EXHIBIT 10.46
FIFTH AMENDMENT TO GUARANTEE REIMBURSEMENT AGREEMENT
This Fifth Amendment to Guarantee Reimbursement Agreement ("Amendment")
dated as of February 19, 1993, 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, that certain Third Amendment to Guarantee Reimbursement
Agreement, dated as of April 1, 1992 (the "Third Amendment"), and that certain
fourth Amendment to Guarantee Reimbursement Agreement, dated as of November 12,
1992, 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 dated January 26, 1993, from Xxxxxxx X.
Xxxxxx to Xxxxxx X. Xxxxxxx (the "Option Notice"), certain subsidiaries of NME
(the "NME Parties') exercised their respective options to sell to First
Healthcare Corporation ("FHC"), a wholly owned subsidiary of New Hillhaven,
seventeen nursing facilities (collectively, referred to herein as the
"Properties," and individually as a "Property") that FHC leases from certain of
the NME Parties.
C. One of the Properties, commonly known as Xxxxx Xxxx Care Center, described
in Schedule A attached hereto, is currently subject to third party financing
(herein, an "Existing Debt"). In conjunction with FHC's acquisition of the
Properties pursuant to the Option Notice, FHC shall assume the Existing Debt
covering such Property (herein, an "Assumed Existing Debt"). The Assumed
Existing Debt applicable to such Property is described in Schedule A attached
hereto.
D. In accordance with the Third Amendment, New Hillhaven agreed to guarantee
the Assumed Existing Debt of Properties acquired by FHC pursuant to exercised
options to sell and options to purchase as provided in the Omnibus Amendment.
E. New Hillhaven and NME desire to amend the Reimbursement Agreement to add
such Assumed Existing Debt as an "Obligation" under (and as defined in) 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
-------------------
NME remains primarily or contingently liable therefor, the Assumed Existing Debt
described in Schedule A attached hereto is hereby added as, and shall be deemed
to be, an "Obligation" under (and as defined in) the Reimbursement Agreement,
and all terms, covenants and conditions of the Reimbursement Agreement,
including but not limited to the guaranty fee of 1% per annum payable in
accordance with Paragraph 2 of the Third Amendment, shall apply to such Assumed
Existing Debt.
2. Reaffirmation of Reimbursement Agreement. New Hillhaven reaffirms that the
----------------------------------------
Reimbursement Agreement, as amended hereby, shall remain in full force and
effect, and shall continue to be binding upon New Hillhaven.
3. Captions. The captions and headings used herein are for the convenience of
--------
reference and shall not be construed in any manner to limit or modify any of the
terms hereof.
4. Governing Law. This Amendment shall be governed by and construed in
-------------
accordance with the laws of the State of California.
5. Counterparts. This Amendment may be executed in counterparts, each of
------------
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 ILLEGIBLE]
------------------------------
Title: VICE PRESIDENT
---------------------------
THE HILLHAVEN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
XXXXXX X. XXXXXXX
Title: SR. VICE PRESIDENT
---------------------------
SCHEDULE A
ASSUMED OBLIGATIONS
ASSUMED EXISTING DEBT
---------------------
Facility 462: Xxxxx Xxxx, 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 462 (i.e., the Assumed Existing Debt) is
approximately $22,952.29. The Promissory Note
represents an obligation relating to several
properties and is secured by a Deed of Trust on
the subject Property.
