EXHIBIT 5.2
[LETTERHEAD OF MCDERMOTT, WILL & EMERY]
October 23, 1998
Harborside Healthcare Corporation and
the Massachusetts Guarantors (as defined herein)
470 Atlantic Avenue
Boston, MA 02210
Re: Exchange of 11% Senior Subordinated Discount Notes Due 2008
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Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-4 (File No. 333-64679), together with Amendment No. 1
thereto (the "Registration Statement"), filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), for the registration of, among other securities, $170,000,000
aggregate principal amount at maturity of 11% Senior Subordinated Discount Notes
Due 2008 (the "New Notes") of Harborside Healthcare Corporation, a Delaware
corporation (the "Company"). You have advised us that the New Notes are to be
issued pursuant to the provisions of the Indenture (as defined below) in
exchange for a like amount of the Company's 11% Senior Subordinated Discount
Notes Due 2008 (the "Old Notes") in accordance with the terms of the Exchange
Offer (the "Exchange Offer") set forth in the prospectus included in the
Registration Statement (the "Prospectus") and the form of Letter of Transmittal
(the "Letter of Transmittal") in the form filed as an Exhibit to the
Registration Statement.
We have acted as special Massachusetts counsel for the Company and the
Massachusetts Guarantors (as defined below), which you have advised us are
wholly-owned subsidiaries of the Company, in connection with the issue and sale
of the New Notes.
Our opinions herein are limited to the laws of The Commonwealth of
Massachusetts. Each of the New Notes, the Supplemental Indenture (as defined
below) and the Indenture (which contains the Massachusetts Guarantees and the
New Jersey Guarantee (each as defined below)) provides that it is to be governed
by and construed in accordance with the laws of the State of New York. For
purposes of rendering the opinions expressed below, we have assumed that each of
the New Notes, the Supplemental Indenture and the Indenture (and, accordingly,
the Massachusetts
Harborside Healthcare Corporation and
the Massachusetts Guarantors (as defined herein)
October 23, 1998
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Guarantees and the New Jersey Guarantee) provides that it is to be governed
by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
For the purposes of this opinion, the following terms shall have the
following meanings:
"Guarantors" shall mean Harborside Healthcare Limited Partnership, a
Massachusetts limited partnership ("Harborside LP"), Belmont Nursing Center
Corp., a Massachusetts corporation ("Belmont"), Orchard Ridge Nursing Center
Corp., a Massachusetts corporation ("Orchard Ridge"), Oakhurst Manor Nursing
Center Corp., a Massachusetts corporation ("Oakhurst Manor"), Riverside
Retirement Limited Partnership, a Massachusetts limited partnership ("Riverside
Retirement"), Harborside Toledo Limited Partnership, a Massachusetts limited
partnership ("Harborside Toledo"), Harborside Connecticut Limited Partnership, a
Massachusetts limited partnership ("Harborside Connecticut"), Harborside of
Florida Limited Partnership, a Florida limited partnership ("Harborside
Florida"), Harborside of Ohio Limited Partnership, a Massachusetts limited
partnership ("Harborside Ohio"), Harborside Healthcare Baltimore Limited
Partnership, a Massachusetts limited partnership ("Harborside Baltimore"),
Harborside of Cleveland Limited Partnership, a Massachusetts limited partnership
("Harborside Cleveland"), Harborside of Dayton Limited Partnership, a
Massachusetts limited partnership ("Harborside Dayton"), Harborside
Massachusetts Limited Partnership, a Massachusetts limited partnership
("Harborside Massachusetts"), Harborside Rhode Island Limited Partnership, a
Massachusetts limited partnership ("Harborside Rhode Island"), Harborside North
Toledo Limited Partnership, a Massachusetts limited partnership ("Harborside
North Toledo"), Harborside Healthcare Advisors Limited Partnership, a
Massachusetts limited partnership ("Harborside Advisors"), Harborside Toledo
Corporation, a Massachusetts corporation ("Harborside Toledo Corp."), KHI
Corporation, a Delaware corporation ("KHI"), Harborside Danbury Limited
Partnership (formerly known as Harborside Acquisition Limited Partnership IV), a
Massachusetts limited partnership ("Harborside Danbury"), Harborside Acquisition
Limited Partnership V, a Massachusetts limited partnership ("Harborside V"),
Harborside Acquisition Limited Partnership VI, a Massachusetts limited
partnership ("Harborside VI"), Harborside Acquisition Limited Partnership VII, a
Massachusetts limited partnership ("Harborside VII"), Harborside Acquisition
Limited Partnership VIII, a Massachusetts limited partnership ("Harborside
VIII"), Harborside Acquisition Limited Partnership IX, a Massachusetts limited
partnership ("Harborside IX"), Harborside Acquisition Limited Partnership X, a
Massachusetts limited partnership ("Harborside X"), Sailors, Inc., a Delaware
corporation ("Sailors"), New Jersey Harborside Corporation, a Massachusetts
corporation ("NJ Harborside"), Bridgewater Assisted Living Limited Partnership,
a New Jersey limited partnership ("Bridgewater"), Maryland Harborside
Corporation, a Massachusetts corporation ("Harborside Maryland"), Harborside
Homecare Limited Partnership, a Massachusetts limited partnership ("Harborside
Homecare"), Harborside Rehabilitation Limited Partnership, a Massachusetts
limited partnership ("Harborside Rehabilitation"), Harborside Healthcare Network
Limited Partnership, a Florida limited partnership ("Harborside Network"), and
Harborside Health I Corporation, a Delaware corporation ("Harborside Health").
Harborside Healthcare Corporation and
the Massachusetts Guarantors (as defined herein)
October 23, 1998
Page 3
"Massachusetts Guarantors" shall mean Harborside LP, Belmont, Orchard
Ridge, Oakhurst Manor, Riverside Retirement, Harborside Toledo, Harborside
Connecticut, Harborside Ohio, Harborside Baltimore, Harborside Cleveland,
Harborside Dayton, Harborside Massachusetts, Harborside Rhode Island, Harborside
North Toledo, Harborside Advisors, Harborside Toledo Corp., Harborside Danbury,
Harborside V, Harborside VI, Harborside VII, Harborside VIII, Harborside IX,
Harborside X, NJ Harborside, Harborside Maryland, Harborside Homecare and
Harborside Rehabilitation.
"New Jersey Guarantor" shall mean Bridgewater.
We have been advised that the New Notes will be issued pursuant to an
Indenture dated as of July 31, 1998 (the "Indenture") by and among the Company
(as successor by merger to HH Acquisition (as defined below)) and United States
Trust Company of New York (the "Trustee"), as amended and supplemented by the
First Supplemental Indenture dated as of August 11, 1998 (the "Supplemental
Indenture") by and among the Company, the Guarantors and the Trustee. The
guarantees of the New Notes by the Massachusetts Guarantors (each such guarantee
by a Massachusetts Guarantor, a "Massachusetts Guarantee") are to be issued
pursuant to the Indenture on a subordinated basis by each of the Massachusetts
Guarantors. The guarantee of the New Notes by the New Jersey Guarantor (such
guarantee by the New Jersey Guarantor, the "New Jersey Guarantee") is to be
issued pursuant to the Indenture on a subordinated basis by the New Jersey
Guarantor. The guarantees of all of the Guarantors are referred to collectively
as the "Guarantees".
We have examined (i) the Registration Statement, (ii) the Indenture and the
Supplemental Indenture and (iii) the form of the New Notes to be issued pursuant
to the Indenture. The Indenture (including the Guarantees contained therein),
the Supplemental Indenture and the New Notes are sometimes referred to herein
collectively as the "Note Documents." We have also examined originals, or
copies, certified or otherwise identified to our satisfaction, of such records,
agreements, certificates, instruments and other documents as we have considered
necessary or appropriate for the purposes of this opinion.
In rendering this opinion, we have assumed:
(a) HH Acquisition Corp., a Delaware corporation ("HH Acquisition"), has merged
with and into the Company;
(b) The New Notes, when issued and delivered in exchange for the Old Notes in
accordance with the terms of the Exchange Offer and when executed and
authenticated as specified in the Indenture, will have been duly
authorized, executed and delivered by the Company and will constitute
binding obligations of the Company;
(c) The Registration Rights Agreement dated July 31, 1998 with respect to the
Exchange Offer among HH Acquisition, the Guarantors and the placement
agents named therein has
Harborside Healthcare Corporation and
the Massachusetts Guarantors (as defined herein)
October 23, 1998
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been duly authorized, executed and delivered by each party thereto and
constitutes the binding obligation of each such party;
(d) The definitive terms of the Indenture and the Supplemental Indenture have
been fixed; each of the Indenture and the Supplemental Indenture has been
duly authorized, executed and delivered by, and each constitutes a binding
agreement of, the Company, the Trustee and the other parties thereto other
than the Massachusetts Guarantors and the New Jersey Guarantor; and the
guarantee contained therein of each of the Guarantors other than the
Massachusetts Guarantors and the New Jersey Guarantor has been legally
issued and constitutes the binding obligation of the relevant Guarantor;
(e) Each of the Indenture and the Supplemental Indenture (including without
limitation the Massachusetts Guarantees) has been duly authorized by all
necessary action of the general partner of each of the Massachusetts
Guarantors (other than Harborside Toledo) that is a partnership; and
(f) The genuineness of all signatures, the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of
such latter documents.
Based upon the foregoing, and in reliance thereon, and subject to receipt by the
Company and the Guarantors from the Commission of an order declaring the
Registration Statement effective, we are of the opinion that:
1. Each Massachusetts Guarantee, upon the due execution and authentication of
the New Notes with the Massachusetts Guarantees endorsed thereon in
accordance with the provisions of the Indenture and when the New Notes with
the Massachusetts Guarantees endorsed thereon are delivered in exchange for
the Old Notes in the manner provided by the Registration Rights Agreement,
the Prospectus and the Letter of Transmittal, will be legally issued and
will constitute binding obligations of each respective Massachusetts
Guarantor to the extent the legal issuance and the binding nature of such
Massachusetts Guarantee involve matters governed by the laws of the
Commonwealth of Massachusetts.
2. The Supplemental Indenture constitutes the binding agreement (and, as a
result, the Indenture constitutes the binding agreement) of each of the
Massachusetts Guarantors to the extent the binding nature of the
Supplemental Indenture and the Indenture as to the Massachusetts Guarantors
involve matters governed by the laws of the Commonwealth of Massachusetts.
3. The New Jersey Guarantee, upon the due execution and authentication of the
New Notes with the New Jersey Guarantee endorsed thereon in accordance with
the provisions of the
Harborside Healthcare Corporation and
the Massachusetts Guarantors (as defined herein)
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Indenture and when the New Notes with the New Jersey Guarantee endorsed
thereon are delivered in exchange for the Old Notes in the manner provided
by the Registration Rights Agreement, the Prospectus and the Letter of
Transmittal, will be legally issued and will constitute the binding
obligation of the New Jersey Guarantor to the extent the legal issuance and
the binding nature of the New Jersey Guarantee involve matters governed by
the laws of the Commonwealth of Massachusetts.
The foregoing opinions are subject to the following exceptions,
qualifications and limitations:
A. Our opinions set forth herein are subject to (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement or similar
laws affecting the enforcement of creditors' rights generally (including,
without limitation, the effect of statutory or other laws regarding
fraudulent transfers or preferential transfers) and (ii) general principles
of equity, regardless of whether a matter is considered in a proceeding in
equity or at law, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing. Without limiting the
generality of the foregoing, we express no opinion as to the ability to
obtain specific performance, injunctive relief or other equitable relief as
a remedy for noncompliance with any of the Note Documents, or as to the
validity or binding effect of provisions in the Note Documents providing
for indemnification or contribution or for the payment or reimbursement of
costs and expenses or indemnification for claims, losses or liabilities in
excess of a reasonable amount determined by any court or other tribunal.
B. We call your attention to the fact that the opinions expressed herein with
respect to the Massachusetts Guarantees and the New Jersey Guarantee do not
purport to cover, and we express no opinion with respect to, the
applicability of Section 548 of the United States Bankruptcy Code or any
comparable provision of state law. In addition, we express no opinion as
to whether a corporation or partnership (the "First Entity") may guarantee
or otherwise become liable for, or pledge its assets to secure,
indebtedness incurred by another corporation, partnership or other entity
(an "Other Entity") except to the extent such First Entity may be
determined to have benefited from the incurrence of such indebtedness by
the Other Entity or as to whether such benefit may be measured other than
by the extent to which the proceeds of the indebtedness incurred by the
Other Entity are directly or indirectly made available to such First Entity
for its corporate or partnership purposes.
C. We express no opinion as to the application of the securities or "blue sky"
laws of the various states to the issuance of the Guarantees.
D. This opinion is limited to the matters expressly set forth herein and no
opinion is implied or may be inferred beyond the matters expressly so
stated. This opinion is based upon
Harborside Healthcare Corporation and
the Massachusetts Guarantors (as defined herein)
October 23, 1998
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facts known to the undersigned on the date hereof, and the undersigned does
not undertake any liability or responsibility to inform you of any change
in circumstances occurring after the date hereof which might alter the
opinions contained herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and we further consent to the use of our name under the
caption "Legal Matters" in the Prospectus. In giving this consent, we do not
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the Rules and
Regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ McDermott, Will & Emery