EXHIBIT 10.45
FOURTH AMENDMENT TO GUARANTEE REIMBURSEMENT AGREEMENT
This Fourth Amendment to Guarantee Reimbursement Agreement ("Amendment")
dated as of November 12, 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 that certain Guarantee Reimbursement
Agreement, dated as of January 31, 1990 (as amended by that certain First
Amendment to Guarantee Reimbursement Agreement, dated as of May 30, 1991, that
certain Second Amendment to Guarantee Reimbursement Agreement, dated as of
October 2, 1991, and that certain Third Amendment to Guarantee Reimbursement
Agreement, dated as of April 1, 1992 ("the Third Amendment"), and as the same
may be amended, restated, modified, supplemented, renewed or replaced from time
to time, the "Reimbursement Agreement"), which provides, among other things, for
the reimbursement by New Hillhaven of all Obligations (as defined in the
Reimbursement Agreement) paid by NME. Unless otherwise defined herein, all
capitalized terms used herein shall have the same meaning ascribed to such terms
in the Reimbursement Agreement.
B. Pursuant to that certain letter agreement, dated July 14, 1992, as modified
by that certain letter dated August 4, 1992 from Timothy L. Pullen to Bruce
Busby, and as further amended and modified by that certain letter agreement
dated October 14, 1992 (collectively the "Letter Agreement"), NME and those
subsidiaries of NME that are signatories to the Letter Agreement (the "NME
Parties") agreed to sell to First Healthcare Corporation ("FHC"), a wholly owned
subsidiary of New Hillhaven, and FHC and New Hillhaven agreed to purchase from
the NME Parties, certain nursing facilities and retirement centers
(collectively, referred to herein as the "Properties," and individually as a
"Property") that FHC leases from certain of the NME Parties.
C. 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 Letter Agreement referenced in
Recital B above, FHC shall assume certain Existing Debt and Master Leases
covering such Properties (respectively referred to herein as the "Assumed
Existing Debt" and the "Assumed Master Leases"). The Assumed Existing Debt and
the Assumed Master Leases applicable to such Properties being acquired by FHC
are described in Schedule A attached hereto.
D. NME is 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 Assumed Existing Debt and Assumed Master Lease, to the extent that NME or
any subsidiary or affiliate of NME remains primarily or contingently liable for
such Assumed Existing Debt or Assumed Master Lease. In accordance with the
Letter Agreement, New Hillhaven agreed to guarantee such Assumed Existing Debt
and Assumed Master Leases as "Obligations" under and as defined in the
Reimbursement Agreement.
E. New Hillhaven and NME desire to amend the Reimbursement Agreement to add the
Assumed Existing Debt and the Assumed Master Leases, 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, the Assumed Existing Debt
and the Assumed Master Leases as described in Schedule A attached hereto 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 Debt and Assumed Master Leases.
2. No Guaranty Fee. The guaranty fee provisions of Section 2 of the
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Reimbursement Agreement and the guaranty fee provisions contained in Paragraph 2
of the Third Amendment shall not apply to either (a) the Assumed Existing Debt
described in Schedule A attached hereto or (b) the Assumed Master Leases
described in Schedule A attached hereto. The principal amount of the Assumed
Existing Debt and Assumed Master Leases described in Schedule A attached hereto
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. Without limiting the generality of the
foregoing, the parties specifically agree that, except with respect to the
Assumed Existing Debt and the Assumed Master Leases described in Schedule A
hereto, the terms and provisions of Paragraph 2 of the Third Amendment shall
remain fully applicable to all Assumed Existing Debt and Assumed Master Leases
as provided in the Third Amendment.
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: [SIGNATURE NOT LEGIBLE]
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THE HILLHAVEN CORPORATION
By: [SIGNATURE NOT LEGIBLE]
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Title: [SIGNATURE NOT LEGIBLE]
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SCHEDULE A
ASSUMED OBLIGATIONS
ASSUMED LEASES
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Facility 525: Orange, CA: Lease dated June 11, 1962, by and between Mary G.
Newcom, Richard B. Newcom and Mary Beth Potter
Querfurth, as lessor, and Orange Square
Development Corporation, as original lessee,
recorded June 29, 1962 in Book 6162, Page 162,
Official Records, Orange County, California. The
interest of lessee has since been assigned to
Hillhaven, Inc., a Delaware corporation, by merger
of H.H. of Orange, Inc., a California corporation,
recorded May 12, 1964 in Book 7040, Page 501 of
Official Records of Orange County, California.
Facility 781: Bashford, KY: Lease dated February 13, 1962 by and between
Cesare Bertoli and Kathleen H. Bertoli, as
lessor, and Extendicare of Kentucky, Inc., a
Kentucky corporation, as tenant,
successor-in-interest to Heritage House Nursing
and Convalescent Care, Inc. (formerly known as
Wendav, Inc., a Kentucky corporation). Tenant's
interest assigned to H.H. Holding Co., Inc., (now
known as NME Property Holding Co., Inc.) a
Delaware corporation, as successor by merger to
NHE/Kentucky, Inc., a Kentucky corporation, by an
Assignment of Lease dated August 28, 1972.
Facility 804: Birmingham, AL: Lease dated July 3, 1969, by and between St.
Vincent's Hospital, as lessor, and Medicenters of
America, Inc., as original lessee. NME Properties
Corp.; formerly known as The Hillhaven
Corporation, a Tennessee corporation, is the
successor in interest to Medicenters of America,
Inc.
Facility 824: Mobile, AL: Lease dated November 30, 1966, by and between
Earl B. Wert and Ellen R. Wert, as lessors, and
Medicenters of America, Inc., as lessee, recorded
in Real Property Book 779, Page 946 and Addendum
to Lease, dated October 13, 1967, recorded in Real
Property Book 788, Page 193. NME Properties Corp.,
formerly known as The Hillhaven Corporation, a
Tennessee corporation, is the successor in
interest to Medicenters of America, Inc.
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SCHEDULE A
ASSUMED OBLIGATIONS
ASSUMED EXISTING DEBT
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Facility 160: First Hill, WA: Promissory Note, dated July 1, 1984, executed by
Hillhaven, Inc. in favor of Villa Care, Inc. in
the original sum of $5,875,572.99, only a portion
of which is being assumed by FHC. The assumed
portion of the Promissory Note allocable to
Facility 160 (i.e., the Assumed Existing Debt) is
approximately $26,677.21. The Promissory Note
represents an obligation relating to several
properties and is secured by a Deed of Trust on
the subject Property.
Facility 560: Franklin
Woods, OH: Loan Agreement dated as of October 1, 1984
between NME Properties Corp. (formerly known as
The Hillhaven Corporation), a Tennessee
corporation (as the assignee of First Healthcare
Corporation pursuant to an Assignment and
Assumption of Loan Agreement dated as of January
25, 1990, as successor in interest to franklin
Woods Associates and the County of Franklin, Ohio
(the "Issuer")); Promissory Note dated as of
October 1, 1984, in favor of the Issuer in the
sum of $2,700,000 (with an outstanding balance of
$2,330,000), secured by an Open-End Mortgage and
Security Agreement.
Facility 570: Pickerington, OH:
Loan Agreement between NME Properties Corp.
(formerly known as The Hillhaven Corporation), a
Tennessee corporation (as the assignee of First
Healthcare Corporation pursuant to the Assignment
and Assumption of Loan Agreement dated as of
January 25, 1990, as successor in interest to
Pickerington Health Care Center, Inc. and the
County of Fairfield, Ohio (the "Issuer")) dated
as of November 1, 1983; Promissory Note dated as
of October 1, 1984, in favor of the Issuer in the
sum of $2,700,000 (with an outstanding balance of
$2,225,000), secured by an Open-End Mortgage and
Security Agreement.
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