EXHIBIT 10.24
ACCOUNTS RECEIVABLE
INTERCREDITOR AGREEMENT
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(LEASED FACILITIES)
THIS AGREEMENT is made as of the 11th day of August, 1998, by and among (I)
THE CHASE MANHATTAN BANK, as administrative agent (in such capacity, the
"Corporate Credit Agent") for itself and the other lenders (the "Corporate
Credit Lenders") which are, or may in the future become, parties to the
Corporate Credit Agreement (as hereinafter defined), (II) THE CHASE MANHATTAN
BANK, as administrative agent (in such capacity, the "Lease Credit Agent") for
itself and the other lenders (the "Lease Credit Lenders") which are, or may in
the future become, parties to the Lease Credit Agreement (as hereinafter
defined), (III) THE CHASE MANHATTAN BANK, as administrative agent (in such
capacity, the "Agent") for the Corporate Credit Lenders, the Lease Credit
Lenders and/or the Investors, as the case may be, pursuant to the Security
Documents, (IV) HHC 1998-1 TRUST, a Delaware business trust (the "HHC Trust"),
(V) CSL LEASING, INC., BTD HARBORSIDE, INC. and MORGAN STANLEY SENIOR FUNDING,
INC. (collectively, the "Investors") and (VI) MEDITRUST COMPANY LLC, a Delaware
limited liability company, having an office at 197 First Avenue, Needham
Heights, Massachusetts 02494 (the "Lessor"), successor by merger to Meditrust of
Ohio, Inc., Meditrust of New Hampshire, Inc., Meditrust of Bedford, Inc.,
Meditrust of Florida, Inc., Meditrust of New Jersey, Inc., and Meditrust Tri-
States, Inc. (collectively, the "Original Lessors").
WHEREAS, the Original Lessors and HARBORSIDE TOLEDO LIMITED PARTNERSHIP, a
Massachusetts limited partnership, HARBORSIDE NEW HAMPSHIRE LIMITED PARTNERSHIP,
a Massachusetts limited partnership and HHCI LIMITED PARTNERSHIP, a
Massachusetts limited partnership (collectively, the "Lessees") entered into
those certain Facility Lease Agreements more particularly described on EXHIBIT B
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(collectively, the "Leases"). The Lessees' obligations under the Leases are
secured, in part, by security interests granted by the Lessees to the Original
Lessors and now held by the Lessor pertaining to the Credit Lenders' Collateral
(as hereinafter defined). All documents evidencing, securing or otherwise given
in connection with the Leases are hereinafter collectively referred to as the
"Lease Documents" and all collateral granted thereunder to the Original Lessor
(and now held by the Lessor) or the Lessor, as the case may be, shall be
collectively referred to as the "Lessor's Collateral" (which includes, without
limitation, the Credit Lenders' Collateral); and
WHEREAS, the Corporate Credit Agent and the Corporate Credit Lenders have
entered into a Credit Agreement, dated as of August 11, 1998 (such credit
agreement, together with any and all other documents securing or evidencing the
loans established by said credit agreement, the "Corporate Credit Agreement")
with Harborside Healthcare Corporation, a Delaware corporation ("Harborside"),
its subsidiaries listed on EXHIBIT A attached hereto and incorporated herein by
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reference and such additional subsidiaries which may be from time to time added
as parties thereto (collectively, together with Harborside, the "Debtors"),
including, without limitation, the Lessees; and
WHEREAS, the Lease Credit Agent and the Lease Credit Lenders have entered
into a Credit Agreement dated as of August 11, 1998 (such credit agreement,
together with any and all other documents securing or evidencing the loans
established by said credit agreement and the lease and credit transactions
established by such other documents, including, without limitation, the
Participation Agreement (as hereinafter defined) and the HHC Lease Guaranty (as
hereinafter defined), the "Lease Credit Agreement") with the HHC Trust; and
WHEREAS, pursuant to a Participation Agreement dated as of August 11, 1998
(the "Participation Agreement") by and among Harborside of Dayton Limited
Partnership, the HHC Trust, Wilmington Trust Company, the Investors, the Lease
Credit Agent and the Lease Credit Lenders, the Investors have agreed to make
certain investments in the HHC Trust; and
WHEREAS, the Debtors have executed that certain Guarantee, dated as of
August 11, 1998, in favor of the HHC Trust, the Investors and the Lease Credit
Agent, for the benefit of the Lease Credit Lenders (such guaranty, together with
any and all other documents securing or evidencing the obligations established
by said guaranty, the "HHC Lease Guaranty"), pursuant to which the Debtors have
agreed to guarantee the Note Obligations, the Contribution Obligations and the
Lease Obligations (as each term is defined in the HHC Lease Guaranty); and
WHEREAS, the Lessor acknowledges having been informed by the Corporate
Credit Agent, the Lease Credit Agent, the HHC Trust and the Investors that, as
collateral for (A) the loans made pursuant to the Corporate Credit Agreement and
investments and loans made pursuant to the Lease Credit Agreement and (B) the
obligations of the Debtors under the HHC Lease Guaranty, the Agent was (or, in
the case of mortgaged properties, within sixty (60) days after the date hereof,
will be) granted security interests (I) by the Lessees, pursuant to the Security
Documents (as hereinafter defined) in certain collateral that is more
particularly described therein (the "Credit Lenders' Collateral"), including,
without limitation, the facilities (collectively, the "Facilities") more
particularly described in the Leases, and (II) by the other Debtors in certain
other collateral that is more particularly described in the Corporate Credit
Agreement and the Lease Credit Agreement (the "Remaining Collateral"); and
WHEREAS, the Lease Credit Lenders, the Corporate Credit Lenders, the HHC
Trust and the Investors have agreed that the Credit Lenders' Collateral and the
Remaining Collateral secure the obligations under the Corporate Credit
Agreement, the Lease Credit Agreement and the HHC Lease Guaranty on the terms
and conditions set forth in that certain Agency and Intercreditor Agreement,
dated as of August 11, 1998, by and among the Debtors, the HHC Trust, the
Corporate Credit Agent, the Lease Credit Agent, the Corporate Credit Lenders,
the Lease Credit Lenders and the Investors (the "Chase Intercreditor
Agreement"); and
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WHEREAS, the Lessor is willing to consent to the granting of security
interests in the Credit Lenders' Collateral to the Corporate Credit Agent, for
the benefit of the Corporate Credit Lenders, the Lease Credit Agent, for the
benefit of the Lease Credit Lenders, the HHC Trust and the Investors, upon the
terms and conditions set forth herein.
NOW, THEREFORE, for consideration paid, receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. CONSENT. Notwithstanding anything to the contrary set forth in the
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Lease Documents, the Lessor hereby consents to (I) the establishment by the
Corporate Credit Lenders of the credit facilities in favor of the Debtors under
the Corporate Credit Agreement, (II) the establishment by the Lease Credit
Lenders and the Investors of the synthetic lease facility contemplated in the
Participation Agreement, including, without limitation, the credit facilities in
favor of the HHC Trust under the Lease Credit Agreement and (III) the granting
by the Lessees to the Agent, pursuant to the Security Documents, of security
interests in the Credit Lenders' Collateral. The documents more particularly
described on EXHIBIT C attached hereto and incorporated herein by reference are
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collectively referred to herein as the "Security Documents". The Lessor hereby
further agrees that to the extent that any of the provisions set forth in any of
the Lease Documents prohibits or restricts (A) any of the Lessees from entering
into the Corporate Credit Agreement, incurring their respective obligations
thereunder to the Corporate Credit Agent or the Corporate Credit Lenders or
granting security interests or liens in the Credit Lenders' Collateral to the
Agent, for the benefit of the Corporate Credit Lenders, pursuant to the Security
Documents, (B) any of the Lessees from entering into the Lease Credit Agreement,
incurring their respective obligations thereunder to the Lease Credit Agent or
the Lease Credit Lenders or granting security interests or liens in the Credit
Lenders' Collateral to the Agent, for the benefit of the Lease Credit Lenders,
pursuant to the Security Documents or (C) any of the Lessees from entering into
the HHC Lease Guaranty, incurring their respective obligations thereunder to the
HHC Trust, the Lease Credit Agent, the Lease Credit Lenders and the Investors or
granting security interests or liens in the Credit Lenders' Collateral to the
Agent, for the benefit of the Lease Credit Lenders and the Investors pursuant to
the Security Documents in order to secure such Lessee's obligations under the
HHC Lease Guaranty then, subject to the terms hereof, such provisions are hereby
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waived by the Lessor. Notwithstanding the foregoing, it is understood and agreed
by the parties hereto that in no event is the Lessor consenting to the granting
of (A) a leasehold mortgage by any Lessee (encumbering such Lessee's interest in
any Lease) for the benefit of any or all of the Corporate Credit Agent, the
Corporate Credit Lenders, the Lease Credit Agent, the Lease Credit Lenders, the
HHC Trust and the Investors or (B) a security interest for the benefit of any or
all of the Corporate Credit Agent, the Corporate Credit Lenders, the Lease
Credit Agent, the Lease Credit Lenders, the HHC Trust and/or the Investors in
any of the Capital Stock (as defined in the Corporate Credit Agreement) of any
Lessee or in the general partner of any Lessee.
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2. NOTICES. The Corporate Credit Agent agrees to give the Lessor a copy
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of any notice of default and/or any other notice pertaining to any exercise of
any right and/or remedy under the Corporate Credit Agreement that the Corporate
Credit Agent gives to any Lessee or Harborside pursuant to the Corporate Credit
Agreement, simultaneously with the giving of such notice to such Lessee or
Harborside. The Lease Credit Agent agrees to give the Lessor a copy of any
notice of default and/or any other notice pertaining to any exercise of any
right and/or remedy under the Lease Credit Agreement or under the HHC Lease
Guaranty that the Lease Credit Agent gives to any Lessee or Harborside pursuant
to the Lease Credit Agreement, simultaneously with the giving of such notice to
such Lessee or Harborside. The Agent agrees to give the Lessor a copy of any
notice of default and/or any other notice pertaining to any exercise of any
right and/or remedy under the Security Documents that the Agent gives to any
Lessee or Harborside pursuant to the Security Documents, simultaneously with the
giving of such notice to such Lessee or Harborside. The Lessor agrees to give
the Agent a copy of any notice of default and/or any other notice pertaining to
any exercise of any right or remedy under the Lease Documents that the Lessor
gives to any Lessee or Harborside pursuant to the Lease Documents,
simultaneously with the giving of such notice to such Lessee or Harborside.
3. PRIORITIES WITH RESPECT TO THE COLLATERAL.
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(A) Notwithstanding anything to the contrary that may be set forth in
any of the Lease Documents, the Lessor acknowledges and agrees
that, as between (I) the Lessor and (II) the Agent, except as
provided in paragraph 3(d) below, the Agent's security interests
in that portion of the Credit Lenders' Collateral that
constitutes Accounts (as hereinafter defined) shall be treated as
prior to the Lessor's security interest in such Accounts.
(B) The Agent acknowledges having been informed by the Lessor that,
as additional security for the obligations of the Lessees under
the Lease Documents, as part of the Lessor's Collateral, (I) the
Lessor (as the successor by merger to the Original Lessors) has
been granted by the Lessees collateral assignments of, and
perfected security interests in, all licenses, approvals,
qualifications, variances, permissive uses, certificates of need,
franchises, accreditations, 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 facilities demised under the Leases
(collectively, the "Facilities") 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 any Facility and all
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renewals and replacements and substitutions therefor, now or
hereafter issued by or entered into with any governmental
authority or maintained or used by any Lessee or entered into by
any Lessee with any third party, including, without limitation,
patient contracts and governmental reimbursement contracts
associated with the Facilities which generate Accounts and (II)
the Lessor (as the successor by merger to the Original Lessors)
has been granted by the Lessees perfected security interests in
all books, records, ledgers, print-outs, papers, data, file
materials and information relating to the Facilities, any account
debtors in respect thereof and/or to the operation of the
Lessees' 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 Corporate Credit Agreement, the Lease Credit Agreement and/or
the HHC Lease Guaranty, the Agent further acknowledges and agrees
that, as between (X) the Agent and (Y) the Lessor, the Lessor's
said security interests in the Permits, the Contracts and the
Books and Records, as well as the Lessor's security interests in
all other items of the Credit Lenders' Collateral (other than, as
provided in paragraphs 3(a) and 3(d), in Accounts accruing on or
prior to the "Trigger Event", as hereinafter defined) shall be
treated as prior to the Agent's security interests in the
Permits, the Contracts, the Books and Records and the other items
of the Credit Lenders' Collateral (other than Accounts accruing
on or 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) and (II) rights to payment for goods sold or
leased or services rendered by any Lessee or any other party,
whether now in existence or arising from time to time hereafter
and 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 Lessee 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
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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, the Lessor hereby grants to the Agent a
license in the Permits, the Contracts and the Books and Records
(the "License Rights"), but only to the extent that (I) the
Lessor is able to do so consistent with applicable law and the
Lessor's contractual obligations (now existing or hereafter
entered into) and (II) the License Rights are necessary for the
Agent to sue for and collect all Accounts that accrue on or prior
to the Trigger Event; provided, however, that the foregoing grant
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is made without any representation or implication on behalf of
the Lessor 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, the
Lessor 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 Agent from collecting
Accounts that accrued on or 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 Lease Documents (I) upon
receipt by the Agent of written notice (the "Trigger Notice")
from the Lessor, notifying the Agent of the commencement by the
Lessor of any action to exercise any of its remedies under any of
the Lease Documents, including, without limitation, the taking of
any steps to terminate any one or more of the Leases, to
accelerate or to demand full payment under the Lease Documents or
to realize on all or any portion of the Lessor's Collateral (the
date of the receipt by the Agent of the Trigger Notice shall be
referred to herein as the "Trigger Event"), all Accounts arising
and/or accruing after the Trigger Event from operations at the
applicable Facility or Facilities identified in the Trigger
Notice (and the proceeds thereof) and the rights to collect and
retain the same shall be, as between (A) the Agent and (B) the
Lessor, the Lessor's as first priority collateral for the
obligations of the Lessees to the Lessor and (II) the Lessor
agrees with the Agent that all uncollected Accounts that accrued
from operations of such Facility or Facilities occurring on or
prior to the Trigger Event are part of the Accounts in which the
Agent has a security interest prior to the Lessor's and as to
which the rights to collect and retain the same shall be, as
between (X) the Agent and (Y)
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the Lessor, the Agent's as first priority collateral for the
obligations owed to the Corporate Credit Agent and the Corporate
Credit Lenders under the Corporate Credit Agreement, the
obligations owed to the Lease Credit Agent and the Lease Credit
Lenders under the Lease Credit Agreement and the obligations owed
to the Lease Credit Agent (for the benefit of the Lease Credit
Lenders) and the Investors under the HHC Lease Guaranty.
The parties hereto agree that a Trigger Notice may be given on
any one or more occasions and that there may be different Trigger
Events for the Facilities.
(E) The Lessor hereby grants to the Agent, access to the Facilities
and the Books and Records at reasonable times and after
reasonable notice to the Lessor to the extent that such access is
necessary for the Agent to pursue its rights in such Accounts
accruing on or prior to the Trigger Event. With respect to any
Facility, such right of access shall be effective from and after
the time the Lessor takes exclusive possession of such Facility
and the Books and Records relating thereto.
(F) It is recognized that individual patients at any Facility may
have unpaid Accounts that accrued both before and after the
applicable Trigger Event relating to such Facility. The parties
hereto agree that payments received under such circumstances
shall be applied against the oldest Accounts first.
(G) In the event that the Corporate Credit Agent, the Lease Credit
Agent, the Agent and/or the Investors collect any Accounts that
accrued after the Trigger Event, the Corporate Credit Agent, the
Lease Credit Agent, the Agent and/or the Investors, as the case
may be, shall forward such Accounts to the Lessor. In the event
that the Lessor collects any Accounts that accrued on or prior to
the Trigger Event, the Lessor shall forward such Accounts to the
Agent.
4. THE CORPORATE CREDIT AGENT'S, THE LEASE CREDIT AGENT'S, THE AGENT'S,
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THE HHC TRUST'S AND THE INVESTORS' EXERCISE OF REMEDIES. Notwithstanding
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anything to the contrary set forth in the Corporate Credit Agreement, the Lease
Credit Agreement and/or the HHC Lease Guaranty, the Corporate Credit Agent, the
Lease Credit Agent, the Agent, the HHC Trust and the Investors agree that,
without the prior written consent of the Lessor, which consent may be withheld
in the Lessor's sole and absolute discretion, (A) the Corporate Credit Agent,
the Lease Credit Agent, the Agent, the HHC Trust and the Investors shall not
exercise any of their respective rights and remedies under the Corporate Credit
Agreement, the Lease Credit Agreement and/or the HHC Lease Guaranty (including,
without limitation, the rights and remedies under the Security Documents) with
respect to the Lessees
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or the Credit Lenders' Collateral, other than such rights and remedies as may be
necessary to collect the Accounts that accrue on or prior to the Trigger Event
and (B) without limiting the foregoing, the Corporate Credit Agent, the Lease
Credit Agent, the Agent, the HHC Trust and the Investors 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 any Lessee or the general partner of any Lessee or seek any relief
with respect to any Lessee or the general partner of any Lessee (including,
without limitation, the appointment of a receiver, trustee or other similar
official for such Lessee or the general partner of any Lessee or any of their
respective businesses or assets) under any such law. Except as expressly set
forth in this Paragraph 4, this Agreement shall not, however, limit the
respective rights and remedies of the Corporate Credit Agent, the Lease Credit
Agent, the Agent, the HHC Trust and/or the Investors under the Corporate Credit
Agreement, the Lease Credit Agreement and/or the HHC Trust with respect to the
Debtors, other than the Lessees and the general partner of the Lessees, the HHC
Trust or the Remaining Collateral.
The Corporate Credit Agent, the Lease Credit Agent, the Agent, the HHC
Trust and the Investors will not demand or accept as security for the
indebtedness evidenced by the Corporate Credit Agreement, the Lease Credit
Agreement and/or the HHC Lease Guaranty any collateral owned, wholly or in part,
by any Lessee or any general partner of any Lessee, other than such collateral
as is already included within the definition of the Credit Lenders' Collateral,
without the prior written consent of the Lessor, in each instance, which consent
may be withheld in the Lessor's sole and absolute discretion.
5. BIND AND INURE; TERMINATION. This Agreement shall be binding upon and
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inure only to the benefit of the Lessor, the Corporate Credit Agent, the Lease
Credit Agent, the Agent, the HHC Trust, the Investors and their respective
successors and assigns (including, without limitation, any other future holder
of the landlord's interest under any Lease); provided, however, that this
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Agreement shall be null and void and of no further force or effect upon the
payment in full of the obligations under either (A) the Corporate Credit
Agreement, the Lease Credit Agreement and the HHC Lease Guaranty or (B) the
Lease Documents. The Corporate Credit Agent hereby represents and warrants that
it has the authority to execute this Agreement on behalf of itself and the other
lenders which are, or may in the future become, parties to the Corporate Credit
Agreement. The Lease Credit Agent hereby represents and warrants that it has
the authority to execute this Agreement on behalf of itself and the other
Corporate Credit Lenders, the other Lease Credit Lenders which are, or may in
the future become, secured parties under the Lease Credit Agreement. The Agent
hereby represents and warrants that it has the authority to execute this
Agreement on behalf of itself, the other Lenders, the Investors and such other
parties which may in the future become parties to the Security Documents. By
executing this Agreement on behalf of the HHC Trust, Wilmington Trust Company
represents and warrants that it is the Trustee of the HHC Trust and has the
authority to execute this Agreement on behalf of the HHC Trust. The Investors
hereby represent and warrant that they have the authority to execute this
Agreement.
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6. NOTICES. All notices and other communications hereunder shall be in
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writing and mailed (by registered or certified mail, return receipt requested
and postage prepaid), delivered by a reputable commercial overnight delivery
service with provision for a receipt, with delivery charges prepaid, hand
delivered 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 receipt, or upon
attempted delivery if delivery is refused by the addressee, addressed or
facsimile transmitted to the respective parties, as follows:
(A) if to the Corporate Credit Agent, to the Lease Credit Agent and/or to
the Agent:
The Chase Manhattan Bank
c/o The Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Janet M. Belden
Telephone: (212) 552-5658
Fax: (212) 552-5650
with copies to:
Chase New England Corporation
85 Wells Avenue
Suite 200
Newton, MA 02159
Attention: Roger A. Stone
Telephone: (617) 928-3056
Fax: (617) 928-3057
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
Attention: Gregory A. Weiss, Esq.
Telephone: (212) 455-2000
Fax: (212) 455-2502
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(B) if to the HHC Trust:
c/o Wilmington Trust Company
Rodney Square North
110 North Market Street
Wilmington, DE 19890
Attention: Corporate Trust Administration
Reference: HHC 1998-1 Trust
Telephone: (301) 651-8882
Fax: (302) 651-1000
with copies to:
Chase New England Corporation
85 Wells Avenue
Suite 200
Newton, MA 02159
Attention: Roger A. Stone
Telephone: (617) 928-3056
Fax: (617) 928-3057
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
Attention: Gregory A. Weiss, Esq.
Telephone: (212) 455-2000
Fax: (212) 455-2502
(C) if to the Investors:
BTD Harborside Inc.
1011 Centre Road, Suite 200
Wilmington, DE 19805
Attention: Donna Mitchell
Fax: (302) 636-3333
Morgan Stanley Senior Funding, Inc.
1585 Broadway
New York, NY 10036
Attention: Michael A. Hart
Fax: (212) 761-0587
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CSL Leasing, Inc.
1201 Market Street, 9th Floor
Wilmington, DE 19801
Attention: Michael Handago
Fax: (302) 428-3390
with copies to:
Chase New England Corporation
85 Wells Avenue
Suite 200
Newton, MA 02159
Attention: Roger A. Stone
Telephone: (617) 928-3056
Fax: 617) 928-3057
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
Attention: Gregory A. Weiss, Esq.
Telephone: (212) 455-2000
Fax: (212) 455-2502
(D) if to the Lessor:
Meditrust Company LLC
197 First Avenue
Needham Heights, MA 02494
Attention: President
Telephone: (781) 433-6000
Fax: (781) 433-1290
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with copies to:
Meditrust Company LLC
197 First Avenue
Needham Heights, MA 02494
Attention: General Counsel
Telephone: (781) 433-6000
Fax: (781) 433-1224
Nutter, McClennen & Fish, LLP
One International Place
Boston, MA 02110
Attention: Marianne Ajemian, Esq.
Telephone: (617) 439-2000
Fax: (617) 973-9748
or to such other address or facsimile telephone number as any 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
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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
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foregoing, it is acknowledged and agreed that the Debtors may rely on the
consents and waivers set forth in Paragraph 1.
8. ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire
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agreement of the parties with respect to the Credit Lenders' Collateral and the
Lessor's 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 Corporate Credit Agent shall provide the Lessor with copies of all
amendments to the Corporate Credit Agreement. The Lease Credit Agent shall
provide the Lessor with copies of all amendments to the Lease Credit Agreement.
The Lessor shall provide the Agent with copies of all amendments to any of the
Lease Documents.
9. NO WAIVER. No waiver of any term, provision or condition of this
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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
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act shall be construed as a waiver of any term, provision, condition or right
granted hereunder.
Excluding any breach of any covenant set forth herein, no action or
inaction with respect to the Lessor's Collateral; nor any amendment to any of
the Lease Documents; nor any exercise or nonexercise of any right, power or
remedy under the Lease Documents; nor any waiver, consent, release, indulgence,
extension, renewal, modification, delay or other action, inaction or omission in
respect of the obligations evidenced by the Lease Documents will in any event
give rise to any claim by the Corporate Credit Agent, the Lease Credit Agent,
the Agent, the HHC Trust and/or the Investors against the Lessor.
Excluding any breach of any covenant set forth herein, no action or
inaction with respect to the Credit Lenders' Collateral or the Remaining
Collateral; nor any amendment to the Corporate Credit Agreement; nor any
exercise or nonexercise of any right, power or remedy under the Corporate 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 Corporate Credit Agreement will in any event give
rise to any claim by the Lessor against the Corporate Credit Agent or the Agent.
Excluding any breach of any covenant set forth herein, no action or
inaction with respect to the Credit Lenders' Collateral or the Remaining
Collateral; nor any amendment to the Lease Credit Agreement; nor any exercise or
nonexercise of any right, power or remedy under the Lease 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 Lease Credit Agreement will in any event give rise to any claim
by the Lessor against the Lease Credit Agent or the Agent.
Excluding any breach of any covenant set forth herein, no action or
inaction with respect to the Credit Lenders' Collateral or the Remaining
Collateral; nor any amendment to the HHC Lease Guaranty; nor any exercise or
nonexercise of any right, power or remedy under the HHC Lease Guaranty; nor any
waiver, consent, release, indulgence, extension, renewal, modification, delay or
other action, inaction or omission in respect of the obligations evidenced by
the HHC Lease Guaranty will in any event give rise to any claim by the Lessor
against the Lease Credit Agent, the Agent, the HHC Trust or the Investors.
The Corporate Credit Agent, the Lease Credit Agent, the Agent, the HHC
Trust and the Investors each irrevocably waives any right to require marshalling
of the assets of the Lessees and agrees that the Lessor shall have no obligation
to seek satisfaction of the Lessees' obligations under the Lease Documents
through recourse to collateral, if any, other than the Facilities prior to the
exercise of the Lessor's rights with respect to the Facilities.
The Lessor irrevocably waives any right to require marshalling of the
assets of the Debtors and agrees that the Corporate Credit Agent, the Lease
Credit Agent, the Agent, the HHC Trust and the Investors shall have no
obligation to seek satisfaction of the indebtedness evidenced by the Corporate
Credit Agreement, the Lease Credit Agreement and/or the HHC Lease Guaranty
through recourse to collateral, if any, other than the Accounts that accrued
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on or prior to the Trigger Event prior to the exercise of the Corporate Credit
Agent's, the Lease Credit Agent's, the Agent's and/or the Investors' 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.
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. In no event shall the Lessor ever be liable
-----------------------
to the Corporate Credit Agent, the Lease Credit Agent, the Agent, the HHC Trust,
the Investors or any other party for any indirect or consequential damages
incurred by the Corporate Credit Agent, the Lease Credit Agent, the Agent, the
HHC Trust, the Investors or such other party resulting from any cause
whatsoever.
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 Corporate Credit
Agent, the Lease Credit Agent, the Agent, the HHC Trust and the Investors each
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 the
Corporate Credit Agent, the Lease Credit Agent, the Agent, the HHC Trust and the
Investors each expressly waives any and all objections it 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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17. NO AMENDMENT OF CHASE INTERCREDITOR AGREEMENT. As between the
---------------------------------------------
Corporate Credit Agent, the Lease Credit Agent, the Agent, the HHC Trust and the
Investors only, the terms and conditions of this Agreement shall not amend or
modify the terms and conditions of the Chase Intercreditor Agreement; provided,
--------
however that the provisions of the Chase Intercreditor Agreement shall not
- -------
affect, in any manner whatsoever, the Lessor's rights and remedies with respect
to the Lessees and the Lessor's Collateral.
18. RULES OF CONSTRUCTION. The provisions of this Agreement shall extend
---------------------
and be applicable to all renewals, replacements, amendments, extensions,
substitutions, revisions, consolidations and modifications of the Corporate
Credit Agreement, the Lease Credit Agreement, the HHC Lease Guaranty and/or the
Lease Documents. References herein to the Corporate Credit Agreement, the Lease
Credit Agreement, the HHC Lease Guaranty and/or any of the Lease Documents shall
be deemed to include any renewals, replacements, amendments, extensions,
substitutions, revisions, consolidations or modifications thereof.
Notwithstanding the foregoing, any reference contained herein, whether
express or implied, to any renewal, replacement, amendment, extension,
substitution, revisions, consolidation or modification of any of the Lease
Documents, the Corporate Credit Agreement, the Lease Credit Agreement and/or the
HHC Lease Guaranty is not intended to constitute an agreement or consent by any
of the parties hereto to any such renewal, replacement, amendment, substitution,
revision, consolidation or modification; but, rather as a reference only to
those instances where the applicable parties may give, agree or consent to any
such renewal, replacement, amendment, extension, substitution, revision,
consolidation or modification as the same may be (and only to the extent that
the same may be) required pursuant to the terms, covenants and conditions hereof
or of any of the Lease Documents, the Corporate Credit Agreement, the Lease
Credit Agreement and/or the HHC Lease Guaranty.
Notwithstanding anything to the contrary contained herein, (A) every
agreement, consent and undertaking made herein by the Corporate Credit Agent is
made on behalf of, and shall be binding upon, the Corporate Credit Lenders, (B)
every agreement, consent and undertaking made herein by the Lease Credit Agent
is made on behalf of, and shall be binding upon, the Lease Credit Lenders and
(C) every agreement, consent and undertaking made herein by the Agent is made on
behalf of, and shall be binding upon, the Corporate Credit Lenders, the Lease
Credit Lenders and the Investors.
-15-
WITNESS the execution hereof under seal as of day and year first written
above.
WITNESS CORPORATE CREDIT AGENT:
- ------- ----------------------
THE CHASE MANHATTAN BANK, as
Administrative Agent under the Corporate Credit
Agreement
/s/ Pilar Ramos By: /s/ Robert Anastasio
- ------------------------- ----------------------------------------
Name: Pilar Ramos Name: Robert Anastasio
Title: Vice President
WITNESS LEASE CREDIT AGENT:
- ------- ------------------
THE CHASE MANHATTAN BANK, as
Administrative Agent under the Lease Credit
Agreement
/s/ Pilar Ramos By: /s/ Robert Anastasio
- ------------------------- -----------------------------------------
Name: Pilar Ramos Name: Robert Anastasio
Title: Vice President
WITNESS AGENT:
- ------- -----
THE CHASE MANHATTAN BANK, as
Administrative Agent under the Security
Documents
/s/ Pilar Ramos By: /s/ Robert Anastasio
- ------------------------- -----------------------------------------
Name: Pilar Ramos Name: Robert Anastasio
Title: Vice President
WITNESS HHC TRUST:
- ------- ---------
HHC 1998-1 TRUST, a Delaware business trust
By: WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its
individual capacity but solely as Trustee
/s/ Susanne Gula By: /s/ Charlotte Paglia
- ------------------------- ------------------------------------------
Name: Susanne Gula Name: Charlotte Paglia
Title: Financial Services Officer
WITNESS INVESTORS:
- ------- ---------
CSL LEASING, INC.
/s/ James P. Donaghey By: /s/ Michael P. Handago
- ------------------------- ------------------------------------------
Name: James P. Donaghey Name: Michael P. Handago
Title: Vice President
WITNESS BTD HARBORSIDE INC.
- -------
/s/ Jean M. Mazarella By: /s/ James H. Stallkamp
- ------------------------- ------------------------------------------
Name: Jean M. Mazarella Name: James H. Stallkamp
Title: President
WITNESS MORGAN STANLEY SENIOR FUNDING, INC.
- -------
/s/ Robert J. Franz By: /s/ Michael T. McLaughlin
- ------------------------- ------------------------------------
Name: Robert J. Franz Name: Michael T. McLaughlin
Title: Principal
WITNESS LESSOR:
- ------- ------
MEDITRUST COMPANY LLC, a Delaware
limited liability company
/s/ Kim M. Priesing By: /s/ Michael S. Benjamin, Esq.
- ------------------------- ------------------------------------
Name: Kim M. Priesing Name: Michael S. Benjamin, Esq.
Title: Senior Vice President
EXHIBIT A
---------
DEBTORS
Bay Tree Nursing Center Corp.
Belmont Nursing Center Corp.
Bridgewater Assisted Living Limited Partnership
Countryside Care Center Corp.
Harborside of Cleveland Limited Partnership
Harborside Health I Corporation
Harborside Acquisition Limited Partnership IV
Harborside Acquisition Limited Partnership V
Harborside Acquisition Limited Partnership VI
Harborside Acquisition Limited Partnership VII
Harborside Acquisition Limited Partnership VIII
Harborside Acquisition Limited Partnership IX
Harborside Acquisition Limited Partnership X
Harborside Atlantrix Limited Partnership
Harborside Connecticut Limited Partnership
Harborside Funding Limited Partnership
Harborside Healthcare Advisors Limited Partnership
Harborside Healthcare Baltimore Limited Partnership
Harborside Healthcare Limited Partnership
Harborside Healthcare Network Limited Partnership
Harborside Homecare Limited Partnership
Harborside Massachusetts Limited Partnership
Harborside New Hampshire Limited Partnership
Harborside North Toledo Limited Partnership
Harborside of Dayton Limited Partnership
Harborside of Florida Limited Partnership
Harborside of Ohio Limited Partnership
Harborside Properties Trust I
Harborside Rehabilitation Limited Partnership
Harborside Rhode Island Limited Partnership
Harborside Toledo Limited Partnership
Harborside Toledo Corp.
HHCI Limited Partnership
KHI Corp.
Maryland Harborside Corp.
New Jersey Harborside Corp.
Oakhurst Manor Nursing Center Corp.
Orchard Ridge Nursing Center Corp.
Riverside Retirement Limited Partnership
Sailors, Inc.
Sunset Point Nursing Center Corp.
West Bay Nursing Center Corp.
EXHIBIT B
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FACILITY LEASE AGREEMENTS
1. Facility Lease Agreement, dated as of March 31, 1995, as amended, by and
between Meditrust of Ohio, Inc. and Harborside Toledo Limited Partnership,
relating to the facility commonly known as the Harborside of Toledo
Rehabilitation and Nursing Center
2. Facility Lease Agreement, dated as of January 1, 1996, as amended, by and
between Meditrust of New Hampshire, Inc. and Harborside New Hampshire
Limited Partnership, relating to the facility commonly known as the
Applewood Healthcare Center
3. Facility Lease Agreement, dated as of January 1, 1996, as amended, by and
between Meditrust of New Hampshire, Inc. and Harborside New Hampshire
Limited Partnership, relating to the facility commonly known as the
Crestwood Healthcare Center
4. Facility Lease Agreement, dated as of January 1, 1996, as amended, by and
between Meditrust of New Hampshire, Inc. and Harborside New Hampshire
Limited Partnership, relating to the facility commonly known as the Milford
Nursing Home
5. Facility Lease Agreement, dated as of January 1, 1996, as amended, by and
between Meditrust of New Hampshire, Inc. and Harborside New Hampshire
Limited Partnership, relating to the facility commonly known as the
Pheasant Wood Nursing Home
6. Facility Lease Agreement, dated as of January 1, 1996, as amended, by and
between Meditrust of New Hampshire, Inc. and Harborside New Hampshire
Limited Partnership, relating to the facility commonly known as the
Westwood Healthcare Center
7. Facility Lease Agreement, dated as of January 1, 1996, as amended, by and
between Meditrust of Bedford, Inc. and Harborside New Hampshire Limited
Partnership, relating to the facility commonly known as the Northwood
Healthcare Center
8. Facility Lease Agreement, dated as of December 31, 1995 as amended, by and
between Meditrust of Florida, Inc. and HHCI Limited Partnership, relating
to the facility commonly known as the Harborside Healthcare - Naples
9. Facility Lease Agreement, dated as of December 31, 1995, as amended, by and
between Meditrust of Florida, Inc. and HHCI Limited Partnership, relating
to the facility commonly known as the Harborside Healthcare - Pinebrook
10. Facility Lease Agreement, dated as of December 31, 1995, as amended, by and
between Meditrust of Florida, Inc. and HHCI Limited Partnership, relating
to the facility commonly known as the Harborside Healthcare - Sarasota
11. Facility Lease Agreement, dated as of December 31, 1995, as amended, by and
between Meditrust Tri-States, Inc. and HHCI Limited Partnership, relating
to the facility commonly known as the Harborside Healthcare - New Haven
12. Facility Lease Agreement, dated as of December 31, 1995, as amended, by and
between Meditrust Tri-States, Inc. and HHCI Limited Partnership, relating
to the facility commonly known as the Harborside Healthcare - Indianapolis
13. Facility Lease Agreement, dated as of December 31, 1995, as amended, by and
between Meditrust of Ohio, Inc. and HHCI Limited Partnership, relating to
the facility commonly known as the Harborside Healthcare - Troy
14. Facility Lease Agreement, dated as of December 31, 1995, as amended, by and
between Meditrust of New Jersey, Inc. and HHCI Limited Partnership,
relating to the facility commonly known as the Harborside Healthcare -
Woods Edge
EXHIBIT C
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SECURITY DOCUMENTS
Collectively, (A) the "Security Documents" (as defined under the Corporate
Credit Agreement) entered into as of the date hereof to which any Borrower is a
party, (B) the "Security Documents" (as defined under the Participation
Agreement) executed as of the date hereof to which any Borrower is a party and
(C) the "Guarantee Security Documents" (as defined under the Participation
Agreement) executed as of the date hereof to which any Borrower is a party.