLC ACKNOWLEDGEMENT"), duly executed by the
relevant Pledged LLC.
5. ADDITION OF ANNEX F. The Pledge Agreement is amended by adding as an
Annex thereto Annex F attached hereto.
6. ADDITIONS TO ANNEX A. Annex A to the Pledge Agreement is amended by
the addition of the following information:
======================================================================================================================
NAME OF JURISDICTION PERCENTAGE OF NAMES AND JURISDICTIONS JURISDICTIONS
SUBSIDIARY WHERE OUTSTANDING STOCK ADDRESSES WHERE WHERE
AND ORGANIZED OR OTHER EQUITY OF MINORITY QUALIFIED AS SUBSTANTIAL
TYPE OF INTERESTS OWNED HOLDERS, A FOREIGN ASSETS
ORGANIZATION (INDICATING WHETHER IF ANY CORPORATION LOCATED
OWNED BY THE OR
BORROWER OR A OTHER ENTITY
SPECIFIED SUBSIDIARY)
----------------------------------------------------------------------------------------------------------------------
Atria Delaware 100%, owned by the N/A to be qualified Georgia
Communities Borrower in Alabama,
Southeast, Inc., Florida and
a corporation Georgia upon
merger of
American
ElderServe
Corporation
into Atria
Communities,
Southeast, Inc.
----------------------------------------------------------------------------------------------------------------------
American Georgia 100%, owned by Xxxxx X/X X/X Xxxxxxx
ElderServe Communities
Management, Southeast, Inc.
Inc., a
corporation
----------------------------------------------------------------------------------------------------------------------
American Texas 100%, owned by Xxxxx X/X X/X Xxxxx
ElderServe of Communities
Texas, Inc., a Southeast, Inc.
corporation
----------------------------------------------------------------------------------------------------------------------
Southern Care, Georgia 100%, owned by Xxxxx X/X X/X Xxxxxxx
Inc., a Communities
corporation Southeast, Inc.
----------------------------------------------------------------------------------------------------------------------
Southeast Georgia 100%, owned by Xxxxx X/X X/X Xxxxxxx
Assisted Communities
Living Southeast, Inc.
Residences,
Inc., a
corporation
----------------------------------------------------------------------------------------------------------------------
American Georgia 100%, owned by Atria N/A Alabama Alabama
ElderServe of Communities
Alabama, Inc., Southeast, Inc.
======================================================================================================================
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======================================================================================================================
NAME OF JURISDICTION PERCENTAGE OF NAMES AND JURISDICTIONS JURISDICTIONS
SUBSIDIARY WHERE OUTSTANDING STOCK ADDRESSES WHERE WHERE
AND ORGANIZED OR OTHER EQUITY OF MINORITY QUALIFIED AS SUBSTANTIAL
TYPE OF INTERESTS OWNED HOLDERS, A FOREIGN ASSETS
ORGANIZATION (INDICATING WHETHER IF ANY CORPORATION LOCATED
OWNED BY THE OR
BORROWER OR A OTHER ENTITY
SPECIFIED SUBSIDIARY)
----------------------------------------------------------------------------------------------------------------------
a corporation
----------------------------------------------------------------------------------------------------------------------
American North 100%, owned by Xxxxx X/X X/X Xxxxx Xxxxxxxx
ElderServe Carolina Communities
of North Southeast, Inc.
Carolina, Inc.,
a corporation
----------------------------------------------------------------------------------------------------------------------
American Florida 100%, owned by Atria N/A N/A Florida
ElderServe Communities
of Florida, Inc., Southeast, Inc.
a corporation
----------------------------------------------------------------------------------------------------------------------
Plantation Texas 67% General N/A N/A Texas
South on Partnership Interest
Cypresswood held by American
Limited ElderServe of Texas
Partnership, a Inc.
limited
partnership 33% Limited
Partnership Interest
held by Atria
Communities
Southeast, Inc.
----------------------------------------------------------------------------------------------------------------------
Plantation Alabama 51% General N/A N/A Alabama
South at Partnership Interest
Auburn held by American
Partnership, a ElderServe of
general Alabama, Inc.
partnership
49% General
Partnership Interest
held by Atria
Communities
Southeast, Inc.
===============================================================================================================
7. ADDITIONS TO ANNEX B. Annex B to the Pledge Agreement is amended by
the addition of the following information:
================================================================================
NAME OF TYPE NUMBER
ISSUING OF OF CERTIFICATE PERCENTAGE
CORPORATION SHARES SHARES NO. OWNED
--------------------------------------------------------------------------------
Atria Communities 100%
Southeast, Inc.
================================================================================
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================================================================================
NAME OF TYPE NUMBER
ISSUING OF OF CERTIFICATE PERCENTAGE
CORPORATION SHARES SHARES NO. OWNED
--------------------------------------------------------------------------------
American 100%
ElderServe
Management, Inc.
--------------------------------------------------------------------------------
Southern Care, Inc. Common Stock, 1,000 100%
$1 par value
--------------------------------------------------------------------------------
American Common Stock, 500 100%
ElderServe of $1 par share
Alabama, Inc.
--------------------------------------------------------------------------------
American Common Stock, 500 100%
ElderServe of $1 par share
Texas, Inc.
--------------------------------------------------------------------------------
Southeast Assisted 100%
Living Residences,
Inc.
--------------------------------------------------------------------------------
American ElderServe 100%
of North Carolina,
Inc.
--------------------------------------------------------------------------------
American ElderServe 100%
of Florida, Inc.
================================================================================
8. ADDITIONS TO ANNEX C. Annex C to the Pledge Agreement is amended by
the addition of the following information:
===========================================================================================================
ISSUER PAYEE PRINCIPAL AMOUNT INTEREST RATE MATURITY DATE
-----------------------------------------------------------------------------------------------------------
Atria Communities, Atria Communities any advances; weighted average on demand
Inc. Southeast, Inc. subordinated as borrowing rate or
provided therein specified alternative
-----------------------------------------------------------------------------------------------------------
Atria Communities, American any advances; weighted average on demand
Inc. ElderServe subordinated as borrowing rate or
Management, Inc. provided therein specified alternative
-----------------------------------------------------------------------------------------------------------
Atria Communities, Southern Care, Inc. any advances; weighted average on demand
Inc. subordinated as borrowing rate or
provided therein specified alternative
-----------------------------------------------------------------------------------------------------------
Atria Communities, American any advances; weighted average on demand
Inc. ElderServe subordinated as borrowing rate or
of Alabama, Inc. provided therein specified alternative
-----------------------------------------------------------------------------------------------------------
Atria Communities, American any advances; weighted average on demand
Inc. ElderServe subordinated as borrowing rate or
of Texas, Inc. provided therein specified alternative
-----------------------------------------------------------------------------------------------------------
Atria Communities, Southeast Assisted any advances; weighted average on demand
Inc. Living Residences, subordinated as borrowing rate or
Inc. provided therein specified alternative
===========================================================================================================
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============================================================================================================================
ISSUER PAYEE PRINCIPAL AMOUNT INTEREST RATE MATURITY DATE
----------------------------------------------------------------------------------------------------------------------------
Atria Communities, American any advances; weighted average on demand
Inc. ElderServe subordinated as borrowing rate or
of North Carolina, provided therein specified alternative
Inc.
----------------------------------------------------------------------------------------------------------------------------
Atria Communities, American any advances; weighted average on demand
Inc. ElderServe subordinated as borrowing rate or
of Florida, Inc. provided therein specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities, Plantation South any advances; weighted average on demand
Inc. on Cypresswood subordinated as borrowing rate or
Limited provided therein specified alternative
Partnership
----------------------------------------------------------------------------------------------------------------------------
Atria Communities, Plantation South any advances; weighted average on demand
Inc. at subordinated as borrowing rate or
Auburn Partnership provided therein specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities Atria Communities, any advances weighted average on demand
Southeast, Inc. Inc. borrowing rate or
specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities American any advances weighted average on demand
Southeast, Inc. ElderServe borrowing rate or
Management, Inc. specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities Southern Care, Inc. any advances weighted average on demand
Southeast, Inc. borrowing rate or
specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities American any advances weighted average on demand
Southeast, Inc. ElderServe borrowing rate or
of Alabama, Inc. specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities American any advances weighted average on demand
Southeast, Inc. ElderServe borrowing rate or
of Texas, Inc. specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities Southeast Assisted any advances weighted average on demand
Southeast, Inc. Living Residences, borrowing rate or
Inc. specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities American any advances weighted average on demand
Southeast, Inc. ElderServe borrowing rate or
of NorthCarolina, specified alternative
Inc.
----------------------------------------------------------------------------------------------------------------------------
Atria Communities American any advances weighted average on demand
Southeast, Inc. ElderServe borrowing rate or
of Florida, Inc. specified alternative
----------------------------------------------------------------------------------------------------------------------------
Atria Communities Plantation South any advances weighted average on demand
Southeast, Inc. on Cypresswood borrowing rate or
Limited specified alternative
Partnership
----------------------------------------------------------------------------------------------------------------------------
Atria Communities Plantation South any advances weighted average on demand
Southeast, Inc. at borrowing rate or
Auburn Partnership specified alternative
----------------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities, any advances weighted average on demand
Management, Inc. Inc. borrowing rate or
specified alternative
----------------------------------------------------------------------------------------------------------------------------
American Atria Communities any advances weighted average on demand
ElderServe Southeast, Inc. borrowing rate or
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====================================================================================================================
ISSUER PAYEE PRINCIPAL AMOUNT INTEREST RATE MATURITY DATE
--------------------------------------------------------------------------------------------------------------------
Management, Inc. specified alternative
--------------------------------------------------------------------------------------------------------------------
Southern Care, Inc. Atria Communities, any advances weighted average on demand
Inc. borrowing rate or
specified alternative
--------------------------------------------------------------------------------------------------------------------
Southern Care, Inc. Atria Communities any advances weighted average on demand
Southeast, Inc. borrowing rate or
specified alternative
--------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities, any advances weighted average on demand
of Alabama, Inc. Inc. borrowing rate or
specified alternative
--------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities any advances weighted average on demand
of Alabama, Inc. Southeast, Inc. borrowing rate or
specified alternative
--------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities, any advances; may weighted average on demand
of Texas, Inc. Inc. be subordinated borrowing rate or
to obligations specified alternative
under Lease
Agreement with
Health Care REIT
--------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities any advances; may weighted average on demand
of Texas, Inc. Southeast, Inc. be subordinated to borrowing rate or
obligations specified alternative
under Lease
Agreement with
Health Care REIT
--------------------------------------------------------------------------------------------------------------------
Southeast Assisted Atria Communities, any advances weighted average on demand
Living Residences, Inc. borrowing rate or
Inc. specified alternative
--------------------------------------------------------------------------------------------------------------------
Southeast Assisted Atria Communities any advances weighted average on demand
Living Residences, Southeast, Inc. borrowing rate or
Inc. specified alternative
--------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities, any advances; may weighted average on demand
of North Carolina, Inc. be subordinated to borrowing rate or
Inc. obligations specified alternative
under Lease
Agreement with
Health Care REIT,
Inc.
--------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities any advances; may weighted average on demand
of North Carolina, Southeast, Inc. be subordinated to borrowing rate or
Inc. obligations specified alternative
under Lease
Agreement with
Health Care REIT,
Inc.
--------------------------------------------------------------------------------------------------------------------
American ElderServe Atria Communities, any advances; may weighted average on demand
of Florida, Inc. Inc. be subordinated to borrowing rate or
obligations specified alternative
under Lease
Agreement with
Health Care REIT,
Inc.
--------------------------------------------------------------------------------------------------------------------
American Atria Communities any advances; may weighted average on demand
ElderServe of be subordinated to borrowing rate or
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======================================================================================================================
ISSUER PAYEE PRINCIPAL AMOUNT INTEREST RATE MATURITY DATE
----------------------------------------------------------------------------------------------------------------------
Florida, Inc. Southeast, Inc. obligations under specified alternative
Lease Agreement
with Health Care
REIT, Inc.
----------------------------------------------------------------------------------------------------------------------
Plantation South on Atria Communities, any advances; may weighted average on demand
Cypresswood Inc. be subordinated to borrowing rate or
Limited obligations specified alternative
Partnership under Lease
Agreement with
Health Care REIT,
Inc.
----------------------------------------------------------------------------------------------------------------------
Plantation South on Atria Communities any advances; may weighted average on demand
Cypresswood Southeast, Inc. be subordinated to borrowing rate or
Limited obligations specified alternative
Partnership under Lease
Agreement with
Health Care REIT,
Inc.
----------------------------------------------------------------------------------------------------------------------
Plantation South on American any advances; may weighted average on demand
Cypresswood ElderServe be subordinated to borrowing rate or
Limited of Texas, Inc. obligations specified alternative
Partnership under Lease
Agreement with
Health Care REIT,
Inc.
----------------------------------------------------------------------------------------------------------------------
Plantation South at Atria Communities, any advances weighted average on demand
Auburn Partnership Inc. borrowing rate or
specified alternative
----------------------------------------------------------------------------------------------------------------------
Plantation South at Atria Communities any advances weighted average on demand
Auburn Partnership Southeast, Inc. borrowing rate or
specified alternative
----------------------------------------------------------------------------------------------------------------------
Plantation South at American any advances weighted average on demand
Auburn Partnership ElderServe borrowing rate or
of Alabama, Inc. specified alternative
----------------------------------------------------------------------------------------------------------------------
Elder Healthcare Atria Communities, any advances 25 bp over weighted up to approximately
Developers, LLC Inc. average borrowing 3 years
rate or specified
alternative
======================================================================================================================
9. ADDITIONS TO ANNEX D. Annex D to the Pledge Agreement is amended by
the addition of the following information:
======================================================================================================================
NAME OF PLEDGED ENTITY TYPE OF ORGANIZATION
----------------------------------------------------------------------------------------------------------------------
Elder Healthcare Developers, LLC Georgia limited liability company
----------------------------------------------------------------------------------------------------------------------
Plantation South on Cypresswood Limited Partnership Texas limited partnership
----------------------------------------------------------------------------------------------------------------------
Plantation South at Auburn Partnership Alabama general partnership
----------------------------------------------------------------------------------------------------------------------
Roswell ALC Limited Partnership Georgia limited partnership
======================================================================================================================
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10. RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Security Agreement, and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Pledge Agreement are ratified and
confirmed and shall continue in full force and effect.
11. MISCELLANEOUS. The terms and provisions of sections 20 [Waiver;
Amendment], 22 [Miscellaneous] and 23 [Waiver of Jury Trial] of the Pledge
Agreement are hereby incorporated into this Amendment as if set forth in full
herein, except that references in such incorporated terms and provisions to
"this Agreement", "herein", "hereby" and words of similar import shall be deemed
to refer to this Amendment instead of the Pledge Agreement. This Amendment may
be executed by the parties hereto separately in counterparts, each of which
shall be an original and all of which together shall constitute one and the same
agreement.
[The balance of this page is intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
ATRIA COMMUNITIES, INC.
BY:________________________________________
CHIEF FINANCIAL OFFICER AND
VICE PRESIDENT FOR DEVELOPMENT
LANTANA PARTNERS, LTD.
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
PHILLIPPE ENTERPRISES, INC.
HILLHAVEN PROPERTIES, LTD.
CASTLE GARDENS RETIREMENT CENTER
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
HILLCREST RETIREMENT CENTER, LTD.
BY: FAIRVIEW LIVING CENTERS, INC.,
A GENERAL PARTNER
XXXXX RETIREMENT CENTER LIMITED PARTNERSHIP
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
TOPEKA RETIREMENT CENTER, LTD.
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
EVERGREEN XXXXX, LTD.
BY: ATRIA COMMUNITIES, INC.,
A GENERAL PARTNER
FAIRVIEW LIVING CENTERS, INC.
TWENTY-NINE HUNDRED ASSOCIATES, LTD.
BY: TWENTY-NINE HUNDRED CORPORATION,
A GENERAL PARTNER
TWENTY-NINE HUNDRED CORPORATION
WOODHAVEN PARTNERS, LTD.
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
TUCSON RETIREMENT CENTER LIMITED
PARTNERSHIP
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
BY: _________________________________
VICE PRESIDENT
ATRIA COMMUNITIES SOUTHEAST, INC.
BY: _________________________________
VICE PRESIDENT
AMERICAN ELDERSERVE OF TEXAS, INC.
BY:__________________________________
VICE PRESIDENT
12
AMERICAN ELDERSERVE OF ALABAMA, INC.
BY:__________________________________
VICE PRESIDENT
SOUTHERN CARE, INC.
BY:___________________________________
VICE PRESIDENT
PNC BANK, NATIONAL ASSOCIATION,
AS COLLATERAL AGENT AND PLEDGEE
BY: _________________________________
VICE PRESIDENT
13
ANNEX F
to
Pledge Agreement
LLC NOTICE
[Letterhead of Pledgor]
[Date]
TO:[NAME OF LLC]
Notice is hereby given that, pursuant to a Pledge Agreement (a true and
correct copy of which is attached hereto), dated as of August 15, 1996 (as
amended, modified or supplemented from time to time in accordance with the terms
thereof, the "PLEDGE AGREEMENT"), among the pledgors party thereto, including
the undersigned (the "PLEDGOR") and PNC Bank, National Association, as
Collateral Agent (herein, together with its successors and assigns in such
capacity, the "PLEDGEE") for the Secured Creditors described therein, the
Pledgor has pledged and assigned to the Pledgee for the benefit of the Secured
Creditors, and granted to the Pledgee for the benefit of the Secured Creditors a
continuing security interest in, all right, title and interest of the Pledgor,
whether now existing or hereafter arising or acquired, as a member in [NAME OF
LLC] (the "LLC"), and in, to and under the [TITLE OF APPLICABLE LLC AGREEMENT]
(the "LLC AGREEMENT"), including, without limitation:
(i) all the capital of the LLC and the Pledgor's interest in
all profits, losses and other distributions to which the Pledgor shall at
any time be entitled in respect of such membership interest ("MEMBERSHIP
INTEREST");
(ii) all other payments due or to become due to the Pledgor in
respect of such Membership Interest, whether under the LLC Agreement or
otherwise, whether as contractual obligations, damages, insurance proceeds
or otherwise;
(iii) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under the LLC
Agreement or at law or otherwise in respect of such Membership Interest;
(iv) all present and future claims, if any, of the Pledgor
against the LLC for moneys loaned or advanced, for services rendered or
otherwise;
(v) all of the Pledgor's rights under the LLC Agreement or at
law to exercise and enforce every right, power, remedy, authority, option
and privilege of the Pledgor relating to the Membership Interest, including
any power to terminate, cancel or modify the LLC Agreement, to execute any
instruments and to take any and all other action on behalf of and in the
name of the Pledgor in respect of the Membership Interest and the LLC, to
make determinations, to exercise any election (including, but not limited,
election of remedies) or option or to give or receive any notice, consent,
amendment, waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the foregoing or to
enforce or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
(vi) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash, securities,
interest, dividends, rights and other property at any time and from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof; and
(vii) to the extent not otherwise included, all proceeds of any
or all of the foregoing.
Pursuant to the Pledge Agreement, the LLC is hereby authorized and directed
to register the Pledgor's pledge to the Pledgee on behalf of the Secured
Creditors of the interest of the Pledgor on the LLC's books.
The Pledgor and the LLC each hereby consents, notwithstanding anything to
the contrary contained in the LLC Agreement or any other agreement for the
benefit of the Pledgor or the LLC relating thereto, to (i) the grant by any
other Pledgor of a security interest to the Pledgee in its Membership Interest,
its interest in the LLC Agreement and its other rights and interests relating
thereto, as described above, pursuant to the Pledge Agreement; and (ii) any
sale,
transfer or other disposition by the Pledgee of any Membership Interest of the
Pledgee or any other Pledgor any or other rights or interests in connection with
the foreclosure of such security interest or the exercise of any other remedies
available to the Pledgee under or in connection with the Pledge Agreement in
respect thereof.
The Pledgor hereby requests the LLC to indicate the LLC's acceptance of
this Notice and consent to and agreement with its terms and provisions by
signing a copy hereof where indicated on the attached page and returning the
same to the Pledgee on behalf of the Secured Creditors.
[NAME OF PLEDGOR]
By:______________________________________
Title:
2
ACKNOWLEDGMENT
[NAME OF LLC] (the "LLC") hereby (i) acknowledges receipt of a copy of the
assignment by [NAME OF PLEDGOR] (the "PLEDGOR") of its interest under the [TITLE
OF APPLICABLE LLC AGREEMENT] (the "LLC AGREEMENT") pursuant to the terms of the
Pledge Agreement, dated as of August 15, 1996 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the "PLEDGE
AGREEMENT"), among the Pledgors party thereto, including the Pledgor, and PNC
Bank, National Association, as Collateral Agent (herein, together with its
successors and assigns, the "PLEDGEE") on behalf of the Secured Creditors
described therein; (ii) confirms its agreement to all of the terms and
provisions of the letter to which this acknowledgment is attached; and (iii)
confirms the registration of the Pledgor's pledge of its interest to the Pledgee
on behalf of the Secured Creditors on the LLC's books.
Dated: __________ , 1997
[NAME OF LLC]
By: ____________________________________
Title:
3
