EXHIBIT 10.4
SIXTH AMENDMENT TO MASTER AMENDMENT
TO LOAN DOCUMENTS AND AGREEMENT
THIS SIXTH AMENDMENT TO MASTER AMENDMENT TO LOAN DOCUMENTS AND AGREEMENT
is made and entered into by and between AMSOUTH BANK, successor in interest by
merger to First American National Bank (hereinafter referred to as "AmSouth" or
as "First American"), ADVOCAT INC., a Delaware corporation (herein referred to
as "Advocat"), DIVERSICARE MANAGEMENT SERVICES CO., a Tennessee corporation and
wholly-owned subsidiary of Advocat ("DMS"), ADVOCAT FINANCE, INC., a Delaware
corporation and wholly-owned subsidiary of DMS ("AFI"), DIVERSICARE LEASING
CORP., a Tennessee corporation and wholly-owned subsidiary of AFI ("DLC"),
ADVOCAT ANCILLARY SERVICES, INC., a Tennessee corporation and wholly-owned
subsidiary of DMS ("AAS"), DIVERSICARE GENERAL PARTNER, INC., a Texas
corporation and wholly-owned subsidiary of DLC ("DGP"), FIRST AMERICAN HEALTH
CARE, INC., an Alabama corporation and wholly-owned subsidiary of DLC ("FAHC"),
DIVERSICARE LEASING CORP. OF ALABAMA, an Alabama corporation and wholly-owned
subsidiary of DLC ("DLCA"), ADVOCAT DISTRIBUTION SERVICES, INC., a Tennessee
corporation and wholly-owned subsidiary of DMS ("ADS"), DIVERSICARE ASSISTED
LIVING SERVICES, INC., a Tennessee corporation and a wholly-owned subsidiary of
AFI ("DALS"), DIVERSICARE ASSISTED LIVING SERVICES, NC, LLC, a Tennessee limited
liability company formed by DMS and DALS ("DALS-NC"), DIVERSICARE ASSISTED
LIVING SERVICES, NC I, LLC, a Delaware limited liability company ("DALS-NC I"),
DIVERSICARE ASSISTED LIVING SERVICES, NC II, LLC, a Delaware limited liability
company ("DALS-NC II") both of DALS-NC I and DALS-NC II being subsidiary
entities of DALS-NC, STERLING HEALTH CARE MANAGEMENT, INC., a Kentucky
corporation and wholly-owned subsidiary of DLC ("SHCM"), DIVERSICARE XXXXX XXXX,
LLC, a Delaware limited liability company ("DAO"), DIVERSICARE GOOD SAMARITAN,
LLC, a Delaware limited liability company ("DGS"), DIVERSICARE PINEDALE, LLC, a
Delaware limited liability company ("DP"), DIVERSICARE WINDSOR HOUSE, LLC, a
Delaware limited liability company ("DWH"), DIVERSICARE HARTFORD, LLC, a
Delaware limited liability company ("DH") each of DAO, DGS, DP, DWH, and DH
being subsidiary entities of DLC (Advocat and all of its direct and indirect
subsidiaries, as identified hereinabove, being sometimes referred to herein
collectively as the "Debtors," whether in their capacity as a Borrower,
Guarantor, Pledgor, Subsidiary or otherwise, as defined in the Loan Documents
referred to below).
W I T N E S S E T H:
WHEREAS, pursuant to the terms of Master Credit and Security Agreement
dated as of December 27, 1996 (the Master Credit and Security Agreement, as
amended as herein set forth, being herein called the "Master Credit and Security
Agreement"), First American and GMAC Commercial Mortgage Corporation, a
California corporation being one and the same as GMAC-CM Commercial Mortgage
Corporation ("GMAC") agreed to provide to DMS the Credit Facility (as defined
therein), to consist of a $10,000,000.00 line of credit for working capital to
be funded by First American (the "Working Capital Line"), and a $40,000,000.00
non-revolving line of
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credit for acquisitions and refinancings of Projects, as defined in the Master
Amendment, to be funded by GMAC, and Advocat and each then-existing direct and
indirect subsidiary of Advocat agreed to and did execute a full and
unconditional Guaranty and Suretyship Agreement of all indebtedness incurred by
DMS thereunder (each party so executing a Guaranty and Suretyship Agreement,
together with the parties thereafter executing a Guaranty and Suretyship
Agreement, as hereinafter set forth, are herein sometimes called a "Guarantor"
or collectively "Guarantors", and the Guaranty and Suretyship Agreements are
herein sometimes called a "Guaranty and Suretyship Agreement" or collectively
the "Guaranty and Suretyship Agreements"); and
WHEREAS, the $3,720,640.00 loan made by GMAC to DLC on December 27, 1996
for the acquisition of Xxxxx Xxxx Nursing Home, as assumed by DAO pursuant to
that Sixth Amendment to and Assumption of Promissory Note dated February 28,
2002 (the "DAO Loan"), is the only remaining outstanding acquisition or
refinance GMAC loan on a Project, as defined in the Master Amendment; and
WHEREAS, pursuant to the terms of Master Amendment to Loan Documents and
Agreement executed on November 8, 2000 by AmSouth, certain Debtors then existing
and GMAC and dated as of October 1, 2000 (the Master Amendment to Loan Documents
and Agreement, executed by the parties on November 8, 2000 and dated as of
October 1, 2000, as amended by that First Amendment to Master Amendment to Loan
Documents and Agreement executed by the parties on November 28, 2000 and dated
as of October 1, 2000, and as amended by that Second Amendment to Master
Amendment to Loan Documents and Agreement executed by the parties to be
effective as of December 15, 2002 (the "Second Amendment"), and as amended by
that Third Amendment to Master Amendment to Loan Documents and Agreement
executed by the Debtors and AmSouth to be effective as of July 11, 2003 (the
"Third Amendment"), and as amended by that Fourth Amendment to Master Amendment
to Loan Documents and Agreement executed by the Debtors and AmSouth to be
effective as of April 16, 2004 (the "Fourth Amendment"), and as amended by that
Fifth Amendment to Master Amendment and Loan Documents and Agreement executed by
the Debtors and AmSouth to be effective as of October 29, 2004 (the "Fifth
Amendment") and as further amended as herein set forth, being herein called the
"Master Amendment"), AmSouth agreed to modify the Master Credit and Security
Agreement, the Indebtedness and the Loan Documents ("Indebtedness" and "Loan
Documents" being defined in the Master Amendment); and
WHEREAS, pursuant to the terms of the Master Amendment, in order to renew
the indebtedness defined as the "NC Bridge Loan," in the Master Amendment, DALS
executed a Renewal Promissory Note dated October 1, 2000 in the amount of
$9,412,383.87, which was further modified and extended by seven (7) separate
amendments to the Modified Revolving Note executed by DALS and AmSouth on
December ___ 2000, December 15, 2002, July 11, 2003, January 9, 2004, April 16,
2004, July 16, 2004, and October 29, 2004 (the Renewal Promissory Note and all
amendments, modifications and extensions thereto are herein referred to
collectively as the "NC Bridge Loan Note"); and
WHEREAS, pursuant to the terms of the Master Amendment, in order to renew
and replace the "Original Overline Note," as defined in the Master Amendment,
DMS executed a Renewal Promissory Note (Overline Facility) dated October 1, 2000
in the amount of $3,500,000.00, which was further modified and extended by seven
(7) separate amendments to the Modified Revolving Note executed by DMS and
AmSouth on December ____, 2000, December 15, 2002, July 11, 2003, January 4,
2004, April 16, 2004, July 16, 2004, and October
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29, 2004 (the Renewal Promissory Note (Overline Facility) and all amendments,
modifications and extensions thereto are herein referred to collectively as the
"Overline Note"); and
WHEREAS, pursuant to the terms of the Fifth Amendment, in order to renew,
reduce, modify, extend and replace the December 15, 2002 Reduced and Modified
Renewal Revolving Promissory Note dated in the amount of $4,500,000.00 and
executed by DMS (as amended, modified and extended pursuant to five (5) separate
amendments executed by DMA and Amsouth on July 11, 2003, August 2, 2003, January
9, 2004, April 16, 2004 and July 11, 2004,) which Reduced and Modified Renewal
Revolving Promissory Note replaced the December 27, 1996 Revolving Promissory
Note in the amount of $10,000,000.00 as set forth in the Master Amendment, DMS
executed a Replacement Reduced and Modified Renewal Revolving Promissory Note in
the principal amount of $2,500,000.00 on October 29, 2004, (the Replacement
Modified Renewal Revolving Promissory Note and all subsequent amendments,
modifications and extensions thereto are herein referred to collectively as the
"Modified Revolving Note") (the NC Bridge Loan Note, the Overline Note and the
Modified Revolving Note are herein sometimes referred to collectively as the
"Notes"); and
WHEREAS, the Notes matured on January 29, 2005, and Debtors have failed to
satisfy the indebtedness arising thereunder; and
WHEREAS, DH is being formed as a new entity in order to acquire real
property and certain other assets located in Hartford, Alabama (the "DH
Property") and has requested that AmSouth consent to a loan in the approximate
amount of $3,700,000.00 from GMAC to acquire the DH Property (the "DH
Acquisition Loan"); and
WHEREAS, AmSouth has agreed that DH may acquire the DH Property and has
assented to the DH Acquisition Loan in consideration of DH being joined as a
Debtor to the Master Amendment and all Loan Documents as therein defined, and
upon such other conditions as more specifically set forth herein; and
WHEREAS, the Letters of Credit as defined in the Master Amendment have
expired and, subsequent to the execution of the Master Amendment, AmSouth issued
Letter of Credit Number 01814184 in favor of Employers Insurance of Wausau for
the account of DMS, in the amount of $375,000.00 (the "Wausau Letter of
Credit"), which remains issued and outstanding and the parties desire to amend
the Master Amendment to reflect these modifications; and
WHEREAS, subsequent to the execution of the Master Amendment, DLC became
the owner of six (6) nursing facilities in the state of Texas, previously owned
by Texas Diversicare Limited Partnership ("TDLP"), (the "Texas Properties"), and
DLC executed Deeds of Trust to AmSouth as security for the Indebtedness (the
"Texas Deeds of Trust"), two (2) of which Texas Deeds of Trust were released by
AmSouth subsequent to the sale of the Texas Properties located in Xxxxxxx
County, Texas and Goliad County, Texas, and the parties desire to amend the
Master Amendment to reflect these modifications; and
WHEREAS, subsequent to the execution of the Master Amendment, GMAC by
separate Loan Agreements dated March 29, 2001, GMAC made a $4,709,000.00 loan to
DWH (as modified or amended, the "DWH Loan") a $2,913,000.00 loan to DP (as
modified or amended,
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the "DP Loan") for the acquisition of certain skilled nursing homes (the DH
Loan, the DWH Loan and the DP Loan being herein referred to as the "New Project
Loans")
WHEREAS, the Indebtedness and Loan Documents are fully enforceable and are
not subject to any defense or counterclaim, or any claim of setoff or
recoupment; and
WHEREAS, the Debtors are presently in default of the Indebtedness and
their respective obligations arising under the Loan Documents and Debtors have
again represented to AmSouth that because of their financial conditions, they
are unable to pay the full amount of their liability for the Indebtedness; and
WHEREAS, AmSouth has agreed to further extend the maturity dates of the
Notes and AmSouth has agreed to temporarily forbear from exercising its remedies
upon default subject to the terms and conditions herein set forth; and
WHEREAS, each of the parties acknowledges that it has been represented by
counsel in connection with the negotiation and execution of this Agreement, that
the same represents an arms-length transaction, and that each of the other
parties has acted in good faith in the making of this Agreement; and
WHEREAS, all terms capitalized herein, but not specially defined herein,
are intended to have the meanings ascribed to them in the Loan Documents, unless
the context clearly indicates otherwise; and
WHEREAS, the parties stipulate and agree that the facts recited
hereinabove are true and correct; and
WHEREAS, the parties have agreed to modify the Indebtedness and Loan
Documents, and have otherwise agreed all as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing recitals (all of
which are incorporated herein as agreements, representations, warranties or
covenants of the Debtors), the payment of a commitment fee by Debtors to AmSouth
as set forth below, of the mutual covenants and promises contained herein, and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties hereby covenant,
amend and agree as follows:
1. The Modified Revolving Note is hereby amended to extend the Maturity
Date from January 29, 2005 to January 26, 2006, and to reduce the maximum
principal amount which may be advanced thereunder from $2,500,000.00 to
$2,300,000.00, pursuant to the First Amendment to Replacement Reduced and
Modified Renewal Revolving Promissory Note executed by DMS and AmSouth of even
date herewith. The parties acknowledge that as of the effective date hereof, the
outstanding balance of the Modified Revolving Note is $0.00.
2. The NC Bridge Loan Note is hereby amended to change the Maturity Date
defined therein from January 29, 2005 to January 29, 2006, and to modify the
interest rate and the amount of the monthly payments due thereunder in
accordance with the Eighth Amendment to Renewal Promissory Note executed by
AmSouth and DALS of even date herewith. The
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parties agree that as of the effective date hereof, the principal balance of the
NC Bridge Loan Note is $4,984,732.61.
3. The Overline Note is hereby amended to change the Maturity Date defined
therein from January 29, 2005 to January 29, 2006 and to modify the interest
rate and the amount of the monthly payments due thereunder in accordance with
the Eighth Amendment to Renewal Promissory Note (Overline Facility) executed by
AmSouth and DMS of even date herewith. The parties agree that as of the
effective date hereof, the principal balance of the Overline Note is
$3,173,228.31.
4. The Notes have been amended to include a new interest rate in the event
of a default thereunder. Therefore, the Default Rate, as defined in the Master
Credit and Security Agreement, is hereby deleted and the following language is
substituted instead:
The whole of the principal sum and, to the extent permitted by law,
any accrued interest, shall bear, after default or maturity, interest at
the lesser of (i) the highest lawful rate then in effect pursuant to
applicable law, or (ii) the rate that is four percentage points (4%) in
excess of Lender's Prime Rate, as it varies from time to time.
5. The Letters of Credit, as defined in the Master Amendment, have
expired. The parties acknowledge that the Wausau Letter of Credit shall remain
issued and outstanding and will expire on July 4, 2005. As security for
AmSouth's obligations arising under the Wausau Letter of Credit and under the
terms of this Agreement, AmSouth shall have a first priority security interest
in AmSouth Time Deposit Account Number 5329822777 in the name of Advocat, for so
long as any Indebtedness remains outstanding.
DH hereby joins in this Loan Agreement as a Subsidiary and Guarantor
and joins in the Master Amendment as a Debtor. DH collaterally assigns and
grants to AmSouth, as collateral security for all sums advanced by AmSouth
pursuant to the Master Amendment, as amended and the Loan Documents, a security
interest in all items of the property and interests in property, together with
all proceeds and products thereof and all accessions thereto, as described in
Exhibit A attached hereto.
DH and all other Debtors expressly grant to AmSouth the right to
file such UCC-1 financing statements and such other amendments and continuation
statements as required by AmSouth to protect its security interest in the
collateral herein described.
6. DLC hereby collaterally assigns and grants to AmSouth, as collateral
security for all sums advanced by AmSouth pursuant to the Master Amendment, as
amended and the Loan Documents, a security interest in all items of the
following described property and interests in property, together with all
proceeds and products thereof and all accessions thereto, as applicable: All of
its membership interest (being a 100% undivided interest) in Diversicare
Hartford, LLC, a Delaware limited liability company. DLC expressly grants to
AmSouth the right to file such UCC-1 financing statements and such other
amendments and continuation statements as required by AmSouth to protect its
security interest in the collateral herein described.
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7. Debtors acknowledge that Section 5.4 of the Master Credit and Security
Agreement, requires that they obtain consent to the DH Loan from AmSouth AmSouth
hereby consents to the DH Loan as set forth in this Agreement, but to no further
extent and not otherwise.
8. Debtors acknowledge that they are presently in default of the amended
financial covenants appearing in Section 2 (c) of the Master Amendment. Debtors
also acknowledge that they are presently in default of Section 5.1 (c)(iii) of
the Master Credit and Security Agreement. Provided that there exists no other
default under this Agreement or the Loan Documents, as amended, AmSouth
expressly agrees to forbear from exercising its remedies under default of these
amended financial covenants but only until January 29, 2006.
9. Debtors represent to AmSouth that since they have no right to request
advances or loans from GMAC under the Acquisition Line or the Acquisition Note,
as defined in the Master Credit and Security Agreement, GMAC is not required to
join in the execution of this document or to execute any of the Loan Documents
now or hereafter executed by and between AmSouth and the Debtors or any of them.
Debtors shall cause GMAC to execute any amendments or replacements to the
Intercreditor Agreement dated December 27, 1996 and executed by AmSouth, GMAC
and the Debtors, as subsequently amended (the "Intercreditor Agreement") as
required by AmSouth in order to protect AmSouth's interests hereunder. Debtors
acknowledge that the failure of GMAC to consent in writing to this Agreement or
to the execution of such intercreditor agreement will not result in a waiver of
any of the Debtors' obligations hereunder.
10. All indebtedness and obligations now or hereafter owing to AmSouth by
Advocat, DMS, DALS-NC, or any other of the Debtors, or any combination thereof,
including but not limited to the Indebtedness, whether evidenced by the Wausau
Letter of Credit remaining outstanding, the Overline Note, the NC Bridge Loan
Note, or the Modified Revolving Note shall be guaranteed by all of Debtors and
shall continue to be evidenced by the Additional Continuing Guaranty and
Suretyship Agreements which shall continue in full force and effect.
11. A default in any of the Loan Documents, this instrument, any
additional instruments and documents executed pursuant hereto, or in any
indebtedness or obligation now or hereafter owing by any, some or all of Debtors
to AmSouth, shall, at the option of AmSouth, constitute a default in any or all
of the Loan Documents or indebtedness now or hereafter owing by any, some or all
of the Debtors to AmSouth, provided that as between AmSouth and GMAC the further
provisions of the Intercreditor Agreement shall be applicable.
12. Upon execution of this Amendment, Advocat shall pay a commitment fee
to AmSouth in the total amount of $10,000.00 for the commitment and obligations
of AmSouth.
13. The Debtors hereby ratify and restate all of the covenants, warranties
and representations contained in the Master Credit and Security Agreement, as
amended, and the Master Amendment, as amended, as of the date hereof, and each
hereby acknowledges and confirms that the terms and conditions of the Master
Credit and Security Agreement, as amended, and the Master Amendment, as amended,
remain in full force and effect. In addition, the Debtors ratify and restate the
additional covenants set forth in Section 12 of the Third Amendment.
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14. Debtors further covenant and agree that, upon execution of this
Agreement, they will cause to be paid all of the fees and expenses incurred by
AmSouth, its agents, attorneys, accountants, appraisers, employees and
representatives, pursuant to all actions contemplated by the Loan Documents no
later than fifteen (15) days after presentment of invoices for such fees and
expenses to Debtors by AmSouth. Failure of Debtors to timely pay such invoices
shall constitute a default hereunder.
15. The indebtedness evidenced by the Modified Revolving Note, the
Overline Note, and the NC Bridge Loan Note, may be prepaid at any time without
premium.
16. The Master Credit and Security Agreement, as amended, and any other
Loan Documents affected hereby, are amended to the extent necessary to conform
such instruments and documents to the provisions set forth herein.
17. Debtors hereby acknowledge and stipulate that none of them has any
claims or causes of action against AmSouth of any kind whatsoever. Debtors
hereby release AmSouth, and AmSouth's officers, directors, employees,
representatives, agents, attorneys, accountants and consultants. from any and
all claims, causes of action, demands and liabilities of any kind whatsoever,
whether direct or indirect, fixed or contingent, liquidated or non-liquidated,
disputed or undisputed, known or unknown, which Debtors, or any of them, has or
which arises out of any acts or omissions occurring prior to the execution of
this Agreement relating in any way to any event, circumstances, action or
failure to act from the beginning of time to the execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this instrument to be
effective January 29, 2005.
AMSOUTH BANK, successor in interest
by merger to First American National
Bank
By: /s/ Xxxxx Xxx
--------------------------
Xxxxx Xxx, Vice President
DIVERSICARE MANAGEMENT SERVICES CO.,
a Tennessee corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
ADVOCAT INC., a Delaware corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx. Chief
Financial Officer
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DIVERSICARE LEASING CORP.,
a Tennessee corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
ADVOCAT ANCILLARY SERVICES, INC.,
a Tennessee corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE GENERAL PARTNER, INC.,
a Texas corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
FIRST AMERICAN HEALTH CARE, INC.,
an Alabama corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
ADVOCAT FINANCE, INC.,
a Delaware corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
8
DIVERSICARE LEASING CORP. OF ALABAMA,
INC., an Alabama corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
ADVOCAT DISTRIBUTION SERVICES, INC.,
a Tennessee corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE ASSISTED LIVING SERVICES,
INC., a Tennessee corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE ASSISTED LIVING SERVICES,
INC, LLC, a Tennessee limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE ASSISTED LIVING SERVICES
INC I, LLC, a Delaware limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
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DIVERSICARE ASSISTED LIVING SERVICES
INC II, LLC, a Delaware limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
STERLING HEALTH CARE MANAGEMENT, INC.,
a Kentucky corporation
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE XXXXX XXXX, LLC,
a Delaware limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE GOOD SAMARITAN, LLC,
a Delaware limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE PINEDALE, LLC,
a Delaware limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
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DIVERSICARE WINDSOR HOUSE, LLC,
a Delaware limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
DIVERSICARE HARTFORD, LLC,
a Delaware limited liability company
By: /s/ L. Xxxxx Xxxxxx, Xx.
------------------------
L. Xxxxx Xxxxxx, Xx.,
Chief Financial Officer
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EXHIBIT A
The following described property and interests in property, together with
all proceeds and products thereof and all accessions thereto, as applicable:
a. All of the right, title and interest of the Debtor in and to the accounts
receivable of the Debtor, whether now existing or hereafter arising.
b. All of the right, title and interest of the Debtor in and to all
equipment, furnishings, and furniture of the Debtor, whether now owned or
hereafter acquired, provided, however, (i) those of such items which are
located at the GMAC-Financed Facilities financed under the NCI Loan and
the NCII Loan, and financed, now or hereafter under the Acquisition Line
of GMAC Commercial Mortgage Corporation ("GMAC") or under the New Project
Loans shall not be First American Priority Collateral and shall be subject
to the prior security interest of GMAC; and (ii) such security interest
shall not include equipment leased by the Debtor.
c. All of the general intangibles and other personal property of the Debtor,
whether now existing or hereafter acquired or arising, provided, however,
those of such items which are located at the GMAC-Financed Facilities
financed under the NCI Loan and The NC II Loan, and financed now or
hereafter under the Acquisition Line of GMAC, or under the New Project
Loans shall not be First American Priority Collateral and shall be subject
to the prior security interest of GMAC.
d. All of the right, title and interest of the Debtor in and to all
inventory, whether now owned or hereafter acquired, provided, however,
those of such items which are located at the GMAC-Financed Facilities
financed under the NCI Loan and the NCII Loan and financed now or
hereafter under the Acquisition Line of GMAC, or under the New Project
Loans shall not be First American Priority Collateral and shall be subject
to the prior security interest of GMAC.
e. All of the proceeds therefrom, including, without limitation, all proceeds
of policies of insurance on any of the foregoing, provided, with respect
to the proceeds located at, or arising from the operation of,
GMAC-Financed Facilities financed under the NCI Loan and the NCII Loan and
financed, now or hereafter, under the Acquisition Line of GMAC, or under
the New Project Loans Secured Party shall have a second priority security
interest in such proceeds, subject only to the security interest in favor
of GMAC.
"Projects," "Acquisition Line," "First American Priority Collateral," "NCI
Loan" and "NC II Loan" are defined as set forth in the Master Credit and
Security Agreement dated as of December 27, 1996, as amended, or the
Intercreditor Agreement dated December 27, 1996, as amended, executed
between Secured Party, GMAC, Debtor and affiliates of Debtor. "GMAC
Financed Facilities" is defined in the Third Amendment to the
Intercreditor Agreement executed between Secured Party, GMAC, Debtor and
affiliates of Debtor on March 16, 2001. "New Project Loans" is defined in
that Sixth Amendment to Master Amendment dated effective January 29, 2005.
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