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Exhibit 4.1
THIRD AMENDMENT TO
364 DAY CREDIT AGREEMENT
THIS THIRD AMENDMENT TO 364 DAY CREDIT AGREEMENT is made and dated as
of September 22, 2000 (the "THIRD Amendment") among MANOR CARE, INC., a Delaware
corporation formerly known as HCR Manor Care, Inc. (the "COMPANY"), MANOR CARE
OF AMERICA, INC., a Delaware corporation formerly known as Manor Care, Inc.
("MANOR CARE"; Manor Care and the Company are collectively called the
"BORROWERS" and are each individually called a "BORROWER"), the financial
institution's party to the Credit Agreement referred to below, and BANK OF
AMERICA, N.A., a national banking association, as Administrative Agent (the
"AGENT"), and amends that certain 364 Day Credit Agreement dated as of September
25, 1998, as amended by that certain First Amendment to 364 Day Credit Agreement
dated as of September 24, 1999 and that certain Second Amendment to 364 Day
Credit Agreement dated as of February 9, 2000 (as amended or modified from time
to time, the "CREDIT AGREEMENT").
RECITALS
WHEREAS, the Borrowers have requested that the Agent and the Banks
amend certain provisions of the Credit Agreement, and the Agent and the Banks
are willing to do so, on the terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. TERMS. All terms used herein shall have the same meanings as in the
Credit Agreement unless otherwise defined herein.
2. AMENDMENTS. The Credit Agreement is hereby amended as follows:
2.1 AMENDMENTS TO COVER PAGE. The cover page of the Credit Agreement
is hereby amended and restated in its entirety to read as set forth in Exhibit B
hereof.
2.2 AMENDMENTS TO SECTION 1.1.
(a) The definition of the term "Consolidated EBITDA" in Section 1.1
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"CONSOLIDATED EBITDA" means the Company's and its Subsidiaries'
earnings BEFORE Consolidated Interest Expense, taxes, depreciation,
amortization, extraordinary items of gain and all Specified Losses and
BEFORE the $274,120,000 of charges taken by the Company in the quarter
ending December 31, 1999 in connection with the write-down of its
investment in Genesis Health Ventures, Inc. ("GENESIS"), the $17,404,000
charge taken by the Company in
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the quarter ending December 31, 1999 in connection with its write-off of
accrued and unpaid dividends from Genesis and the $27,300,000 of charges
taken by the Company in the quarter ending June 30, 2000 in connection with
the write-down of its investment in Genesis and in a joint venture with
Genesis and the write-down of certain receivables from Genesis, and AFTER
deduction of $4,351,000 for each of the fiscal quarters ending on March 31,
1999, June 30, 1999, September 30, 1999 and December 31, 1999.
(b) The definition of the term "Revolving Termination Date" in
Section 1.1 of the Credit Agreement is hereby amended by deleting the date
"September 22, 2000" from clause (a) thereof and replacing it with the date
"September 21, 2001."
2.3 AMENDMENTS TO SECTION 5.5. Section 5.5 of the Credit Agreement
is hereby amended by deleting the date "December 31, 1998" from clause (a)
thereof and replacing it with "December 31, 1999" and by deleting the date "June
30, 1999" from clause (b) thereof and replacing it with "June 30, 2000".
2.4 AMENDMENT TO SECTION 5.6. Section 5.6 of the Credit Agreement is
hereby amended by deleting the date "December 31, 1998" and replacing it with
"December 31, 1999."
2.5 AMENDMENT TO SCHEDULE 2.1. Schedule 2.1 to the Credit Agreement
is hereby amended and restated to read as set forth on Schedule 2.1 hereof.
3. REPRESENTATIONS AND WARRANTIES. The Borrowers represent and warrant
to the Agent and the Banks that, on and as of the date hereof, and after giving
effect to this Third Amendment:
3.1 AUTHORIZATION. The execution, delivery and performance by the
Borrowers of this Third Amendment have been duly authorized by all necessary
corporate action, and this Third Amendment has been duly executed and delivered
by the Borrowers.
3.2 BINDING OBLIGATION. This Third Amendment constitutes the legal,
valid and binding obligation of the Borrowers, enforceable against the Borrowers
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
3.3 NO LEGAL OBSTACLE TO AMENDMENT. The execution, delivery and
performance of this Third Amendment will not (a) contravene the Organization
Documents of either Borrower; (b) constitute a breach or default under any
material Contractual Obligation or violate or contravene any law or governmental
regulation or court decree or order binding on or affecting either Borrower
which individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or (c) result in, or require the creation or imposition
of, any Lien on any of either Borrower's properties. No approval or
authorization of any governmental authority is required to permit the execution,
delivery or performance by the Borrowers of this Third Amendment, or the
transactions contemplated hereby.
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3.4 INCORPORATION OF CERTAIN REPRESENTATIONS. After giving effect to
the terms of this Third Amendment, the representations and warranties of the
Company set forth in Article V of the Credit Agreement are true and correct in
all respects on and as of the date hereof as though made on and as of the date
hereof, except as to such representations made as of an earlier specified date.
3.5 DEFAULT. No Default or Event of Default under the Credit
Agreement has occurred and is continuing.
4. CONDITIONS, EFFECTIVENESS. The effectiveness of this Third Amendment
shall be subject to the compliance by the Borrowers with their agreements herein
contained, and to the delivery of the following to Agent in form and substance
satisfactory to Agent:
4.1 AMENDMENT FEE. An amendment fee (the "Amendment Fee"), for the
ratable benefit of the Banks that have consented to the Third Amendment not
later than 3:00 p.m., Eastern Standard Time, on September 21, 2000, in the
amounts set forth in the presentation to the Banks on August 8, 2000. The
Amendment Fee shall be paid to the Agent in immediately available funds and
shall be non-refundable. The Amendment Fee is in addition to any fees, costs,
expenses or other amounts otherwise payable pursuant to this Third Amendment or
the Amended Agreement.
4.2 GUARANTOR AFFIRMATION. An acknowledgment and reaffirmation
letter in the form of EXHIBIT A hereto duly executed by each party to the
Guaranty (a "Guarantor").
4.3 OTHER EVIDENCE. Such other evidence with respect to the
Borrowers or any other person as the Agent or any Bank may reasonably request to
establish the consummation of the transactions contemplated hereby, the taking
of all corporate action in connection with this Third Amendment and the Credit
Agreement and the compliance with the conditions set forth herein.
5. MISCELLANEOUS.
5.1 EFFECTIVENESS OF THE CREDIT AGREEMENT. Except as hereby
expressly amended, the Credit Agreement shall each remain in full force and
effect and is hereby ratified and confirmed in all respects on and as of the
date hereof.
5.2 WAIVERS. This Third Amendment is limited solely to the matters
expressly set forth herein and is specific in time and in intent and does not
constitute, nor should it be construed as, a waiver or amendment of any other
term or condition, right, power or privilege under the Credit Agreement or under
any agreement, contract, indenture, document or instrument mentioned therein;
nor does it preclude or prejudice any rights of the Agent or the Banks
thereunder, or any exercise thereof or the exercise of any other right, power or
privilege, nor shall it require the Majority Banks to agree to an amendment,
waiver or consent for a similar transaction or on a future occasion, nor shall
any future waiver of any right, power, privilege or default hereunder, or under
any agreement,
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contract, indenture, document or instrument mentioned in the Credit Agreement,
constitute a waiver of any other right, power, privilege or default of the same
or of any other term or provision.
5.3 COUNTERPARTS. This Third Amendment may be executed in any number
of counterparts, and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. This Third Amendment shall not become
effective until the Borrowers, the Agent and all Banks shall have signed a copy
hereof and the same shall have been delivered to the Agent and the conditions
set forth in Section 4 hereof have been satisfied. Delivery of an executed
counterpart of a signature page to this Third Amendment should be effective as
delivery of a manually executed counterpart of this Third Amendment.
5.4 GOVERNING LAW. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
5.5 SEVERABILITY. The illegality or unenforceability of any
provision of this Third Amendment or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or enforceability
of the remaining provisions of this Third Amendment or any instrument or
agreement required hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
MANOR CARE, INC.
By: ___________________________
Title: _________________________
MANOR CARE OF AMERICA, INC.
By: ___________________________
Title: _________________________
BANK OF AMERICA, N.A., as Agent
By: ___________________________
Title: _________________________
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BANK OF AMERICA, N.A., as a Bank
By: ___________________________
Title: _________________________
THE CHASE MANHATTAN BANK
By: ___________________________
Title: _________________________
THE HUNTINGTON NATIONAL BANK
By: ___________________________
Title: _________________________
THE BANK OF NEW YORK
By: ___________________________
Title: _________________________
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ALLFIRST BANK
By: ___________________________
Title: _________________________
NATIONAL CITY BANK
By: ___________________________
Title: _________________________
SUNTRUST BANK
By: ___________________________
Title: _________________________
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EXHIBIT A
TO THIRD AMENDMENT
TO CREDIT AGREEMENT
September 22, 2000
The parties listed on the acknowledgment pages hereof:
Re: 364 Day Credit Agreement dated as of
September 25, 1998
Ladies and Gentlemen:
Please refer to (i) the 364 Day Credit Agreement dated as of September
25, 1998, as amended (as so amended, the "CREDIT AGREEMENT") by and among Manor
Care, Inc. and Manor Care of America, Inc., as the borrowers, the commercial
lending institutions party thereto (the "BANKS") and Bank of America, N.A., as
administrative agent (in such capacity, the "AGENT") and (ii) the Guaranty dated
as of September 25, 1998 (the "GUARANTY"), which was executed by you on such
date or to which you later became a party pursuant to a Guaranty Assumption
Agreement. Pursuant to an amendment of even date herewith, certain terms of the
Credit Agreement were amended. We hereby request that you (i) consent to the
terms of the amendment, (ii) acknowledge and reaffirm all of your obligations
and undertakings under the Guaranty and (iii) acknowledge and agree that the
Guaranty is and shall remain in full force and effect in accordance with the
terms thereof.
Please indicate your agreement to the foregoing by signing in the space
provided below, and returning the executed copy to the undersigned.
Very truly yours,
BANK OF AMERICA, N.A., as Agent
By:________________________________
Title:_____________________________
Acknowledged and Agreed to:
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MANOR CARE, INC.
By:________________________________
Title:_____________________________
MANOR CARE OF AMERICA, INC.
By:________________________________
Title:_____________________________
ANCILLARY SERVICES MANAGEMENT, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES, INC.
CANTEBURY VILLAGE, INC.
DIVERSIFIED REHABILITATION SERVICES, INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EYE-Q NETWORK, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR ACQUISITION CORPORATION
HCR HOME HEALTH CARE AND HOSPICE, INC.
HCR INFORMATION CORPORATION
HCR PHYSICIAN MANAGEMENT SERVICES, INC.
HCR REHABILITATION CORP.
HCR THERAPY SERVICES, INC.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND MANAGEMENT SERVICES, INC.
HEARTLAND PAIN AND REHABILITATION
CENTER, INC.
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HEARTLAND REHABILITATION SERVICES OF
NORTH FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES, INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IONIA MANOR, INC.
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
LINCOLN HEALTH CARE, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATIONS SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MRC REHABILITATION, INC.
NUVISTA REFRACTIVE SURGERY AND LASER
CENTER, INC.
PERRYSBURG PHYSICAL THERAPY, INC.
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
REHABILITATION ADMINISTRATIVE CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE, INC.
REINBOLT AND BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
RVA MANAGEMENT SERVICES, INC.
SPRINGHILL MANOR, INC.
SUN VALLEY MANOR, INC.
THERAPY ASSOCIATES, INC.
THREE RIVERS MANOR, INC.
VISION MANAGEMENT SERVICES, INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
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By:____________________________________
Name: _________________________________
Its:____________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
AMERICAN HOSPITAL BUILDING CORPORATION
AMERICANA HEALTHCARE CENTER OF PALOS
TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION OF GEORGIA
AMERICANA HEALTHCARE CORPORATION OF NAPLES
ARCHIVE ACQUISITION, INC.
ARCHIVE RETRIEVAL SYSTEMS, INC.
BAILY NURSING HOME, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEVON MANOR CORPORATION
DISTCO, INC.
EXECUTIVE ADVERTISING, INC.
FOUR SEASONS NURSING CENTERS, INC.
HEALTHCARE CONSTRUCTION CORP.
INDUSTRIAL WASTES INC.
JACKSONVILLE HEALTHCARE CORPORATION
LEADER NURSING AND REHABILITATION
CENTER OF BETHEL PARK, INC.
LEADER NURSING AND REHABILITATION
CENTER OF GLOUCESTER, INC.
LEADER NURSING AND REHABILITATION
CENTER OF SCOTT TOWNSHIP, INC.
LEADER NURSING AND REHABILITATION
CENTER OF VIRGINIA INC.
MCHS OF NEW YORK, INC.
MNR FINANCE CORP.
MRS, INC.
MANORCARE HEALTH SERVICES, INC.
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MANORCARE HEALTH SERVICES OF BOYNTON
BEACH, INC.
MANORCARE HEALTH SERVICES OF GEORGIA, INC.
MANOR CARE AVIATION, INC.
MANOR CARE MANAGEMENT CORPORATION
MANOR CARE OF AKRON, INC.
MANOR CARE OF ARIZONA, INC.
MANOR CARE OF ARLINGTON, INC.
MANOR CARE OF BOCA RATON, INC.
MANOR CARE OF BOYNTON BEACH, INC.
MANOR CARE OF CANTON, INC.
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, INC.
MANORCARE HEALTH SERVICES OF NORTHHAMPTON
COUNTY, INC.
MANORCARE HEALTH SERVICES OF VIRGINIA, INC.
MANOR CARE OF HINSDALE, INC.
MANOR CARE OF KANSAS, INC.
MANOR CARE OF KINGSTON COURT, INC.
MANOR CARE OF LARGO, INC.
MANOR CARE OF LEXINGTON, INC.
MANOR CARE OF MEADOW PARK, INC.
MANOR CARE OF MESQUITE, INC.
MANOR CARE OF NORTH OLMSTEAD, INC.
MANOR CARE OF PINEHURST, INC.
MANOR CARE OF PLANTATION, INC.
MANOR CARE OF ROLLING MEADOWS, INC.
MANOR CARE OF ROSSVILLE, INC.
MANOR CARE OF SARASOTA, INC.
MANOR CARE OF WILLOUGHBY, INC.
MANOR CARE OF WILMINGTON, INC.
MANOR OF YORK (NORTH), INC.
MANOR OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANOR LIVING CENTERS, INC.
MEDICAL AID TRAINING SCHOOLS, INC.
NEW MANORCARE HEALTH SERVICES, INC.
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THE NIGHTINGALE NURSING HOME, INC.
PEAK REHABILITATION, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
ROLAND PARK NURSING CENTER, INC.
SILVER SPRING - WHEATON NURSING HOME, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
TOTALCARE CLINICAL LABORATORIES, INC.
By:____________________________________
Name: _________________________________
Its:____________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
CRESTVIEW ARDEN, LLC
FIRST LOUISVILLE ARDEN, LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LEXINGTON ARDEN, LLC
LINWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
NASHVILLE ARDEN, LLC
NISHAYUNA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SECOND LOUISVILLE ARDEN, LLC
SETAUKET ARDEN, LLC
SILVER SPRING ARDEN, LLC
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TAMPA ARDEN, LLC
TUSTIN ARDEN, LLC
WALL ARDEN, LLC
WEST WINDSOR ARDEN, LLC
WILLIAMSVILLE ARDEN, LLC
By: Manor Care of America, Inc.,
its sole member
By:____________________________________
Name: _________________________________
Its:____________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
BATH ARDEN, LLC
EMERSON SPRINGHOUSE, LLC
FRESNO ARDEN, LLC
LAKE ZURICH ARDEN, LLC
METUCHEN ARDEN, LLC
MIDDLETOWN ARDEN, LLC
MONROE ARDEN, LLC
MOORESTOWN ARDEN, LLC
OVERLAND PARK ARDEN, LLC
OVERLAND PARK SKILLED NURSING, LLC
ROCKFORD ARDEN, LLC
ROCKLEIGH ARDEN, LLC
TOM'S RIVER ARDEN, LLC
TUSCAWILLA ARDEN, LLC
WAYNE ARDEN, LLC
WAYNE SPRINGHOUSE, LLC
WEST DEPTFORD ARDEN, LLC
WEST ORANGE ARDEN, LLC
WEST ORANGE SPRINGHOUSE, LLC
By: Manor Care Health Services, Inc.,
its sole member
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By:____________________________________
Name: _________________________________
Its:____________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation,
its general partner
By:____________________________________
Name: _________________________________
Its:____________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation,
its general partner
By:____________________________________
Name: _________________________________
Its:____________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
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Telephone: 419-252-5500
HEARTLAND EMPLOYMENT SERVICES, INC.
By:____________________________________
Name: _________________________________
Its:____________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Corporation
By:____________________________________
Name: _________________________________
Title___________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
Alburquerque Arden, LLC
Colonie Arden, LLC
Geneva Arden, LLC
Glen Ellyn Arden, LLC
Kansas skilled Nursing, LLC
Laureldaly Arden, LLC
Susquehanna Arden, LLC
Warminster Arden, LLC
By: Manor Care of America, Inc.
By:____________________________________
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Name: _________________________________
Title___________________________________
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
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EXHIBIT B
TO THIRD AMENDMENT
TO CREDIT AGREEMENT
364 DAY
CREDIT AGREEMENT
Dated as of September 25, 1998,
as amended as of September 24, 1999,
February 9, 2000 and September 22, 2000
among
MANOR CARE OF AMERICA, INC.,
MANOR CARE, INC.,
BANK OF AMERICA, N.A.,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BANC OF AMERICA SECURITIES, LLC,
as Lead Arranger
and
CHASE SECURITIES INC.,
as Co-Lead Arranger
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SCHEDULE 2.1
COMMITMENTS AND PRO RATA SHARES
BANK COMMITMENT SHARE
Bank of America, N.A. $ 68,125,000 34.06%
The Chase Manhattan Bank $ 68,125,000 34.06%
The Bank of New York $ 20,000,000 10.00%
National City Bank $ 15,000,000 7.50%
AllFirst Bank $ 11,250,000 5.63%
The Huntington National Bank $ 10,000,000 5.00%
SunTrust Bank $ 7,500,000 3.75%
TOTAL $200,000,000 100%