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Exhibit 10.4
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made as of the 21st day of April,
1995, by and between NATIONAL L.P., a Delaware limited partnership also known
as NATIONAL HEALTHCORP L.P., NATIONAL HEALTHCARE L.P., LTD. and NHC
("Borrower"), and FIRST AMERICAN NATIONAL BANK, a national banking association
("Lender").
W I T N E S S E T H:
WHEREAS, Borrower has requested that Lender make term loans to Borrower
in the aggregate principal amount of $22,850,000 (individually and collectively,
the "Loan") on the terms and conditions hereinafter set forth; and
WHEREAS, in connection with the foregoing, Borrower and Lender desire
to execute this Agreement in order to confirm and clarify certain agreements and
understandings between them with respect to the Loan, all as more particularly
hereinafter set forth;
NOW, THEREFORE, for and in consideration of the foregoing, the mutual
covenants herein contained and certain other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Borrower and
Lender hereby agree as follows:
1. The Loan.
(a) Notes. The Loan shall be evidenced by (i) a Note Secured By Real
Estate of even date herewith, in the original principal amount of $6,035,000,
(ii) a Note Secured By Real Estate of even date herewith, in the original
principal amount of $11,115,000, and (iii) a Note Secured By Real Estate of even
date herewith, in the original principal amount of $5,700,000, all made and
executed by Borrower payable to the order of Lender, in form and substance
satisfactory to Lender (all of the above-notes, together with any and all
renewals, modifications, extensions, replacements and/or consolidations thereof,
are sometimes individually and collectively referred to herein, as the "Notes").
(b) PurPose. The purpose of the Loan shall be to provide term financing
associated with Borrower's (i) nursing home and adult congregate living facility
known as Renaissance Health Care Center in Naples, Florida, (ii) nursing home
known as National Healthcare of Port Charlotte in Port Charlotte, Florida, and
(iii) nursing home known as National Healthcare of Lexington in West Columbia,
South Carolina (each a "Project"). The proceeds of the Loan shall not be used
for any other purpose.
(c) Security. The Loan shall be secured by, among other things, (1) a
Mortgage and Security Agreement of even date
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herewith, by and between Borrower and Lender, recorded or to be recorded in the
Official Records of Charlotte County, Florida (as the same may hereafter be
amended, renewed or replaced, the "Port Charlotte Mortgage"), (2) a Mortgage and
Security Agreement of even date herewith, by and between Borrower and Lender,
recorded or to be recorded in the Official Records of Xxxxxxx County, Florida
(as the same may hereafter be amended, renewed or replaced, the "Renaissance
Mortgage"), (3) a Mortgage, Security Agreement and Fixture Filing of even date
herewith, by and between Borrower and Lender, recorded or to be recorded with
the Register of Mesne Conveyances/Office for Lexington County, South Carolina
(as the same may hereafter be amended, renewed or replaced, the "Columbia
Mortgage"), (4) an Assignment of Leases and Rents of even date herewith,
executed by Borrower in favor of Lender, recorded or to be recorded in the
Official Records of Charlotte County, Florida, (as the same may hereafter be
amended, renewed or replaced, the "Port Charlotte Assignment of Leases"), (5) an
Assignment of Leases and Rents of even date herewith, executed by Borrower in
favor of Lender, recorded or to be recorded in the Official Records of Xxxxxxx
County, Florida (as the same may hereafter be amended, renewed or replaced, the
"Renaissance Assignment of Leases"), (6) an Assignment of Leases and Rents of
even date herewith, executed by Borrower in favor of Lender, recorded or to be
recorded with the Register of Mesne Conveyances/Office for Lexington County,
South Carolina (as the same may hereafter be amended, renewed or replaced, the
"Columbia Assignment of Leases"), and (7) a Security Agreement of even date
herewith, by and between Borrower and Lender (as the same may hereafter be
amended, renewed or replaced, the "Security Agreement"). This Agreement, the
Notes, the Port Charlotte Mortgage, the Renaissance Mortgage, the Columbia
Mortgage, the Port Charlotte Assignment of Leases, the Renaissance Assignment of
Leases, the Columbia Assignment of Leases, the Security Agreement and any and
all other documents, instruments and/or agreements now or hereafter evidencing,
securing or otherwise relating to the Loan are hereinafter collectively referred
to as the "Loan Documents".
(d) Commitment Fee. Contemporaneously with Borrower's
execution of this Agreement, Borrower shall pay to Lender a commitment fee in
the amount of $34,275.
2. Representations and Warranties. Borrower hereby represents and
warrants to Lender as follows:
(a) Status. Borrower is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to do business and in good standing in the State of
Tennessee, the State of Florida, the State of South Carolina, and each other
state in which a failure to be so qualified would have a material adverse effect
on Borrower's business. Borrower has the power to own and
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operate its properties, to carry on its business as now conducted and to enter
into and perform its obligations under this Agreement and the other Loan
Documents to which it is a party.
(b) Authorization. Borrower has full legal right, power and
authority to conduct its business and affairs in the manner contemplated by the
Loan Documents and to enter into and perform its obligations thereunder without
the consent of any other person, firm, governmental agency or legal entity.
(c) Other Agreements. The transactions hereby contemplated
will not result in a breach of or constitute a default under any other agreement
to which Borrower is party.
(d) Litigation. There is no litigation or proceeding pending
against Borrower, nor to the knowledge of the Borrower threatened, which, if
decided adversely to Borrower would have a material adverse effect upon its
financial condition or business.
(e) Compliance with Law. Borrower has obtained all necessary
licenses, permits, governmental approvals and authorizations necessary or proper
in order conduct its business and affairs as heretofore conducted and as
hereafter intended to be conducted and is in compliance with all laws,
regulations, decrees and orders applicable to it.
(f) Taxes. Borrower has filed all required federal, state and
local tax returns, and has paid all taxes as shown on such returns as they have
become due and have paid all other taxes, fees or other charges imposed on it
prior to delinquency.
(g) Environmental Matters.
(i) As used in this Section 2(g) and in Section 3(1)
hereof, the following terms shall have the indicated meanings:
"Business" means all of Borrower's assets, both real and
personal, tangible and intangible, now existing or hereafter
acquired and wherever located, and all of Borrower's current
and future business operations at all locations and in all
jurisdictions.
"Environmental Authorities" means all federal, state and local
governmental bodies, authorities or agencies and all public
corporations created and/or empowered to administer, regulate
and/or enforce Environmental Laws, including without
limitation the U.S. Environmental Protection Agency.
"Environmental Laws" means any and all federal, state,
regional, county or local laws, statutes, rules,
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regulations or ordinances relating to the generation,
recycling, use, reuse, sale, storage, handling, transport,
treatment or disposal of Hazardous Materials, including
without limitation the Comprehensive Environmental Response
Compensation Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. ss.9601 et seq. ("CERCLA"), the Resource Conservation
and Recovery Act of 1976, as amended by the Solid and
Hazardous Waste Amendments of 1984, 42 U.S.C. ss.6901 et seq.
("RCRA"), and any rules, regulations and guidance documents
promulgated or published thereunder, and any state, regional,
county or local statute, law, rule, regulation or ordinance
relating to public health, safety or the discharge, emission
or disposal of Hazardous Materials or Hazardous Wastes in or
to air, water, land or groundwater, to the withdrawal or use
of groundwater, to the use, handling or disposal of asbestos,
polychlorinated biphenyls, petroleum, petroleum derivatives or
by-products, other hydrocarbons or urea formaldehyde, to the
treatment, storage, disposal or management OF Hazardous
Materials, to exposure to Hazardous Materials, to the
transportation, storage, disposal, management or release of
gaseous or liquid substances, and any regulation, order,
injunction, judgment, declaration, notice or demand issued
thereunder.
"Hazardous Materials" means any hazardous, TOXIC OR dangerous
materials, substances, chemicals, waste or pollutants that
from time to time are defined by or pursuant to or are
regulated under any Environmental Laws, including without
limitation asbestos, polychlorinated biphenyls, petroleum,
petroleum derivatives or by-products, other hydrocarbons, urea
formaldehyde and any material, substance, pollutant or waste
that is defined as a hazardous waste under RCRA or defined as
a hazardous substance under CERCLA.
"Hazardous Wastes" means Hazardous Materials that are or
become "wastes" or "Solid wastes" as such terms are used in
RCRA.
"Property" means all real property now or hereafter
constituting a part of, or otherwise used or operated by
Borrower in connection with, the Business, including without
limitation the nursing homes described in Section l(b) above.
(ii) Borrower represents and warrants to Lender as
follows:
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(a) To Borrower's knowledge, information and
belief, the Property is being operated by Borrower in
full compliance with Environmental Laws, and Borrower
has obtained, maintained and is in good standing
under all approvals, consents, certificates, licenses
and permits required by Environmental Laws with
respect to the Property.
(b) To Borrower's knowledge, information and
belief, the Property is free of all Hazardous Wastes,
and is free of all Hazardous Materials other than
those maintained therein or thereon in full
compliance with Environmental Laws. Borrower has not
caused or permitted the Property to be used to
generate, manufacture, refine, transport, treat,
store, handle, dispose, transfer, produce or process
Hazardous Materials except in full compliance with
Environmental Laws.
(c) Borrower has not received notice, and
has no knowledge, of any noncompliance with or
violation of any Environmental Laws with respect to
the Property or the Business.
3. Covenants and Agreements. Borrower covenants and agrees during the
term of this Agreement as follows:
(a) Payment of Obligations. Borrower shall pay the
indebtednesses evidenced by the Notes according to the tenor thereof,
and shall timely pay or perform, as the case may be, all of its other
obligations to Lender.
(b) Further Assurances. Borrower will take all actions
requested by Lender to create and maintain in Lender's favor valid liens and/or
perfected security interests in any collateral for the Loan.
(c) Financial Statements. Borrower covenants to provide the
following financial information to Lender when indicated:
(i) within forty-five (45) days after the close of
each of Borrower's fiscal quarters, unaudited financial
statements of Borrower with respect to such quarter, in
reasonable detail, prepared in accordance with generally
accepted accounting principles consistently applied ("GAAP").
Such financial statements shall be accompanied by a statement
from an officer of Borrower that all of the covenants
contained herein have been met and complied with during the
preceding quarter;
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(ii) within ninety (90) days after the close of each
calendar year, financial statements of Borrower with respect
to such year, in reasonable detail, prepared in accordance
with GAAP, audited in accordance with generally accepted
auditing standards by an independent certified public
accounting firm acceptable to Lender, which statements shall
be accompanied by the unqualified opinion of such accountants.
The audited financial statements shall be accompanied by a
statement from an officer of Borrower that all of the
covenants contained herein have been met and complied with
during the preceding fiscal year.
(iii) within ninety (90) days after the close of each
calendar year, a certified copy of Borrower's Form 10-K with
respect to such year.
(iv) within forty-five (45) days after the close of
each of Borrower's fiscal quarters, a certified copy of
Borrower's Form 10-Q with respect to such quarter.
(v) within forty-five days after the close of each
of Borrower's fiscal quarters, separate, unaudited financial
statements for each Project, in reasonable detail, prepared in
accordance with GAAP.
(vi) within ninety (90) days after the close of each
calendar year, separate, unaudited financial statements for
each Project with respect to such year, in reasonable detail,
prepared in accordance with GAAP.
(vii) with reasonable promptness, such additional
inancial information as Lender may reasonably require.
(d) Insurance. Borrower shall maintain insurance coverage in
amounts and of types consistent with the coverages ordinarily, customarily and
prudently maintained by companies of similar size and scope, operating nursing
homes of similar value, size and location as that of Borrower. All such policies
of insurance shall provide that such insurance shall be payable to Borrower and
Lender as their respective interests may appear, and that at least thirty (30)
days' prior written notice of cancellation or modification of the policy shall
be given to Lender by the insurer.
(e) Taxes. Borrower shall file all required federal, state and
local tax returns and pay all taxes as shown on such returns as they become due,
and shall pay all other taxes, fees or other charges imposed on it prior to
delinquency.
(f) Existence. Borrower shall maintain its limited partnership
existence in good standing in the state of its
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organization and its qualification in good standing as a foreign entity in any
jurisdiction in which such qualification is necessary pursuant to applicable
law; provided, however, that Borrower may change its organizational structure to
a corporation upon Lender's prior written consent, which consent shall be
granted upon delivery to Lender of opinions of counsel and other evidence
reasonably requested and satisfactory in form and substance to Lender that the
Loan and the perfection and priority of Lender's liens and security interests in
and to the collateral security for the Loan shall not be affected by such
change.
(g) Compliance with Law and Other Agreements. Borrower shall
maintain its business operations and property owned or used in connection
therewith in compliance with (a) all applicable federal, state and local laws,
regulations and ordinances governing such business operations in the use and
ownership of such property, and (b) all agreements, licenses, franchises,
indentures and mortgages to which Borrower is a party or by which Borrower or
any of its properties is bound.
(h) Notice of Default. Borrower shall give written notice to
Lender of the occurrence of any default under this Agreement or any other Loan
Documents promptly upon the occurrence thereof.
(i) Notice of Litigation. Borrower shall give notice in
writing to Lender of any action, suit or proceeding wherein the amount in issue
is in excess of $1,000,000 instituted by any persons whomsoever against any
Borrower or any dispute between Borrower on the one hand and any governmental
regulatory body on the other hand in which dispute might interfere with the
normal operations of Borrower.
(j) ERISA Plan. If Borrower has in effect, or hereafter
institutes (with Lender's consent, as hereinafter provided), a pension plan that
is subject to the requirements of Title IV of the Employee Retirement Income
Security Act of 1974, Pub. L. No. 93-406, September 2, 1974, 00 Xxxx. 000, 00
X.X.X.X. Sections 1001 et seq. (1975), as amended from time to time ("ERISA"),
then the following warranty and covenants shall be applicable during such period
as any such plan (the "Plan") shall be in effect: (i) Borrower hereby warrants
that no fact that might constitute grounds for the involuntary termination of
the Plan, or for the appointment by the appropriate United States District Court
of a trustee to administer the Plan, exists at the time of execution of this
Agreement, (ii) Borrower hereby covenants that throughout the existence of the
Plan, Borrower's contributions under the Plan will meet the minimum funding
standards required by ERISA and Borrower will not institute a distress
termination of the Plan, (iii) Borrower hereby covenants that the Plan's annual
financial and actuarial statements and the Plan's annual Form 5500 information
return will be timely filed with the
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Internal Revenue Service and a copy delivered to Lender within thirty (30) days
of the preparation thereof, and (iv) Borrower covenants that it will send to
Lender a copy of any notice of a reportable event (as defined in ERISA) required
by ERISA to be filed with the Labor Department or the Pension Benefit Guaranty
Corporation, at the time that such notice is so filed.
(k) Mergers, Consolidations, Acquisitions and Sales. Without
the express prior written consent of Lender, Borrower shall not (a) be a party
to any merger, consolidation or reorganization, nor (b) purchase or otherwise
acquire all or substantially all of the assets or stock of any partnership or
joint venture interest in any other person, firm or entity, nor (c) sell,
transfer, convey or grant a security interest in or lease all or any substantial
part of its assets, nor (d) create any subsidiaries nor convey any of its assets
to any subsidiary.
(l) Environmental Matters.
(i) Borrower will cause the Property to remain free
of all Hazardous Wastes, and to remain free of all Hazardous
Materials other than those maintained therein or thereon in
full compliance with Environmental Laws. Borrower will not
cause or permit the Property to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce or process Hazardous Materials except in
full compliance with Environmental Laws.
(ii) Borrower will notify Lender immediately if it
receives any notice or obtains knowledge of any noncompliance
with or violation of any Environmental Laws with respect to
the Property or the Business.
(iii) In the event that Hazardous Materials unrelated
to the Business, or Hazardous Wastes, are discovered on or are
brought onto the Property, Borrower will cause such Hazardous
Materials or Hazardous Wastes to be removed and disposed of
promptly and in full compliance with Environmental Laws.
Borrower will provide Lender prior written notice of such
removal and disposal actions.
(iv) Borrower will comply with all Environmental
Laws in all jurisdictions in which Borrower operates, now or
in the future, and will comply with all Environmental Laws
that in the future become applicable to the Property or the
Business.
(m) Financial Covenants. Borrower shall comply with the
following financial covenants, with determination of compliance being made
quarterly:
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(i) Borrower shall at all times maintain a Current
Ratio of at least 1.5 to 1. As used herein, "Current Ratio"
shall mean the ratio of current assets to current liabilities.
(ii) Borrower shall at all times maintain a minimum
Working Capital level of $10,000,000.00. As used herein,
"Working Capital" shall mean current assets less current
liabilities.
(iii) Borrower shall at all times maintain a ratio of
Funded Debt to Adjusted Tangible Net Worth of no more than 3.5
to 1. As used herein, "Funded Debt" shall mean long term debt
(excluding Subordinated Debt), plus notes payable, plus
current maturities of long term debt, plus capitalized and
operating leases, plus guaranteed debt. As used herein,
"Adjusted Tangible Net Worth" shall mean the total equity of
Borrower, plus approximately $15,000,000.00 in deferred income
resulting from the profit on the sale of nursing home
properties to National Health Corporation as equity (which
amount shall decrease in accordance with Borrower's books and
records that comply with GAAP), plus Subordinated Debt, minus
the general intangibles of Borrower, including, without
limitation, goodwill and unamortized loan costs in excess of
$1,400,000.00. As used herein, "Subordinated Debt" shall mean
any indebtedness of Borrower to any other person or entity
that is expressly subordinated to the payment of, and security
for, any and all indebtednesses and obligations of Borrower to
Lender, whether now or hereafter existing, pursuant to
subordination agreement(s) that is satisfactory to Lender in
all respects.
(iv) Borrower shall at all times maintain a Debt
Service Coverage Ratio of not less than 1.3 to 1. As used
herein, "Debt Service Coverage Ratio" shall mean the ratio of
(x) the annualized sum of net income, plus
depreciation/amortization, plus interest expense, minus
distributions paid to holders of units of Borrower, for the
applicable fiscal year as projected by Borrower in written
financial projections furnished to Lender or as actually
paid, whichever is greater, to (y) interest expense, plus
current maturities of long term debt, plus any payments
required to fund any guaranty obligations of Borrower.
(v) Borrower shall at all times maintain a "Fixed
Charge Coverage Ratio" of not less than 1.10 to 1. As used
herein, "Fixed Charge Coverage Ratio" shall mean the ratio of
(x) the annualized sum of net income, plus
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depreciation and amortization, plus interest expense, plus
lease expense (excluding any components included in interest
expense and amortization), minus distributions paid to holders
of units of the Borrower for the fiscal year, as projected by
the Borrower in written financial projections furnished to the
Lender or as actually paid, whichever is greater, to (y) the
sum of interest expense, plus current maturities of long-term
debt, plus lease expense (excluding any components included in
interest expense and current maturities of long-term debt),
plus any payments required to fund any guaranty obligations of
the Borrower.
(vi) Borrower shall at all times maintain the
following minimum Tangible Net Worth requirements for the
following periods:
(A) From the date hereof through June 29,
1995, $69,400,000.
(B) On June 30, 1995 and on each subsequent
calendar quarter ending, the minimum Tangible Net
Worth requirements will increase by $1,400,000 per
quarter on a cumulative basis.
As used herein, "Tangible Net Worth" shall mean the
total equity of Borrower, plus Subordinated Debt, minus the
general intangibles of Borrower, including, without
limitation, goodwill and unamortized loan costs in excess of
$1,400,000.
(vii) Borrower shall at all times limit the balance
of notes receivable as set forth on its financial statements
to no more than Borrower's Adjusted Tangible Net Worth;
provided, however, that the notes receivable listed on Exhibit
I attached hereto shall be excluded from the balance of notes
receivable as set forth on Borrower's financial statements in
determining compliance with this subparagraph 3(n)(vii). The
listing of notes receivable on Exhibit I attached hereto may
be modified, amended, increased and/or reduced from time to
time by the Lender; provided, however, that any nursing home
project approved by Lender which results in a note receivable
to Borrower automatically shall be excluded from the balance
of notes receivables and shall be listed on Exhibit I.
(viii) All of the foregoing calculations, and all
account or financial terms, shall be made or construed in
accordance with GAAP.
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4. Default and Remedies.
(a) Events of Default. The occurrence of any of the following
shall constitute an Event of Default hereunder:
(i) The occurrence of any default in the payment of
principal of or interest on the indebtednesses evidenced by
the Notes that is not fully cured within five (5) days after
notice thereof to Borrower; provided, however, that no such
notice shall be given to Borrower with respect to a payment
default under any Note in the event that Lender has given at
least two (2) such notices to Borrower under such Note in the
then-previous twelve (12) month period, in which event the
failure to make any such payment within five (5) days of when
due shall constitute an Event of Default hereunder;
(ii) Any misrepresentation by Borrower as to any
matter hereunder or under any of the other Loan Documents or
delivery of any statement, notice or writing to Lender that is
untrue in any respect;
(iii) Failure of Borrower to pay or perform any of
its obligations under this Agreement, the Notes or any other
Loan Documents or any default or event of default shall occur
under any of the other Loan Documents;
(iv) Borrower shall (i) generally not pay or shall
be unable to pay its debts as such debts become due; or (ii)
shall make an assignment for the benefit of creditors or
petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part
of its assets; or (iii) shall commence any proceedings under
any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or (iv)
shall have had any such petition or application filed or any
such proceeding commenced against it in which an order for
relief is entered or an adjudication or appointment is made;
or (v) shall indicate by any act or omission, its consent to,
approval of or acquiescence in any such petition,
application, proceeding or order for relief or the
appointment of a custodian, receiver or trustee for it or a
substantial part of its assets; or (vi) shall suffer any such
custodianship, receivership or trusteeship to continue
undischarged for a period of thirty (30) days or more;
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(v) Borrower shall (x) fail to pay any indebtedness
for borrowed money (other than the Notes of the Borrower when
due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); or (y) fail to perform or
observe any term, covenant or condition on its part to be
performed or observed under any agreement or instrument
relating to any such indebtedness, when required to be
performed or observed, if the effect of such failure to
perform or observe is to accelerate the maturity of such
indebtedness;
(vi) Borrower shall be liquidated, dissolved,
partitioned or terminated or the charter or certificate of
authority shall expire or be revoked; or
(vii) Borrower shall default in the timely payment or
performance of any obligation now or hereafter owed to Lender
in connection with any other indebtedness of Borrower to
Lender;
With respect to any Event of Default described above that is capable of
being cured and that does not already provide its own cure procedure (a "Curable
Default"), the occurrence of such Curable Default shall not constitute an Event
of Default hereunder if such Curable Default is fully cured and/or corrected
within thirty (30) days (five (5) days, if such Curable Default may be cured by
payment of a sum of money) of notice thereof to Borrower given in accordance
with the provisions hereof; provided that if such Curable Default is of a nature
that it cannot be cured within 30 days and Borrower shall promptly,
continuously, and in good faith attempt to cure such Curable Default, then
Borrower shall have such additional time to cure such Curable Default as
Borrower may reasonably require (provided however, that such additional period
shall in no event exceed 75 days).
(b) Remedies. Upon the occurrence of an Event of Default
described in Subsection 4(iv) hereof, the indebtednesses evidenced by the Notes
as well as any other indebtedness of Borrower to Lender shall be immediately due
and payable in full; and upon the occurrence of any other Event of Default
described above, Lender at any time thereafter may, at its option, accelerate
the maturity of the indebtedness evidenced by the Notes as well as any and all
indebtednesses of Borrower to Lender, all without notice of any kind. Upon the
occurrence of such Event of Default and the acceleration of the maturity of the
indebtednesses evidenced by the Notes, Lender shall have all rights and remedies
that Lender may now or hereafter possess at law, in equity or by statute.
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5. Miscellaneous.
(a) Performance by Lender. If Borrower shall default in the
payment, performance or observance of any covenant, term or condition of this
Agreement, Lender may, at its option, pay, perform or observe the same and all
payments made or costs or expenses incurred by Lender in connection therewith,
with interest thereon at the default rate provided in the Notes, shall be
immediately repaid to Lender by Borrower.
(b) Successors and Assigns. All covenants and agreements
contained in this Agreement by or on behalf of Borrower or by or on behalf of
Lender shall bind and inure to the benefit of their respective heirs, legal
representatives, successors-in-title and assigns. Lender may grant
participations in all or any portion of its interest in the indebtednesses
evidenced by the Notes, provided that Lender shall promptly give notice thereof
to Borrower of any such participations.
(c) Costs and Expenses. Borrower shall pay any and all
reasonable costs and expenses (including reasonable attorney's fees) incurred by
Lender in connection with the making, administration, servicing, collection and
enforcement of the Loan, promptly upon demand of Lender.
(d) Severability. If any provision of this Agreement shall be
invalid or unenforceable, the remainder of this Agreement shall not be affected
and shall be enforced to the greatest extent permitted by law.
(e) Notices. Any notices permitted or required to be made
hereunder shall be made in writing, signed by the party giving such notice and
shall be delivered personally, telecopied or sent by certified mail or
nationally recognized courier service (such as Federal Express) to the party at
the address set forth below or at such other address as may be supplied in
writing and of which receipt has been acknowledged in writing. The date (i) of
personal delivery, with respect to all items delivered personally, (ii) of
receipt, with respect to all items sent by certified mail, or (iii) that is one
(1) business day after the date of delivery to such courier service, or after
transmission by telecopy, with respect to all items delivered by courier service
or telecopy, as applicable, shall be the date of such notice. For purposes of
this Agreement:
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The address of Lender is:
First American National Bank
First American Center
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy Number: 000-000-0000
The address of Borrower is:
National HealthCare L.P.
000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxx, Xx.
Telecopy Number: 615-890-0123
(f) Time of the Essence. Time is of the essence with respect
to each and every covenant, agreement and obligation of Borrower hereunder and
under all of the other Loan Documents.
(g) Article and Section Headings; Defined Terms. Numbered and
titled article and section headings and defined terms are for convenience only
and shall not be construed as amplifying or limiting any of the provisions of
this Agreement.
(h) No Previous Course of Dealing. No action(s) or inaction(s)
taken by Borrower and/or Lender prior to the date hereof shall be construed to
(a) establish a course of dealing between Borrower and Lender, (b) constitute a
waiver of any term or provision contained herein, or (c) modify in any way the
terms and provisions contained herein.
(i) Amendments Etc. No amendment, modification, termination,
or waiver of any provision of any Loan Document to which the Borrower is a
party, nor consent to any departure by the Borrower from any Loan Document to
which it is a party, shall in any event be effective unless the same shall be in
writing and signed by Lender, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(j) No Waiver. No failure or delay on the part of Lender in
exercising any right, power, or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power, or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power, or remedy hereunder. The rights and remedies provided herein
are cumulative, and are not exclusive of any other rights, powers, privileges,
or remedies, now or hereafter existing, at law or in equity or otherwise.
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(k) Integration. This Agreement and the Loan Documents contain
the entire agreement between the parties relating to the subject matter hereof
and supersede all oral statements and prior writings with respect thereto. The
execution of this Agreement and the other Loan Documents by the Borrower was not
based upon any facts or materials provided by Lender, nor was the Borrower
induced or influenced to execute this Agreement or any other Loan Document by
any representation, statement, analysis or promise made by Lender.
(1) Indemnity. The Borrower hereby agrees to defend,
indemnify, and hold Lender harmless from and against any and all claims,
damages, judgments, penalties, costs, and expenses (including attorney fees and
court costs now or hereafter arising from the aforesaid enforcement of this
clause) arising directly or indirectly from the activities of Borrower and its
affiliates, its predecessors in interest, or third parties with whom it has a
contractual relationship, or arising directly or indirectly from the violation
of any environmental protection, health, or safety law, whether such claims are
asserted by any governmental agency or any other person. This indemnity shall
survive termination of this Agreement.
(m) Survival of Representations and Warranties. All
representations and warranties contained herein or made by or furnished on
behalf of the Borrower in connection herewith shall survive the execution and
delivery of this Agreement and all other Loan Documents.
(n) Construction. Should any provision of this Agreement
require judicial interpretation, the parties hereto agree that the court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against one party by reason of the rule
of construction that a document is to be more strictly construed against the
party that itself or through its agent prepared the same, it being agreed that
Borrower, Lender and their respective agents have participated in the
preparation hereof.
(o) Jury Trial Waiver. BORROWER AND LENDER HEREBY WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR THE LOAN DOCUMENTS. NO OFFICER OF LENDER HAS AUTHORITY TO WAIVE,
CONDITION, OR MODIFY THIS PROVISION.
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(p) Interest and Loan Charges Not to Exceed Maximum Amounts
Allowed by Law. Anything in this Agreement, the Notes or any of the other Loan
Documents to the contrary notwithstanding, in no event whatsoever, whether by
reason of acceleration of the maturity of the unpaid balance of the Loan or
otherwise, shall the interest and loan charges agreed to be paid to Lender for
the use of the money advanced or to be advanced hereunder exceed the maximum
amounts collectible under applicable laws in effect from time to time. It is
understood and agreed by the parties that, if for any reason whatsoever the
interest or loan charges paid or contracted to be paid by Borrower in respect of
the Loan shall exceed the maximum amounts collectible under applicable laws in
effect from time to time, then ipso facto, the obligation to pay such interest
and/or loan charges shall be reduced to the maximum amounts collectible under
applicable laws in effect from time to time, and any amounts collected by Lender
that exceed such maximum amounts shall be applied to the reduction of the
principal balances of the Loan in such order as Lender elects and/or refunded to
Borrower so that at no time shall the interest or loan charges paid or payable
in respect of the Loan exceed the maximum amounts permitted from time to time by
applicable law.
(q) Relationships of Parties. Neither Lender nor Borrower
shall be deemed a partner, joint venturer or related entity of any other party
by reason of this Agreement or any transactions contemplated hereby.
(r) Third Party Beneficiaries. This Agreement and the other
Loan Documents are intended for the sole and exclusive benefit of the parties
hereto and their respective successors and permitted assigns, and shall not
serve to confer any rights or benefits in favor of any person or entity not a
party hereto; and no other person or entity shall have any right to rely on this
Agreement or the other Loan Documents, or to derive any benefit herefrom.
(s) Governing Law. This Agreement shall be construed and
enforced under the laws of the State of Tennessee.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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