EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT
AGREEMENT
THIS SECOND AMENDMENT TO CREDIT
AGREEMENT (this "
Amendment "), dated October 27, 2009, 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 amended by First Amendment to Credit Agreement dated as
of October 28, 2008, 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 (a) deleting the definition of "Royal Health
Acquisition" and (b) 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) 1.00% with respect to
Eurodollar Rate Loans, and (iii) 1.00% with respect to Letters
of Credit, and (b) in connection with computations of
commitment fees, a rate per annum equal to one-fifth of one
percentage point (0.20%).
" Maturity Date " means the later
of (a) October 26, 2010 and (b) if maturity is
extended pursuant to Section 2.12 , such extended
maturity date as determined pursuant to such Section.
Schedule 7.03, p. 1
" Required Guarantor " means
(i) each Guarantor identified by name in the definition of
"Guarantor" hereinabove set forth, (ii) upon consummation of
the NHR Acquisition, Post-Acquisition NHR, and (iii) each
existing and future direct Subsidiary of the Borrower other than
(a) FMSC, Inc., a Florida corporation, (b) National
Healthcare Center of Fort Oglethorpe, L.P., a Tennessee limited
partnership, and (c) Premier Plus.
" Second Amendment " means the
Second Amendment to Credit Agreement dated October 27, 2009,
by and between the Borrower and the Lender.
" Second Amendment Effective Date
" means October 27, 2009.
2.
Amendment of Section
5.13 .
Section 5.13 is hereby amended
to read as follows:
5.13
Subsidiaries. As of the Second 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 .
3.
Amendments of Section
7.02 .
(a)
Subsection 7.02(b) is hereby amended
by deleting the word "First" in the two places in which it appears
and substituting in lieu thereof the word "Second".
(b)
Subsection 7.02(h) is hereby
deleted, and the following is hereby substituted in lieu
thereof:
(h)
[Reserved];
4.
Amendments of Section
7.03 .
(a)
Subsection 7.03(b) is hereby amended
by deleting the word "First" in the two places in which it appears
and substituting in lieu thereof the word "Second".
(b)
Subsection 7.03(g) is hereby
deleted, and the following is hereby substituted in lieu
thereof:
(g)
[Reserved];
5.
Amendment of
Section 7.06 .
Subsection 7.06(e) is hereby
amended by deleting the date "December 31, 2007" in the fourth
line and substituting in lieu thereof the date "December 31,
2008".
6.
Amendment of Schedule
5.13 . Schedule 5.13 to the Credit Agreement is
hereby replaced with Schedule 5.13 to this
Amendment.
Schedule 7.03, p. 2
7.
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 8 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 7 shall have been satisfied; and
(c)
the Lender shall have received such
documents, instruments, certificates, opinions and approvals as it
reasonably may have requested.
8.
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 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.
9.
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.
Schedule 7.03, p. 3
(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 with the modifications of the Credit Agreement effected
hereby. Without limiting the generality of the foregoing, the
Loan Documents and all of the Collateral described therein secure
and shall continue to secure the payment of all Obligations, in
each case taking into account the modifications of the Credit
Agreement effected hereby.
10.
Further Actions
. Each of the parties to this Amendment agrees
that at any time and from time to time upon written request of any
other party, it will execute and deliver such further documents and
do such further acts and things as such other party reasonably may
request in order to effect the intents and purposes of this
Amendment.
11.
Counterparts
. This Amendment may be executed in multiple
counterparts or copies, each of which shall be deemed an original
hereof for all purposes. One or more counterparts or copies
of this Amendment may be executed by one or more of the parties
hereto, and some different counterparts or copies executed by one
or more of the other parties. Each counterpart or copy hereof
executed by any party hereto shall be binding upo
