EXHIBIT 4.13
FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of February 11, 2004 (this "First
Amendment"), to the Existing Credit Agreement referred to below is among MANOR
CARE, INC., a Delaware corporation (the "Borrower"), and the Lenders parties
hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, each lender from time to time parties thereto
(collectively, the "Lenders"), Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer, JPMorgan Chase Bank, as Syndication Agent, The
Bank of New York and Suntrust Bank, as Documentation Agents, UBS AG, Cayman
Islands Branch and Merrill Lynch Bank USA, as Senior Managing Agents, and Banc
of America Securities LLC, as Sole Lead Arranger and Sole Book Manager, are
parties to the Credit Agreement, dated as of April 21, 2003 (as amended,
supplemented, amended and restated or otherwise modified prior to the date
hereof, the "Existing Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend the Existing
Credit Agreement in certain respects as more specifically set forth herein; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
set forth herein, to amend the Existing Credit Agreement as more specifically
set forth herein (the Existing Credit Agreement, as amended by this First
Amendment, being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the agreements herein contained,
and for other valuable consideration the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows.
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this First Amendment shall have the following meanings
(such meanings to be equally applicable to the singular and plural form
thereof):
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"First Amendment" is defined in the preamble.
"First Amendment Effective Date" is defined in Part III.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this First Amendment with such meanings.
PART II
AMENDMENTS
Effective on the First Amendment Effective Date, the Existing Credit
Agreement is hereby amended in accordance with this Part II.
SUBPART 2.1. Amendments to Article I. Article I of the Existing Credit
Agreement is hereby amended as set forth in Subparts 2.1.1 and 2.1.2.
SUBPART 2.1.1. Section 1.01 of the Existing Credit Agreement is amended
by inserting the following definition in such Section in the appropriate
alphabetical order:
"First Amendment" means the First Amendment, dated as of
February 11, 2004, to this Agreement, among the Borrower and the
Lenders parties thereto.
"First Amendment Effective Date" is defined in Part III of the
First Amendment.
"LTACH Subsidiary" means a Subsidiary which (i) is engaged in
the business of being a long term acute care hospital, (ii) either (a)
has minority shareholders or other joint venturers or partners upon its
formation or (b) is a wholly owned Subsidiary of the Borrower or one of
the Borrower's Subsidiaries upon its formation, so long as within
twelve (12) months of such Subsidiary having a total asset value
exceeding $1,000,000, minority shareholders or other joint venturers or
partners, in addition to the Borrower or one or more of the Borrower's
Subsidiaries, shall own Equity Interests in such Subsidiary, and (iii)
complies, together with all other such Subsidiaries, with the
provisions of clause (b)(ii) of the definition of "Non-Obligor"
contained in this Section 1.01."
SUBPART 2.1.2. Section 1.01 of the Existing Credit Agreement is further
amended by replacing each reference to "one year" contained in the definition of
"Cash Equivalent Investment" with a reference in each case to "397 days".
SUBPART 2.1.3. Section 1.01 of the Existing Credit Agreement is further
amended by amending and restating the definition of "Non-Obligor" in its
entirety to read as follows:
"Non-Obligor" means (a) (i) any Subsidiary identified as a
Non-Obligor on Item 5.10(a) of the Disclosure Schedule; provided,
however, that any Subsidiary identified thereon as dormant shall cease
to be a Non-Obligor at such time as it ceases to be dormant, and a
Subsidiary having minority shareholders or other joint venturers or
partners shall cease to be a Non-Obligor at such time as it is
wholly-owned by the Borrower or any of its Subsidiaries, and (ii) any
Foreign Subsidiary; and (b) any Subsidiary of any Obligor created or
acquired after the Effective Date that is designated as such by such
Obligor by written notice to the Administrative Agent within 30 days of
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its formation or Acquisition; provided, however, that, without
duplication, (i) in the case of any Subsidiary which is not an LTACH
Subsidiary, (w) such Subsidiary shall not at any time have a total
asset value exceeding $1,000,000, and (x) the total Consolidated asset
value of all such Subsidiaries, excluding those Non-Obligors described
in clause (a) but including those Non-Obligors described in clause
(b)(ii), shall not exceed $50,000,000 at any time, and (ii) in the case
of any Subsidiary which is an LTACH Subsidiary, (y) such Subsidiary
shall not at any time have a total asset value exceeding $15,000,000,
it being understood and agreed that a lease by an LTACH Subsidiary of
property owned by a Subsidiary that is an Obligor shall not be deemed
to be an asset of such LTACH Subsidiary, and (z) the total Consolidated
asset value of all such Subsidiaries, excluding those Non-Obligors
described in clause (a) but including those Non-Obligors described in
clause (b)(i), shall not exceed $50,000,000 at any time; provided,
however, that, notwithstanding any of the foregoing to the contrary, no
Subsidiary which has otherwise guaranteed any obligation of the
Borrower or any other Subsidiary under any Notes Documents shall be
permitted to be a Non-Obligor under this Agreement so long as such
Subsidiary remains a guarantor under the terms of any such Notes
Documents."
SUBPART 2.1.4. Section 6.12 of the Existing Credit Agreement is amended
by amending and restating clause (b) thereof in its entirety to read as follows:
"(b) If any Non-Obligor or Non-Obligors, as applicable, of the type
referred to in (i) clause (a)(i) of the definition of "Non-Obligor"
ceases to be dormant and/or becomes a wholly owned Subsidiary, as
applicable, at any time, (ii) clause(b)(i)(w) of the definition of
"Non-Obligor" has a total asset value of greater than $1,000,000 at any
Fiscal Quarter end, (iii) clause(b)(ii)(y) of the definition of
"Non-Obligor" has a total asset value greater than $15,000,000 at any
Fiscal Quarter end, or (iv) clause(b)(i)(x) or clause (b)(ii)(z) of the
definition of "Non-Obligor" have a Consolidated total asset value
greater than $50,000,000 in the aggregate at any Fiscal Quarter end,
then, in any case, the Borrower shall notify the Administrative Agent
thereof within 30 days thereof and thereafter cause such Subsidiary or
Subsidiaries, as the case may be, to become a Guarantor by executing an
Assumption Agreement in the form of Exhibit 1 to the Guaranty to the
extent permissible under Applicable Law, it being understood in the
case of clause (iv) that only such Subsidiary or Subsidiaries as
selected by the Borrower as may be necessary to cause Consolidated
total asset value to not exceed $50,000,000 shall be required to become
Guarantors."
SUBPART 2.1.5. Section 7.02 of the Existing Credit Agreement is amended
by amending and restating clause (k) thereof in its entirety to read as follows:
"(k) Indebtedness owing to the Borrower or any other Subsidiary;
provided, however, that the principal amount of Indebtedness owing to
the Borrower or any Subsidiary from the LTACH Subsidiaries shall not
exceed $20,000,000 in the aggregate at any time."
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PART III
CONDITIONS TO EFFECTIVENESS
This First Amendment shall become effective on the date (the "First
Amendment Effective Date") when each of the conditions set forth in this Part
III have been satisfied.
SUBPART 3.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this First Amendment duly executed and delivered
on behalf of the Borrower and the Required Lenders.
SUBPART 3.2. Affirmation and Consent. The Administrative Agent shall
have received counterparts of an Affirmation and Consent, dated as of the First
Amendment Effective Date, in form and substance satisfactory to the
Administrative Agent, duly executed and delivered by each of the Obligors other
than the Borrower.
SUBPART 3.3. Costs and Expenses, etc. The Administrative Agent shall
have received for the account of each Lender and Mayer, Brown, Rowe & Maw LLP,
counsel to the Administrative Agent, all fees, costs and expenses due and
payable pursuant to Sections 2.09 and 10.04 of the Credit Agreement, if then
invoiced.
SUBPART 3.4. Legal Details, etc. The Administrative Agent and its
counsel shall have received all information, and such counterpart originals or
such certified or other copies of such materials, as the Administrative Agent or
its counsel may reasonably request, and all legal matters incident to the
effectiveness of this First Amendment shall be satisfactory to the
Administrative Agent and its counsel. All documents executed or submitted
pursuant hereto or in connection herewith shall be reasonably satisfactory in
form and substance to the Administrative Agent and its counsel.
PART IV
MISCELLANEOUS PROVISIONS
SUBPART 4.1. Cross-References. References in this First Amendment to
any Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this First Amendment.
SUBPART 4.2. Loan Document Pursuant to Existing Credit Agreement. This
First Amendment is a Loan Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with all of the terms and provisions of
the Existing Credit Agreement, as amended hereby, including Article X thereof.
SUBPART 4.3. Successors and Assigns. This First Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.4. Full Force and Effect; Limited Amendment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Loan Documents shall remain
unchanged and shall continue to be, and shall remain, in full force and effect
in accordance with their respective terms. The amendments set forth herein shall
be limited precisely as provided for herein to the provisions expressly amended
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herein and shall not be deemed to be an amendment to, waiver of, consent to or
modification of any other term or provision of any Loan Document referred to
therein or herein or of any transaction or further or future action on the part
of any Obligor which would require the consent of the Lenders under any of the
Loan Documents.
SUBPART 4.5. Governing Law. THIS FIRST AMENDMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSES SECTION 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
SUBPART 4.6. Execution in Counterparts. This First Amendment may be
executed in any number of counterparts by the parties hereto, each of which
counterparts when so executed shall be an original, but all the counterparts
shall together constitute one and the same agreement. The parties hereto agree
that delivery of an executed counterpart of a signature page to this First
Amendment by facsimile shall be effective as delivery of an original executed
counterpart of this First Amendment.
SUBPART 4.7. Representations and Warranties. In order to induce the
Lenders to execute and deliver this First Amendment, the Borrower hereby
represents and warrants to the Lenders, on the First Amendment Effective Date,
after giving effect to this First Amendment, all statements set forth in
Sections 4.02(a) and (b) of the Existing Credit Agreement are true and correct
as of such date, except to the extent that any such statement expressly relates
to an earlier date (in which case such statement was true and correct on and as
of such earlier date).
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their respective officers hereunto duly authorized as of the
day and year first above written.
MANOR CARE, INC.
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-1
BANK OF AMERICA, N.A., as a Lender
By:_________________________________
Title:
ACKNOWLEDGED BY:
BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
By:____________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-2
JPMORGAN CHASE BANK, as a Lender
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-3
THE BANK OF NEW YORK, as a Lender
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-4
SUNTRUST BANK, as a Lender
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-5
UBS AG, CAYMAN ISLANDS BRANCH, as a
Lender
By:_________________________________
Title:
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-6
MERRILL LYNCH BANK USA, as a Lender
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-7
THE HUNTINGTON NATIONAL BANK, as a
Lender
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-8
NATIONAL CITY BANK, as a Lender
By:_________________________________
Title:
SIGNATURE PAGE TO FIRST AMENDMENT, DATED AS OF FEBRUARY 11, 2004,
TO THE CREDIT AGREEMENT, DATED AS OF APRIL 21, 2003
FOR MANOR CARE, INC.
S-9