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Exhibit 10.26
State: Georgia
This Instrument Was Prepared By:
Xxxxxxx X. Xxxxxxx
Xxxxxx, Xxxxxxxx & Xxxxxxx
Seventeenth Floor
Third National Bank Building
000 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(000) 000-0000
ASSUMPTION AND MODIFICATION AGREEMENT
This Assumption and Modification Agreement (this "Agreement") is
entered into as of the 17th day of October, 1991, by and among NATIONAL HEALTH
INVESTORS, INC., a Maryland corporation with offices at 000 Xxxx Xxxxxx, Xxxxx
0000, Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxx 00000 ("NHC-REIT"), NATIONAL
HEALTHCORP L.P. ("NHLP"), and THIRD NATIONAL BANK IN NASHVILLE, AGENT, as Agent
for Third National Bank in Nashville, ("TNB") and SouthTrust Bank of Alabama,
National Association ("ST") (TNB and ST are collectively hereinafter referred to
as the "Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to a Loan and Security Agreement dated as of December
16, 1988 (the "Loan and Security Agreement") among the National Health
Corporation Leveraged Employee Stock Ownership Trust (the "Borrower"), NHLP,
National Health Corporation ("National") and TNB, Sovran Bank/Central South (now
known as Sovran Bank/Tennessee) ("SBT"), ST and Irving Trust Company (now known
as Xxx Xxxx xx Xxx Xxxx) ("XXXX"), XXX, SBT, ST and BONY agreed, subject to the
terms and conditions of the Loan and Security Agreement, to make a loan (the
"Loan") to the Borrower for the purpose of enabling the Borrower to purchase
shares of common stock of National, followed by National's extension of a Fifty
Million Dollar ($50,000,000.00) line of credit to NHLP, the proceeds of which
were used and will continue to be used by NHLP solely for the refinancing of
existing debt and the acquisition, renovation and development of certain nursing
home properties approved by the Majority Banks (as such term is defined in the
Loan and Security Agreement); and
WHEREAS, the Loan is secured by, among other things, a Guarantee and
Contingent Purchase Agreement dated as of December 16, 1988 executed by NHLP and
National in favor of TNB, SBT, ST, BONY and Agent (the "NHLP/National
Guaranty"); and
WHEREAS, the performance and payment of NHLP and National under the
NHLP/National Guaranty is secured by, among other things, liens on and security
interests in health care centers (or land being developed into health care
centers) owned by NHLP in several states of the United States of America (the
"Pledged-Nursing Homes") and evidenced by deeds of trust, deeds to secure debt
and mortgages executed by NHLP to or for the benefit of the Agent, including
without limitation the deeds of trust, deeds to secure debt and mortgages
described below, each executed by NHLP in favor of Agent, and each dated as of
December 16, 1988 (collectively, the "Mortgages"):
(a) Tennessee Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing of record in Book 7732, page 83,
Register's Office for Davidson County, Tennessee;
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(b) Tennessee Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing of record in Book 240, page 347, Register's Office for
Xxxxxxx County, Tennessee;
(c) Deed of Trust of Leasehold Estate and Security Agreement record in
Book 240, page 348, Register's Office for Xxxxxxx County, Tennessee;
(d) Tennessee Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing, dated as of December 16, 1988, of record in Book 206, page
295, Register's Office for Xxxxx County, Tennessee;
(e) Tennessee Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing of record in LM Book 296, page 689, Register's Office for
Xxxxxxxxx County, Tennessee;
(f) Tennessee Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing of record in Book 1024, page 140, Register's Office for
Maury County, Tennessee;
(g) Mortgage of record in Mortgage Book 363, page 000, Xxxxxx Xxxxx'x
Xxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxxx;
(h) Deed of Trust, Assignment of Rents and Security Agreement of record
in Book 1246, page 1927, Office of Recorder of Deeds, St. Xxxxxxx County,
Missouri;
(i) Deed of Trust, Assignment of Rents and Security Agreement dated
December 16, 1988, of record in book 983, page 396, Office of Recorder of
Deeds, St. Xxxxxxxx County, Missouri;
(j) Deed of Trust, Assignment of Rents and Security Agreement of record
in Book 288, page 854, Office of Recorder of Deeds, Xxxxxxx County, Missouri;
(k) Deed of Trust, Assignment of Rents and Security Agreement, of
record in Book 8431, page 287, Office of Recorder of Deeds, St. Louis County,
Missouri;
(l) Second Mortgage and Security Agreement, of record in Book 770, page
000, Xxxxxx Xxxxx'x Xxxxxx xx Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx;
(m) Deed to Secure Debt and Security Agreement, of record in Book 602,
page 663, Office of the Clerk of Superior Court, Xxxxxx County, Georgia;
(n) Tennessee Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing of record in Trust Book 298, page 743, Register's Office for
XxXxxx County, Tennessee;
(o) Tennessee Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing of record in Book 147, page 416, Register's Office for
Xxxxxxxx County, Tennessee;
(p) Tennessee Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing of record in Trust Deed Book 257, page 882, Register's
Office for Xxxxxx County, Tennessee;
(q) Mortgage of record in Mortgage Book 377, page 149, Office of the
Clerk of Xxxxxxx County, Kentucky; and
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(r) Mortgage, Assignment of Rents, Security Agreement and
Fixture Filing of record in Book 1788, page 277, Office of Judge of
Probate, Xxxxxxx County, Alabama.
WHEREAS, NHLP also executed that certain Security Agreement dated
December 16, 1988 in favor of the Lenders, SBT and BONY regarding personal
property located on or used in connection with real property located in
Madisonville, Kentucky and that certain Security Agreement dated December 27,
1989, in favor of the lenders, SBT and BONY regarding personal property located
on or used in connection with real property located in Xxxxxx Springs, Kentucky
dated in 1989 (collectively, the "Security Agreements"); and
WHEREAS, NHLP desires to transfer the Pledged Nursing Homes, being all
property described in the Mortgages, into NHC-REIT; and
WHEREAS, the Mortgages prohibit the transfer of the Pledged Nursing
Homes without the Agent's prior written consent; and
WHEREAS, pursuant to that certain Assignment dated October 18, 1991
executed by BONY and TNB (the "BONY Assignment"), TNB has been assigned all of
BONY's rights, title and interest and obligations under and to the Loan and all
documentation executed by or on behalf of BONY in connection with the Loan; and
WHEREAS, pursuant to that certain Assignment dated October 17th, 1991
executed by SBT and TNB (the "SBT Assignment"), TNB has been assigned all of
SBT's rights, title and interest and obligations under and to the Loan and all
documentation executed by or on behalf of SBT in connection with the Loan; and
WHEREAS, the Agent on behalf of the Lenders has consented to the
transfer of the Pledged Nursing Homes by NHLP to NHC-REIT provided that, among
other things, NHLP and NHC-REIT execute this Agreement in favor of the Agent,
and NHC-REIT assume jointly and severally with NHLP all of the duties,
obligations, indebtedness, covenants, agreements, promises, representations and
warranties under the Mortgages, Security Agreements and all other documents
executed in connection therewith, without releasing NHLP therefrom; and
WHEREAS, NHLP and NHC-REIT, to induce the Agent to consent to the
transfer of the Pledged Nursing Homes and the other real property owned by NHLP
to NHC-REIT, desire to execute this Agreement;
NOW, THEREFORE, in consideration of the premises, and in order to
induce the Agent to consent to the transfer of the Pledged Nursing Homes by NHLP
to NHC-REIT, NHLP and NHC-REIT agree with the Agent as follows:
1. NHC-REIT hereby assumes, together with NHLP, joint and several
liability for all obligations, agreements, promises, indebtedness,
representations, warranties and covenants under each and all of the
Mortgages and Security Agreements, and any other documents, instruments and/or
agreements executed from time to time in connection with the Mortgages,
Security Agreements, any instruments evidencing any indebtedness secured by the
Mortgages and/or Security Agreements (the Mortgages, Security Agreements, and
all other documents, instruments and agreements are sometimes collectively
referred to herein as the "Loan Documents").
2. The Mortgages and the Security Agreements are hereby amended to the
extent necessary to reflect that NHC-REIT has assumed joint and several
liability with NHLP for all
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obligations, agreements, promises, indebtedness, representations, warranties and
covenants under, described in and/or arising pursuant to the Mortgages and
Security Agreements, and that references in the Mortgages and Security
Agreements to the "Grantor", "Mortgagor" and "Debtor" shall be deemed to refer
jointly and severally to NHC-REIT and NHLP.
3. Each of the Mortgages and Security Agreements is further amended to
the extent necessary to provide that the Agent referred to therein is now acting
as agent for TNB and ST and any of their successors and assigns, and not for
BONY and SBT, and that TNB has replaced BONY and SBT as the "Lenders," "Banks"
or "Mortgagees" thereunder.
4. Each of NHC-REIT and NHLP represents and warrants to the Agent and
the Lenders that:
(a) The execution and performance of this Agreement by
NHC-REIT have been validly authorized and approved by all necessary and
appropriate corporate action;
(b) The execution and performance of this Agreement by NHLP
have been validly authorized and approved by all necessary and
appropriate partnership actions;
(c) NHC-REIT is lawfully seized and possessed of all rights,
title and interest in and to the Pledged Nursing Homes (including all
improvements thereon) described in the Mortgages;
(d) Each Mortgage continues to be a first lien on that portion
of the Pledged Nursing Homes described therein (except as described on
Exhibit A hereto), and neither NHC-REIT nor NHLP has executed any other
deed of trust, mortgage, deed to secure debt or any other instrument,
or granted any liens in favor of any other person or entity, affecting
any portion of the Pledged Nursing Homes;
(e) No person or entity (other than as described in Exhibit A)
has any lien or any right to claim any lien upon any portion of the
Pledged Nursing Homes superior to the lien of the Agent on behalf of
the Lenders evidenced by the Mortgages;
(f) No event has occurred and no claim, offset, defense or
other condition exists which with passage of time or giving of notice
would constitute a default under any provision of any of the Mortgages,
Security Agreements, or any of the other Loan Documents;
(g) No event has occurred and no claim, offset, defense or
other condition exists that would relieve either NHC-REIT or NHLP of
any of their respective obligations to the Agent and/or Lenders under
the Mortgages, Security Agreements, or other Loan Documents; and
(h) Except as hereby expressly amended, all obligations under
the Mortgages, Security Agreements and other Loan Documents shall
continue in full force and effect.
5. This Agreement shall be governed by the laws of the State of
Tennessee, except to the extent that the law of the state in which any Mortgage
was recorded shall govern with respect to the enforcement or interpretation of
this Agreement as to such Mortgage.
6. This Agreement may be executed in counterparts, all of which shall
together constitute one instrument.
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IN WITNESS WHEREOF the parties have caused this Assignment to be signed
and sealed on the date set forth below but to be effective as of the date first
above written.
SIGNED, sealed and delivered NATIONAL HEALTHCORP L.P.
in the presence of and By: NHC, Inc., Managing
executed by the undersigned General Partner
on October 16 , 1991
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/s/
-------------------------------- By: /s/
Witness -------------------------
Title: President
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(SEAL)
/s/
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Notary Public
My Commission Expires: 1-23-94
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(Notary Seal)
SIGNED, sealed and NATIONAL HEALTH INVESTORS, INC.
delivered in the presence
of and executed by the
undersigned on October 16, 1991 By: /s/
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/s/ Title: President
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Witness (SEAL)
/s/
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Notary Public
My Commission Expires:1-23-94
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(Notary Seal)
SIGNED, sealed and THIRD NATIONAL BANK, IN
delivered in the presence NASHVILLE, AGENT
of and executed by the
undersigned on October 16, 1991
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/s/ By: /s/
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Witness Title: AVP
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(SEAL)
/s/
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Notary Public
My Commission Expires: 1-23-94
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(Notary Seal)
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