EXHIBIT 10.51
FIRST AMENDMENT
TO
FACILITY AGREEMENT
This FIRST AMENDMENT TO FACILITY AGREEMENT, dated as of July 31, 1992,
is made among First Healthcare Corporation, a Delaware corporation (the
"Seller"), and the limited partnerships listed on the signature pages hereto
(collectively, the "Buyers").
RECITALS
A. The Seller and the Buyers have entered into a Facility Agreement,
dated as of April 23, 1992 (the "Agreement," the terms defined therein being
used herein as therein defined unless otherwise defined herein).
B. The Seller and the Buyers now wish to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other
valuable consideration, the parties agree as follows:
1. Deletion of Certain Buyers. Meadowbrook Manor Terrace of Overland
--------------------------
Park: Limited Partnership and Meadowbrook Manor Apartments of Larned Limited
Partnership are hereby deleted as parties to the Agreement, and all references
to the Buyers in the Agreement shall be deemed to exclude such limited
partnerships.
2. Closing and Closing Date. All references in the Agreement to the
------------------------
Closing and the Closing Date shall mean and be deemed a reference to August
1,1992, provided that the delivery of documents and the payment of the Purchase
Price, the Rent and other payments pursuant to Sections 8.04, 8.05 and 8.06 of
the Agreement shall occur on July 31, 1992.
3. Deletion of References to Certain Agreements. All references in
--------------------------------------------
the Agreement to the Pharmacy Partnership Agreement, the Pharmacy Management
Agreement, the Rehab Partnership Agreement, the Rehab Management Agreement and
the Accounting Services Agreement are hereby deleted.
4. Amendment to Definitions. (a) The definition of "Excluded Assets"
------------------------
in Section 1.01 of the Agreement is hereby amended by adding at the end thereof
a new clause (1) to read as follows:
"(i) all vehicles."
(b) The definition of "Transaction Document" in Section 1.01 of
the Agreement is hereby amended in full to read as follows:
"Transaction Document" means any of this Agreement, the
Charlevoix Lease, the Bethesda Sublease, the Sedgwick Sublease, the
Assignment and Assumption Agreements, the Promissory Notes, the
Mortgages, the Subleases, the Management Agreements, the Guaranty, the
Receipt and Assumption Agreements, the Deeds and the Bills of Sale.
-1-
5. New Definition. The following new defined term is hereby added to
--------------
Section 1.01 of the Agreement, to be placed in the proper alphabetical order:
"Management Agreements" has the meaning assigned to that term in
Section 2.15."
6. Rent Subsidy Payments. The Seller shall make the rent subsidy
---------------------
payments required by Section 2.11 of the Agreement directly to the General
Partner at the address specified in Said Section 2.11.
7. Subsidy Reduction: Amendment. (a) Reference is hereby made to
----------------------------
Section 2.12 of the Agreement. As a result of an increase in the Missouri
Medicaid per diem rate that was effective on July 1, 1992, the Seller and the
Buyer hereby agree that the Seller's monthly subsidy payments during the initial
twelve month period of the term under the Subleases, commencing on August 1,
1992, until the next rate increase shall be reduced by $98,668.79.
(b) The second sentence of the fourth paragraph of Section 2.12
of the Agreement is hereby amended by deleting the references to "June 1994" and
"June 1993" therein and substituting therefor "March 1994" and "March 1993,"
respectively.
8. Management Agreements. Article II of the Facility Agreement is
---------------------
hereby amended by adding thereto a new Section 2. 15, to read as follows:
"Section 2.15 Management Agreements. Notwithstanding anything to
---------------------
the contrary set forth in this Agreement or in the Subleases with
respect to Crane Health Care Center, Table Rock Health Care Center
Table Rock Health Care Center Residential Project, Crestview
Healthcare, Hickory Lane Care Center, Sycamore View Healthcare, Des
Peres Health Care, Hillside Healthcare, Marceline Healthcare, Joplin
House Healthcare, Lakeview Health Care Center and Shady Oaks Health
Care Center, the Seller and the respective Buyers that are a party
thereto agree to enter into management agreements with respect to such
Leased Facilities (collectively, the "Management Agreements"), pending
the sublease of such Leased Facilities pursuant to such Subleases. The
consummation of the sublease of such Leased Facilities pursuant to
such Subleases shall occur as soon as reasonably practicable after
receipt by the Seller of all consents required for such sublease. The
Seller and the Buyers, as appropriate, agree to use reasonable,
diligent efforts to obtain such consents. If any Buyer is in default
in the payment of the Operator's Return (as defined in the respective
Management Agreements), then the Seller may reduce its monthly subsidy
payment pursuant to Section 2.11 by the aggregate amount of such
Operator's Return in default In addition, if any Management Agreement
is terminated other than as a result of (i) a default caused solely by
the Seller under such Management Agreement or (ii) such consummation
of the sublease of the Leased Facility to which such Management
Agreement pertains, then the Seller's monthly subsidy payment shall be
reduced by the percentage set forth in Schedule 2.11 with respect to
the Leased Facility to which such Management Agreement pertains. In
addition, the Guaranty shall also cover 20%
-2-
of the Buyers' aggregate obligations at any time outstanding in
respect of such Operator's Return."
9. Certain Employee Benefit Program. Section 7.07(c) of the
--------------------------------
Agreement is hereby amended by adding to the end thereof a new sentence, to read
as follows:
"Notwithstanding anything to the contrary set forth in this Section
7.07(c), for any Transferred Employee at Indian Creek Nursing Center
and Indian Meadows Nursing Center only, Horizon Healthcare
Corporation, as the Operator of such Facilities, shall not be required
to offer disability insurance but shall be required to offer all other
Employee Benefit Programs."
10. Certain Inspection Dates. Section 7.12 of the Agreement is hereby
------------------------
amended by replacing the dates "June 1, 1992" and "June 5, 1992," respectively,
with respect to environmental matters, with the dates "July 29,1992" and "July
30, 1992," respectively.
11. Certain Schedules and Exhibits. Reference is hereby made to
------------------------------
Section 7.16 of the Agreement. The Seller and the Buyers hereby agree that
Schedule 1.01A, Part B of Schedule 1.01E, Part C of Schedule 2.12, Schedule 3.08
and Exhibit F shall be attached to the Agreement not later than July 29, 1992.
12. Survival. Section 10.01 of the Agreement is hereby amended by
--------
adding a reference to "Section 2.15" to the first sentence thereof.
13. Waiver. (a) The Seller and the Buyers hereby waive the condition
------
of Section 9.01(c) of the Agreement to the extent, and only to the extent, that
it requires that the Seller and the Buyers shall have received the consents of
Health Care Investors I, A.L. Schluter, Boatmen's Trust Company of St. Louis, as
trustee, and Mercantile Bank of Joplin, N.A, as trustee.
(b) The Buyers hereby waive the condition of Section 9.02(c) of
the Agreement that the Buyers shall have received the estoppel certificates from
the Lessors pursuant to Section 8.04(j) of the Agreement.
(c) The Seller hereby waives the condition of Section 9.03(c) of
the Agreement that the Seller shall have received the Receipt and Assumption
Agreements pursuant to Section 8.05(i) of the Agreement.
14. No Representation or Warranty. Notwithstanding anything to the
-----------------------------
contrary set forth in the Agreement, neither the Seller nor the Buyers make any
representations or warranties under the Agreement with respect to the Management
Agreements.
15. Cost Reports. The Seller hereby agrees to file by October
------------
31,1992, final cost reports with respect to each Facility located in the State
of Missouri other than any such Facility subject to a Management Agreement.
16. Cooperation. Upon the reasonable request of the Buyers, the
-----------
Seller hereby agrees to provide to the Buyers (i) historical cost information
with respect to the Facilities to the extent necessary for reimbursement
purposes and (ii) written confirmation to other Persons of the rights of the
Buyers set forth in Section 7 of the Management Agreements.
-3-
17. Senior Debt. The Seller hereby agrees that the debt Secured by
-----------
any First Lien Mortgage shall not exceed at any time the debt secured by the
Mortgage that is junior to such First Lien Mortgage.
18. Tax Savings. The Buyers hereby agree to pay on demand their
-----------
proportionate share (based on tax savings) of any consultant fees that may be
billed as a result of a reduction in 1992 assessed value of the Facilities.
19. Amendment. Reference is hereby made to Section 12.02 of the
---------
Agreement This First Amendment is intended to be an amendment to the Agreement
and, except as amended hereby, the Agreement shall remain in full force and
effect in accordance with its terms. Any reference to the Agreement contained in
any notice, request, certificate or other document shall be deemed to include
this First Amendment.
21. Counterparts: Effectiveness. This First Amendment may be execute
---------------------------
in any number of counterparts and by different parties to this First Amendment
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
amendment Delivery of an executed counterpart of a signature page to this First
Amendment via telephone facsimile transmission shall be effective as delivery of
a manually executed counterpart of this First Amendment. This First Amendment
shall become effective when each of the Seller and the Buyers shall have
received a counterpart of this First Amendment executed by the other party to
this First Amendment.
15. Governing Law. This First Amendment shall be deemed to be a
-------------
contract made under the laws of the State of Washington, and for all purposes
shall be governed by, and construed in all respects (including matters of
construction, validity and performance) in accordance with, the laws of the
State of Washington, without regard to the conflicts of law rules of such state.
-4-
IN WITNESS WHEREOF, the Seller and the Buyers have caused this First
Amendment to be duly executed as of the date first above written.
FIRST HEALTHCARE CARE
By [SIGNATURE ILLEGIBLE]
---------------------------
Title _____________________
MEADOWBROOK MANOR OF BALDWIN LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF JOPLIN LIMITED
PARTNERSHIP I
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF COUNCIL GROVE
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF HAYSVILLE LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF ST. CHARLES
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF OVERLAND PARK
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF CHANUTE LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF SPRINGFIELD
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF TOPEKA LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF WICHITA LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF COLUMBIA LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF SEDGWICK LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR COLONIAL TERRACE
OF INDEPENDENCE LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF LARNED LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF AVA LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF BUFFALO LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF CLINTON LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF DES PERES
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF JEFFERSON
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF MARCELINE
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF JOPLIN LIMITED
PARTNERSHIP II
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF LAMAR LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF SHADY OAKS
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF CRANE LIMITED
PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR OF KIMBERLING CITY
LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR RESIDENTIAL OF
KIMBERLING CITY LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR WORNALL OF KANSAS
CITY LIMITED PARTNERSHIP
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President
MEADOWBROOK MANOR BLUE HILLS OF
KANSAS CITY LIMITED PARTNERSHIP I
By MEADOWBROOK MANOR OF KANSAS &
MISSOURI, INC.,
General Partner
By [SIGNATURE ILLEGIBLE]
---------------------------
Title: President