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Exhibit 10.7
ACCOUNTS RECEIVABLE
INTERCREDITOR AGREEMENT
THIS ACCOUNTS RECEIVABLE INTERCREDITOR AGREEMENT is made as of this
22nd day of April, 1999, by and between HCFP FUNDING, INC., a Delaware
corporation, having an office at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Credit Lender"); and MEDITRUST MORTGAGE INVESTMENTS, INC.,
a Delaware corporation, having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("MMI").
WHEREAS, Balanced Care Corporation ("Parent"), the following
subsidiaries of the Parent: BCC at Hermitage Park Care Center, Inc., BCC at
Lebanon Care Center, Inc., BCC at Lebanon Park Manor, Inc., BCC at Mt. ▇▇▇▇▇▇
▇▇▇▇ Care Center, Inc., BCC at Mount ▇▇▇▇▇▇ ▇▇▇▇ Care Center West, Inc., BCC at
Nevada Park Care Center, Inc., BCC at Nixa Park Center, Inc., BCC at Republic
Park Center, Inc., BCC at Springfield Care Center, Inc., all of which are
Delaware corporations, and ▇▇▇▇▇ Management, Inc., a Missouri corporation
(collectively, the "A/R Subs"); and certain other affiliated entities of the
Parent (all of the foregoing are referred to herein, collectively, as the
"Borrower") are parties to a loan and security agreement with the Credit Lender
dated as of April 22nd, 1999 (together with any and all other documents
securing, evidencing or otherwise given in connection with the loan and security
agreement or the loans thereunder are hereinafter collectively referred to as,
the "Credit Agreement"); and
WHEREAS, MMI acknowledges having been informed by the Credit Lender
that as collateral for the loans made pursuant to the Credit Agreement, the
Credit Lender has been granted, inter alia, a security interest in certain
assets of the A/R Subs as described on Exhibit A attached hereto (the "Credit
Lender Collateral"); and
WHEREAS, certain of the entities constituting the Borrower have entered
into a $3,115,000 mortgage loan transaction with MMI (the "BCC Loan") and
certain other entities constituting the Borrower are lessees under certain
leases in connection with a $41,385,000 loan from MMI to Hawthorne Health
Properties, Inc. (the "Hawthorne Loan") (together the BCC Loan and Hawthorne
Loan shall be hereinafter referred to as the "Loan"), which Loan is secured, in
part, by mortgage and security agreements and/or
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assignments of leases and rents affecting the skilled nursing facilities more
particularly described in Exhibit B attached hereto (collectively the
"Facility") and by a security interest covering the Credit Lender Collateral.
All documents evidencing, securing or otherwise given in connection with the
Loan are hereinafter collectively referred to as the "MMI Loan Documents" and
all collateral thereunder shall be collectively referred to as the "MMI
Collateral" (which includes, without limitation, the Credit Lender Collateral).
NOW, THEREFORE, for consideration paid, receipt of which is hereby
acknowledged, the parties hereto hereby act and agree as follows:
1. Consent. Notwithstanding anything to the contrary set forth in
the MMI Loan Documents, MMI hereby consents to the execution and delivery by
Borrower of the Credit Agreement and the granting by the A/R Subs to the Credit
Lender of security interests in the Credit Lender Collateral.
2. Notices. The Credit Lender agrees to give MMI a copy of any notice
of default and/or any other notice pertaining to any exercise of any right
and/or remedy under the Credit Agreement that the Credit Lender gives to the
Borrower pursuant to the Credit Agreement, simultaneously with the giving of
such notice to the Borrower. MMI agrees to give the Credit Lender a copy of any
notice of default and/or any other notice pertaining to any exercise of any
right and/or remedy under the MMI Loan Documents that MMI gives to the Borrower
pursuant to the Borrower/MMI Documents, simultaneously with the giving of such
notice to the Borrower.
3. Priorities with Respect to the Collateral.
a) Notwithstanding anything to the contrary that may be
set forth in any of the MMI Loan Documents, MMI
acknowledges and agrees that, as between MMI and the
Credit Lender, except as provided in paragraph 3(d)
below, the Credit Lender's security interest in that
portion of the Credit Lender Collateral that
constitutes Accounts (as hereinafter defined) shall
be treated as prior to MMI's security interest in
such Accounts.
b) The Credit Lender acknowledges having been informed
by MMI that, as additional security for the
obligations of the Borrower under the MMI
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Loan Documents, as part of the MMI Collateral, (i)
the A/R Subs have each granted MMI a collateral
assignment of, and perfected security interest in,
all licenses, approvals, qualifications, variances,
permissive uses, certificates of need, franchises,
accreditation's, certificates, certifications,
consents, permits and other authorizations
(collectively, the "Permits") and agreements and
patient admission agreements, contracts, contract
rights, warranties and representations and franchises
(collectively, the "Contracts") benefiting, relating
to or affecting the Facility and the ownership,
construction, development, maintenance, management,
repair, use, occupancy, possession or operation
thereof or the operation of any programs or services
in conjunction with the Facility and all renewals and
replacements and substitutions therefor, now or
hereafter issued by or entered into with any
governmental authority or maintained or used by the
A/R Subs or entered into by the A/R Subs with any
third party, including, without limitation, patient
contracts and governmental reimbursement contracts
associated with the Facility which generates Accounts
and (ii) each of the A/R Subs has granted MMI a
perfected security interest in all books, records,
ledgers, print-outs, papers, data, file materials and
information relating to the Facility, any account
debtors in respect thereof and/or to the operation of
each of the A/R Subs' businesses, and all rights of
access to such books, records, ledgers, print-outs,
papers, file materials and information, and all
property in which such books, records, ledgers,
print-outs, data, file materials and information are
stored, recorded, and maintained (collectively, the
"Books and Records"). Notwithstanding anything to the
contrary set forth in the Credit Agreement, the
Credit Lender further acknowledges and agrees that,
as between the Credit Lender and MMI, MMI's said
security interest in the Permits, the Contracts and
the Books and Records, as well as MMI's security
interest in all other items of the Credit Lender
Collateral (other than, as provided in paragraphs
3(a) and 3(d), in Accounts accruing prior to the
"Trigger Event", as
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hereinafter defined) shall be treated as prior to the
Credit Lender's security interest in the Permits, the
Contracts, the Books and Records and the other items
of the Credit Lender Collateral (other than Accounts
accruing prior to the Trigger Event).
As used herein, the term Accounts shall mean (i)
accounts (as defined in the Uniform Commercial Code
as adopted in Massachusetts) of each of the A/R Subs
and (ii) rights to payment for goods sold or leased
or services rendered by any of the A/R Subs or any
other party, whether or not yet earned by
performance, including, without limitation,
obligations evidenced by an account, note, contract,
security agreement, chattel paper, or other evidence
of indebtedness (collectively, the "Receivables");
together with (1) all security pledged, assigned,
hypothecated or granted to or held by any of the A/R
Subs to secure the foregoing, (2) any property
received in payment, settlement or compromise of any
account or Receivable, (3) all guarantees,
endorsements and indemnifications on, or of, any of
the foregoing, (4) all rights, remedies and
privileges pertaining to any of the foregoing, (5)
all powers of attorney for the execution of any
evidence of indebtedness or security or other writing
in connection therewith, and (6) all evidences of the
filing of financing statements and other statements
and the registration of other instruments in
connection therewith and amendments thereto; all
whether now existing or hereafter acquired or arising
and including all proceeds and products thereof,
c) Without representing or implying that the license
hereafter referred to is necessary, MMI hereby grants
to the Credit Lender a license in the Permits, the
Contracts and the Books and Records (the "License
Rights"), but only to the extent that (i) MMI is able
to do so consistent with applicable law and MMI's
contractual obligations (now existing or hereafter
entered into) and (ii) the License Rights are
necessary for the Credit Lender to ▇▇▇ for and
collect all Accounts that accrue prior to the Trigger
Event; provided,
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however, that the foregoing grant is made without any
representation or implication on behalf of MMI that
it has the ability to make any such grant in
accordance with the terms hereof and without any
other representation of any kind or nature
whatsoever. In addition, MMI agrees that it will not
intentionally use whatever rights it may have in the
Permits, the Contracts and the Books and Records for
the purpose of hindering the Credit Lender from
collecting Accounts that accrued prior to the Trigger
Event.
d) Notwithstanding any priority that would otherwise
apply as a matter of law, after the occurrence of a
default or breach of condition continuing beyond all
applicable notice and/or grace periods, if any, under
any of the MMI Loan Documents (i) three (3) Business
Days after written notice (the "Trigger Notice") from
MMI to the Credit Lender of the commencement by MMI
of any action to exercise any of its rights and/or
remedies under any of the MMI Loan Documents
including, without limitation, the taking of any
steps to accelerate or to demand full payment under
the MMI Loan Documents or to realize on its
collateral thereunder (the "Trigger Event"), all
Accounts arising and/or accruing from operations at
the Facility on or after the Trigger Event (and the
proceeds thereof), and the rights to collect and
retain the same shall be, as between the Credit
Lender and MMI, MMI's as first priority collateral
for the obligations of Borrower to MMI and (ii) MMI
agrees with the Credit Lender that all uncollected
Accounts that accrued prior to the Trigger Event are
part of the Accounts in which the Credit Lender has a
security interest prior to MMI's and as to which the
rights to collect and retain the same shall, as
between the Credit Lender and MMI, be the Credit
Lender's as collateral for the obligations owed to
the Credit Lender under the Credit Agreement.
e) MMI hereby grants to the Credit Lender access to the
Facility and the Books and Records thereof at
reasonable times and after reasonable notice to MMI
to the extent such access is necessary for
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the Credit Lender to pursue its rights in such
Accounts accruing prior to the Trigger Event. Such
right of access shall be effective from and after the
time MMI takes possession of the Facility and the
Books and Records thereof.
f) It is recognized that individual patients may have
unpaid Accounts that accrued both before and after
the Trigger Event. MMI and the Credit Lender agree
that payments received in these circumstances shall
be applied against the oldest Accounts first.
g) In the event that the Credit Lender collects any
Accounts that accrued on or after the Trigger Event,
the Credit Lender shall forward such Accounts to MMI.
In the event that MMI collects any Accounts that
accrued prior to the Trigger Event, MMI shall forward
such Accounts to the Credit Lender.
4. The Credit Lender's Exercise of Remedies. Notwithstanding anything
to the contrary set forth in the Credit Agreement, the Credit Lender agrees
that, without the prior written consent of MMI, which consent may be withheld in
MMI's sole and absolute discretion, (a) the Credit Lender shall not exercise any
of its rights and remedies under the Credit Agreement with respect to the
Borrower or the Credit Lender Collateral, other than such rights and remedies as
may be necessary to collect the Accounts that accrue prior to the Trigger Event
and (b) without limiting the foregoing, the Credit Lender shall not file, cause
to be filed or join in the filing of, any petition under the United States
Bankruptcy Code, as the same may hereafter be amended and including any
successor provision thereto, or any similar petition or pleading under any state
law, against the Borrower or seek any relief with respect to the Borrower
(including, without limitation, the appointment of a receiver, trustee or other
similar official for the Borrower or any of its businesses or assets) under any
such law.
The Credit Lender will not demand or accept as security for the
indebtedness evidenced by the Credit Agreement any collateral owned, wholly or
in part, by any of the A/R Subs, other than such collateral as is already
included within the definition of the Credit Lender Collateral, without the
prior written consent of MMI, in each instance, which consent may be withheld in
MMI's sole and absolute discretion.
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5. Bind and Inure; Construction. This Agreement shall be binding upon
and inure only to the benefit of MMI, the Credit Lender and their respective
successors and assigns (including, without limitation, any future holder of the
lender's interest under the Loan); provided, however, that this Agreement shall
be null and void and of no further force or effect upon the payment in full of
all obligations under either the Credit Agreement or the MMI Loan Documents.
This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts.
6. Notices. All notices and other communications hereunder shall be in
writing and mailed (by registered or certified mail, return receipt requested
and post prepaid), delivered by a reputable commercial overnight delivery
service with provision for a receipt, with delivery charges prepaid, or
transmitted by facsimile on a regular business day between the hours of 9:00
a.m. and 5:00 p.m., and shall be effective upon such receipt, or upon attempted
delivery if delivery is refused by the addressee, addressed to the respective
parties, as follows:
(a) if to the Credit Lender:
HCFP Funding, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to MMI:
Meditrust Mortgage Investments, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) with a copy to:
Meditrust Mortgage Instruments, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or facsimile telephone number as either party may
hereafter designate by written notice given to the other.
When any notice is to be given under this Agreement simultaneously with
notice to another party or simultaneously with the happening of an event, such
notice shall be given as simultaneously as is reasonable in the circumstances.
7. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and nothing contained herein shall confer upon
anyone other than the parties hereto and their permitted successors and assigns,
any right to insist upon or to enforce the performance or observance of any of
the obligations contained herein; provided, however, that notwithstanding the
foregoing, it is acknowledged and agreed that the Borrower may rely on the
waiver set forth in Paragraph 1.
8. Entire Agreement; Amendments. This Agreement sets forth the entire
agreement of the parties with respect to the Credit Lender Collateral and the
MMI Collateral and can be amended, modified, supplemented, extended, terminated,
discharged or changed only by an agreement in writing which makes specific
reference to this Agreement and which is signed by all parties hereto.
The Credit Lender shall provide MMI with copies of all amendments to
the Credit Agreement and MMI shall provide the Credit Lender with copies of all
amendments to any of the MMI Loan Documents.
9. No Waiver. No waiver of any term, provision or condition of this
Agreement in any one or more instances, shall be deemed to be or be construed as
a further or continuing waiver of any such term, provision or condition of this
Agreement. No failure to act shall be construed as a waiver of any term,
provision, condition or right granted hereunder.
Excluding any breach of any covenant set for the herein, no action or
inaction with respect to the MMI Collateral; nor any amendment to any of the MMI
Loan Documents; nor any exercise or nonexercise of any right, power or remedy
under the MMI Loan Documents; nor any waiver, consent, release indulgence,
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extension, renewal, modification, delay or other action, inaction or omission in
respect of the obligations evidenced by the MMI Loan Documents will in any event
give rise to any claim by the Credit Lender against MMI.
Excluding any breach of any covenant set forth herein, no action or
inaction with respect to the Credit Lender Collateral; nor any amendment to the
Credit Agreement; nor any exercise or nonexercise of any right, power or remedy
under the Credit Agreement; nor any waiver, consent, release, indulgence,
extension, renewal, modification, delay or other action, inaction or omission in
respect of the obligations evidenced by the Credit Agreement will in any event
give rise to any claim by MMI against the Credit Lender.
The Credit Lender irrevocably waives any right to require marshalling
of the assets of the Borrower and agrees that MMI shall have no obligation to
seek satisfaction of the Borrower's obligations under the MMI Documents through
recourse to collateral, if any, other than the Facility prior to the exercise of
MMI's rights with respect to the Facility.
MMI irrevocably waives any right to require marshalling of the assets
of the Borrowers and agrees that the Credit Lender shall have no obligation to
seek satisfaction of the indebtedness evidenced by the Credit Agreement through
recourse to collateral, if any, other than the Accounts that accrued prior to
the Trigger Event prior to the exercise of the Credit Lender's rights with
respect to such Accounts.
10. No Joint Venture. Nothing contained herein shall be construed as
forming a joint venture or partnership between the parties hereto with respect
to the subject matter hereof.
11. Further Assurances. Each of the parties hereto agrees to execute
and deliver any and all further agreements, documents or instruments necessary
to effectuate this Agreement and the transactions referred to herein or
contemplated hereby or reasonably requested by the other party to perfect or
evidence its rights hereunder.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than the number of counterparts containing the respective signatures
of, or on behalf of, all of the parties hereto.
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13. Captions and Headings. The captions and headings set forth in this
Agreement are included for convenience and reference only and the words
contained therein shall in no way be held or deemed to define, limit, describe,
explain, modify, amplify or add to the interpretation, construction or meaning
of, or the scope or intent of, this Agreement or any part hereof.
14. Limitation of Liability. All parties dealing with MMI, in any way,
shall look only to the assets of MMI for the payment of any sum or the
performance of any obligation. Furthermore, in no event shall MMI ever be liable
to the Credit Lender or any other party for any indirect or consequential
damages incurred by the Credit Lender or such other party, resulting from any
cause whatsoever. Notwithstanding the foregoing, the Credit Lender hereby
acknowledges and agrees that the Borrower and the Credit Lender shall look only
to the assets of MMI for the payment of any sum or performance of any obligation
due by or from MMI pursuant to the terms and provisions hereof.
15. Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
To the maximum extent permitted by applicable law, the Credit Lender
hereby submits to the jurisdiction of the courts of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts, as well as to the jurisdiction of all courts from which an appeal
may be taken from the aforesaid courts, for the purpose of any suit, action or
other proceeding arising out of, or with respect to this Agreement and expressly
waive any and all objections they may have as to venue in any of such courts.
16. Time of the Essence. Time is of the essence of this Agreement.
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WITNESS the execution hereof under seal as of the day and year first
written above.
WITNESS HCFP FUNDING, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
WITNESS MEDITRUST MORTGAGE
INVESTMENTS, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
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The undersigned parties hereby join in the execution of this Accounts
Receivable Intercreditor Agreement for the purpose of consenting to and
acknowledging the terms and conditions thereof.
WITNESS: BALANCED CARE CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Counsel and Vice
President of Legal
Affairs, Assistant
Secretary
WITNESS: BCC AT HERMITAGE PARK CARE
CENTER, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BCC AT LEBANON CARE CENTER INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BCC AT LEBANON PARK MANOR, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
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WITNESS: BCC AT MT. ▇▇▇▇▇▇ ▇▇▇▇ CARE
CENTER, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BCC AT MT. ▇▇▇▇▇▇ ▇▇▇▇ CARE
CENTER WEST, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BCC AT NEVADA PARK CARE CENTER,
CENTER, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BCC AT NIXA PARK CENTER INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
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WITNESS: BCC AT REPUBLIC PARK CENTER INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BCC AT SPRINGFIELD CARE CENTER INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: ▇▇▇▇▇ MANAGEMENT INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BCC AT DARLINGTON, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
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WITNESS: BALANCED CARE AT EYERS GROVE INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BALANCED CARE AT ▇▇▇▇▇▇ INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BALANCED CARE AT ▇▇▇▇▇▇, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: BALANCED CARE AT NORTH RIDGE, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Welsh By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
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EXHIBIT A
CREDIT LENDER COLLATERAL
Subject in all respects to this Accounts Receivable Intercreditor
Agreement between Lender and MMI, the following constitutes the Credit Lender
Collateral:
(i). All of each of the A/R Subs' now-owned and hereafter acquired or
arising accounts, as such term is defined in the UCC, based on or arising in
connection with any obligations for the payment of money arising out of the A/R
Subs' sale of goods or rendition of services ("Accounts"), and all of such A/R
Subs' rights, remedies, security and liens, in, to and in respect of the
Accounts, including, without limitation, rights of stoppage in transit,
replevin, repossession and reclamation and other rights and remedies of an
unpaid vendor, lienor or secured party, guaranties or other contracts of
suretyship with respect to the Accounts, deposits or other security for the
obligation of any Account Debtor (hereinafter defined), and credit and other
insurance. As used herein, "Account Debtor" means any person obligated on any
Account or any A/R Subs, including without limitation, any Insurer and any
Medicaid/Medicare payor.
(ii). With respect to Accounts only, all moneys, securities and other
property and the proceeds thereof, now or hereafter held or received by, in
transit to, in possession of, or under the control of Credit Lender or a bailee
or Affiliate (hereinafter defined) of Credit Lender, from or for such A/R Subs,
whether for safekeeping, pledge, custody, transmission, collection or otherwise,
and all of such A/R Subs deposits (general or special), balances, sums and
credits with Lender at any time existing. As used herein, "Affiliate" means with
respect to a specified person, any person directly or indirectly controlling,
controlled by, or under common control with the specified person, including
without limitation its stockholders and any affiliates. A person shall be deemed
to control a corporation if the person possesses, directly or indirectly, the
power to direct or cause the direction of the management and business of the
corporation whether through the ownership of voting securities, by contract, or
otherwise.
(iii). All of such A/R Subs' now or hereafter acquired deposit accounts
into which Accounts are deposited.
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(iv). All of such A/R Subs' now owned and hereafter acquired or arising
general intangibles with respect to, evidencing or relating to its Accounts,
including, but not limited to, all existing and future, choses in action,
claims, books, records, ledger cards, contracts, licenses, formulae, tax and
other types of refunds, returned and unearned insurance premiums, rights and
claims under insurance policies, and computer programs, information, software,
records, and data, as the same relates to the Accounts.
(v). The proceeds (including, with out limitation, insurance proceeds)
sale of the foregoing.
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EXHIBIT B
LIST OF FACILITIES
BCC AT HERMITAGE PARK CARE CENTER, INC.,
Balance Care, Hermitage
▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BCC AT LEBANON CARE CENTER, INC.,
Balance Care Lebanon North
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BCC AT LEBANON PARK MANOR, INC.,
Balanced Care, Lebanon South
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BCC AT MT. ▇▇▇▇▇▇ ▇▇▇▇ CARE CENTER, INC.,
Balanced Care, Springfield West II
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BCC AT MT. ▇▇▇▇▇▇ ▇▇▇▇ CARE CENTER WEST, INC.,
Balanced Care, Springfield West I
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BCC AT NEVADA PARK CARE CENTER, INC.,
Balanced Care, Nevada
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BCC AT NIXA PARK CENTER, INC.,
Balanced Care, Nixa
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BCC AT SPRINGFIELD CARE CENTER, INC.,
Balanced Care, Springfield East
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DIXON MANAGEMENT, INC.,
Balanced Care, Dixon
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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