EXHIBIT 10.25
ACCOUNTS RECEIVABLE
INTERCREDITOR AGREEMENT
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(MORTGAGED 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 the Security
Documents, (IV) HHC 1998-1 TRUST, a Delaware business trust (the "HHC Trust"),
(V) CSL LEASING, INC., BTD HARBORSIDE INC. and XXXXXX XXXXXXX SENIOR FUNDING,
INC. (collectively, the "Investors"), and (VI) MEDITRUST MORTGAGE INVESTMENTS,
INC., a Delaware corporation, having an office at 000 Xxxxx Xxxxxx, Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000 ("MMI").
WHEREAS, on October 13, 1994, MMI made a loan to BAY TREE NURSING CENTER
CORP., a Massachusetts corporation ("Bay Tree"), COUNTRYSIDE CARE CENTER CORP.,
a Massachusetts corporation ("Countryside"), SUNSET POINT NURSING CENTER CORP.,
a Massachusetts corporation ("Sunset"), WEST BAY NURSING CENTER CORP. ("West
Bay" and Bay Tree, Countryside, Sunset and West Bay are hereinafter collectively
referred to as the "Borrowers"), BELMONT NURSING CENTER CORP., a Massachusetts
corporation ("Belmont"), OAKHURST MANOR NURSING CENTER CORP., a Massachusetts
corporation ("Oakhurst") and ORCHARD RIDGE NURSING CENTER CORP., a Massachusetts
corporation ("Orchard Ridge") in the original principal amount of FORTY-TWO
MILLION THREE HUNDRED THOUSAND ($42,300,000) DOLLARS (the "MMI Loan"), which is
secured, in part, by security interests granted by the Borrowers pertaining to
the Credit Lenders' Collateral (as hereinafter defined), including, without
limitation, the liens (collectively, the "MMI Mortgages") more particularly
described on EXHIBIT A attached hereto and incorporated herein by reference (the
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real and personal property encumbered by the MMI Liens is collectively referred
to herein as the "Mortgaged Property"). References herein in to the Mortgaged
Property shall be deemed to include references to all of the Mortgaged Property
and references to any portion thereof. All documents evidencing, securing or
otherwise given in connection with the MMI Loan, including, without limitation,
the MMI Mortgages, are hereinafter collectively referred to as the "Loan
Documents" and all collateral granted thereunder to MMI shall be collectively
referred to as the "MMI Collateral" (which includes, without limitation, the
Credit Lenders' Collateral); and
WHEREAS, subsequent to the consummation of the MMI Loan and in connection
with a partial prepayment thereof, (I) the liens granted by Oakhurst, Belmont
and Orchard
Ridge to MMI securing the MMI Loan were released and (II) Oakhurst, Belmont and
Orchard Ridge were each released from all obligations relating to the MMI Loan,
other than those obligations which, by the terms of any of the Loan Documents,
extend beyond the term of the MMI Loan or survive the payment of the MMI Loan;
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 B 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 Borrowers; 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, MMI 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 Borrowers, 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 on
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EXHIBIT C attached hereto and incorporated herein by reference, and (II) by the
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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
WHEREAS, MMI 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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Loan Documents, MMI 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 Borrowers to the Agent, pursuant to the Security Documents, of security
interests in the Credit Lenders' Collateral. The documents more particularly
described on EXHIBIT D attached hereto and incorporated herein by reference are
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collectively referred to herein as the "Security Documents". MMI hereby further
agrees that to the extent that any of the provisions set forth in any of the
Loan Documents prohibits or restricts (A) any of the Borrowers 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 Borrowers 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 Borrowers 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
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order to secure such Borrower's obligations under the HHC Lease Guaranty then,
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subject to the terms hereof, such provisions are hereby waived by MMI.
Notwithstanding the foregoing, it is understood and agreed by the parties hereto
that (A) MMI is hereby consenting to the granting of only one junior mortgage by
each Borrower (encumbering the portion of the Mortgaged Property owned by such
Borrower) 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 to secure all or any of the Borrowers' obligations
under the Corporate Credit Agreement, the Lease Credit Agreement and/or the HHC
Lease Guaranty and (B) in no event is MMI consenting to the granting of a
security interest by Harborside 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 Borrower.
2. NOTICES. The Corporate Credit Agent agrees to give MMI a copy of any
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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 Borrower or Harborside pursuant to the Corporate
Credit Agreement, simultaneously with the giving of such notice to such Borrower
or Harborside. The Lease Credit Agent 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 Lease Credit Agreement or under the HHC Lease Guaranty
that the Lease Credit Agent gives to any Borrower or Harborside pursuant to the
Lease Credit Agreement, simultaneously with the giving of such notice to such
Borrower or Harborside. The Agent 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 Security Documents that the Agent gives to any Borrower or
Harborside pursuant to the Security Documents, simultaneously with the giving of
such notice to such Borrower or Harborside. MMI 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 Loan Documents that MMI gives to any Borrower or
Harborside pursuant to the Loan Documents, simultaneously with the giving of
such notice to such Borrower 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 Loan Documents, MMI acknowledges and agrees that, as
between (I) MMI 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
MMI's security interest in such Accounts.
(B) The Agent acknowledges having been informed by MMI that, as
additional security for the obligations of the Borrowers under
the Loan Documents, as part of the MMI Collateral, (I) MMI has
been granted
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by the Borrowers 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 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 renewals and
replacements and substitutions therefor, now or hereafter issued
by or entered into with any governmental authority or maintained
or used by any Borrower or entered into by any Borrower with any
third party, including, without limitation, patient contracts and
governmental reimbursement contracts associated with the
Facilities which generate Accounts and (II) MMI has been granted
by the Borrowers 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 Borrowers'
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) MMI, MMI's said security
interests in the Permits, the Contracts and the Books and
Records, as well as MMI'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 Borrower 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
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indebtedness (collectively, the "Receivables"); together with (1)
all security pledged, assigned, hypothecated or granted to or
held by any Borrower 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 Agent 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 Agent to xxx
for and collect all Accounts that accrue on or prior to the
Trigger Event; provided, however, that the foregoing grant is
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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 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 Loan Documents (I) upon receipt
by the Agent of written notice (the "Trigger Notice") from MMI,
notifying the Agent of the commencement by MMI of any action to
exercise any of its remedies under any of the Loan Documents,
including, without limitation, the taking of any steps to
foreclose any one or more of the MMI Mortgages, to accelerate or
to demand full payment under the Loan Documents or to realize on
all or any portion of MMI 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
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the rights to collect and retain the same shall be, as between
(A) the Agent and (B) MMI, MMI's as first priority collateral for
the obligations of the Borrowers to MMI and (II) MMI 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 MMI's and as to which the rights
to collect and retain the same shall be, as between (X) the Agent
and (Y) MMI, 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) MMI hereby grants to the Agent, access to the Facilities and the
Books and Records at reasonable times and after reasonable notice
to MMI 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 MMI 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 MMI. In the event that MMI
collects any Accounts that accrued on or prior to the Trigger
Event, MMI 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
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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 MMI, which consent may be withheld in MMI's sole and absolute
discretion, (A) except as expressly provided in Paragraph 5 below, 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 Borrowers or the Credit Lenders'
Collateral (including, without limitation, the Mortgaged Property and the
Facilities), 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 Borrower or
seek any relief with respect to any Borrower (including, without limitation, the
appointment of a receiver, trustee or other similar official for such Borrower
or any of its 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 Borrowers, 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 Borrower, other than such collateral as is already included within the
definition of the Credit Lenders' Collateral, without the prior written consent
of MMI, in each instance, which consent may be withheld in MMI's sole and
absolute discretion.
5. ADDITIONAL PROVISIONS REGARDING THE CORPORATE CREDIT AGENT'S, THE
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LEASE CREDIT AGENT'S, THE AGENT'S, THE HHC TRUST'S AND THE INVESTORS' EXERCISE
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OF REMEDIES. As long as any portion of the indebtedness evidenced under the
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Loan Documents remains outstanding:
(A) the Corporate Credit Agent, the Lease Credit Agent, the Agent,
the HHC Trust and the Investors acknowledge and agree that (I) without
limiting the terms of clause (ii) immediately below, if the Corporate
Credit Agent, the Lease Credit Agent, the Agent, the HHC Trust or the
Investors should ever acquire any interest in the Mortgaged Property, such
interest is hereby made subordinate and junior in priority to the interest
of MMI in the Mortgaged Property, and regardless of time, order or place of
filing or recording of any mortgage (including, without limitation, the MMI
Mortgages), collateral assignment of leases or other property,
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financing statement or other document or instrument relating to the MMI
Loan, and regardless of the perfection or non-perfection thereof,
notwithstanding to the contrary any provision of any applicable law
relating to perfection or priority and, without limiting the foregoing or
any provision of Paragraph 4 hereof, the Corporate Credit Agent, the Lease
Credit Agent, the Agent, the HHC Trust and the Investors expressly
acknowledge and agree that with respect to any and all insurance proceeds
recovered or recoverable in connection with a fire or other casualty at the
Mortgaged Property, and with respect to any and all proceeds recovered or
recoverable in connection with a taking of the Mortgaged Property by
condemnation or by eminent domain by a public or quasi-public authority,
the rights of MMI under the MMI Mortgages shall be superior, in all
respects, to the rights of the Corporate Credit Agent, the Lease Credit
Agent, the Agent, the HHC Trust and the Investors under the Corporate
Credit Agreement, the Lease Credit Agreement and the HHC Lease Guaranty;
(II) the Corporate Credit Agent, the Lease Credit Agent, the Agent, the HHC
Trust and the Investors will not, under any circumstance whatsoever,
exercise or attempt to exercise any right, remedy or recourse against or to
realize upon the Mortgaged Property, without the prior consent of MMI, in
each instance, which consent may be withheld by MMI in its sole and
absolute discretion; provided, however, that notwithstanding the foregoing,
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in the event that any foreclosure proceeding is commenced by MMI with
respect to the Mortgaged Property, the Corporate Credit Agent, the Lease
Credit Agent, the Agent, the HHC Trust and the Investors shall be entitled
to take all such actions as may be necessary to preserve and/or assert
their respective rights as a defendant in any such foreclosure proceeding
(including, without limitation, the right to accelerate the indebtedness
evidenced by the Corporate Credit Agreement, the Lease Credit Agreement
and/or the HHC Lease Guaranty, but, excluding, specifically, the
commencement of any foreclosure proceeding against the Mortgaged Property)
and (III) upon any disposition of the Mortgaged Property in the exercise of
the Corporate Credit Agent's, the Lease Credit Agent's, the Agent's, the
HHC Trust's and/or the Investors' rights as mortgagee or secured party
(with MMI's consent as aforesaid), the Corporate Credit Agent, the Lease
Credit Agent, the Agent, the HHC Trust and the Investors shall have no
right to any proceeds of any such disposition until the MMI Loan has been
paid and satisfied in full, and any such proceeds to which any holder of
the indebtedness evidenced by the Corporate Credit Agreement, the Lease
Credit Agreement and/or the HHC Lease Guaranty would otherwise be entitled,
but for the subordination provisions of this Agreement, shall be paid
directly to MMI (to be applied towards the MMI Loan); and
(B) the Corporate Credit Agent, the Lease Credit Agent, the Agent,
the HHC Trust and the Investors shall not grant or consent to any further
or additional subordination of its respective liens on the Mortgaged
Property in whole or in part in favor of any party other than MMI, 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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6. BIND AND INURE; TERMINATION. This Agreement shall be binding upon and
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inure only to the benefit of MMI, 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 all or
any portion of the lender's interest under the Loan Documents); provided,
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however, that this Agreement shall be null and void and of no further force or
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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 Loan 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 lenders which are, or may in the future become,
parties to 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 Corporate Credit Lenders, the other Lease Credit Lenders, the Investors
and such other parties which may in the future become secured parties under 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.
7. 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 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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with copies to:
Chase New England Corporation
00 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Simpson, Thacher & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(B) if to the HHC Trust:
c/o Wilmington Trust Company
Xxxxxx Square North
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Reference: HHC 1998-1 Trust
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Chase New England Corporation
00 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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Xxxxxxx, Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(C) if to the Investors:
BTD Harborside Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
Xxxxxx Xxxxxxx Senior Funding, Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
CSL Leasing, Inc.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
with copies to:
Chase New England Corporation
00 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Simpson, Thacher & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
-12-
(D) if to MMI:
Meditrust Mortgage Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Meditrust Mortgage Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
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.
8. 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 Debtors may rely on the
consents and waivers set forth in Paragraph 1.
-13-
9. ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire
----------------------------
agreement of the parties with respect to the Credit Lenders' 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 Corporate Credit Agent shall provide MMI with copies of all amendments
to the Corporate Credit Agreement. The Lease Credit Agent shall provide MMI
with copies of all amendments to the Lease Credit Agreement. MMI shall provide
the Agent with copies of all amendments to any of the Loan Documents.
10. 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 forth herein, no action or
inaction with respect to the MMI Collateral; nor any amendment to any of the
Loan Documents; nor any exercise or nonexercise of any right, power or remedy
under the Loan 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 Loan 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 MMI.
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 MMI 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 MMI 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
-14-
obligations evidenced by the HHC Lease Guaranty will in any event give rise to
any claim by MMI 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 Borrowers and agrees that MMI shall have no obligation to
seek satisfaction of the MMI Loan through recourse to collateral, if any, other
than the Mortgaged Property prior to the exercise of MMI's rights with respect
to the Mortgaged Property.
MMI 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 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. LIMITATION OF LIABILITY. In no event shall MMI 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.
16. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
---------------------------
construed in accordance with the laws of the Commonwealth of Massachusetts.
-15-
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.
17. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
-------------------
18. 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, MMI's rights and remedies with respect to the
Borrowers and the MMI Collateral.
19. 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
Loan Documents. References herein to the Corporate Credit Agreement, the Lease
Credit Agreement, the HHC Lease Guaranty and/or any of the Loan 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 Loan
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 Loan 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.
-16-
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/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------- -------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxxxxx
Title: Vice President
WITNESS LEASE CREDIT AGENT:
------- ------------------
THE CHASE MANHATTAN BANK, as
Administrative Agent under the Lease Credit
Agreement
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------- -------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxxxxx
Title: Vice President
WITNESS AGENT:
------- -----
THE CHASE MANHATTAN BANK, as
Administrative Agent under the Security
Documents
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------- -------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxxxxx
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/ Xxxxxxx Xxxx By: /s/ Xxxxxxxxx Xxxxxx
------------------------- -------------------------------------
Name: Name: Xxxxxxxxx Xxxxxx
Title: Financial Services Officer
WITNESS INVESTORS:
------- ---------
CSL LEASING, INC.
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
WITNESS BTD HARBORSIDE INC.
-------
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
------------------------- -------------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: President
WITNESS XXXXXX XXXXXXX SENIOR FUNDING, INC.
-------
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. XxXxxxxxxx
--------------------------- -------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. XxXxxxxxxx
Title: Principal
WITNESS MMI:
------- ---
MEDITRUST MORTGAGE INVESTMENTS,
INC., a Delaware corporation
/s/ Xxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx Esq.
--------------------------- -------------------------------------
Name: Xxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Esq.
Title: Senior Vice President
EXHIBIT A
---------
MORTGAGES
1. Renewal, Consolidation, Mortgage, Spreader, Assignment and Security
Agreement, dated as of October 13, 1994, by and between Bay Tree, as
Mortgagor and MMI, as Mortgagee, recorded with the Public Records of
Pinellas County in O.R. Book 8812, Page 1952.
2. Renewal, Consolidation, Mortgage, Spreader, Assignment and Security
Agreement, dated as of October 13, 1994, by and between Countryside, as
Mortgagor and MMI, as Mortgagee, recorded with the Recorder of Vigo County
in Record p-20, Page 4579.
3. Renewal, Consolidation, Mortgage, Spreader, Assignment and Security
Agreement, dated as of October 13, 1994, by and between Sunset, as
Mortgagor and MMI, as Mortgagee, recorded with the Public Records of
Pinellas County in O.R. Book 8812, Page 1900.
4. Renewal, Consolidation, Mortgage, Spreader, Assignment and Security
Agreement, dated as of October 13, 1994, by and between West Bay, as
Mortgagor and MMI, as Mortgagee, recorded with the Public Records of
Pinellas County in O.R. Book 8812, Page 1858.
EXHIBIT B
---------
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 C
---------
FACILITIES
1. That certain skilled nursing facility with 120 licensed beds, owned and
operated by Bay Tree, commonly known as "Bay Tree Nursing Center", located
in Palm Harbor, Florida.
2. That certain skilled nursing facility with 120 licensed beds, owned and
operated by Countryside, commonly known as "Countryside Nursing Center",
located in Terre Haute, Indiana.
3. That certain skilled nursing facility with 120 licensed beds, owned and
operated by Sunset, commonly known as Sunset Point Nursing Center located
in Clearwater, Florida.
4. That certain skilled nursing facility with 120 licensed beds, owned and
operated by West Bay, commonly known as "West Bay Nursing Center" located
in Oldsmar, Florida.
EXHIBIT D
---------
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, (C)
the "Guarantee Security Documents" (as defined under the Participation
Agreement) executed as of the date hereof to which any Borrower is a party and
(D) the second priority mortgages to be granted by each of the Borrowers
(encumbering the portion of the Mortgaged Property owned by such Borrower)
within sixty (60) days from the date hereof.
