EXHIBIT 10.44
THIRD AMENDMENT TO GUARANTEE REIMBURSEMENT AGREEMENT
This Third Amendment to Guarantee Reimbursement Agreement ("Amendment")
dated as of April 1, 1992, is entered into by and between National Medical
Enterprises, Inc., a Nevada corporation ("NME") and The Hillhaven Corporation, a
Nevada corporation ("New Hillhaven").
RECITALS
A. New Hillhaven and NME entered into the Guarantee Reimbursement Agreement,
dated as of January 31, 1990, which provides, among other things, for the
reimbursement by New Hillhaven of all Obligations paid by NME after the
Distribution Date. The Guarantee Reimbursement Agreement, as amended by the
First Amendment to Guarantee Reimbursement Agreement, dated May 30, 1991, and
the Second Amendment to Guarantee Reimbursement Agreement, dated October 2,
1991, and as may be further amended, restated, modified, supplemented, renewed
or replaced from time to time, is referred to herein as the "Reimbursement
Agreement." Unless otherwise defined herein, the terms defined in the
Reimbursement Agreement are used herein as therein defined.
B. First Healthcare Corporation ("FHC"), a wholly-owned subsidiary of New
Hillhaven, currently leases nursing facilities and retirement centers
(collectively referred to herein as the "Properties," and individually as a
"Property") from certain subsidiaries of NME pursuant to 86 individual leases,
each dated January 26, 1990 (as such leases have been or hereafter may be
amended or modified from time to time, collectively referred to herein as the
"Leases," and Individually as a "Lease").
C. FHC has exercised its options to purchase nine of the 86 Properties, as
provided in the respective Leases, and in accordance with the terms of the
December 4, 1991 letter from FHC and New Hillhaven to NME Properties Corp.
D. Concurrently herewith, FHC and each of the subsidiaries of NME that is a
Landlord (as defined in the Leases) have entered into that certain Omnibus
Amendment to Leases, made as of April 1, 1992 ("Omnibus Amendment") which amends
each of the remaining 77 Leases to provide, among other things, options to sell
and options to purchase the Properties.
E. Certain of the Properties are currently subject to (1) third party
financing (individually, an "Existing Debt") or (2) a master lease superior and
prior to the Lease (individually, a "Master Lease"). In conjunction with FHC's
acquisition of the Properties pursuant to the exercised options referenced in
Recital C above, and its acquisition of the Properties for which the options to
sell and options to purchase contained in the Omnibus Amendment hereafter may be
exercised, FHC may elect to assume, subject to obtaining the consent of NME, the
applicable Landlord and the third party lender or master landlord, as the case
may be, certain Existing Debt and Master Leases covering such Properties.
F. NME and the Landlords are unwilling to permit FHC to assume any such
Existing Debt or Master Lease unless New Hillhaven agrees to guaranty the
payment and performance of such Existing Debt and Master Lease being assumed by
FHC, to the extent that NME or any subsidiary or affiliate of NME remains
primarily or contingently liable for such Existing Debt or Master Lease.
G. New Hillhaven and NME desire to amend the Reimbursement Agreement to add
the Existing Debit and Master Leases which may be assumed by FHC, to the extent
NME or any subsidiary or affiliate of NME shall remain primarily or contingently
liable therefor, as Obligations under the Reimbursement Agreement.
NOW THEREFORE, in consideration of the foregoing Recitals and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree to
amend, modify and supplement the Reimbursement Agreement as follows:
AGREEMENT
1. Assumed Obligations. To the extent NME or any subsidiary or affiliate of
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NME remains primarily or contingently liable therefor, all Existing Debt and
Master Leases (respectively referred to herein as the "Assumed Existing Debt"
and the "Assumed Master Leases") assumed by FHC in conjunction with its
acquisition of the Properties for which (a) FHC has exercised its options to
purchase as described in Recital C above, or (b) the options to sell and options
to purchase contained in the Omnibus Amendment are hereafter exercised, are
hereby added as, and shall be deemed to be, "Obligations" under (and as defined
in) the Reimbursement Agreement, and all terms, covenants and conditions of the
Reimbursement Agreement, except as expressly provided in Paragraph 2 below,
shall apply to such Assumed Existing Debts and Assumed Master Leases.
2. Guaranty Fee. The guaranty fee provisions of Section 2 of the
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Reimbursement Agreement shall not apply to either (a) the Assumed Existing Debts
or (b) the Assumed Master Leases. Instead, New Hillhaven shall pay to NME a
guaranty fee equal to 1% per annum, from the date FHC completes its purchase of
each such Property subject to any Assumed Existing Debt or Assumed Master Lease,
on (i) the daily outstanding balance of each such Assumed Existing Debt, and
(ii) the daily outstanding balance of all rent payments which will become due
under each such Assumed Master Lease, for the balance of the term of each such
Assumed Existing Debt or Assumed Master Lease. Such guaranty fee shall be paid
in quarterly installments on the last business day of each fiscal quarter,
commencing on the last day of the first fiscal quarter immediately following the
date on which such Assumed Existing Debt or Assumed Master Lease is assumed by
FHC. The principal amount of the Assumed Existing Debts and Assumed Master
Leases shall not be included as part of the outstanding Obligations under
Section 2(c)(i) of the Reimbursement Agreement for the purposes of calculating
the guaranty fee referred to in Section 2 of the Reimbursement Agreement.
3. Effect on Reimbursement Agreement. Except as expressly amended by this
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Amendment, all of the terms and conditions of the Reimbursement Agreement shall
remain in full force and effect.
4. Captions. The captions and headings used herein are for the convenience of
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reference and shall not be construed in any manner to limit or modify any of the
terms hereof.
5. Governing Law. This Amendment shall be governed by and construed in
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accordance with the laws of the State of California.
6. Counterparts. This Amendment may be executed in counterparts, each of
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which shall be an original, but all of which together shall constitute but one
and the same Instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be duly executed on its behalf as of the date first set forth above.
NATIONAL MEDICAL ENTERPRISES, INC.
By:[SIGNATURE NOT LEGIBLE]
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Title: SR. EXEC. V.P.
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THE HILLHAVEN CORPORATION
By: Robert F. Pacquer
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Title: /s/ ROBERT F. PACQUER
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SR VICE PRESIDENT
EXHIBIT C
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(LEASES SUBJECT TO MASTER LEASES)
Fac. Facility Name
No. and Address Description of Master Lease
- ----- ------------- ---------------------------
804 Hillhaven Convalescent Lease dated July 3, 1969, by
Center and Nursing and between St. Vincent's
Home Hospital, as lessor, and
2728 10th Avenue Medicenters of America, Inc.,
Birmingham, AL as lessee (ground lease).
824 Hillhaven Convalescent Lease dated November 30, 1966,
Center and Nursing by and between Earl B. Wert
Home and Ellen R. Wert, as lessors,
1758 Springhill Avenue and Medicenters of America,
Mobile, AL Inc., as lessee (ground lease)
525 Hillhaven Convalescent Lease dated June 11, 1962, by
Hospital and between Mary G. Newcom,
920 W. LaVeta Richard B. Newcom and Mary
Orange, CA Beth Potter Querfurth, as
lessor, and Orange Square
Development Corporation, as
lessee (ground lease).
781 Bashford East Lease dated February 13, 1962
Healthcare by and between Cesare Bertoli
3535 Bardstown Road and Kathleen H. Bertoli, as
Louisville, KY lessor, and Heritage Home
Nursing and Convalescent Care,
Inc. (formerly Wendav, Inc.),
as lessee.
572 Winchester Place I Lease Agreement dated October 29,
36 Lehman Drive 1976 by and between Harley and
Canal Winchester, OH George Reynolds, as Lessor and
AEON, Inc., as lessee.
PART II
(Subleases Subject to Master Lease)
Fac. Facility Name
No. and Address Description of Lease
- ----- ---------------------- --------------------
804 Hillhaven Convalescent Lease dated July 3, 1969, by
Center and Nursing and between St. Vincent's
Home Hospital, as lessor, and
2728 10th Avenue Medicenters of America, Inc.,
Birmingham, AL as lessee [ground lease].
824 Hillhaven Convalescent Lease dated November 30, 1966,
Center and Nursing by and between Earl B. Wert
Home and Ellen R. Wert, as lessors,
1758 Springhill Avenue and Medicenters of America,
Mobile, AL Inc., as lessee [ground
lease].
7104 Villa Campana Lease and Aquisition Agreement
Retirement Center dated February 1, 1983 by and
6653 E. Carondelet Dr. between the Industrial
Tucson, AZ Development Authority of the
County of Pima, as lessor, and
The Hillhaven Corporation, as
lessee.
525 Hillhaven Convalescent Lease dated June 11, 1962, by
Hospital and between Mary G. Newcom,
920 W. LaVeta Richard B. Newcom and Mary
Orange, CA Beth Potter Querfurth, as
lessor, and Orange Square
Development Corporation, as
lessee [ground lease].
809 Country Club Home Lease and Agreement dated
400 Sunset Dr. January 1, 1973 by and between
P.O. Box 319 the City of Council Grove, as
Council Grove, KS lessor, and Country Club
Home, Inc., as lessee.
833 Sedgwick Convalescent Lease and Agreement dated
Center September 20, 1974 by and
712 Monroe between the City of Sedgwick,
Box 49 as lessor, and Sedgwick
Sedgwick, KS Convalescent Center, Inc., a
Kansas corporation, as lessee.
EXHIBIT B January 4, 1990
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(Page 11 of 13)
Fac. Facility Name
No. and Address Description of Lease
- ----- ---------------------- --------------------
857, Hammond Holiday Home Lease dated January l, 1980 by
858 114 West 11th and between the City of
Larned, KS Larned, Kansas, as lessor,
and Hammond Holiday Home,
Inc., a Kansas corporation, as
lessee.
861 Green Meadows Nursing Lease dated July 1, 1982 by
Center and between the City of
215 N. Larmar St. Haysville, Sedgwick County,
Haysville, KS Kansas, as lessor, and Green
Meadows Nursing Center, Inc.,
as lessee.
781 Bashford East Lease dated February 13, 1962
Healthcare by and between Cesare Bertoli
3535 Bardstown Road and Kathleen H. Bertoli, as
Louisville, KY lessor, and Heritage Home
Nursing and Convalescent Care,
Inc. (formerly Wendav, Inc.),
as lessee.
592 Greenbriar Terrace Lease dated October 1, 1972 by
Healthcare and between Samuel A. Tamposi,
55 Harris Road Gerald Q. Nash, as lessor, and
Nashua, NH Greenbriar Nursing Home Corp.,
as lessee [ground lease].
572 Winchester Place I Lease Agreement dated October
36 Lehman Drive 29, 1976 by and between Harley
Canal Winchester, OH and George Reynolds, as Lessor
and AEON, Inc., as lessee.
822 Hillhaven Convalescent Lease Agreement dated
Center December 1, 1979 by and
605 Primacy Parkway between the Health and
Memphis, TN Educational Facilities Board
of the County of Shelby,
Tennessee, as lessor, and
Hillhaven, Inc., a Delaware
corporation, as lessee.
EXHIBIT B January 4, 1990
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(Page 12 of 13)
Fac. Facility Name
No. and Address Description of Lease
- ----- ---------------------- --------------------
559 Birchwood Terrace Lease dated June 17, 1964 by
Healthcare and between Henry H. Riordan
43 Starr Farm Road and Charles M. Jones, trustees
Burlington, VT of the Will of John J. Flynn,
as lessor, and Birchwood
Development Corporation, as
lessee.
769 North Ridge Care Lease Agreement dated June 1,
Center 1983 by and between City of
1445 N. 7th Street Manitowoc, Wisconsin, as
Manitowoc, WI lessor, and HH Holding Co.,
Inc., a Delaware corporation,
as lessee.
773 Mount Carmel Lease Agreement dated June 1,
Healthcare Center 1983 by and between City of
677 E. State St. Burlington, as lessor, and HH
Burlington, WI Holding Co., Inc., a Delaware
corporation, as lessee.
EXHIBIT B January 4, 1990
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(Page 13 of 13)
THE HILLHAVEN CORPORATION
LIST OF LEASED NME FACILITIES
FACILITIES UNDER CAPITALIZED NME LEASES
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1 AL 804 BIRMINGHAM
2 AL 824 MOBILE
3 AV 818 LITTLE ROCK
4 AZ 436 VALLEY HOUSE
AZ 437 VALLEY HOUSE - HSE
5 AZ 742 BELLS LODGE - PHOENIX
6 AZ 851 VILLA CAMPANA
AZ 852 VILLA CAMPANA - HSE
7 CA 149 FAIR OAKS - SACRAMENTO
8 CA 150 SAN FRANCISCO
9 CA 203 CONCORD (HACIENDA)
10 CA 320 BURLINGAME
11 CA 410 SANTA PAULA
12 CA 411 ARLINGTON (ALTA VISTA)
13 CA 420 OXNARD (MAYWOOD ACRES)
14 CA 427 TWIN PINES-SANTA PAULA
15 CA 525 ORANGE
16 CA 727 SAN PABLO (BROOKVIEW)
17 CA 737 SAN LEANDRO
18 CA 738 ALAMEDA (SHORELINE)
19 CO 859 NORTHGLENN
20 CT 562 NEW BRITAIN (ANDREW HOUSE)
21 CT 563 CAMELOT-NEW LONDON
22 CT 565 NORWICH HAMILTON PAVILION
23 CT 566 WINDSOR (MOUNTAIN VIEW)
24 CT 567 NUTMEG PVLN NEW LONDON
25 CT 568 ENFIELD (PRKWY PAVILION)
26 FL 115 W PALM BEACH
27 FL 117 EAST MANOR-SARASOTA
28 FL 124 SANFORD
29 FL 125 TITUSVILLE
30 FL 836 MEDICENTER-TAMPA
31 GA 155 SAVANNAH
32 GA 645 MARIETTA
GA 8645 MARIETTA - HEAD INJURY
33 IN 286 COLOMBIA - EVANSVILLE
34 IN 779 BEDFORD (WESTVIEW MANOR)
35 KS 838 TOPEKA
36 KY 781 BASHFORD EAST LOUISVILLE
37 KY 783 LEXINGTON
38 MT 416 GREAT FALLS (PARK PLACE)
39 MT 433 DILLON (PARKVIEW ACRES)
48 NC 116 DURHAM
41 NC 136 LASALLE - DURHAM
42 NC 188 WILMINGTON
43 NC 191 SILAS CREEK-WINSTON
44 NC 706 HENDERSON (GUARDIAN CARE)
45 NC 707 MONROE (GUARDIAN CARE)
46 NC 710 NEW BERN (GUARDIAN CARE)
47 NC 711 KINSTON (GUARDIAN CARE)
48 NC 713 ZEBULON (GUARDIAN CARE)
49 NC 724 GASTONIA (HH HEALTH CARE)
50 NC 806 CHAPEL HILL (HHCC)
51 NH 593 HANOVER TERRACE
52 NV 145 RENO
53 NV 641 TORREY PINES - LAS VEGAS
54 OH 560 FRANKLIN WOODS COLOMBUS
55 OH 570 PICKERINGTON
56 OH 572 WINCHESTER CANAL
57 OH 802 AKRON
58 OK 233 BARTLESVILLE
OK 234 BARTLESVILLE - APTS.
59 TN 132 MADISON
60 UT 655 SALT LAKE CITY (CC)
61 UT 690 WASATCH VILLA-SLC
62 VA 026 NORFOLK
63 VA 842 MEDICENTER - VA BEACH
64 WA 114 ARDEN - SEATTLE
65 WA 127 LONGVIEW - NORTHWEST
66 WA 158 BELLINGHAM
67 WA 160 FIRST HILL - SEATTLE
68 WA 180 VANCOUVER (CC)
69 WA 105 HHNH-VANCOUVER
70 WA 462 QUEEN ANNE-SEATTLE
71 WI 767 APPLETON (COLONY OAKS)
72 WI 769 MANITOWOC (NORTH RIDGE)
73 WI 770 NEENAH (VALLHAVEN)
74 WY 481 RAWLINS (PARK MANOR)
75 WY 482 RIVERTON (FREMONT MANOR)
76 WY 483 ROCK SPRINGS KIMBERLY MNR
LEASED NME FACILITIES WITH EXECUTED PURCHASE OPTION
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77 CT 561 TORRINGTON (ADAMS HOUSE),
78 KS 844 WICHITA
79 KS 857 LARNED (HAMMOND)
KS 858 LARNED (HAMMOND)
80 MO 446 COLOMBIA
81 KS 833 SEDGWICK
82 MO 834 SPRINGFIELD (HHCC)
83 NC 176 ORANGE-DURHAM
84 NV 640 LAS VEGAS (CC)
85 WY 441 MOUNTAIN TOWERS-CHEYENNE