THIRD AMENDMENT TO CREDIT AGREEMENT,
FIRST AMENDMENT TO COLLATERAL AGREEMENT
and
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
THIRD AMENDMENT, dated as of March 28, 2001, to the Credit Agreement, dated as
of August 11, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among HARBORSIDE HEALTHCARE CORPORATION, a
Delaware corporation (the "Company"), the other entities listed on the signature
pages thereof, as joint and several borrowers thereunder (the Company and such
other entities being, collectively, the "Borrowers"), the banks and other
financial institutions or entities parties thereto (the "Lenders"), CHASE
SECURITIES INC., as arranger, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. and BT ALEX.
▇▇▇▇▇ INCORPORATED, as co-arrangers, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as
syndication agent, BANKERS TRUST COMPANY, as documentation agent, and THE CHASE
MANHATTAN BANK, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent");
FIRST AMENDMENT, dated as of March 28, 2001, to the Collateral Agreement,
dated as of August 11, 1998 (as amended, supplemented or otherwise modified from
time to time, the "Collateral Agreement"), made by the Company and the other
Borrowers in favor of the Administrative Agent; and
FIRST AMENDMENT, dated as of March 28, 2001 (together with the amendments to
the Credit Agreement and the Collateral Agreement referred to above, this
"Amendment"), to the Participation Agreement, dated as of August 11, 1998 (as
amended, supplemented or otherwise modified from time to time, the
"Participation Agreement"), among HARBORSIDE OF DAYTON LIMITED PARTNERSHIP, a
Massachusetts limited partnership, HHC 1998-1 TRUST, a Delaware business trust
(the "Trust"), WILMINGTON TRUST COMPANY, a Delaware banking corporation, in its
individual capacity, BTD HARBORSIDE INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
and CSL LEASING, INC., as investors (the "Investors"), the Lenders and the
Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Borrowers;
WHEREAS, pursuant to the Collateral Agreement, the Borrowers have granted
Liens in favor of the Administrative Agent, for the benefit of the Secured
Parties referred to therein, on their properties to secure their obligations and
liabilities to the Secured Parties upon the terms and subject to the conditions
set forth therein;
WHEREAS, pursuant to the Participation Agreement, the Investors have agreed to
make, and have made, certain investments in the Trust; and
WHEREAS, the Borrowers and (in the case of amendments to the Participation
Agreement) the Trust have requested, and, upon this Amendment becoming
effective, the Required Lenders (as defined in each of the Credit Agreement and
the Participation Agreement) will have agreed, to amend certain provisions of
the Credit Agreement, the Collateral Agreement and the Participation Agreement
and to grant certain waivers and consents, in each case in the manner provided
for in this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to the Credit Agreement and Waiver.
2.1. Amendments to Subsection 1.1 of the Credit Agreement.
(a) The definition of "Adjustment Date" in subsection 1.1 of the
Credit Agreement is hereby deleted in its entirety.
(b) The definition of "Applicable Margin" in subsection 1.1 of the
Credit Agreement is hereby amended in full to read as follows:
"Applicable Margin": for Term Loans, Revolving Credit Loans and
Swing Line Loans of the Types set forth below, the rate per annum
set forth under the relevant column heading opposite such Loans
below:
Alternate
Base Rate Eurodollar
Loans Loans
Term Loans: 3.00% 4.00%
Revolving Credit Loans: 3.00% 4.00%
Swing Line Loans: 3.00% Not applicable
(c) The definition of "Excess Cash Flow" in subsection 1.1 of the
Credit Agreement is hereby amended by deleting the words
"subsections 3.4(b)(i), (ii), (iii) and (iv)" in clause (b)(ii)
thereof and substituting in lieu thereof the words "subsections
3.3(c) and 3.4(b)(i), (ii), (iii) and (iv)".
(d) The definition of "Preferred Stock" in subsection 1.1 of the
Credit Agreement is hereby amended in full to read as follows:
"Preferred Stock": the collective reference to (a) the Company's
exchangeable preferred stock, provided that (i) such preferred
stock shall not have a scheduled redemption date earlier than the
date that is one year after the Scheduled Termination Date, (ii)
the terms of such preferred stock are substantially as set forth
with respect to preferred stock in the Offering Memorandum and
(iii) substantially final drafts of the documentation governing
any such preferred stock, showing the terms thereof, shall have
been furnished to the Arranger and the Co-Arrangers at least 5
days prior to the date of issuance of such preferred stock and
(b) the Company's exchangeable preferred stock issued to the
Investors and/or one or more of their Affiliates or designees as
part of the Recapitalization Transaction, provided that (i) such
preferred stock, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or
upon the happening of any event (other than the occurrence of a
change of control or the sale of all or substantially all of the
Company's assets), does not mature and is not mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise,
and is not redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is one year after
the Scheduled Termination Date, (ii) no cash dividends will be
paid in respect of such preferred stock until the date that is
one year after the Scheduled Termination Date and (iii) the other
terms and conditions of such preferred stock are reasonably
satisfactory to the Administrative Agent.
(e) The definition of "Scheduled Termination Date" in subsection 1.1
of the Credit Agreement is hereby amended in full to read as
follows:
"Scheduled Termination Date": March 31, 2004.
(f) Subsection 1.1 of the Credit Agreement is hereby amended by
inserting the following new definition in the appropriate
alphabetical order:
"Recapitalization Transaction": as defined in the Third Amendment
to Credit Agreement, First Amendment to Collateral Agreement and
First Amendment to Participation Agreement, dated as of March 28,
2001, among the Company and the other Borrowers, the Trust and
the Administrative Agent.
2.2. Amendment to Subsection 1.2(b) of the Credit Agreement. Subsection 1.2(b)
of the Credit Agreement is hereby amended by inserting the following sentence at
the end thereof:
For the avoidance of doubt, the amount set forth on the Company's balance sheet
as a liability in respect of long term accrued interest in connection with the
Recapitalization Transaction shall be disregarded for purposes of all accounting
definitions and financial covenant calculations.
2.3. Amendment to Subsection 2.1(b) of the Credit Agreement. Subsection 2.1(b)
of the Credit Agreement is hereby amended by deleting the number "$2,000,000"
therein and substituting in lieu thereof the number "$1,000,000".
2.4. Amendment to Subsection 2.2 of the Credit Agreement. Subsection 2.2 of the
Credit Agreement is hereby amended in its entirety to read as follows:
2.2 Commitment Fee. The Company agrees to pay to the Administrative Agent for
the account of each Lender (other than any Non-Funding Lender) a commitment fee
from and including the Closing Date to and including the Termination Date
computed at the rate of 0.50% per annum on the average daily amount of the
Available Revolving Credit Commitment of such Lender during the period for which
payment is made (whether or not the Company shall have satisfied the applicable
conditions to borrow or for the issuance of a Letter of Credit set forth in
Section 5). Such commitment fee shall be payable quarterly in arrears on the
last day of each March, June, September and December and on the Termination
Date, commencing on the later of (a) the first such date to occur on or
following the Closing Date (or, if earlier, the Termination Date) and (b)
September 30, 1998.
2.5. Amendment to Subsection 2.4(a) of the Credit Agreement. Subsection 2.4(a)
of the Credit Agreement is hereby amended by deleting the number "$10,000,000"
therein and substituting in lieu thereof the number "$1,000,000".
2.6. Amendment to Subsection 3.2(a) of the Credit Agreement. Subsection 3.2(a)
of the Credit Agreement is hereby amended by deleting the number "$2,000,000"
therein and substituting in lieu thereof the number "$1,000,000".
2.7. Amendment to Subsection 3.3 of the Credit Agreement. Subsection 3.3 of the
Credit Agreement is hereby amended by adding the following paragraph (c) at the
end thereof:
(c) The Revolving Credit Commitment of each Revolving Credit Lender
shall be reduced in five consecutive semi-annual installments on
the dates set forth below, commencing on December 31, 2001, each
of which reductions shall be in an amount equal to such Lender's
Revolving Credit Percentage multiplied by the amount set forth
below opposite such installment:
Installment Date Reduction Amount
December 31, 2001 $5,000,000
June 30, 2002 $2,500,000
December 31, 2002 $2,500,000
June 30, 2003 $2,500,000
December 31, 2003 $2,500,000
To the extent, if any, that the sum of the amount of the
Revolving Credit Loans, Swing Line Loans, L/C Obligations then
outstanding, amounts then available to be drawn under outstanding
Letters of Credit and Revolving Synthetic Lease Obligations then
outstanding exceeds the amount of the Revolving Credit
Commitments as then reduced, the Company, as agent for the
Borrowers, shall be required to apply an amount equal to such
excess amount to prepay the obligations hereunder in the
following order: first, to payment of the Swing Line Loans then
outstanding, second, to payment of the Revolving Credit Loans
then outstanding, third, to payment of any L/C Obligations then
outstanding, fourth, to cash collateralize any outstanding
Letters of Credit on terms reasonably satisfactory to the
Administrative Agent, and, fifth, to cash collateralize the
Revolving Synthetic Lease Obligations and/or repurchase
properties subject to the Synthetic Lease Facility.
2.8. Amendments to Subsection 3.4 of the Credit Agreement.
(a) Subsection 3.4(a) of the Credit Agreement is hereby amended by
(i) deleting the number "$2,000,000" each time it appears therein
and substituting in lieu thereof the number "$1,000,000" and (ii)
inserting the following sentence at the end thereof: "Partial
prepayments of Swing Line Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof."
(b) Subsection 3.4(b)(iv) of the Credit Agreement is hereby amended
by deleting the words "50% of such Excess Cash Flow" therein and
substituting in lieu thereof the words "an amount equal to 50% of
such Excess Cash Flow less the aggregate amount of all
prepayments made during such fiscal year pursuant to subsection
3.3".
2.9. Amendment to Subsection 3.5 of the Credit Agreement. Subsection 3.5 of the
Credit Agreement is hereby amended by deleting the phrase "from time to time in
effect" each time it appears therein.
2.10. Amendment to Subsection 7.6(g)(ii)(A) of the Credit Agreement. Subsection
7.6(g)(ii)(A) of the Credit Agreement is hereby amended by deleting the ratio
"3.75 to 1.00" therein and substituting in lieu thereof the ratio "2.5 to 1.00".
2.11. Amendment to Subsection 7.9(a) of the Credit Agreement. Subsection 7.9(a)
of the Credit Agreement is hereby amended in its entirety to read as follows:
(a) At the last day of any fiscal quarter of the Company set forth
below, permit the ratio (the "Leverage Ratio") of Consolidated
Indebtedness as of such day to Consolidated EBITDA for the period
of four fiscal quarters ending on such day to be greater than the
ratio set forth below for such fiscal quarter:
Fiscal Year Fiscal Quarter Coverage Ratio
2001 Second 6.50 to 1.00
Third 6.50 to 1.00
Thereafter 6.25 to 1.00
2.12. Waiver of Section 7.9(c) of the Credit Agreement. The Required Lenders
hereby waive (a) compliance with Section 7.9(c) of the Credit Agreement for the
period of four fiscal quarters ending December 31, 2000 and (b) any Defaults or
Events of Default arising under Section 8(c) of the Credit Agreement from such
non-compliance, provided, in each case that Consolidated EBITDA for such period
shall be no less than $22,500,000.
2.13. Amendment to Subsection 7.10 of the Credit Agreement. Subsection 7.10 of
the Credit Agreement is hereby amended by deleting the table appearing therein
and substituting in lieu of such table the following table:
Fiscal Year Fiscal Quarter Coverage Ratio
2001 Second 1.25 to 1.00
Thereafter 1.25 to 1.00;
2.14. Amendment to Subsection 7.11(c) of the Credit Agreement. Subsection
7.11(c) of the Credit Agreement is hereby amended by (a) deleting the number
"$5,000,000" in clause (i) therein and substituting in lieu thereof the number
"$2,500,000" and (b) deleting the number "$10,000,000" in clause (ii) therein
and substituting in lieu thereof the number "$5,000,000".
2.15. Amendment to Subsection 7.12 of the Credit Agreement. Subsection 7.12 of
the Credit Agreement is hereby amended by (a) deleting the word "or" at the end
of clause (b) thereof and substituting "," in lieu thereof and (b) adding the
following clause (d) at the end thereof:
or (d) the issuance by the Company on or prior to July 15, 2001 of up to
$15,000,000 of Preferred Stock and warrants to purchase shares of Class A
common stock of the Company to the Investors and/or one or more of their
Affiliates or designees as part of the Recapitalization Transaction.
2.16. Amendment to Schedule III to the Credit Agreement. Schedule III to the
Credit Agreement is hereby deleted in its entirety.
SECTION 3. Amendment to Collateral Agreement. The definition of "Borrower
Obligations" in Section 1 of the Collateral Agreement is hereby amended by
inserting after each reference therein to "any Interest Rate Agreement" the
words "or any cash management arrangement".
SECTION 4. Amendments to Annex A to the Participation Agreement.
(a) The definition of "Adjustment Date" in Annex A to the Participation
Agreement is hereby deleted in its entirety.
(b) The definition of "Applicable Margin" in Annex A to the Participation
Agreement is hereby amended in full to read as follows:
"Applicable Margin" shall mean as to any Loan of the Types set forth below, the
rate per annum set forth under the relevant column heading opposite such
Loans below:
Alternate
Base Rate Eurodollar
Loans Loans
Term Synthetic Loans: 3.00% 4.00%
Revolving Credit Synthetic Loans: 3.00% 4.00%
(c) The definition of "Maturity Date" in Annex A to the Participation Agreement
is hereby amended in full to read as follows:
"Maturity Date" shall mean March 31, 2004.
SECTION 5. Changes of Commitment Amounts. The Company, for itself and as agent
for the other Borrowers, hereby notifies the Administrative Agent and each
Lender, pursuant to subsection 3.3 of the Credit Agreement, that, effective on
the date hereof, the total Revolving Credit Commitments shall be permanently
reduced from $150,000,000 to $60,000,000, and each Lender, by its execution and
delivery of its respective Consent Letter, hereby consents and agrees that such
permanent reduction shall be effective on the date hereof and that such
reduction shall be made pro rata according to the respective Revolving Credit
Percentages of the Lenders.
SECTION 6. Consent to Recapitalization Transaction. Each Lender, by its
execution and delivery of its respective Consent Letter, hereby consents and
agrees that, notwithstanding anything to the contrary in subsection 3.4(b)(i),
7.11 or 7.13 of the Credit Agreement, (a) the Company shall be permitted to
exchange (the "Note Exchange") the Senior Subordinated Discount Notes, in whole
or in part, for new subordinated discount notes (the "Exchange Notes"), cash in
the amount of up to $15,000,000 and warrants to purchase shares of the Company's
Class A common stock and, upon consummation of the Note Exchange, the Exchange
Notes shall be deemed to be "Permitted Senior Subordinated Debt" for all
purposes of the Credit Agreement, provided that (i) the Note Exchange shall be
consummated by July 15, 2001 on terms and conditions reasonably satisfactory to
the Administrative Agent, (ii) the Exchange Notes shall have an accreted amount
on the date of the consummation of the Recapitalization Transaction (as defined
below) of not more than $71,000,000, (iii) the non-default interest rate on the
Exchange Notes shall not exceed 12% per annum, (iv) cash interest on the
Exchange Notes shall not begin to accrue prior to August 1, 2004 and the first
semi-annual cash interest payment shall not be made prior to February 1, 2005,
(v) the Exchange Notes shall not have any scheduled amortization or maturity
prior to the date that is one year after the Scheduled Termination Date and (vi)
the Exchange Notes shall, unless otherwise agreed to by the Administrative
Agent, otherwise satisfy the requirements set forth in the definition of
"Permanent Senior Subordinated Debt" in subsection 1.1 of the Credit Agreement,
(b) concurrently with the consummation of the Note Exchange, the Company shall
be permitted to exchange (the "Preferred Stock Exchange") its outstanding
Preferred Stock, in whole or in part, for warrants to purchase the Company's
Class A common stock, and the terms and conditions of the Preferred Stock
Exchange shall be reasonably satisfactory to the Administrative Agent, and (c)
concurrently with the consummation of the Note Exchange and the Preferred Stock
Exchange, the Company shall be permitted to issue (the "New Preferred Issuance")
new exchangeable preferred stock and warrants to purchase the Company's Class A
common stock to the Investors and/or their Affiliates or designees, and the
terms and conditions of the New Preferred Issuance shall be reasonably
satisfactory to the Administrative Agent (the Note Exchange, the Preferred Stock
Exchange and the New Preferred Issuance being, collectively, the
"Recapitalization Transaction"). The Company hereby agrees that, on or prior to
the date of consummation of the Recapitalization Transaction, it shall furnish
to the Administrative Agent satisfactory evidence that the aggregate fees and
expenses to be incurred by the Company or any of its Subsidiaries in connection
with the Recapitalization Transaction shall not exceed $3,000,000. Failure by
the Company to consummate the Recapitalization Transaction on the foregoing
terms by July 15, 2001 shall constitute an Event of Default under the Credit
Agreement. Each Lender, by its execution and delivery of its respective Consent
Letter, hereby further consents and agrees that, notwithstanding anything to the
contrary in subsection 6.1(a) of the Credit Agreement, the accountants' report
as to the Company's financial statements for the fiscal year ended December 31,
2000 may contain a qualification arising from the fact that failure by the
Company to consummate the Recapitalization Transaction by July 15, 2001 will
result in an Event of Default under the Credit Agreement.
SECTION 7. Additional Borrowings, Acquisitions and Fee. To induce the
Administrative Agent to enter into this Amendment, and the Lenders and Investors
to execute and deliver Consent Letters, each of the Trust and each Borrower
covenants and agrees that, from and after the date hereof and so long as the
Commitments remain in effect, any Loan, Note or L/C Obligation remains
outstanding and unpaid, any amount (unless cash in an amount equal to such
amount has been deposited to a cash collateral account established by the
Administrative Agent) remains available to be drawn under any Letter of Credit,
any Synthetic Lease Obligation remains outstanding and unpaid or any other
amount is owing to any Lender, any Investor or the Administrative Agent under
the Credit Agreement, any of the other Credit Documents or any of the documents
evidencing the Synthetic Lease Facility (the "Synthetic Lease Facility
Documents"):
(a) the Borrowers will not be entitled to utilize the credit facilities
provided for in the Credit Agreement if, after giving effect to such
utilization, the sum of (i) the aggregate principal amount of all
outstanding Loans, (ii) the aggregate undrawn amount of all outstanding
Letters of Credit issued after ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) the aggregate amount
of all outstanding L/C Obligations in respect of Letters of Credit issued
after March 30, 1999 and (iv) the aggregate principal amount of all
Synthetic Lease Obligations shall exceed $60,000,000;
(b) the Borrowers shall use the proceeds of Revolving Credit Loans solely (i)
for general corporate purposes other than acquisitions, (ii) to finance
capital expenditures permitted under the Credit Agreement, (iii) to finance
up to $7,500,000 in the aggregate for the purpose of effecting acquisitions
and (iv) to finance the Brevard Acquisition (as defined below);
(c) the Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, acquire any other Person (whether through a
purchase of stock, merger, consolidation or otherwise) or all or any
substantial portion of the assets, or any business or product line, of any
other Person; provided that the Company and its Subsidiaries may (i) make
acquisitions permitted by subsection 7.6(g) of the Credit Agreement so long
as the aggregate cash Acquisition Consideration given subsequent to the
date hereof in connection with all such acquisitions shall not exceed
$7,500,000 and (ii) acquire the 100-bed Brevard facility in Rockledge,
Florida so long as the Acquisition Consideration therefor is not in excess
of $4,375,000 (the "Brevard Acquisition");
(d) the Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur or assume any Indebtedness, except
(i) Indebtedness, in an aggregate principal amount not to exceed the
amounts set forth in the proviso to clause (c) above, (ii) Indebtedness of
the Company and its Subsidiaries owing to any Investor or any Affiliate
thereof in an aggregate principal amount at any one time outstanding not in
excess of $15,000,000, (iii) the original issuance, accretions and
refinancings of the Exchange Notes, provided that (A) the aggregate
principal amount of the refinancing Indebtedness is no more than 106% of
the aggregate principal amount of the Indebtedness being refinanced, (B)
the maturity of the refinancing Indebtedness is no shorter than that of the
Indebtedness being refinanced and (C) the refinancing Indebtedness
satisfies the requirements set forth in clause (b) of the definition of
"Permanent Senior Subordinated Debt" and (iv) Indebtedness permitted by
subsections 7.1(a) (without any increase in the principal amount of the
Indebtedness being refinanced or any shortening of the maturity of any
principal amount thereof), 7.1(c), 7.1(e)(ii), 7.1(f), 7.1(g), 7.1(j), and
7.1(m) of the Credit Agreement;
(e) commencing on (and including) the date hereof to (but excluding) the
Termination Date, the Company shall pay to the Administrative Agent, for
the ratable account of the Lenders under the Synthetic Lease Facility, a
fee on the aggregate unpaid principal amount of Loans under the Synthetic
Lease Facility calculated at a rate per annum equal to the Applicable
Margin in effect under the Credit Agreement for Eurodollar Loans less the
Applicable Margin in effect under the Synthetic Lease Facility for
Eurodollar Loans thereunder, payable in arrears on each Interest Payment
Date; and
(f) any failure by any Borrower or the Trust to comply with any of the
covenants and agreements set forth in this Section 7 shall constitute an
Event of Default under the Credit Agreement.
SECTION 8. Conditions to Effectiveness. This Amendment shall become effective as
of the date set forth above (the "Amendment Effective Date") when (a) each
Borrower and, with respect to the amendments to the Participation Agreement, the
Trust shall have executed and delivered to the Administrative Agent this
Amendment, (b) the Required Lenders (as defined in each of the Credit Agreement
and the Participation Agreement) shall have executed and delivered to the
Administrative Agent Consent Letters (or facsimile transmissions thereof)
consenting to the execution of this Amendment by the Administrative Agent and
(c) the Company shall have paid to the Administrative Agent, for the ratable
account of each Lender which shall have executed and delivered its respective
Consent Letter to the Administrative Agent by 5:00 p.m. (New York City time) on
Wednesday, March 28, 2001, an amendment fee in an amount equal to 0.25% of the
sum of each such Lender's Revolving Credit Commitment then outstanding (it being
understood that such amendment fee shall be calculated after giving effect to
the permanent reduction of Revolving Credit Commitments set forth in Section 3
of this Amendment).
SECTION 9. Representation and Warranties. The representations and warranties
made by the Borrowers in the Credit Documents are true and correct in all
material respects on and as of the Amendment Effective Date, before and after
giving effect to the effectiveness of this Amendment, as if made on and as of
the Amendment Effective Date, except to the extent such representations and
warranties expressly relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date.
SECTION 10. Payment of Expenses. The Company agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment and any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
SECTION 11. Reference to and Effect on the Credit Documents. On and after the
Amendment Effective Date, (a) each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Credit Documents to "the
Credit Agreement", "thereunder", "thereof" or words of like import referring to
the Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby, (b) each reference in the Collateral Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Collateral Agreement, and each reference in the other Credit Documents and in
the Synthetic Lease Facility Documents to "the Collateral Agreement",
"thereunder", "thereof" or words of like import referring to the Collateral
Agreement, shall mean and be a reference to the Collateral Agreement as amended
hereby and (c) each reference in the Participation Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Participation Agreement, and each reference in the other Synthetic Lease
Facility Documents and in the Credit Documents to "the Participation Agreement",
"thereunder", "thereof" or words of like import referring to the Participation
Agreement, shall mean and be a reference to the Participation Agreement as
amended hereby. On and after the Amendment Effective Date (as defined below),
the provisions of Section 5 of the Second Amendment, dated as of September 25,
2000, to the Credit Agreement shall cease to be of any further force or effect.
The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as waiver of any right, power or remedy of
any Lender, any Investor or the Administrative Agent under any of the Credit
Documents or any of the Synthetic Lease Facility Documents. Except as expressly
amended herein, all of the provisions of the Credit Agreement, the other Credit
Documents and the Synthetic Lease Facility Documents are and shall remain in
full force and effect in accordance with the terms thereof and are hereby in all
respects ratified and confirmed.
SECTION 12. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Amendment signed by all the
parties shall be lodged with the Company, the Trust and the Administrative
Agent.
SECTION 13. Governing Law. This Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
HARBORSIDE HEALTHCARE CORPORATION
By: ______________________________________
Title:
BAY TREE NURSING CENTER CORP.
BELMONT NURSING CENTER CORP.
COUNTRYSIDE CARE CENTER CORP.
HARBORSIDE HEALTH I CORPORATION
HARBORSIDE TOLEDO CORP.
KHI CORP.
MARYLAND HARBORSIDE CORP.
NEW JERSEY HARBORSIDE CORP.
OAKHURST MANOR NURSING CENTER CORP.
ORCHARD RIDGE NURSING CENTER CORP.
SAILORS, INC.
SUNSET POINT NURSING CENTER CORP.
WEST BAY NURSING CENTER CORP.
By: ______________________________________
Title:
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 HEALTHCARE BALTIMORE LIMITED PARTNERSHIP
HARBORSIDE HEALTHCARE NETWORK LIMITED PARTNERSHIP
HARBORSIDE MASSACHUSETTS LIMITED PARTNERSHIP
HARBORSIDE NORTH TOLEDO LIMITED PARTNERSHIP
HARBORSIDE OF CLEVELAND LIMITED PARTNERSHIP
HARBORSIDE OF DAYTON LIMITED PARTNERSHIP
HARBORSIDE OF FLORIDA LIMITED PARTNERSHIP
HARBORSIDE OF OHIO LIMITED PARTNERSHIP
HARBORSIDE REHABILITATION LIMITED PARTNERSHIP
HARBORSIDE RHODE ISLAND LIMITED PARTNERSHIP
RIVERSIDE RETIREMENT LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
as General Partner
By: ______________________________________
Title:
HARBORSIDE FUNDING LIMITED PARTNERSHIP
By: HARBORSIDE HEALTHCARE LIMITED PARTNERSHIP,
as General Partner
By: KHI CORP., as General Partner
By: _____________________________________
Title:
BRIDGEWATER ASSISTED LIVING LIMITED PARTNERSHIP
By: NEW JERSEY HARBORSIDE CORP.,
as General Partner
By: _____________________________________
Title:
HARBORSIDE NEW HAMPSHIRE LIMITED PARTNERSHIP
HARBORSIDE TOLEDO LIMITED PARTNERSHIP
HHCI LIMITED PARTNERSHIP
By: HARBORSIDE TOLEDO CORP.,
as General Partner
By: _____________________________________
Title:
HARBORSIDE HEALTHCARE ADVISORS LIMITED PARTNERSHIP
HARBORSIDE HEALTHCARE LIMITED PARTNERSHIP
HARBORSIDE HOMECARE LIMITED PARTNERSHIP
By: KHI CORP., as General Partner
By: ______________________________________
Title:
HARBORSIDE PROPERTIES TRUST I,
a Massachusetts business trust
By: ______________________________________
Name: _________________________, in his
capacity as trustee and not individually
HHC 1998-1 TRUST
By: Wilmington Trust Company, not in its
individual capacity but solely as Trustee
By: ______________________________________
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: ______________________________________
Title:
CONSENT LETTER
HARBORSIDE HEALTHCARE CORPORATION
CREDIT AGREEMENT,
COLLATERAL AGREEMENT
and
PARTICIPATION AGREEMENT
DATED AS OF AUGUST 11, 1998
To: The Chase Manhattan Bank, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to (a) the Credit Agreement, dated as of August 11, 1998
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Harborside Healthcare Corporation, a Delaware corporation
(the "Company"), the other entities listed on the signature pages thereof, as
joint and several borrowers thereunder (the Company and such other entities
being, collectively, the "Borrowers"), the banks and other financial
institutions or entities parties thereto (the "Lenders"), Chase Securities Inc.,
as arranger, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and BT Alex. ▇▇▇▇▇
Incorporated, as co-arrangers, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as
syndication agent, Bankers Trust Company, as documentation agent, and The Chase
Manhattan Bank, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), (b) the Collateral Agreement, dated as of August 11,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Collateral Agreement"), made by the Company and the other Borrowers in favor of
the Administrative Agent and (c) the Participation Agreement, dated as of August
11, 1998 (as amended, supplemented or otherwise modified from time to time, the
"Participation Agreement"), among Harborside of Dayton Limited Partnership, a
Massachusetts limited partnership, HHC 1998-1 Trust, a Delaware business trust
(the "Trust"), Wilmington Trust Company, a Delaware banking corporation, in its
individual capacity, BTD Harborside Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
and CSL Leasing, Inc., as investors (the "Investors"), the Lenders and the
Administrative Agent. Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement are so used as so defined.
The Borrowers and the Trust have requested that the Lenders and the
Investors amend the Credit Agreement, the Collateral Agreement and the
Participation Agreement and grant certain waivers and consents, in each case on
the terms described in the amendment in the form attached hereto as Exhibit A
(the "Amendment").
Pursuant to subsection 9.1 of the Credit Agreement, Section 19 of the
Collateral Agreement and Section 13.5 of the Participation Agreement, the
undersigned hereby consents to the execution by the Administrative Agent of the
Amendment.
Very truly yours,
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(NAME OF LENDER OR INVESTOR)
By:___________________________________________________
Name:
Title:
Dated as of March 28, 2001