FIRST AMENDMENT TO CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT (this "
Amendment "), dated October 28, 2008, is made and
entered into on the terms and conditions hereinafter set forth, by
and between NATIONAL HEALTHCARE CORPORATION, a Delaware corporation
(the " Borrower "), and BANK OF AMERICA, N.A., a national
banking association (" Lender ").
RECITALS:
1.
Pursuant to a Credit Agreement dated as
of October 30, 2007, by and between the Borrower and the
Lender (as the same heretofore has been or hereafter may be further
amended, restated, supplemented, extended, renewed, replaced or
otherwise modified from time to time, the " Credit Agreement
"), the Lender agreed to make Loans to the Borrower and to issue
Letters of Credit for the account of the Borrower, all as more
specifically described in the Credit Agreement.
2.
The parties hereto desire to amend the
Credit Agreement in certain respects as more particularly
hereinafter set forth.
AGREEMENTS:
NOW, THEREFORE,
in consideration of the mutual covenants
and agreements hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of all of which
are hereby acknowledged, the parties hereto agree as
follows:
1.
Amendment of Section 1.1
. Section 1.1 of the Credit Agreement is
hereby amended by inserting the following new definitions in the
appropriate locations according to alphabetical order, or by
amending and restating existing definitions to read as indicated,
as applicable:
" Applicable Rate " means,
(a) in connection with computations of interest for Loans and
Letters of Credit, a rate per annum equal to (i) 0.00% with
respect to Base Rate Loans, (ii) 0.375% with respect to
Eurodollar Rate Loans, and (iii) 0.375% with respect to
Letters of Credit, and (b) in connection with computations of
commitment fees, a rate per annum equal to (i) five one
hundredths of one percentage point (0.05%) for each day that Total
Outstandings are less than $37,500,000, and (ii) two one
hundredths of one percentage point (0.02%) for each day that Total
Outstandings are equal to or greater than $37,500,000.
" First Amendment " means the
First Amendment to Credit Agreement dated October 28, 2008, by
and between the Borrower and the Lender.
" First Amendment Effective Date "
means October 28, 2008.
" Maturity Date " means the later
of (a) October 27, 2009 and (b) if maturity is
extended pursuant to Section 2.12 , such extended
maturity date as determined pursuant to such Section.
2.
Amendment of
Section 2.08 .
Section 2.08 of the Credit
Agreement is hereby amended to read as follows:
2.08. Commitment
Fees. In addition to
certain fees described in subsections (h) and
(i) of Section 2.03 , the Borrower shall pay to the
Lender a commitment fee equal to the Applicable Rate times the
actual daily amount by which the Commitment exceeds the Total
Outstandings. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which
one or more of the conditions in Article 4 is not met,
and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December,
commencing with the first such date to occur after the First
Amendment Effective Date, and on the Maturity Date. The
commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect.
3.
Amendment of Section
5.13 .
Section 5.13 is hereby amended
to read as follows:
5.13
Subsidiaries. As of the First Amendment Effective Date, the
Borrower has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13 and has no
equity investments in any other Person other than those
specifically disclosed in Part (b) of
Schedule 5.13 . The organizational structure of
the Borrower and its Subsidiaries is in all material respects as
described in Schedule 5.13 .
4.
Amendment of Section
6.01 .
(a)
Subsection 6.01(a) is hereby amended by
inserting the following after the words "fiscal year of the
Borrower" and prior to the comma in the second line:
(or, if earlier, within five (5)
days after the filing with the SEC of the Borrower's Annual Report
on Form 10-K for such fiscal year)
(b)
Subsection 6.01(b) is hereby amended by
inserting the following after the words "fiscal year of the
Borrower" and prior to the comma in the second line:
(or, if earlier, within five (5)
days after the filing with the SEC of the Borrower's Quarterly
Report on Form 10-Q for such period)
5.
Amendment of Section
6.11 .
Section 6.11 is hereby amended
by inserting "(including permitted Investments)" immediately after
the word "purposes" in the second line.
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6.
Amendment of Section
7.02 .
Subsection 7.02(b) is hereby amended
to read as follows:
(b)
Investments in existence on the First
Amendment Effective Date and identified on
Schedule 7.02 to the First Amendment, and any
refinancing, refunding, renewal or extension of any such Investment
that does not increase the amount thereof;
7.
Amendment of Section
7.03 .
Subsection 7.03(b) is hereby amended
to read as follows:
(b)
Indebtedness outstanding on the First
Amendment Effective Date and listed on Schedule 7.03 to
the First Amendment and any refinancings, refundings, renewals or
extensions thereof; provided that (i) the amount of
such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized
thereunder, and (ii) Indebtedness subordinated to the
Obligations may be refinanced only on subordination terms that are
at least as favorable to the Lender as, and no more restrictive on
the Borrower than, those for the subordinated Indebtedness being
refinanced, and in an amount not less than the amount outstanding
at the time of refinancing;
8.
Amendment of
Section 7.06 .
Subsection 7.06(e) is hereby
amended by (a) deleting the figure "60%" in the third line and
substituting in lieu thereof the figure "70%", and
(b) deleting the date "December 31, 2006" in the fourth
line and substituting in lieu thereof the date "December 31,
2007".
9.
Amendment of Schedule
5.13 . Schedule 5.13 to the Credit Agreement is
hereby replaced with Schedule 5.13 to this
Amendment.
10.
Conditions to
Effectiveness .
This Amendment shall be
effective only upon the satisfaction of the following
conditions:
(a)
the Borrower and the Lender shall have
executed and delivered a counterpart of this Amendment;
(b)
each of the representations and
warranties of the Borrower contained in Section 11
shall be true and correct in all material respects as of the date
as of which all of the other conditions contained in this
Section 10 shall have been satisfied; and
(c)
the Lender shall have received such
documents, instruments, certificates, opinions and approvals as it
reasonably may have requested.
11.
Representations and Warranties of
the Borrower .
As an inducement to the Lender to
enter into this Amendment, the Borrower hereby represents and
warrants that, on and as of the date hereof, and taking into
account the provisions hereof, the representations and
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warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all
material respects, except for (a) representations and
warranties that expressly relate to an earlier date, which remain
true and correct as of said earlier date, and
(b) representations and warranties that have become untrue or
incorrect solely because of changes permitted by the terms of the
Credit Agreement and the other Loan Documents.
12.
Effect of Amendment; Continuing
Effectiveness of Credit Agreement and Loan Documents
.
(a)
Neither this Amendment nor any other
indulgences that may have been granted to the Borrower by the
Lender shall constitute a course of dealing or otherwise obligate
the Lender to modify, expand or extend the agreements contained
herein, to agree to any other amendments to the Credit Agreement or
to grant any consent to, waiver of or indulgence with respect to
any other noncompliance with any provision of the Loan
Documents.
(b)
Upon and after the effectiveness of this
Amendment, 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 Loan
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 modified hereby.
This Amendment shall constitute a Loan Document for all
purposes of the Credit Agreement and the other Loan
Documents.
(c)
Any noncompliance by the Borrower with
any of the covenants, terms, conditions or provisions of this
Amendment shall constitute an Event of Default.
(d)
Except to the extent amended or modified
hereby, the Credit Agreement, the other Loan Documents and all
terms, conditions and provisions thereof shall continue in full
force and effect in all respects and shall be construed in
accordance w
