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Exhibit 10.18
AMENDMENT TO GUARANTY AGREEMENT
(NHLP AND XXXXXXXX)
THIS AMENDMENT TO GUARANTY AGREEMENT (hereinafter sometimes referred to as
this "Amendment"), entered into as of the 22nd day of July, 1992, by and among
NATIONAL HEALTHCORP L.P., a Delaware limited partnership (the "Partnership
Guarantor"), a XXXXX X. XxXXXXXX, an individual resident of the State of
Florida (formerly an individual resident of the State of Texas and hereinafter
referred to as the "Individual Guarantor") (the Partnership Guarantor and the
Individual Guarantor being sometimes hereinafter referred to collectively as
the "Guarantors"), and THE TORONTO-DOMINION BANK, acting through its Chicago
Branch (the "Bank");
W I T N E S S E T H:
WHEREAS, the Guarantors have entered into that certain Guaranty Agreement
dated as of December 1, 1987 (as heretofore amended, the "Guaranty Agreement"),
in favor of the Bank, guaranteeing, among other things, payment of the
obligations of the Borrower under the Reimbursement Agreement; and
WHEREAS, in connection with the extension by the Bank of the expiration
dates of the Letters of Credit issued by the Bank for the account of the
Borrower pursuant to the Reimbursement Agreement, the Guarantor has requested
certain amendments to the Guaranty Agreement and the Bank is willing to agree to
such amendments as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing premises, the sum of Ten
and No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties hereto agree that capitalized terms used herein (including,
without limitation, in the recitals hereof) but not otherwise defined or limited
in this Amendment shall have the meanings ascribed thereto in the Guaranty
Agreement and further agree as follows:
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1. Amendments to Section 1.1.
(a) The Guaranty Agreement is hereby amended by deleting
clause (f) from the definition of "Permitted Liens" contained in Section 1.1,
Definitions, in its entirety, and by substituting the following language in lieu
thereof as a new clause (f):
"(f) Liens incurred after the date of this Guaranty
Agreement given to secure the payment of the purchase price
incurred in connection with the acquisition of fixed assets or
equipment used or useful and intended to be used in carrying
on the business of such Person, including Liens existing on
such fixed assets or equipment at the time of acquisition
thereof, or at the time of acquisition by such Person of any
business entity then owning such fixed assets or equipment,
whether or not the existing Liens were given to secure the
payment of the purchase price of the fixed assets or equipment
to which they attach, so long as they were not incurred,
extended or renewed in contemplation of such acquisition,
provided that (i) the Lien shall attach solely to the property
so acquired or purchased; (ii) at the time of acquisition of
such fixed assets or equipment, the aggregate amount remaining
unpaid on all Indebtedness secured by Liens on such fixed
assets or equipment, whether or not assumed by such Person,
shall not exceed an amount equal to 100% of the lesser of the
total purchase price or fair market value at the time of
acquisition of such fixed assets or equipment (as determined
in good faith by the Board of Directors or the managing
general partner, as the case may be, of such Person); and
(iii) all such Indebtedness shall be payable in equal monthly,
quarterly, semiannual or annual installments of principal and
interest and shall not be callable at the lender's option for
reasons unrelated to the credit worthiness of such person or
the destruction of the collateral for such Indebtedness."
(b) The Guaranty Agreement is hereby further amended by adding
the following language at the end of the definition of "Funded Debt," contained
in Section 1.1, Definitions:
For purposes of this definition as of any calculation date,
operating lease obligations relating to each operating lease
shall be calculated at the rate of eight (8) times the annual
rent expense under such lease for the lease year in which such
calculation date falls; provided, however, that there shall be
excluded from any such calculation of operating lease
obligations (i) any operating lease obligations arising under
any operating lease between NHI and the Partnership Guarantor
existing
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prior to July 22, 1992 [date of this amendment], and (ii) any
obligations arising under any other operating lease to the
extent such obligations are otherwise included in Funded Debt
by virtue of the foregoing definitions.
2. Amendments to Article IV.
(a) The Guaranty Agreement is hereby amended by deleting
therefrom Section 4.20, No More Favorable Terms for Other Lenders, in its
entirety, and by substituting in lieu thereof the following language: "Section
4.20 [RESERVED]."
(b) The Guaranty Agreement is hereby further amended by
deleting therefrom Section 4.21, Replacement of Letters of Credit, in its
entirety, and by substituting in lieu thereof the following language: "Section
4.21 [RESERVED]."
(c) The Guaranty Agreement is hereby further amended by
deleting therefrom Section 4.22(a), Liens, in its entirety, and by substituting
in lieu thereof the following language: "Section 4.22(a) [RESERVED]."
(d) The Guaranty Agreement is hereby further amended by
deleting therefrom Section 4.22(b), Disposition of Certain Property Interests,
in its entirety, and by substituting the following in lieu thereof, as a new
Section 4.22(b):
"(b) Use of Proceeds from the Disposition of Certain
Property Interests. Except as hereinafter provided, the
Partnership Guarantor may sell, convey, assign or otherwise
dispose of its property or assets, whether real or personal,
tangible or intangible, and any interest therein (each, a
"Disposition"), from time to time, without the consent of the
Bank, provided that the proceeds (net of any reasonable and
customary costs of the transaction) received by the
Partnership Guarantor from such Dispositions shall be retained
by the Partnership Guarantor and used in the Partnership
Guarantor's business for any lawful business purpose, and in
no event shall be distributed, directly or indirectly, to any
of the partners of the Partnership Guarantor. Notwithstanding
the generality of the immediately preceding sentence, in no
event shall the Partnership Guarantor sell, convey, assign or
otherwise dispose of any right, title or interest in, to or
under the Master Lease or any of the separate Leases referred
to in Section 1.01 of the Master Lease, without the prior
written consent of the Bank."
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3. Amendment to Section 6.1. The Guaranty Agreement is hereby further
amended by deleting from Section 6.1(b) thereof the references to Section 4.20
and Section 4.21.
4. Consent to Extension of Letters of Credit and Related Matters. The
Guarantors hereby consent to (a) the extension of the expiration dates of the
Letters of Credit to March 25, 1994, and (b) the execution and delivery by the
Borrower and the Bank of that certain Amendment to Reimbursement Agreement of
even date herewith between the Borrower and the Bank.
5. Reaffirmation of Representations and Warranties: Absence of Default.
The Guarantors hereby (a) reaffirm that their representatives and warranties as
set forth in the Guaranty Agreement are true and correct on the date hereof, and
(b) represent and warrant to the Bank that no Default or Event of Default has
occurred and is continuing on the date hereof.
6. Continuing Effectiveness Except as Amended: Reaffirmation of
Obligations. Except to the extent specifically amended as herein set forth, the
Guaranty Agreement remains unchanged, and the Guaranty Agreement, as herein
amended, remains in full force and effect. The Guarantors hereby reaffirm their
obligations under the Guaranty Agreement, as herein amended, and the joint,
several, absolute and unconditional guaranty to the Bank of the timely payment
and performance of all of the Guaranteed Obligations.
7. Severability. Any provision of this Amendment which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition, unenforceability
or non-authorization as to the remaining provisions hereof and shall not affect
the validity, enforceability or legality of such provision in any other
jurisdiction.
8. Governing Law. This Amendment is intended to be performed in the
State of Illinois, and shall be construed and +enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the State of
Illinois.
9. Multiple Counterparts. This Amendment may be executed simultaneously
in several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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AMENDMENT TO GUARANTY AGREEMENT
(XXXXX X. XxXXXXXX AND NATIONAL HEALTHCORP L.P.)
IN WITNESS WHEREOF, The Guarantors and the Bank have duly executed and
delivered this Amendment, or caused same to be duly executed and delivered, as
of the date first above written.
/s/ [SEAL]
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XXXXX X. XxXXXXXX
NATIONAL HEALTHCORP L.P., a
Delaware limited partnership
By: NHC, Inc., a Tennessee
corporation, as Managing
General Partner
By: /s/
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Title: SR VP
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Attest: /s/
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Title: SR VP
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SIGNATURE PAGE TO AMENDMENT TO GUARANTY AGREEMENT
DATED AS OF JULY 22, 1992
BY AND AMONG
XXXXX X. XxXXXXXX, NATIONAL HEALTHCORP L.P. AND
THE TORONTO-DOMINION BANK,
ACTING THROUGH ITS CHICAGO BRANCH
THE TORONTO-DOMINION BANK, acting
through its Chicago Branch
By:/s/
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Title: MANAGER CREDIT ADMINISTRATION
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