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Exhibit 10.10
FOURTH AMENDMENT TO GUARANTEE AND
CONTINGENT PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO GUARANTEE AND CONTINGENT PURCHASE AGREEMENT
(the "Amendment") is entered into this 30th day of December, 1993 by and among
NATIONAL HEALTHCORP L.P., a Delaware limited partnership ("NHLP"), NATIONAL
HEALTH CORPORATION, a Tennessee corporation ("National") (NHLP and National may
sometimes be referred to herein collectively as the "Guarantors"), THIRD
NATIONAL BANK IN NASHVILLE ("TNB"), SOUTHTRUST BANK OF ALABAMA, NATIONAL
ASSOCIATION ("ST"), FIRST UNION NATIONAL BANK OF TENNESSEE formerly known as
Dominion Bank of Middle Tennessee) ("FUNB"), FIRST AMERICAN NATIONAL BANK
("FANB") and FIRST CITY BANK ("FCB") (TNB, ST, FUNB, FANB and FCB are
hereinafter sometimes collectively referred to as the "Banks"), and THIRD
NATIONAL BANK IN NASHVILLE, as agent for the Banks (in such capacity, the
"Agent").
WITNESSETH:
WHEREAS, pursuant to that certain Guarantee and Contingent Purchase
Agreement (the "Guarantee") dated as of December 16, 1988 by and among the
Guarantors, TNB, ST, Irving Trust Company (later known as The Bank of New York)
("BONY") and Sovran Bank/Central South (later known as Sovran Bank/Tennessee)
("SBT") and Agent, as amended by First Amendment to Guarantee and Contingent
Purchase Agreement dated October 17, 1991 by and among Guarantors, TNB, ST and
Agent, as further amended by Second Amendment to Guarantee and Contingent
Purchase Agreement dated May 21, 1992 by and among Guarantors, Banks and Agent
and as further amended by Third Amendment to Guarantee and Contingent Purchase
Agreement dated October 14, 1993 by and among the Guarantor, the Banks and Agent
(as amended, the "Guarantee"), the Guarantors jointly and severally guaranteed,
among other things, repayment to the Banks of the following described notes
executed by National Health Corporation Leveraged Employee Stock Ownership Trust
(the "Borrower" or the "ESOP") to the order of the TNB, ST, BONY and SBT,
respectively (the "Notes"):
(a) a certain non-recourse promissory note dated as of
December 16, 1988 in the original principal amount of Sixteen Million
Dollars ($16,000,000) executed by Borrower payable to TNB, together
with interest and other charges thereon;
(b) a certain non-recourse promissory note dated December 16,
1988 in the original principal amount of Fifteen Million Dollars
($15,000,000) executed by Borrower payable to BONY, together with
interest and other charges thereon, as assigned to TNB pursuant to that
certain Assignment of Note and Loan Documents dated October 18, 1991
executed by BONY in favor of TNB;
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(c) a certain non-recourse promissory note dated December 16,
1988 in the original principal amount of Nine Million Dollars
($9,000,000) executed by Borrower payable to SBT, together with
interest and other charges thereon, as assigned to TNB pursuant to that
certain Assignment of Note and Loan Documents dated October 17, 1991
executed by SBT, in favor of TNB; and
(d) a certain non-recourse promissory note dated December 16,
1988 in the original principal amount of Ten Million Dollars
($10,000,000) executed by Borrower payable to ST, together with
interest and other charges thereon;
WHEREAS, the Guarantors, the Banks and the Agent desire to amend the
Guarantee as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties agree as follows:
1. Section 5 of the Guarantee entitled "Contingent Purchase
Obligations" is hereby mended in its entirety to read as follows:
Section 5. Contingent Purchase Obligations.
(a) NHLP shall on December 16, 1998 and, if agreed to and as
negotiated by NHLP and the Banks, thereafter, (each of which dates is
referred to as a or the "Note Purchase Date") purchase, upon tender by
all of the Banks to NHLP of all of the Notes with an instrument of
assignment attached thereto, the Loan evidenced by the Notes (and the
Notes evidencing the same) by payment to the Banks of an amount
(representing the purchase price therefor) in immediately available
funds equal to the sum of the principal of and accrued and unpaid
interest on the Notes at the time of such purchase together with any
amounts that would be owing under the Loan and Security Agreement in
the event the Notes were being paid in full at the time of such
purchase (the "Purchase Price"). Such tender shall be deemed
automatically to be made, and title to the Notes shall be deemed
automatically to have passed to NHLP on each Note Purchase Date,
whereupon NHLP shall become obligated forthwith to pay the Purchase
Price to the Banks, unless (a) Agent shall have notified NHLP no less
than sixty (60) days prior to the applicable Note Purchase Date that
all of the Banks elect not to so tender, or (b) NHLP requests the Banks
(through the Agent) no less than ninety (90) days prior to the
applicable Note Purchase Date that the Banks not so tender, and Agent
shall have given the notice referred to in clause (a) above within the
time period provided therein, or (c) the Agent shall notify Guarantor
no less than thirty (30) days prior to the applicable Note Purchase
Date that the interest of an Electing Bank (as hereinafter defined) in
its Note, or in its portion of a Note, as applicable, has been
purchased by a Purchasing Bank (as hereinafter defined), whereupon, in
any such case, NHLP shall not be obligated on such Note Purchase Date
to pay the Purchase Price to the Banks. The giving of notice by
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Agent under clause (a) above or (c) shall not affect in any way the
rights of the Banks to tender all of the Notes to NHLP with respect to
any subsequent Note Purchase Date. The Banks and NHLP agree that if any
Bank determines to take advantage of the automatic tender provisions
hereof (the "Electing Bank"), then all Banks shall be bound by such
determination unless no less than thirty (30) days prior to the
applicable Note Purchase Date another Bank or Banks (the "Purchasing
Bank") gives notice to Agent in writing that the Purchasing Bank
desires to purchase and does so purchase the Electing Bank's Note or
interest in a Note, as applicable, by thirty (30) days prior to the
applicable Note Purchase Date, but in no event shall any Bank be
obligated to purchase the Electing Bank's Note or interest in a Note.
The Purchasing Bank shall pay the Electing Bank an amount equal to all
principal, interests, fees and other amounts owed or accrued to the
Electing Bank to the date on which such purchase becomes effective, but
no later than thirty (30) days prior to the applicable Note Purchase
Date (the "Note Payment"). Upon receipt of the Note Payment, the
Electing Bank shall assign to the Purchasing Bank the Electing Bank's
Note or interest in the Note (and deliver the original Note to the
Purchasing Bank if held by the Electing Bank) pursuant to the form of
Assignment attached hereto as Exhibit A.
(b) In connection with any legal proceeding instituted by the
Banks to enforce the obligation of NHLP to pay the Purchase Price, NHLP
hereby waives any defense based upon adequate remedy at law and agrees
that specific performance is the only appropriate remedy for breach of
this Section 5. Any such purchase shall be made by NHLP from the Banks
without recourse and without representation or warranty of any kind
whatsoever, other than with respect to each Bank's good title to its
Note (or interest therein) and each such Note's being free of Liens
caused by the Banks. Following any such purchase, NHLP shall remain
obligated under Section 2 hereof in respect of any other amounts owing,
or from time to time to be owing, by the Borrower under the Loan and
Security Agreement.
2. The Guarantors hereby reaffirm for the Banks and the Agent all
of their respective obligations, representations, warranties and covenants
contained in the Guarantee.
3. The Guarantors hereby represent that no event has occurred and
no claim, offset, defense or other condition exists which with the passage of
time or giving of notice would constitute a default under any provisions of the
Guarantee, as hereby amended.
4. The Guarantors hereby further represent that no event has
occurred and no claim, offset, defense or other condition exists that would
relieve either NHLP and/or National of any of their respective obligations to
the Banks and/or Agent under the Guarantee, as hereby amended.
5. All terms used in this Amendment shall have the same meanings
as in the Guarantee unless otherwise defined herein.
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6. Except as specifically modified herein, the Guarantee shall remain
in full force and effct, and nothing herein is intended to nor shall it
release, diminish or waive any rights of the Banks and Agent under the
Guarantee.
7. This Amendment may be executed in more than one counterpart, all of
which taken together, shall constitute one and the same instrument.
8. This Amendment shall be governed by and construed in accordance
with the laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
GUARANTORS:
NATIONAL HEALTHCORP L.P.,
a Delaware limited partnership
By: NHC, Inc., general partner
By: /s/
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Title: Sr. V.P.
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NATIONAL HEALTH CORPORATION,
a Tennessee corporation
By: /s/
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Title: Sr. V.P.
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BANKS:
THIRD NATIONAL BANK IN NASHVILLE
By: /s/
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Title: Group V.P.
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SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION
By: /s/
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Title: Group Vice President
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FIRST UNION NATIONAL BANK OF TENNESSEE
By: /s/
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Title: Vice President
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FIRST AMERICAN NATIONAL BANK
By: /s/
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Title: Senior Vice President
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FIRST CITY BANK
By: /s/
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Title: President
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AGENT:
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THIRD NATIONAL BANK IN NASHVILLE,
Agent
By: /s/
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Title: Group V.P.
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