-----BEGIN PRIVACY-ENHANCED MESSAGE-----
Proc-Type: 2001,MIC-CLEAR
Originator-Name: webmaster@www.sec.gov
Originator-Key-Asymmetric:
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MIC-Info: RSA-MD5,RSA,
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0000950137-03-003978.txt : 20030728
0000950137-03-003978.hdr.sgml : 20030728
20030728135917
ACCESSION NUMBER: 0000950137-03-003978
CONFORMED SUBMISSION TYPE: S-4
PUBLIC DOCUMENT COUNT: 17
FILED AS OF DATE: 20030728
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: TOTALCARE CLINICAL LABORATORIES INC
CENTRAL INDEX KEY: 0001048416
IRS NUMBER: 521740933
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-07
FILM NUMBER: 03805564
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: STUTEX CORP
CENTRAL INDEX KEY: 0001048415
IRS NUMBER: 520884091
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-11
FILM NUMBER: 03805569
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: STEWALL CORP
CENTRAL INDEX KEY: 0001048404
IRS NUMBER: 520798475
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-13
FILM NUMBER: 03805571
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ROANOKE ARDEN LLC
CENTRAL INDEX KEY: 0001139413
IRS NUMBER: 522104706
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-20
FILM NUMBER: 03805578
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: REHABILITATION ADMINISTRATION CORP
CENTRAL INDEX KEY: 0001139407
IRS NUMBER: 611295825
STATE OF INCORPORATION: KY
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-25
FILM NUMBER: 03805583
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF WILMINGTON INC
CENTRAL INDEX KEY: 0001048341
IRS NUMBER: 521252362
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-35
FILM NUMBER: 03805596
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF PLANTATION INC
CENTRAL INDEX KEY: 0001048334
IRS NUMBER: 521383874
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-40
FILM NUMBER: 03805603
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: MD
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF LEXINGTON INC
CENTRAL INDEX KEY: 0001048366
IRS NUMBER: 521048770
STATE OF INCORPORATION: SC
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-45
FILM NUMBER: 03805608
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF KANSAS INC
CENTRAL INDEX KEY: 0001048363
IRS NUMBER: 521462071
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-48
FILM NUMBER: 03805611
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLETO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: NEW MANORCARE HEALTH SERVICES INC
CENTRAL INDEX KEY: 0001046030
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051]
IRS NUMBER: 522053999
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-55
FILM NUMBER: 03805618
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MESQUITE HOSPITAL LLC
CENTRAL INDEX KEY: 0001139376
IRS NUMBER: 522229486
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-65
FILM NUMBER: 03805628
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MEDI SPEECH SERVICE INC
CENTRAL INDEX KEY: 0001139374
IRS NUMBER: 382343280
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-67
FILM NUMBER: 03805630
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF DARIEN INC
CENTRAL INDEX KEY: 0001139368
IRS NUMBER: 521934884
STATE OF INCORPORATION: CT
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-74
FILM NUMBER: 03805637
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF CANTON INC
CENTRAL INDEX KEY: 0001048324
IRS NUMBER: 521019576
STATE OF INCORPORATION: OH
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-79
FILM NUMBER: 03805642
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: LINCOLN HEALTHCARE INC
CENTRAL INDEX KEY: 0001139364
IRS NUMBER: 341352822
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-88
FILM NUMBER: 03805651
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: KNOLLVIEW MANOR INC
CENTRAL INDEX KEY: 0001139360
IRS NUMBER: 381724149
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-93
FILM NUMBER: 03805656
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: KENSINGTON MANOR INC
CENTRAL INDEX KEY: 0001139357
IRS NUMBER: 591289690
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-95
FILM NUMBER: 03805658
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND SERVICES CORP
CENTRAL INDEX KEY: 0001139348
IRS NUMBER: 341760503
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-104
FILM NUMBER: 03805666
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND MANAGEMENT SERVICES INC
CENTRAL INDEX KEY: 0001139344
IRS NUMBER: 341808700
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-108
FILM NUMBER: 03805670
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND HOME CARE INC
CENTRAL INDEX KEY: 0001139340
IRS NUMBER: 341787895
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-111
FILM NUMBER: 03805673
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR HOSPITAL LLC
CENTRAL INDEX KEY: 0001139329
IRS NUMBER: 912039256
STATE OF INCORPORATION: NV
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-122
FILM NUMBER: 03805684
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HANOVER ARDEN LLC
CENTRAL INDEX KEY: 0001139323
IRS NUMBER: 522098633
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-125
FILM NUMBER: 03805687
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: FRESNO ARDEN LLC
CENTRAL INDEX KEY: 0001139318
IRS NUMBER: 522098630
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-129
FILM NUMBER: 03805691
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DEVON MANOR CORP
CENTRAL INDEX KEY: 0000856961
IRS NUMBER: 232093337
STATE OF INCORPORATION: PA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-138
FILM NUMBER: 03805704
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CLAIRE BRIDGE OF ANDERSON LLC
CENTRAL INDEX KEY: 0001139289
IRS NUMBER: 391973297
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-148
FILM NUMBER: 03805715
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CHARLES MANOR INC
CENTRAL INDEX KEY: 0001048405
IRS NUMBER: 520902287
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-150
FILM NUMBER: 03805717
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 11555 DARNESTOWN ROAD
CITY: GAITHERSBURG
STATE: MD
ZIP: 20878-3200
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ANNANDALE ARDEN LLC
CENTRAL INDEX KEY: 0001139281
IRS NUMBER: 522111069
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-159
FILM NUMBER: 03805726
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ANCILLARY SERVICES MANAGEMENT INC
CENTRAL INDEX KEY: 0001139279
IRS NUMBER: 34163874
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-161
FILM NUMBER: 03805728
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREE
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: AMERICANA HEALTHCARE CORP OF GEORGIA
CENTRAL INDEX KEY: 0001048369
IRS NUMBER: 371087694
STATE OF INCORPORATION: GA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-163
FILM NUMBER: 03805730
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 11555 DARNESTOWN RD
CITY: GAITHERSBURG
STATE: MD
ZIP: 20878-3200
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: AMERICANA HEALTHCARE CENTER OF PALOS TOWNSHIP INC
CENTRAL INDEX KEY: 0001139277
IRS NUMBER: 531352950
STATE OF INCORPORATION: IL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-164
FILM NUMBER: 03805731
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: TUSCAWILLA ARDEN LLC
CENTRAL INDEX KEY: 0001139442
IRS NUMBER: 522092162
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-06
FILM NUMBER: 03805563
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE INC
CENTRAL INDEX KEY: 0000878736
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051]
IRS NUMBER: 341687107
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399
FILM NUMBER: 03805568
BUSINESS ADDRESS:
STREET 1: 333 N. SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604-2617
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: P.O. BOX 10086
CITY: TOLEDO
STATE: OH
ZIP: 43699-0086
FORMER COMPANY:
FORMER CONFORMED NAME: HCR MANOR CARE INC
DATE OF NAME CHANGE: 19981001
FORMER COMPANY:
FORMER CONFORMED NAME: HEALTH CARE & RETIREMENT CORP / DE
DATE OF NAME CHANGE: 19930328
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SILVER SPRING ARDEN LLC
CENTRAL INDEX KEY: 0001139430
IRS NUMBER: 522107728
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-16
FILM NUMBER: 03805574
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SAN ANTONIO ARDEN LLC
CENTRAL INDEX KEY: 0001139425
IRS NUMBER: 522106496
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-17
FILM NUMBER: 03805575
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: RIDGEVIEW MANOR INC
CENTRAL INDEX KEY: 0001139412
IRS NUMBER: 381734212
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-21
FILM NUMBER: 03805579
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: TAMPA ARDEN LLC
CENTRAL INDEX KEY: 0001139436
IRS NUMBER: 522113270
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-26
FILM NUMBER: 03805584
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: NIGHTINGALE NURSING HOME INC
CENTRAL INDEX KEY: 0001048396
IRS NUMBER: 231719762
STATE OF INCORPORATION: PA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-29
FILM NUMBER: 03805587
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF YORK NORTH INC
CENTRAL INDEX KEY: 0001048343
IRS NUMBER: 521314645
STATE OF INCORPORATION: PA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-34
FILM NUMBER: 03805592
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF WILLOUGHBY INC
CENTRAL INDEX KEY: 0001048340
IRS NUMBER: 520970449
STATE OF INCORPORATION: OH
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-36
FILM NUMBER: 03805597
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF PINEHURST INC
CENTRAL INDEX KEY: 0001048333
IRS NUMBER: 521069744
STATE OF INCORPORATION: NC
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-41
FILM NUMBER: 03805604
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF MEADOW PARK INC
CENTRAL INDEX KEY: 0001048367
IRS NUMBER: 521339998
STATE OF INCORPORATION: WA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-44
FILM NUMBER: 03805607
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF HINSDALE INC
CENTRAL INDEX KEY: 0001048361
IRS NUMBER: 520970446
STATE OF INCORPORATION: IL
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-49
FILM NUMBER: 03805612
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PEAK REHABILITATION INC
CENTRAL INDEX KEY: 0001048397
IRS NUMBER: 521833202
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-54
FILM NUMBER: 03805617
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: NAPA ARDEN LLC
CENTRAL INDEX KEY: 0001139396
IRS NUMBER: 522108866
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-56
FILM NUMBER: 03805619
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MILESTONE THERAPY SERVICES INC
CENTRAL INDEX KEY: 0001139391
IRS NUMBER: 752406307
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-59
FILM NUMBER: 03805622
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MID SHORE PHYSICAL THERAPY ASSOCIATES INC
CENTRAL INDEX KEY: 0001139379
IRS NUMBER: 222575292
STATE OF INCORPORATION: NJ
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-64
FILM NUMBER: 03805627
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MEMPHIS ARDEN LLC
CENTRAL INDEX KEY: 0001139375
IRS NUMBER: 522098029
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-66
FILM NUMBER: 03805629
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANORCARE HEALTH SERVICES OF VIRGINIA INC
CENTRAL INDEX KEY: 0001048360
IRS NUMBER: 522002773
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-70
FILM NUMBER: 03805633
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF CENTREVILLE INC
CENTRAL INDEX KEY: 0001048325
IRS NUMBER: 521933544
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-78
FILM NUMBER: 03805641
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF AMERICA INC
CENTRAL INDEX KEY: 0001139367
IRS NUMBER: 521200376
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-84
FILM NUMBER: 03805647
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE AVIATION INC
CENTRAL INDEX KEY: 0001048352
IRS NUMBER: 521462072
STATE OF INCORPORATION: DE
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-86
FILM NUMBER: 03805649
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: LEADER NURSING & REHABILITATION CTR OF SCOTT TOWNSHIP INC
CENTRAL INDEX KEY: 0001048379
IRS NUMBER: 521462056
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-90
FILM NUMBER: 03805653
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: JEFFERSON ARDEN LLC
CENTRAL INDEX KEY: 0001139354
IRS NUMBER: 522111068
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-96
FILM NUMBER: 03805659
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: INDUSTRIAL WASTES INC
CENTRAL INDEX KEY: 0001048350
IRS NUMBER: 251264509
STATE OF INCORPORATION: PA
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-100
FILM NUMBER: 03805662
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HGCC OF ALLENTOWN INC
CENTRAL INDEX KEY: 0000733427
IRS NUMBER: 232244532
STATE OF INCORPORATION: TN
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-102
FILM NUMBER: 03805664
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND MEDICAL INFORMATION SERVICES INC
CENTRAL INDEX KEY: 0001139345
IRS NUMBER: 311488831
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-107
FILM NUMBER: 03805669
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND EMPLOYMENT SERVICES INC
CENTRAL INDEX KEY: 0001139339
IRS NUMBER: 341903270
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-112
FILM NUMBER: 03805674
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEALTHCARE CONSTRUCTION CORP
CENTRAL INDEX KEY: 0001048389
IRS NUMBER: 521519915
STATE OF INCORPORATION: NC
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-114
FILM NUMBER: 03805676
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR PHYSICIAN MANAGEMENT SERVICES INC
CENTRAL INDEX KEY: 0001139333
IRS NUMBER: 582242001
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-118
FILM NUMBER: 03805680
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR HOSPITAL HOLDING CO INC
CENTRAL INDEX KEY: 0001139328
IRS NUMBER: 922038485
STATE OF INCORPORATION: NV
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-123
FILM NUMBER: 03805685
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: GREENVIEW MANOR INC
CENTRAL INDEX KEY: 0001139321
IRS NUMBER: 386062040
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-126
FILM NUMBER: 03805688
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: GENEVA ARDEN LLC
CENTRAL INDEX KEY: 0001139319
IRS NUMBER: 522124930
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-128
FILM NUMBER: 03805690
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: FOUR SEASONS NURSING CENTERS INC
CENTRAL INDEX KEY: 0001048424
IRS NUMBER: 730783484
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-130
FILM NUMBER: 03805692
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DEKALB HEALTHCARE CORP
CENTRAL INDEX KEY: 0001048390
IRS NUMBER: 371019112
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-139
FILM NUMBER: 03805705
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CRESTVIEW HILLS ARDEN LLC
CENTRAL INDEX KEY: 0001139309
IRS NUMBER: 522092155
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-140
FILM NUMBER: 03805706
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: COLEWOOD LTD PARTNERSHIP
CENTRAL INDEX KEY: 0001139295
IRS NUMBER: 521335634
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-142
FILM NUMBER: 03805709
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CHESAPEAKE MANOR INC
CENTRAL INDEX KEY: 0001048406
IRS NUMBER: 520902288
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-149
FILM NUMBER: 03805716
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 11555 DARNESTOWN ROAD
CITY: GAITHERSBURG
STATE: MD
ZIP: 20878-3200
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CANTERBURY VILLAGE INC
CENTRAL INDEX KEY: 0001139288
IRS NUMBER: 382032536
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-151
FILM NUMBER: 03805718
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BINGHAM FARMS ARDEN LLC
CENTRAL INDEX KEY: 0001139284
IRS NUMBER: 522106495
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-155
FILM NUMBER: 03805722
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: AMERICANA HEALTHCARE CORP OF NAPLES
CENTRAL INDEX KEY: 0001048370
IRS NUMBER: 371087694
STATE OF INCORPORATION: FL
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-162
FILM NUMBER: 03805729
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 11555 DARNESTOWN RD
CITY: GAITHERSBURG
STATE: MD
ZIP: 20878-3200
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: WASHTENAW HILLS MANOR INC
CENTRAL INDEX KEY: 0001139447
IRS NUMBER: 382686882
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-03
FILM NUMBER: 03805560
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SILVER SPRING WHEATON NURSING HOME INC
CENTRAL INDEX KEY: 0001048402
IRS NUMBER: 530245649
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-15
FILM NUMBER: 03805573
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: RICHARDS HEALTHCARE INC
CENTRAL INDEX KEY: 0001139411
IRS NUMBER: 760339241
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-22
FILM NUMBER: 03805580
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF SARASOTA INC
CENTRAL INDEX KEY: 0001048338
IRS NUMBER: 521252364
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-37
FILM NUMBER: 03805600
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF MIAMISBURG INC
CENTRAL INDEX KEY: 0001048371
IRS NUMBER: 521708219
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-43
FILM NUMBER: 03805606
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PORTFOLIO ONE INC
CENTRAL INDEX KEY: 0001048342
IRS NUMBER: 221604502
STATE OF INCORPORATION: NJ
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-50
FILM NUMBER: 03805613
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MILESTONE HEALTHCARE INC
CENTRAL INDEX KEY: 0001018156
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SPECIALTY OUTPATIENT FACILITIES, NEC [8093]
IRS NUMBER: 752592398
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-62
FILM NUMBER: 03805625
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF CINCINNATI INC
CENTRAL INDEX KEY: 0001048327
IRS NUMBER: 520943592
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-76
FILM NUMBER: 03805639
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43064
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF ARIZONA INC
CENTRAL INDEX KEY: 0001048353
IRS NUMBER: 521751861
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-83
FILM NUMBER: 03805646
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: LEADER NURSING & REHABILITATION CTR OF GLOUCESTER INC
CENTRAL INDEX KEY: 0001048380
IRS NUMBER: 521352949
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-91
FILM NUMBER: 03805654
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND REHABILITATION SERVICES OF FLORIDA INC
CENTRAL INDEX KEY: 0001139346
IRS NUMBER: 952504386
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-106
FILM NUMBER: 03805668
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: GEORGIAN BLOOMFIELD INC
CENTRAL INDEX KEY: 0001139320
IRS NUMBER: 381982410
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-127
FILM NUMBER: 03805689
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: FIRST LOUISVILLE ARDEN LLC
CENTRAL INDEX KEY: 0001139317
IRS NUMBER: 522092159
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-131
FILM NUMBER: 03805695
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CLAIRE BRIDGE OF SAN ANTONIO LLC
CENTRAL INDEX KEY: 0001139292
IRS NUMBER: 391973324
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-145
FILM NUMBER: 03805712
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BATH ARDEN LLC
CENTRAL INDEX KEY: 0001139283
IRS NUMBER: 522099206
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-166
FILM NUMBER: 03805733
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: THERASPORT PHYSICAL THERAPY INC
CENTRAL INDEX KEY: 0001139438
IRS NUMBER: 383324355
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-09
FILM NUMBER: 03805566
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SPRINGHILL MANOR INC
CENTRAL INDEX KEY: 0001139432
IRS NUMBER: 381890497
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-14
FILM NUMBER: 03805572
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ROLAND PARK NURSING CENTER INC
CENTRAL INDEX KEY: 0001048401
IRS NUMBER: 521890169
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-19
FILM NUMBER: 03805577
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SUN VALLEY MANOR INC
CENTRAL INDEX KEY: 0001139433
IRS NUMBER: 381798425
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-28
FILM NUMBER: 03805586
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE PROPERTIES INC
CENTRAL INDEX KEY: 0001058715
IRS NUMBER: 522061834
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-32
FILM NUMBER: 03805590
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF ROSSVILLE INC
CENTRAL INDEX KEY: 0001048337
IRS NUMBER: 521077857
STATE OF INCORPORATION: MD
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-38
FILM NUMBER: 03805601
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PERRYSBURG PHYSICAL THERAPY INC
CENTRAL INDEX KEY: 0001139401
IRS NUMBER: 341363071
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-53
FILM NUMBER: 03805616
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MNR FINANCE CORP
CENTRAL INDEX KEY: 0001048345
IRS NUMBER: 510348281
STATE OF INCORPORATION: DE
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-58
FILM NUMBER: 03805621
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MARINA VIEW MANOR INC
CENTRAL INDEX KEY: 0001139372
IRS NUMBER: 391164707
STATE OF INCORPORATION: WI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-68
FILM NUMBER: 03805631
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF FLORIDA INC
CENTRAL INDEX KEY: 0001048331
IRS NUMBER: 521479084
STATE OF INCORPORATION: FL
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-71
FILM NUMBER: 03805634
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: MD
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF CHARLESTON INC
CENTRAL INDEX KEY: 0001048326
IRS NUMBER: 521187059
STATE OF INCORPORATION: SC
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-77
FILM NUMBER: 03805640
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF ARLINGTON INC
CENTRAL INDEX KEY: 0001048355
IRS NUMBER: 521067426
STATE OF INCORPORATION: VA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-82
FILM NUMBER: 03805645
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: JACKSONVILLE HEALTHCARE CORP
CENTRAL INDEX KEY: 0001048336
IRS NUMBER: 371069936
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-97
FILM NUMBER: 03805660
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: LASKIN HERBERT RPT MCKENZIE JOHN RPT PHYS THERA PRO ASSO INC
CENTRAL INDEX KEY: 0001139350
IRS NUMBER: 222137595
STATE OF INCORPORATION: NJ
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-103
FILM NUMBER: 03805665
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND HOSPICE SERVICES INC
CENTRAL INDEX KEY: 0001139343
IRS NUMBER: 341788398
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-109
FILM NUMBER: 03805671
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCRA OF TEXAS INC
CENTRAL INDEX KEY: 0001139335
IRS NUMBER: 742788668
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-116
FILM NUMBER: 03805678
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR HOME HEALTH CARE & HOSPICE INC
CENTRAL INDEX KEY: 0001139326
IRS NUMBER: 341787978
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-124
FILM NUMBER: 03805686
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: EYE Q NETWORK INC
CENTRAL INDEX KEY: 0001139316
IRS NUMBER: 341760305
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-132
FILM NUMBER: 03805696
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BLUE RIDGE REHABILITATION SERVICES INC
CENTRAL INDEX KEY: 0001139286
IRS NUMBER: 541508699
STATE OF INCORPORATION: VA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-153
FILM NUMBER: 03805720
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ANCILLARY SERVICES LLC
CENTRAL INDEX KEY: 0001139280
IRS NUMBER: 522166500
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-160
FILM NUMBER: 03805727
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MILESTONE STAFFING SERVICES INC
CENTRAL INDEX KEY: 0001139390
IRS NUMBER: 742963093
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-60
FILM NUMBER: 03805623
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DIVERSIFIED REHABILITATION SERVICES INC
CENTRAL INDEX KEY: 0001139310
IRS NUMBER: 382690352
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-136
FILM NUMBER: 03805702
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF ROLLING MEADOWS INC
CENTRAL INDEX KEY: 0001048335
IRS NUMBER: 521077856
STATE OF INCORPORATION: IL
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-39
FILM NUMBER: 03805602
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF DELAWARE COUNTY INC
CENTRAL INDEX KEY: 0001048329
IRS NUMBER: 521916053
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-73
FILM NUMBER: 03805636
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: KENWOOD ARDEN LLC
CENTRAL INDEX KEY: 0001139359
IRS NUMBER: 522116657
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-94
FILM NUMBER: 03805657
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BAILY NURSING HOME INC
CENTRAL INDEX KEY: 0001048373
IRS NUMBER: 231674218
STATE OF INCORPORATION: PA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-158
FILM NUMBER: 03805725
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 11555 DARNESTOWN RD
CITY: GAITHERSBURG
STATE: MD
ZIP: 20878-3200
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MRH REHABILITATION INC
CENTRAL INDEX KEY: 0001139394
IRS NUMBER: 593357644
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-57
FILM NUMBER: 03805620
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: LIVONIA ARDEN LLC
CENTRAL INDEX KEY: 0001139366
IRS NUMBER: 522104704
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-87
FILM NUMBER: 03805650
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: RVA MANAGEMENT SERVICES INC
CENTRAL INDEX KEY: 0001139417
IRS NUMBER: 341791517
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-18
FILM NUMBER: 03805576
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF BOCA RATON INC
CENTRAL INDEX KEY: 0001048356
IRS NUMBER: 521297340
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-81
FILM NUMBER: 03805644
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: IN HOME HEALTH INC /MN/
CENTRAL INDEX KEY: 0000818645
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOME HEALTH CARE SERVICES [8082]
IRS NUMBER: 411458213
STATE OF INCORPORATION: MN
FISCAL YEAR END: 0930
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-101
FILM NUMBER: 03805663
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FORMER COMPANY:
FORMER CONFORMED NAME: IN HOME HEALTH INC
DATE OF NAME CHANGE: 19880803
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: EXECUTIVE ADVERTISING INC
CENTRAL INDEX KEY: 0001048387
IRS NUMBER: 520912751
STATE OF INCORPORATION: MD
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-133
FILM NUMBER: 03805699
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: AMERICAN HOSPITAL BUILDING CORP
CENTRAL INDEX KEY: 0001048357
IRS NUMBER: 520985621
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-165
FILM NUMBER: 03805732
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: STRATFORD MANOR INC
CENTRAL INDEX KEY: 0001048385
IRS NUMBER: 520902020
STATE OF INCORPORATION: VA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-12
FILM NUMBER: 03805570
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANORCARE HEALTH SERVICES OF BOYNTON BEACH INC
CENTRAL INDEX KEY: 0001139370
IRS NUMBER: 522055100
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-31
FILM NUMBER: 03805589
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MILESTONE HEALTH SYSTEMS INC
CENTRAL INDEX KEY: 0001139381
IRS NUMBER: 752245197
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-63
FILM NUMBER: 03805626
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: LEADER NURSING & REHABILITATION CENTER OF VIRGINIA INC
CENTRAL INDEX KEY: 0001048362
IRS NUMBER: 521363206
STATE OF INCORPORATION: VA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-89
FILM NUMBER: 03805652
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR INFORMATION CORP
CENTRAL INDEX KEY: 0001139330
IRS NUMBER: 311494764
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-121
FILM NUMBER: 03805683
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CLAIRE BRIDGE OF SUSQUEHANNA LLC
CENTRAL INDEX KEY: 0001139293
IRS NUMBER: 391973366
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-144
FILM NUMBER: 03805711
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANORCARE HEALTH SERVICES OF NORTHHAMPTON COUNTY INC
CENTRAL INDEX KEY: 0001048332
IRS NUMBER: 522004471
STATE OF INCORPORATION: PA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-30
FILM NUMBER: 03805588
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: IONIA MANOR INC
CENTRAL INDEX KEY: 0001139353
IRS NUMBER: 381749970
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-98
FILM NUMBER: 03805661
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: COLONIE ARDEN LLC
CENTRAL INDEX KEY: 0001139308
IRS NUMBER: 522130894
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-141
FILM NUMBER: 03805708
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BAINBRIDGE ARDEN LLC
CENTRAL INDEX KEY: 0001139282
IRS NUMBER: 522098028
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-157
FILM NUMBER: 03805724
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: REINBOLT & BURKAM INC
CENTRAL INDEX KEY: 0001139410
IRS NUMBER: 341479648
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-23
FILM NUMBER: 03805581
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MILESTONE REHABILITATION SERVICES INC
CENTRAL INDEX KEY: 0001139382
IRS NUMBER: 752190857
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-61
FILM NUMBER: 03805624
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR MANORCARE MESQUITE LP
CENTRAL INDEX KEY: 0001139332
IRS NUMBER: 522229490
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-119
FILM NUMBER: 03805681
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF YORK SOUTH INC
CENTRAL INDEX KEY: 0001048344
IRS NUMBER: 521314644
STATE OF INCORPORATION: PA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-33
FILM NUMBER: 03805591
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR REHABILITATION CORP
CENTRAL INDEX KEY: 0001139334
IRS NUMBER: 341720345
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-117
FILM NUMBER: 03805679
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: WALL ARDEN LLC
CENTRAL INDEX KEY: 0001139444
IRS NUMBER: 522098990
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-05
FILM NUMBER: 03805562
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SUSQUEHANNA ARDEN LLC
CENTRAL INDEX KEY: 0001139434
IRS NUMBER: 522124933
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-27
FILM NUMBER: 03805585
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF DUNEDIN INC
CENTRAL INDEX KEY: 0001048330
IRS NUMBER: 521252397
STATE OF INCORPORATION: FL
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-72
FILM NUMBER: 03805635
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF AKRON INC
CENTRAL INDEX KEY: 0001048351
IRS NUMBER: 520970447
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-85
FILM NUMBER: 03805648
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCRC INC
CENTRAL INDEX KEY: 0001139336
IRS NUMBER: 222784172
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-115
FILM NUMBER: 03805677
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CLAIRE BRIDGE OF WARMINSTER LLC
CENTRAL INDEX KEY: 0001139294
IRS NUMBER: 391973327
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-143
FILM NUMBER: 03805710
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: WHITEHALL MANOR INC
CENTRAL INDEX KEY: 0001139454
IRS NUMBER: 382189772
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-02
FILM NUMBER: 03805559
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: REHABILITATION SERVICES OF ROANOKE INC
CENTRAL INDEX KEY: 0001139409
IRS NUMBER: 540993013
STATE OF INCORPORATION: VA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-24
FILM NUMBER: 03805582
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF LARGO INC
CENTRAL INDEX KEY: 0001048365
IRS NUMBER: 521065213
STATE OF INCORPORATION: MD
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-46
FILM NUMBER: 03805609
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PNEUMATIC CONCRETE INC
CENTRAL INDEX KEY: 0001048375
IRS NUMBER: 620716951
STATE OF INCORPORATION: TN
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-51
FILM NUMBER: 03805614
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF COLUMBIA INC
CENTRAL INDEX KEY: 0001048328
IRS NUMBER: 520940578
STATE OF INCORPORATION: SC
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-75
FILM NUMBER: 03805638
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF BOYNTON BEACH INC
CENTRAL INDEX KEY: 0001048358
IRS NUMBER: 521288882
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-80
FILM NUMBER: 03805643
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND REHABILITATION SERVICES INC
CENTRAL INDEX KEY: 0001139347
IRS NUMBER: 341280619
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-105
FILM NUMBER: 03805667
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND HOME HEALTH CARE SERVICES INC
CENTRAL INDEX KEY: 0001139341
IRS NUMBER: 341787967
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-110
FILM NUMBER: 03805672
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DISTCO INC
CENTRAL INDEX KEY: 0001048384
IRS NUMBER: 520853907
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-137
FILM NUMBER: 03805703
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CLAIRE BRIDGE OF AUSTIN LLC
CENTRAL INDEX KEY: 0001139290
IRS NUMBER: 391973318
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-147
FILM NUMBER: 03805714
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: THERAPY ASSOCIATES INC
CENTRAL INDEX KEY: 0001139437
IRS NUMBER: 541234646
STATE OF INCORPORATION: VA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-10
FILM NUMBER: 03805567
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANORCARE HEALTH SERVICES INC
CENTRAL INDEX KEY: 0001048354
IRS NUMBER: 520886946
STATE OF INCORPORATION: DE
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-69
FILM NUMBER: 03805632
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HCR MANORCARE MEDICAL SERVICES OF FLORIDA INC
CENTRAL INDEX KEY: 0001139331
IRS NUMBER: 650666550
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-120
FILM NUMBER: 03805682
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: WARMINSTER ARDEN LLC
CENTRAL INDEX KEY: 0001139446
IRS NUMBER: 522124931
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-04
FILM NUMBER: 03805561
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF NORTH OLMSTED INC
CENTRAL INDEX KEY: 0001048372
IRS NUMBER: 520970448
STATE OF INCORPORATION: OH
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-42
FILM NUMBER: 03805605
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: MANOR CARE OF KINGSTON COURT INC
CENTRAL INDEX KEY: 0001048364
IRS NUMBER: 521314648
STATE OF INCORPORATION: PA
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-47
FILM NUMBER: 03805610
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: LEADER NURSING & REHABILITATION CTR OF BETHEL PARK INC
CENTRAL INDEX KEY: 0001048382
IRS NUMBER: 521462046
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-92
FILM NUMBER: 03805655
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEALTH CARE & RETIREMENT CORP OF AMERICA
CENTRAL INDEX KEY: 0000355648
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-NURSING & PERSONAL CARE FACILITIES [8050]
IRS NUMBER: 344403510
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-135
FILM NUMBER: 03805701
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
STREET 2: P O BOX 1709
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT ST
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: THREE RIVERS MANOR INC
CENTRAL INDEX KEY: 0001139439
IRS NUMBER: 382479940
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-08
FILM NUMBER: 03805565
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEARTLAND CAREPARTNERS INC
CENTRAL INDEX KEY: 0001139338
IRS NUMBER: 341838217
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-113
FILM NUMBER: 03805675
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PHYSICAL OCCUPATIONAL & SPEECH THERAPY INC
CENTRAL INDEX KEY: 0001139405
IRS NUMBER: 593377552
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-52
FILM NUMBER: 03805615
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DONAHOE MANOR INC
CENTRAL INDEX KEY: 0001139311
IRS NUMBER: 251147049
STATE OF INCORPORATION: PA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-156
FILM NUMBER: 03805723
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: EAST MICHIGAN CARE CORP
CENTRAL INDEX KEY: 0001139314
IRS NUMBER: 381747681
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-134
FILM NUMBER: 03805700
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BOOTH LTD PARTNERSHIP
CENTRAL INDEX KEY: 0001139287
IRS NUMBER: 371080797
STATE OF INCORPORATION: FL
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-152
FILM NUMBER: 03805719
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: WILLIAMS VILLE ARDEN LLC
CENTRAL INDEX KEY: 0001139455
IRS NUMBER: 522107735
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-01
FILM NUMBER: 03805558
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CLAIRE BRIDGE OF KENWOOD LLC
CENTRAL INDEX KEY: 0001139291
IRS NUMBER: 391973322
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-146
FILM NUMBER: 03805713
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BIRCHWOOD MANOR INC
CENTRAL INDEX KEY: 0001139285
IRS NUMBER: 381719951
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-107399-154
FILM NUMBER: 03805721
BUSINESS ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
BUSINESS PHONE: 4192525500
MAIL ADDRESS:
STREET 1: 333 NORTH SUMMIT STREET
CITY: TOLEDO
STATE: OH
ZIP: 43604
S-4
1
c78303sv4.htm
REGISTRATION STATEMENT
Registration Statement
As filed with the Securities and Exchange Commission on July 28, 2003 |
Registration No. 333- |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Manor Care, Inc.
(Exact name of the registrant as specified in its charter)
|
|
|
|
|
Delaware |
|
8051
|
|
34-1687107 |
(State or other jurisdiction of
incorporation or organization) |
|
(Primary Standard Industrial Classification Code Number)
|
|
(I.R.S. Employer Identification No.) |
333 N. Summit Street
Toledo, Ohio 43604-2617
(419) 252-5500
(Address, including zip code, and telephone number, including area code, of
the registrants principal executive offices)
See Table of Additional Co-Registrants Included in This Registration
R. Jeffrey Bixler
Vice President, General Counsel and Secretary
Manor Care, Inc.
333 N. Summit Street
Toledo, Ohio 43604-2617
(419) 252-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Michael D. Levin
Latham & Watkins LLP
Sears Tower, Suite 5800
Chicago, Illinois 60606
(312) 876-7700
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. o
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. o
CALCULATION OF REGISTRATION FEE
|
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|
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|
|
|
|
|
|
Title of Each |
|
|
|
|
|
Proposed Maximum |
|
Proposed Maximum |
|
Amount of |
Class of Securities |
|
Amount to be |
|
Offering Price |
|
Aggregate |
|
Registration |
to be Registered |
|
Registered |
|
per New Notes |
|
Offering Price(1) |
|
Fee(2) |
|
|
|
|
|
|
|
|
|
6.25% Senior Notes due May 1, 2013 |
|
$ |
200,000,000 |
|
|
|
100 |
% |
|
$ |
200,000,000 |
|
|
$ |
16,180 |
|
Senior Guarantees |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3 |
) |
(1) |
|
Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f) under the Securities Act of 1933, as amended. |
|
(2) |
|
Calculated pursuant to Section 6(b) and Rule 457 of the Securities Act. |
|
(3) |
|
The notes are guaranteed by the guarantors named in the table of Additional
Co-Registrants. No separate registration fee will be paid in respect of the
guarantees pursuant to Rule 457(n) of the Securities Act. |
The registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Table of Additional Co-Registrants
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(Primary |
|
|
|
|
|
|
|
|
|
|
Standard |
|
|
(State or other jurisdiction |
|
|
|
|
|
Industrial |
(Exact name of the co-registrant as specified in its |
|
of incorporation or |
|
(I.R.S. Employer |
|
Classification |
charter) |
|
organization) |
|
Identification No.) |
|
Code Number) |
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|
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|
|
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AMERICAN HOSPITAL BUILDING CORPORATION |
|
Delaware |
|
|
52-0985621 |
|
|
|
8051 |
|
AMERICANA HEALTHCARE CENTER OF PALOS TOWNSHIP, INC. |
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Illinois |
|
|
53-1352950 |
|
|
|
8051 |
|
AMERICANA HEALTHCARE CORPORATION OF GEORGIA |
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Georgia |
|
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37-1087694 |
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|
|
8051 |
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AMERICANA HEALTHCARE CORPORATION OF NAPLES |
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Florida |
|
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37-1087695 |
|
|
|
8051 |
|
ANCILLARY
SERVICES MANAGEMENT, INC. |
|
Ohio |
|
|
34-163874 |
|
|
|
5999 |
|
ANCILLARY SERVICES, LLC |
|
Delaware |
|
|
52-2166500 |
|
|
|
8049 |
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ANNANDALE ARDEN, LLC |
|
Delaware |
|
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52-2111069 |
|
|
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8059 |
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BAILY NURSING HOME, INC. |
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Pennsylvania |
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23-1674218 |
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|
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8051 |
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BAINBRIDGE ARDEN, LLC |
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Delaware |
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52-2098028 |
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|
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N/A |
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BATH ARDEN, LLC |
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Delaware |
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52-2099206 |
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N/A |
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BINGHAM FARMS ARDEN, LLC |
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Delaware |
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52-2106495 |
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N/A |
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BIRCHWOOD MANOR, INC. |
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Michigan |
|
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38-1719951 |
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|
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8051 |
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BLUE RIDGE REHABILITATION SERVICES, INC. |
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Virginia |
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54-1508699 |
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|
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8049 |
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BOOTH LIMITED PARTNERSHIP |
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Florida |
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37-1080797 |
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8059 |
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CANTERBURY VILLAGE, INC. |
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Michigan |
|
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38-2032536 |
|
|
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8051 |
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CHARLES MANOR, INC. |
|
Maryland |
|
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52-0902287 |
|
|
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8051 |
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CHESAPEAKE MANOR, INC. |
|
Maryland |
|
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52-0902288 |
|
|
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8051 |
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CLAIRE BRIDGE OF ANDERSON, LLC |
|
Delaware |
|
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39-1973297 |
|
|
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8059 |
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CLAIRE BRIDGE OF AUSTIN, LLC |
|
Delaware |
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39-1973318 |
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|
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8059 |
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CLAIRE BRIDGE OF KENWOOD, LLC |
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Delaware |
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39-1973322 |
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8059 |
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CLAIRE BRIDGE OF SAN ANTONIO, LLC |
|
Delaware |
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39-1973324 |
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N/A |
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CLAIRE BRIDGE OF SUSQUEHANNA, LLC |
|
Delaware |
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39-1973366 |
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8059 |
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CLAIRE BRIDGE OF WARMINSTER, LLC |
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Delaware |
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39-1973327 |
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8059 |
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COLEWOOD LIMITED PARTNERSHIP |
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Maryland |
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52-1335634 |
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8059 |
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COLONIE ARDEN, LLC |
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Delaware |
|
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52-2130894 |
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6531 |
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CRESTVIEW HILLS ARDEN, LLC |
|
Delaware |
|
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52-2092155 |
|
|
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6531 |
|
DEKALB HEALTHCARE CORPORATION |
|
Delaware |
|
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37-1019112 |
|
|
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8051 |
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|
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(Primary |
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Standard |
|
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(State or other jurisdiction |
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Industrial |
(Exact name of the co-registrant as specified in its |
|
of incorporation or |
|
(I.R.S. Employer |
|
Classification |
charter) |
|
organization) |
|
Identification No.) |
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Code Number) |
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DEVON MANOR CORPORATION |
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Pennsylvania |
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23-2093337 |
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8051 |
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DISTCO, INC. |
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Maryland |
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52-0853907 |
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6977 |
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DIVERSIFIED REHABILITATION SERVICES, INC. |
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Michigan |
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38-2690352 |
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8049 |
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DONAHOE MANOR, INC. |
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Pennsylvania |
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25-1147049 |
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8051 |
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EAST MICHIGAN CARE CORPORATION |
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Michigan |
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38-1747681 |
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8051 |
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EXECUTIVE ADVERTISING, INC. |
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Maryland |
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52-0912751 |
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8051 |
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EYE-Q NETWORK, INC. |
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Ohio |
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34-1760305 |
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8011 |
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FIRST LOUISVILLE ARDEN, LLC |
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Delaware |
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52-2092159 |
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8059 |
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FOUR SEASONS NURSING CENTERS, INC. |
|
Delaware |
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73-0783484 |
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8051 |
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FRESNO ARDEN, LLC |
|
Delaware |
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52-2098630 |
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6531 |
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GENEVA ARDEN, LLC |
|
Delaware |
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52-2124930 |
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N/A |
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GEORGIAN BLOOMFIELD, INC. |
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Michigan |
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38-1982410 |
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8051 |
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GREENVIEW MANOR, INC. |
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Michigan |
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38-6062040 |
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8051 |
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HANOVER ARDEN, LLC |
|
Delaware |
|
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52-2098633 |
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|
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8059 |
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HCR HOME HEALTH CARE AND HOSPICE, INC. |
|
Ohio |
|
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34-1787978 |
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|
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6719 |
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HCR HOSPITAL HOLDING COMPANY, INC. |
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Nevada |
|
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92-2038485 |
|
|
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6719 |
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HCR HOSPITAL, LLC |
|
Nevada |
|
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91-2039256 |
|
|
|
8062 |
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HCR INFORMATION CORPORATION |
|
Ohio |
|
|
31-1494764 |
|
|
|
7338 |
|
HCR MANORCARE MEDICAL SERVICES OF FLORIDA, INC. |
|
Florida |
|
|
65-0666550 |
|
|
|
8011 |
|
HCR MANORCARE MESQUITE, L.P. |
|
Delaware |
|
|
52-2229490 |
|
|
|
8062 |
|
HCR PHYSICIAN MANAGEMENT SERVICES, INC. |
|
Florida |
|
|
58-2242001 |
|
|
|
8011 |
|
HCR REHABILITATION CORP. |
|
Ohio |
|
|
34-1720345 |
|
|
|
6719 |
|
HCRA OF TEXAS, INC. |
|
Texas |
|
|
74-2788668 |
|
|
|
8051 |
|
HCRC INC. |
|
Delaware |
|
|
22-2784172 |
|
|
|
6719 |
|
HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA |
|
Ohio |
|
|
34-4402510 |
|
|
|
8051 |
|
HEARTLAND CAREPARTNERS, INC. |
|
Ohio |
|
|
34-1838217 |
|
|
|
N/A |
|
HEARTLAND EMPLOYMENT SERVICES, INC. |
|
Ohio |
|
|
34-1903270 |
|
|
|
7363 |
|
HEARTLAND HOME CARE, INC. |
|
Ohio |
|
|
34-1787895 |
|
|
|
8082 |
|
HEARTLAND HOME HEALTH CARE SERVICES, INC. |
|
Ohio |
|
|
34-1787967 |
|
|
|
8082 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Primary |
|
|
|
|
|
|
|
|
|
|
Standard |
|
|
(State or other jurisdiction |
|
|
|
|
|
Industrial |
(Exact name of the co-registrant as specified in its |
|
of incorporation or |
|
(I.R.S. Employer |
|
Classification |
charter) |
|
organization) |
|
Identification No.) |
|
Code Number) |
|
|
|
|
|
|
|
HEARTLAND HOSPICE SERVICES, INC. |
|
Ohio |
|
|
34-1788398 |
|
|
|
8082 |
|
HEARTLAND INFORMATION SERVICES, INC. (fka Heartland
Medical Information Services, Inc.) |
|
Ohio |
|
|
31-1488831 |
|
|
|
7338 |
|
HEARTLAND MANAGEMENT SERVICES, INC. |
|
Ohio |
|
|
34-1808700 |
|
|
|
8049 |
|
HEARTLAND REHABILITATION SERVICES OF FLORIDA, INC. |
|
Florida |
|
|
59-2504386 |
|
|
|
8049 |
|
HEARTLAND REHABILITATION SERVICES, INC. |
|
Ohio |
|
|
34-1280619 |
|
|
|
8049 |
|
HEARTLAND SERVICES CORP. |
|
Ohio |
|
|
34-1760503 |
|
|
|
5912 |
|
HERBERT
LASKIN, RPT - JOHN MCKENZIE, RPT PHYSICAL
THERAPY PROFESSIONAL ASSOCIATES, INC. |
|
New Jersey |
|
|
22-2137595 |
|
|
|
8049 |
|
HGCC OF ALLENTOWN, INC. |
|
Tennessee |
|
|
23-2244532 |
|
|
|
8051 |
|
IN HOME HEALTH, INC. |
|
Minnesota |
|
|
41-1458213 |
|
|
|
8082 |
|
INDUSTRIAL WASTES, INC. |
|
Pennsylvania |
|
|
25-1264509 |
|
|
|
4953 |
|
IONIA MANOR, INC. |
|
Michigan |
|
|
38-1749970 |
|
|
|
8051 |
|
JACKSONVILLE HEALTHCARE CORPORATION |
|
Delaware |
|
|
37-1069936 |
|
|
|
8051 |
|
JEFFERSON ARDEN, LLC |
|
Delaware |
|
|
52-2111068 |
|
|
|
N/A |
|
KENSINGTON MANOR, INC. |
|
Florida |
|
|
59-1289690 |
|
|
|
8051 |
|
KENWOOD ARDEN, LLC |
|
Delaware |
|
|
52-2116657 |
|
|
|
N/A |
|
KNOLLVIEW MANOR, INC. |
|
Michigan |
|
|
38-1724149 |
|
|
|
8051 |
|
LEADER NURSING AND REHABILITATION CENTER OF BETHEL
PARK, INC. |
|
Delaware |
|
|
52-1462046 |
|
|
|
8051 |
|
LEADER NURSING AND REHABILITATION CENTER OF
GLOUCESTER, INC. |
|
Maryland |
|
|
52-1352949 |
|
|
|
8051 |
|
LEADER NURSING AND REHABILITATION CENTER OF SCOTT
TOWNSHIP, INC. |
|
Delaware |
|
|
52-1462056 |
|
|
|
8051 |
|
LEADER NURSING AND REHABILITATION CENTER OF
VIRGINIA INC. |
|
Virginia |
|
|
52-1363206 |
|
|
|
8051 |
|
LINCOLN HEALTH CARE, INC. |
|
Ohio |
|
|
34-1352822 |
|
|
|
8051 |
|
LIVONIA ARDEN, LLC |
|
Delaware |
|
|
52-2104704 |
|
|
|
N/A |
|
MANOR
CARE AVIATION, INC. |
|
Delaware |
|
|
52-1462072 |
|
|
|
4522 |
|
MANOR CARE OF AKRON, INC. |
|
Ohio |
|
|
52-0970447 |
|
|
|
8051 |
|
MANOR CARE OF AMERICA, INC. |
|
Delaware |
|
|
52-1200376 |
|
|
|
6519 |
|
MANOR CARE OF ARIZONA, INC. |
|
Delaware |
|
|
52-1751861 |
|
|
|
8051 |
|
MANOR CARE OF ARLINGTON, INC. |
|
Virginia |
|
|
52-1067426 |
|
|
|
8051 |
|
MANOR CARE OF BOCA RATON, INC. |
|
Florida |
|
|
52-1297340 |
|
|
|
8051 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Primary |
|
|
|
|
|
|
|
|
|
|
Standard |
|
|
(State or other jurisdiction |
|
|
|
|
|
Industrial |
(Exact name of the co-registrant as specified in its |
|
of incorporation or |
|
(I.R.S. Employer |
|
Classification |
charter) |
|
organization) |
|
Identification No.) |
|
Code Number) |
|
|
|
|
|
|
|
MANOR CARE OF BOYNTON BEACH, INC. |
|
Florida |
|
|
52-1288882 |
|
|
|
8051 |
|
MANOR CARE OF CANTON, INC. |
|
Ohio |
|
|
52-1019576 |
|
|
|
8051 |
|
MANOR CARE OF CENTERVILLE, INC |
|
Delaware |
|
|
52-1933544 |
|
|
|
8051 |
|
MANOR CARE OF CHARLESTON, INC. |
|
South Carolina |
|
|
52-1187059 |
|
|
|
8051 |
|
MANOR CARE OF CINCINNATI, INC. |
|
Ohio |
|
|
52-0943592 |
|
|
|
8051 |
|
MANOR CARE OF COLUMBIA, INC. |
|
South Carolina |
|
|
52-0940578 |
|
|
|
8051 |
|
MANOR CARE OF DARIEN, INC. |
|
Connecticut |
|
|
52-1934884 |
|
|
|
8051 |
|
MANOR CARE OF DELAWARE COUNTY, INC. |
|
Delaware |
|
|
52-1916053 |
|
|
|
8051 |
|
MANOR CARE OF DUNEDIN, INC. |
|
Florida |
|
|
52-1252397 |
|
|
|
8051 |
|
MANOR CARE OF FLORIDA, INC. |
|
Florida |
|
|
52-1479084 |
|
|
|
8051 |
|
MANOR CARE OF HINSDALE, INC. |
|
Illinois |
|
|
52-0970446 |
|
|
|
8051 |
|
MANOR CARE OF KANSAS, INC. |
|
Delaware |
|
|
52-1462071 |
|
|
|
8051 |
|
MANOR CARE OF KINGSTON COURT, INC. |
|
Pennsylvania |
|
|
52-1314648 |
|
|
|
8051 |
|
MANOR
CARE OF LARGO, INC. |
|
Maryland |
|
|
52-1065213 |
|
|
|
8051 |
|
MANOR CARE OF LEXINGTON, INC. |
|
South Carolina |
|
|
52-1048770 |
|
|
|
8051 |
|
MANOR CARE OF MEADOW PARK, INC. |
|
Washington |
|
|
52-1339998 |
|
|
|
8051 |
|
MANOR CARE OF MIAMISBURG, INC. |
|
Delaware |
|
|
52-1708219 |
|
|
|
8051 |
|
MANOR CARE OF NORTH OLMSTED, INC. |
|
Ohio |
|
|
52-0970448 |
|
|
|
8051 |
|
MANOR CARE OF PINEHURST, INC. |
|
North Carolina |
|
|
52-1069744 |
|
|
|
8051 |
|
MANOR CARE OF PLANTATION, INC. |
|
Florida |
|
|
52-1383874 |
|
|
|
8051 |
|
MANOR CARE OF ROLLING MEADOWS, INC. |
|
Illinois |
|
|
52-1077856 |
|
|
|
8051 |
|
MANOR CARE OF ROSSVILLE, INC. |
|
Maryland |
|
|
52-1077857 |
|
|
|
8051 |
|
MANOR CARE OF SARASOTA, INC. |
|
Florida |
|
|
52-1252364 |
|
|
|
8051 |
|
MANOR CARE OF WILLOUGHBY, INC. |
|
Ohio |
|
|
52-0970449 |
|
|
|
8051 |
|
MANOR CARE OF WILMINGTON, INC. |
|
Delaware |
|
|
52-1252362 |
|
|
|
8051 |
|
MANOR CARE OF YORK (NORTH), INC. |
|
Pennsylvania |
|
|
52-1314645 |
|
|
|
8051 |
|
MANOR CARE OF YORK (SOUTH), INC. |
|
Pennsylvania |
|
|
52-1314644 |
|
|
|
8051 |
|
MANOR CARE PROPERTIES, INC. |
|
Delaware |
|
|
52-2061834 |
|
|
|
8051 |
|
MANORCARE HEALTH SERVICES OF BOYNTON BEACH, INC. |
|
Delaware |
|
|
52-2055100 |
|
|
|
8051 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Primary |
|
|
|
|
|
|
|
|
|
|
Standard |
|
|
(State or other jurisdiction |
|
|
|
|
|
Industrial |
(Exact name of the co-registrant as specified in its |
|
of incorporation or |
|
(I.R.S. Employer |
|
Classification |
charter) |
|
organization) |
|
Identification No.) |
|
Code Number) |
|
|
|
|
|
|
|
MANORCARE HEALTH SERVICES OF NORTHHAMPTON COUNTY,
INC. |
|
Pennsylvania |
|
|
52-2004471 |
|
|
|
8051 |
|
MANORCARE HEALTH SERVICES OF VIRGINIA, INC. |
|
Delaware |
|
|
52-2002773 |
|
|
|
8051 |
|
MANORCARE HEALTH SERVICES, INC. |
|
Delaware |
|
|
52-0886946 |
|
|
|
8051 |
|
MARINA VIEW MANOR, INC. |
|
Wisconsin |
|
|
39-1164707 |
|
|
|
8051 |
|
MEDI-SPEECH SERVICE, INC. |
|
Michigan |
|
|
38-2343280 |
|
|
|
8049 |
|
MEMPHIS ARDEN, LLC |
|
Delaware |
|
|
52-2098029 |
|
|
|
N/A |
|
MESQUITE HOSPITAL, LLC |
|
Delaware |
|
|
52-2229486 |
|
|
|
8062 |
|
MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC. |
|
New Jersey |
|
|
22-2575292 |
|
|
|
8049 |
|
MILESTONE HEALTH SYSTEMS, INC. |
|
Texas |
|
|
75-2245197 |
|
|
|
8062 |
|
MILESTONE HEALTHCARE, INC. |
|
Delaware |
|
|
75-2592398 |
|
|
|
8062 |
|
MILESTONE REHABILITATION SERVICES, INC. |
|
Texas |
|
|
75-2190857 |
|
|
|
5049 |
|
MILESTONE STAFFING SERVICES, INC. |
|
Texas |
|
|
74-2963093 |
|
|
|
7363 |
|
MILESTONE THERAPY SERVICES, INC. |
|
Texas |
|
|
75-2406307 |
|
|
|
5049 |
|
MNR
FINANCE CORP. |
|
Delaware |
|
|
51-0348281 |
|
|
|
6159 |
|
MRC REHABILITATION, INC. |
|
Florida |
|
|
59-3357644 |
|
|
|
8049 |
|
NAPA ARDEN, LLC |
|
Delaware |
|
|
52-2108866 |
|
|
|
N/A |
|
NEW MANORCARE HEALTH SERVICES, INC. |
|
Delaware |
|
|
52-2053999 |
|
|
|
8051 |
|
PEAK REHABILITATION, INC. |
|
Delaware |
|
|
52-1833202 |
|
|
|
8049 |
|
PERRYSBURG PHYSICAL THERAPY, INC. |
|
Ohio |
|
|
34-1363071 |
|
|
|
8049 |
|
PHYSICAL, OCCUPATIONAL, AND SPEECH THERAPY, INC. |
|
Florida |
|
|
59-3377552 |
|
|
|
8049 |
|
PNEUMATIC CONCRETE, INC. |
|
Tennessee |
|
|
62-0716951 |
|
|
|
1542 |
|
PORTFOLIO ONE, INC. |
|
New Jersey |
|
|
22-1604502 |
|
|
|
4953 |
|
REHABILITATION ADMINISTRATION CORPORATION |
|
Kentucky |
|
|
61-1295825 |
|
|
|
8049 |
|
REHABILITATION ASSOCIATES, INC. |
|
New Jersey |
|
|
22-3290567 |
|
|
|
8049 |
|
REHABILITATION SERVICES OF ROANOKE, INC. |
|
Virginia |
|
|
54-0993013 |
|
|
|
8049 |
|
REINBOLT & BURKAM, INC. |
|
Ohio |
|
|
34-1479648 |
|
|
|
8049 |
|
RICHARDS HEALTHCARE, INC. |
|
Texas |
|
|
76-0339241 |
|
|
|
8049 |
|
RIDGEVIEW MANOR, INC. |
|
Michigan |
|
|
38-1734212 |
|
|
|
8051 |
|
ROANOKE ARDEN, LLC |
|
Delaware |
|
|
52-2104706 |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Primary |
|
|
|
|
|
|
|
|
|
|
Standard |
|
|
(State or other jurisdiction |
|
|
|
|
|
Industrial |
(Exact name of the co-registrant as specified in its |
|
of incorporation or |
|
(I.R.S. Employer |
|
Classification |
charter) |
|
organization) |
|
Identification No.) |
|
Code Number) |
|
|
|
|
|
|
|
ROLAND PARK NURSING CENTER, INC. |
|
Maryland |
|
|
52-1890169 |
|
|
|
8051 |
|
RVA MANAGEMENT SERVICES, INC. |
|
Ohio |
|
|
34-1791517 |
|
|
|
8011 |
|
SAN ANTONIO ARDEN, LLC |
|
Delaware |
|
|
52-2106496 |
|
|
|
8059 |
|
SILVER
SPRING - WHEATON NURSING HOME, INC. |
|
Maryland |
|
|
53-0245649 |
|
|
|
8051 |
|
SILVER SPRING ARDEN, LLC |
|
Delaware |
|
|
52-2107728 |
|
|
|
6531 |
|
SPRINGHILL MANOR, INC. |
|
Michigan |
|
|
38-1890497 |
|
|
|
8051 |
|
STEWALL CORPORATION |
|
Maryland |
|
|
52-0798475 |
|
|
|
8051 |
|
STRATFORD MANOR, INC. |
|
Virginia |
|
|
52-0902020 |
|
|
|
8051 |
|
STUTEX CORP. |
|
Texas |
|
|
52-0884091 |
|
|
|
8051 |
|
SUN VALLEY MANOR, INC. |
|
Michigan |
|
|
38-1798425 |
|
|
|
8051 |
|
SUSQUEHANNA ARDEN LLC |
|
Delaware |
|
|
52-2124933 |
|
|
|
N/A |
|
TAMPA ARDEN, LLC |
|
Delaware |
|
|
52-2113270 |
|
|
|
N/A |
|
THE NIGHTINGALE NURSING HOME, INC. |
|
Pennsylvania |
|
|
23-1719762 |
|
|
|
8051 |
|
THERAPY ASSOCIATES, INC. |
|
Virginia |
|
|
54-1234646 |
|
|
|
8051 |
|
THERASPORT PHYSICAL THERAPY, INC. |
|
Michigan |
|
|
38-3324355 |
|
|
|
8049 |
|
THREE RIVERS MANOR, INC. |
|
Michigan |
|
|
38-2479940 |
|
|
|
8051 |
|
TOTALCARE CLINICAL LABORATORIES, INC. |
|
Delaware |
|
|
52-1740933 |
|
|
|
8071 |
|
TUSCAWILLA ARDEN, LLC |
|
Delaware |
|
|
52-2092162 |
|
|
|
N/A |
|
WALL ARDEN, LLC |
|
Delaware |
|
|
52-2098990 |
|
|
|
6531 |
|
WARMINSTER ARDEN LLC |
|
Delaware |
|
|
52-2124931 |
|
|
|
N/A |
|
WASHTENAW HILLS MANOR, INC. |
|
Michigan |
|
|
38-2686882 |
|
|
|
8051 |
|
WHITEHALL MANOR, INC. |
|
Michigan |
|
|
38-2189772 |
|
|
|
8051 |
|
WILLIAMS VILLE ARDEN, LLC |
|
Delaware |
|
|
52-2107735 |
|
|
|
6531 |
|
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and we are not soliciting offers to buy
securities in any place where the offer or sale is not permitted. |
Subject to Completion, Dated July 28, 2003
PRELIMINARY PROSPECTUS
Manor Care, Inc.
Offer to Exchange All Our Outstanding
6.25% Senior Notes due 2013
$200,000,000 aggregate principal amount
In Exchange for 6.25% Senior Notes Due 2013
Which Have Been Registered Under the Securities Act of 1933
We are offering to exchange all of our outstanding 6.25% Senior Notes due 2013,
which we refer to as old notes, for our registered 6.25% Senior Notes due 2013,
which we refer to as new notes. We refer to the old notes and new notes
collectively as the notes. We issued the old notes on April 15, 2003. The
terms of the new notes are identical to the terms of the old notes except that
we registered the new notes under the Securities Act of 1933.
* |
|
Please consider the following: |
|
|
|
You should carefully review the Risk Factors beginning on page 18 of this prospectus. |
|
|
|
Our offer to exchange old notes for new notes will be open until 5:00 p.m., New York City time, on , 2003, unless we extend the offer |
|
|
|
You should also carefully review the procedures for tendering the old notes beginning on page 33 of this prospectus. |
|
|
|
If you fail to tender your old notes, you will continue to hold unregistered securities and your ability to transfer them could be adversely affected. |
|
|
|
No public market currently exists for the notes. We do not intend to list the new notes on any securities exchange and, therefore we do not anticipate that an active public market will develop. |
Information About the Notes:
|
|
The notes will mature on May 1, 2013. |
|
|
|
Interest will accrue from April 15, 2003. |
|
|
|
We will pay interest on the notes semi-annually on May 1 and November 1 of each year beginning November 1, 2003, at the rate of 6.25% per year. |
|
|
|
We may redeem some or all of the notes at any time. The redemption price is described beginning on page 43 of this prospectus. |
|
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The notes will be guaranteed on a senior unsecured basis by Manor Care of America, Inc., our wholly-owned subsidiary, and all of our subsidiaries that have guaranteed, or will in the future guarantee, obligations under the $150,000,000 principal amount of 7 1/2% Senior Notes Due 2006 issued by Manor Care of America, Inc. and guarantee our obligations under our $200,000,000 principal amount of 8% Senior
Notes Due 2008, our senior revolving credit facility and our $100,000,000 Convertible Senior Notes due 2023. |
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These guarantees will be senior obligations of our subsidiary guarantors. If we fail to make payments on the notes, our subsidiary guarantors must make them instead. |
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is , 2003
TABLE OF CONTENTS
In making your investment decision, you should rely only on the
information contained in this prospectus. We have not authorized any other
person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it.
Each broker-dealer that receives new notes for its own account in
connection with the exchange offer must acknowledge that it will deliver a
prospectus if it resells those new notes. The transmittal letter states that
by so acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the
Securities Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
notes received in exchange for old notes acquired by the broker-dealer as a
result of market-making activities or other trading activities. We have agreed
that, for a period ending on the earlier of:
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180 days after the date of this prospectus; and |
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the date on which a broker-dealer is no longer required to
deliver a prospectus in connection with market-making or other
trading activities, |
we will make this prospectus available to any broker-dealer for use in
connection with any such resale. See Plan of Distribution.
TABLE OF CONTENTS
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Page |
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Where You Can Find More Information |
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2 |
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Documents Incorporated By Reference |
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Forward Looking Statements |
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Prospectus Summary |
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Risk Factors |
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The Transactions |
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Use of Proceeds |
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Capitalization |
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Selected Historical Consolidated Financial Data |
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Certain Relationships and Related Transactions |
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The Exchange Offer |
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The New Notes |
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Description of Other Debt |
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United States Federal Income Tax Considerations |
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Certain ERISA Considerations |
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Plan of Distribution |
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Validity of the New Notes |
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Experts |
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Glossary |
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Book-Entry, Delivery and Form |
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1
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
documents with the Securities and Exchange Commission under the Securities
Exchange Act of 1934. You may also read and copy any document we file at the
SEC public reference room located at Judiciary Plaza, Room 1024, 450 Fifth
Street, N.W. Washington D.C. 20549. You may obtain information regarding the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC maintains an Internet site that contains reports, proxy and information
statements, and other information regarding issuers that file electronically
with the SEC. Our SEC filings are available to the public at the SECs website
at http://www.sec.gov. These reports are also available through our website at
http://www.manorcare.com. The information on our website is not part of this
prospectus.
In addition, because our common stock is listed on the New York Stock
Exchange, you may read our reports, proxy statements, and other documents at
the offices of the New York Stock Exchange at 20 Broad Street, New York, New
York 10005.
This prospectus is part of a registration statement on Form S-4 we have
filed with the SEC under the Securities Act of 1933, as amended. This
prospectus does not contain all of the information set forth in the
registration statement. For further information about us and the notes, you
should refer to the registration statement. In this prospectus we summarize
material provisions of contracts and other documents to which we refer you.
Since this prospectus may not contain all of the information that you may find
important, you should review the full text of these documents. We have filed
these documents as exhibits to our registration statement.
This prospectus incorporates important business and financial information
about us that is not included in or delivered with this prospectus. This
information is available without charge to you upon written or oral request.
If you would like a copy of any of this information, please submit your request
to Manor Care, Inc., 333 N. Summit Street, Toledo, Ohio 43604-2617, Attention:
Legal Department, or call (419) 252-5500 and ask to speak to someone in our
legal department. In addition, to obtain timely delivery of any information
you request, you must submit your request no later than , 2003, which is
five business days before the date the exchange offer expires.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference certain documents, which
means that we can disclose important information to you by referring you to
those documents. The information in the documents incorporated by reference is
considered to be part of this prospectus, and information in documents that we
file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act:
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Our annual report on Form 10-K for the fiscal year ended December 31, 2002; |
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Our quarterly report on Form 10-Q for the three months ended March 31, 2003; |
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Our proxy statement for the annual stockholders meeting held
May 6, 2003, which we filed with the SEC on April 14, 2003; and |
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Our Current Report on Form 8-K filed with the SEC on July 25,
2003. |
We will provide to you, at no charge, a copy of the documents we
incorporate by reference in this prospectus. To request a copy of any or all
of these documents, you should write or telephone us at the following address
and telephone number: Manor Care, Inc., 333 N. Summit Street, Toledo, Ohio,
43604-2617, Attention: Legal Department. Our telephone number is: (419)
252-5500.
2
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements. We have based these
forward-looking statements on our current expectations and projections about
future events. We identify forward-looking statements in this prospectus by
using words or phrases such as anticipate, believe, estimate, expect,
intend, may be, objective, plan, predict, project, will be and
similar words or phrases, or the negative thereof.
These forward-looking statements are subject to numerous assumptions, risks and
uncertainties. Factors which may cause our actual results, performance or
achievements to be materially different from any future results, performance or
achievements expressed or implied by us in those statements include, among
others, the following:
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changes in the health care industry because of political and economic influences; |
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changes in Medicare, Medicaid and certain private payors reimbursement levels; |
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existing government regulations and changes in, or the failure to
comply with, governmental regulations or the interpretations thereof; |
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changes in current trends in the cost and volume of patient-care
related claims and workers compensation claims and in insurance costs
related to such claims; |
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the ability to attract and retain qualified personnel; |
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our existing and future debt which may affect our ability to obtain
financing in the future or to comply with our debt covenants; |
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our ability to control operating costs; |
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integration of acquired businesses; |
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changes in, or the failure to comply with, regulations governing the
transmission and privacy of health information; |
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state regulation of the construction or expansion of health care providers; |
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legislative proposals for health care reform; |
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competition; |
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the failure to comply with occupational health and safety regulations; |
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the ability to enter into managed care provider arrangements on acceptable terms; |
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pending or threatened litigation; |
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a reduction in cash reserves and shareholders equity upon our repurchase of our stock; |
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an increase in senior debt or reduction in cash flow upon our purchase or sale of assets; and |
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conditions in the financial markets. |
Although we believe the expectations reflected in our forward-looking
statements are based upon reasonable assumptions, we can give no assurance that
we will attain these expectations or that any deviations will not be
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material. Except as otherwise required by the federal securities laws, we
disclaim any obligations or undertaking to publicly release any updates or
revisions to any forward-looking statement contained in this report to reflect
any change in our expectations with regard thereto or any change in events,
conditions or circumstances on which any such statement is based.
INDUSTRY AND MARKET DATA
In this prospectus we rely on and refer to information and statistics regarding
the health care industry and the sectors in which we compete. We obtained this
information and statistics from various third-party sources, discussions with
our customers and our own internal estimates. We believe that these sources and
estimates are reliable, but have not independently verified them and cannot
guarantee their accuracy or completeness.
4
PROSPECTUS SUMMARY
This summary highlights the information contained elsewhere or incorporated by
reference into this prospectus. Because this is only a summary, it does not
contain all of the information that may be important to you. For a more
complete understanding of this offering, we encourage you to read this entire
prospectus and the documents to which we refer you. You should read the
following summary together with the more detailed information and consolidated
financial statements and the notes to those statements included elsewhere in or
incorporated by reference into this prospectus.
In this prospectus, the Company, we, our, and us refer to Manor Care,
Inc. With respect to the descriptions of our business contained in this
prospectus, such terms refer to Manor Care, Inc. and our subsidiaries.
Our company
We are a leading provider of long-term health care with one of the largest
networks of skilled nursing and assisted living facilities in the United
States. We own or operate 363 high-quality skilled nursing and assisted living
facilities in 32 states, with more than 60% of our facilities located in
Florida, Illinois, Michigan, Ohio and Pennsylvania. We generated approximately
86% of our total revenues for the year ended December 31, 2002 from skilled
nursing and assisted living services. The balance of our revenues was derived
from a broad range of ancillary health care services, including subacute
medical and rehabilitation care, rehabilitation therapy and home health and
hospice care. We provide these services through many of our long-term care
facilities and through 91 outpatient therapy clinics and 88 home health care or
hospice offices. We believe we have a favorable quality mix with approximately
67% of our long-term care and rehabilitation revenues for the year ended
December 31, 2002 generated from private pay and Medicare sources. We operate
primarily under the respected ManorCare, Heartland and Arden Courts
names. Our common stock is traded on the New York Stock Exchange under the
symbol HCR. For the year ended December 31, 2002, we generated revenues of
$2.9 billion and income before cumulative effect of $131.9 million.
Our competitive strengths
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A leading provider of long-term health care services. Since opening
our first long-term care facility more than 30 years ago, we have
developed a reputation for being one of the leading long-term health
care providers in the United States. We are one of the largest long-term
care providers in the United States, with 46,299 beds in 363 long-term
care facilities, generating $2.5 billion in annual revenue for the year
ended December 31, 2002. In addition, we operate 91 outpatient therapy
clinics, and provide home health care and hospice services through 88
offices in 24 states. We believe our network of highly functional
facilities, experienced management team, high-quality services and
conservative fiscal management are competitive strengths which have
established a strong foundation for our status as one of the leading
long-term health care providers. |
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Established network of modern, highly functional facilities. We
currently own 94% of our long-term care facilities and, over the past
three years, we have spent $320.0 million on new construction,
renovations and improvements in our operations and support systems. We
believe our assets are among the highest quality in the industry and
have enabled us to introduce more specialized services, such as subacute
medical and rehabilitation care, which has led to greater revenue growth
and cash flow. These facilities have enhanced our ability to increase
the percentage of attractive private pay and Medicare patients which
accounted for approximately 67% of our long-term care and rehabilitation
revenues for the year ended December 31, 2002. |
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Experienced management team. The members of our senior management
team, led by our President and Chief Executive Officer Paul A. Ormond,
have an average of over 20 years in the health care industry. Under Mr.
Ormonds leadership, our management team has successfully established
Manor Care as a leading operator in health care. Mr. Ormond has
successfully led our company through difficult periods of industry and
regulatory change. In addition to managing the successful 1998 merger of
Health Care and Retirement Corporation and the former Manor Care, Inc.,
the current management team has completed over 60 acquisitions. |
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Breadth of health care services. With approximately 61,000 employees,
we provide a variety of health care services, including: |
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skilled nursing centers providing 24-hour nursing supervision, seven days
a week; |
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subacute medical and rehabilitation services which shorten hospital stays
and offer a lower cost alternative for those recovering from major surgery
or illness; |
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assisted living facilities for those desiring to live independently with
assistance for the general activities of daily living; |
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Alzheimers care where we are a leader in providing care for those
suffering from Alzheimers disease and other forms of dementia; |
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comprehensive home health services including nursing care,
rehabilitation, personal care and homemaking services; |
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hospice services offering palliative care, end-of-life planning and
psychosocial support to the terminally ill and their families; and |
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outpatient rehabilitation, including physical, occupational and speech
therapy in selected markets throughout the country. |
Our continuing investment in specialty services gives us the opportunity to
offer services to higher acuity patients in areas such as chronic disease
management, wound treatment and oncology. We support our commitment to
delivering high quality care to our residents by developing strong clinical
programs which include thorough training for our employees, comprehensive
policies, procedures and protocols and an extensive support organization.
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Conservative fiscal management. We believe we have performed well
over the past several years, a period in which the health care industry
underwent significant transformation as a result of governmental
legislation aimed at reducing Medicare spending. We believe a
significant reason for our strong performance during this period has
been our conservative fiscal management which is demonstrated by: |
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our diversified revenue sources; |
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our tight cost controls; |
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our strong balance sheet with a debt to capital ratio of
approximately 40%; |
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our measured growth without an emphasis on large acquisitions; and |
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our investment grade debt rating by Standard and Poors, the only
such rating in our sector. |
Our strategy
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Focus on margin improvement. We continue to pursue numerous
opportunities and initiatives to improve our margins and profitability.
These initiatives include improving our occupancy rates, which will
enhance our ability to increase our operating efficiency by better
leveraging our infrastructure and fixed costs, as well as improving our
quality mix and revenue per patient by continuing to focus on private
pay-patients and growing our population of Medicare rehabilitation
patients. In addition, we continue to focus on managing our labor costs
and increasing our labor efficiency. |
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Increase cash flow growth from existing assets. We believe we can
grow revenue and operating cash flow by improving the utilization of
existing assets. We plan to pursue this initiative by expanding our
offering of services, and by reducing our use of outsourced services to
provide care for higher complexity patients, which will allow us to
capture additional revenues and cash flow per patient. We believe we
will be able to
pursue this strategy with minimal additional capital expenditures. |
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Construction and acquisition of new facilities. We seek to
selectively construct and acquire individual skilled nursing and
assisted living facilities as well as rehabilitation and home health
businesses that complement our existing business. We will focus on
acquiring and constructing facilities in our existing markets that offer
attractive demographics and enable us to achieve operating synergies.
For example, during 2002 we completed construction of three new
facilities and at December 31, 2002, we had 16 existing facilities under
construction to expand the number of beds in those facilities. As these
facilities open and increase occupancy during their start-up phase, they
should provide us with the margin improvement and earnings growth
characteristic of mature facilities. In addition, we believe difficult
operating conditions in the industry over the past several years provide
opportunities for us to acquire selectively strategic facilities at
attractive prices. |
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Vertical integration and service expansion. Our strategy is to
continue to expand services such as home health care, hospice care and
outpatient therapy which extend our coverage along the continuum of
health care services and allow us to capture a greater share of health
care expenditures in our key markets. For example, our home health and
hospice care business, which was enhanced by the acquisition of In Home
Health, Inc. in 2000, now has 88 offices in 24 states and generated
annual revenues of approximately $285.0 million for the year ended
December 31, 2002. |
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Provider networks and joint ventures. In addition to other growth
initiatives, we expect to focus on further expansion of our provider
networks by establishing new relationships with physicians, hospitals
and other health care organizations within our existing markets. We will
also evaluate and expect to enter into joint ventures which will allow
us to develop new business lines and enter new markets. We anticipate
that these joint ventures will allow us to leverage the expertise and
market knowledge of our partners and minimize the capital costs to
develop and grow these businesses. |
Industry overview
According to the Centers for Medicare & Medicaid Services, which we refer to as
CMS, total U.S. health care spending is expected to grow at an annual average
rate of 7.2% from 2002 through 2010. By these estimates, health care
expenditures will account for approximately $2.7 trillion, or 17.1%, of the
gross domestic product by 2010. The nursing home care segment of the U.S.
health care industry encompasses a broad range of health care services provided
in skilled nursing facilities, including traditional skilled nursing care and
specialty medical services. Nursing home expenditures represent one of the
largest components of the total national health care spending, totaling $98.9
billion in 2001. According to Managed Care Digest, the long-term care industry
consisted of approximately 15,239 skilled nursing facilities and 1,717,497
nursing home beds at December 31, 2001. According to United States Census
Bureau estimates, as of July 2002 there were approximately 35.3 million people
over the age of 65 in the United States and this number is expected to grow by
52% to 53.7 million by 2020. The fastest growing segment of the population is
comprised of people over the age of 85. There were estimated to be
approximately 4.6 million people 85 years of age or older as of July 2002 and
growth rates for this segment are expected to average 2.2% per year from 2002
through 2020. We believe that demand for long-term care will continue to grow
due to longer average life expectancy, the growing segment of the U.S.
population over 85 years of age, and cost-containment efforts by payors to
encourage shorter stays in acute care facilities. CMS predicts that nursing
home expenditures will grow from $103.7 billion in 2002 to $178.8 billion in
2012, representing a 5.6% compounded annual growth rate.
Throughout the 1990s, there were numerous initiatives on the federal and state
levels to achieve comprehensive reforms affecting the payment for, and
availability of, health care services. Aspects of these initiatives included
changes in reimbursement regulation by the Health Care Financing Administration
(now CMS) and enhanced pressure to contain health care costs by Medicare,
Medicaid and other payors. The 1997 passage of the Balanced Budget Act of 1997
was designed to reduce and control the rate of increase in Medicare
expenditures for services rendered by various providers. Specifically, the
Balanced Budget Act of 1997 eliminated the previously existing cost-based
reimbursement and implemented a prospective payment system, which reimbursed
nursing home providers based on health care services required by various
categories of patients. In November 1999, Congress passed the SCHIP Balanced
Budget Refinement Act of 1999. In addition, in December 2000 Congress passed
the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of
2000. Both the SCHIP Balanced
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Budget Refinement Act of 1999 and the SCHIP Benefits Improvement and Protection
Act of 2000 redressed certain reductions in Medicare reimbursement resulting
from the Balanced Budget Act of 1997. Some of the increases in Medicare
reimbursement for skilled nursing facilities provided for under the SCHIP
Balanced Budget Refinement Act of 1999 and the SCHIP Benefits Improvement and
Protection Act of 2000 expired on September 30, 2002, the so-called Medicare
cliff. Congress has not enacted additional legislation to date to further
extend these reimbursement provisions, and it is unclear as to whether Congress
will increase or decrease reimbursement in the future. We believe that much of
the decrease in revenues from the Medicare cliff will be offset by both a shift
in the mix of our patients to a higher percentage of Medicare and insurance, as
well as the Medicare statutory inflationary increases effective October 1,
2003. In addition, the Centers for Medicare & Medicaid Services has proposed
an increase to the annual update to correct forecast errors in prior year
rates.
We believe we are well positioned to take advantage of favorable demographic
and growth trends in the health care industry.
8
Summary of the Terms of the Exchange Offer
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Old notes |
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On April 15, 2003 we completed a private offering of
the old notes, which consist of $200,000,000 aggregate
principal amount of 6.25% Senior Notes due 2013. In
connection with the initial sale of the old notes, we
entered into a registration rights agreement in which
we agreed, among other things, to deliver this
prospectus to you and to complete an exchange offer. |
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The exchange offer |
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We are offering to issue up to $200,000,000 aggregate
principal amount of our 6.25% Senior Notes due 2013,
which have been registered under the Securities Act, in
exchange for an equal aggregate principal amount of our
outstanding unregistered notes. |
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The terms of the new notes are identical in all
material respects to the terms of the old notes, except
that the registration rights and related liquidation
damages provisions and the transfer restrictions that
apply to the old notes, do not apply to the new notes. |
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You may tender old notes only in $1,000 increments.
Subject to the satisfaction or waiver of specified
conditions, we will exchange the new notes for all old
notes that are validly tendered and not withdrawn
before the exchange offer expires. We discuss these
conditions in The Exchange OfferTerms of the
Exchange Offer. We will cause the exchange to be
effected promptly after the exchange offer expires. |
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Resale of the new notes |
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We believe that the new notes issued in the exchange
offer may be offered for sale, resold or otherwise
transferred by you, without compliance with the
registration and prospectus delivery requirements of
the Securities Act, if you: |
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acquire the new notes in the ordinary course of your
business; |
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are not engaging in and do not intend to engage in a
distribution of the new notes; |
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do not have an arrangement or understanding with any
person to participate in a distribution of the new
notes; |
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are not an affiliate of ours within the meaning of
Rule 405 under the Securities Act; and |
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are not a broker-dealer that acquired the old notes
directly from us. |
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If any of these conditions is not satisfied and you
transfer any new notes without delivering a proper
prospectus or without qualifying for an exemption from
registration, you may incur liability under the
Securities Act. In addition, if you are a
broker-dealer seeking to receive new notes for your own
account in exchange for old notes that you acquired as
a result of market-making or other trading activities,
you must acknowledge that you will deliver this
prospectus in connection with any offer to resell, or
any resale or other |
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transfer of the new notes that you
receive in the exchange offer. See Plan of
Distribution. |
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Expiration date |
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The exchange offer will expire at 5:00 p.m., New York
City time, on , 2003, unless we extend it. |
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Withdrawal |
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You may withdraw the tender of your old notes at any
time before the exchange offer expires. We will return
to you any of your old notes that we do not accept for
exchange for any reason, without expense to you,
promptly after the exchange offer expires or
terminates. |
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Interest on the new notes and the old notes |
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The new notes will bear interest at the rate of 6.25%
per year beginning April 15, 2003. This interest will
be payable semi-annually on each May 1 and November 1,
with the first payment on November 1, 2003. We will
not pay interest on the old notes after we accept them
for exchange. See The New Notes. |
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Conditions to the exchange offer |
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The exchange offer is subject to various conditions.
We reserve the right to terminate or amend the exchange
offer at any time before the expiration date if various
specified events occur. The exchange offer is not
conditioned upon any minimum principal amount of
outstanding old notes being tendered. See The
Exchange OfferConditions of the Exchange Offer. |
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Procedures for tendering old notes |
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If you wish to tender your old notes, you must cause
the following to be transmitted to and received by the
exchange agent no later than 5:00 p.m., New York City
time, on the expiration date: |
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a confirmation of the book-entry transfer of the
tendered old notes into the exchange agents account at
The Depository Trust Company; |
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a properly completed and duly executed transmittal
letter in the form accompanying this prospectus, with
any required signature guarantees, or, at your option
in the case of a book entry tender, an agents message
in lieu of the transmittal letter; and |
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any other documents required by the transmittal
letter. |
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Guaranteed delivery procedures |
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If you wish to tender your old notes and you cannot
cause the old notes or any other required documents
to be transmitted to and received by the exchange
agent before 5:00 p.m., New York City time, on the
expiration date, you may tender your old notes
according to the guaranteed delivery procedures
described in this prospectus under the heading The
Exchange OfferGuaranteed Delivery Procedures. |
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Special procedures for beneficial owners |
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If you are the beneficial owner of old notes that
are registered in the name of your broker, dealer,
commercial bank, trust company or other nominee and
you wish to participate in the exchange offer, you
should promptly contact the person in whose name
your outstanding old notes are registered and
instruct that person to tender your old notes on
your behalf. See The Exchange OfferProcedures
for Tendering. |
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Representations of tendering holders |
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By tendering old notes pursuant to the exchange
offer, you will, in addition to other customary
representations, represent to us that you: |
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are acquiring the new notes in the ordinary course
of business; |
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are not engaging in a distribution of the new
notes; |
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have no arrangement or understanding with any
person to participate in a distribution of the new
notes; |
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are not an affiliate of ours, or if you are an
affiliate, you will comply with the registration and
prospectus delivery requirements of the Securities
Act; and |
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are not a broker-dealer tendering old notes
acquired directly from us. |
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Acceptance of old notes and delivery
of new notes |
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Subject to the satisfaction or waiver of the
conditions to the exchange offer, we will accept for
exchange any and all old notes that are properly
tendered and not withdrawn prior to 5:00 p.m., New
York City time, on the expiration date. We will
cause the exchange to be effected promptly after the
exchange offer expires. |
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Exchange agent |
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National City Bank is serving as exchange agent for
the exchange offer. |
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Federal income tax considerations |
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The exchange of old notes for new notes pursuant to
the exchange offer will not be a taxable event for
United States federal income tax purposes. See
United States Federal Income Tax Considerations. |
11
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Consequences of failing to exchange your
old notes |
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The exchange offer
satisfies our
obligations and your
rights under the
registration rights
agreement. After the
exchange offer is
completed, you will
not be entitled to
any registration
rights with respect
to your old notes. |
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Therefore, if you do
not exchange your old
notes, you will not
be able to reoffer,
resell or otherwise
dispose of your old
notes unless: |
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you comply with the
registration and
prospectus delivery
requirements of the
Securities Act; or |
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you qualify for an
exemption from the
Securities Act
registration
requirements. |
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Appraisal or dissenters rights |
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You will have no
appraisal or
dissenters rights in
connection with the
exchange offer. |
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Use of proceeds |
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We will not receive
any proceeds from the
issuance of new notes
pursuant to the
exchange offer. We
will pay all expenses
incident to the
exchange offer. |
12
Summary of the Terms of the New Notes
The terms of the new notes will be identical in all material respects to
the terms of the old notes, except that the registration rights and related
liquidated damages provisions, and the transfer restrictions that apply to the
old notes do not apply to the new notes. The new notes will evidence the same
debt as the old notes. The new notes and the old notes will be governed by the
same indenture.
The following summary contains basic information about the new notes and
is not intended to be complete. It does not contain all the information that
may be important to you. For a more complete understanding of the new notes,
please refer to the section of this prospectus entitled The New Notes. For
purposes of the description of the notes included in this prospectus,
references to the Company, Issuer, us, we and our refer only to Manor
Care, Inc. and do not include our subsidiaries.
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Issuer |
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Manor Care, Inc. |
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Securities |
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$200,000,000 in principal amount of 6.25% Senior
Notes due 2013. |
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Maturity |
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May 1, 2013 |
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Interest payment dates |
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May 1 and November 1 of each year, commencing
November 1, 2003. |
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Optional redemption |
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The new notes will be redeemable, at our option,
in whole at any time or in part from time to time,
at a redemption price equal to the greater of: |
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1. |
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100% of their principal amount plus accrued
but unpaid interest to the date of redemption, or |
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2. |
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(a)
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the sum of the present values of the
remaining scheduled payments of principal and
interest thereon from the date of redemption to
the date of maturity (except for currently accrued
but unpaid interest) discounted to the date of
redemption, on a semi-annual basis, at the
treasury rate plus 50 basis points,
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plus |
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(b)
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accrued but unpaid interest to the date of
redemption. |
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When we refer to the treasury rate, we mean the
treasury rate at the time of redemption for
treasury notes with a maturity comparable to the
remaining term of the notes, determined as
described in The New Notes. |
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Change of control |
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Upon a change of control that is accompanied by a
ratings decline, you may require us to repurchase
your notes, in whole or in part, at a purchase
price equal to 101% of the principal amount of
your notes plus accrued but unpaid interest to the
purchase date. |
13
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Guarantees; Elimination; Reinstatement |
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The new notes will be guaranteed by Manor Care of
America, Inc., our wholly-owned subsidiary, and
each of our existing and future subsidiaries that
guarantees the obligations of Manor Care of
America, Inc. under its $150.0 million principal
amount of 7½% Senior Notes due 2006,
guarantees our obligations under our $200.0
million principal amount of 8% Senior Notes due
2008, guarantees our obligations under the $100.0
million principal amount of Convertible Senior
Notes and guarantees our obligations under our
senior credit facility. The guarantees are
unsecured senior indebtedness of our subsidiary
guarantors. |
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If the obligations of any subsidiary guarantor
under the 2006 Notes, the 2008 Notes, the
Convertible Senior Notes and our senior credit
facility terminate, that subsidiary guarantor will
also be released from its obligations under its
subsidiary guarantee. If an existing or future
subsidiary of ours guarantees any of our debt,
then that subsidiary will guarantee our debt under
the new notes. |
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Ranking |
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The notes will rank equally in right of payment
with all our existing and future unsecured senior
debt and are senior in right of payment to all our
future subordinated debt. The indenture does not
limit the amount of debt that we or our
subsidiaries may incur. The guarantees will rank
equally in right of payment with the existing and
future unsecured senior debt of our subsidiary
guarantors and will be senior in right of payment
to the future subordinated debt of our subsidiary
guarantors. The notes and the guarantees will
effectively rank junior to any secured debt of
ours or our subsidiary guarantors, to the extent
of the assets securing that debt. If the
guarantees of the notes are eliminated, the notes
will be structurally junior to all liabilities of
our subsidiaries. |
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Covenants |
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We will issue the notes under an indenture with
National City Bank, as trustee. The indenture,
among other things, restricts our ability to: |
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incur or permit to exist liens; |
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engage in transactions with our affiliates; |
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enter into sale and lease-back transactions; and |
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merge or consolidate with or into other
companies. |
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Use of proceeds |
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We will not receive any proceeds from the exchange
offer. For a description of the use of proceeds
from the offering of the old notes, see Use of
Proceeds. |
14
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Form of the new notes |
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The new notes will be represented by one or more
permanent global securities in registered form
deposited with National City Bank, as custodian,
for the benefit of The Depository Trust Company.
You will not receive notes in registered form
unless one of the events set forth under the
heading Book-Entry, Delivery and Form occurs.
Instead, beneficial interests in the new notes
will be shown on, and transfers of these interests
will be effected only through, records maintained
in book-entry form by The Depository Trust Company
for its participants. |
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Transfer restrictions; Absence of a
public market for the notes |
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There has been no public market for the old notes,
and we do not anticipate that an active market for
the new notes will develop. We do not intend to
apply to list the new notes on any securities
exchange or to include them in any automated
quotation system. We cannot make any assurances
regarding the liquidity of the market for the new
notes, your ability to sell your new notes or the
price at which you may sell your new notes. See
Plan of Distribution. |
15
Summary consolidated financial data
The following summary of our consolidated financial information with respect to
the years ended December 31, 2002, 2001 and 2000 and the three months ended
March 31, 2003 and 2002 should be read in conjunction with Selected historical
consolidated financial data contained elsewhere in this prospectus and
Managements discussion and analysis of financial condition and results of
operations, and our consolidated financial statements and related notes
contained elsewhere in our annual report on Form 10-K for the year ended
December 31, 2002 and our quarterly report on Form 10-Q for the quarter ended
March 31, 2003, which we incorporate by reference into this prospectus. See
Documents Incorporated by Reference. |
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For the 3 months ended |
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March, 31, |
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For the Year Ended December 31, |
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(Dollars in thousands, except per share, ratios |
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and segment data) |
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2003 |
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2002 |
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2002 |
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2001 |
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2000 |
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(unaudited) |
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Results of operations |
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Revenues |
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$ |
730,520 |
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$ |
715,987 |
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$ |
2,905,448 |
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$ |
2,694,056 |
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$ |
2,380,578 |
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Income before other income (expenses), income
taxes and minority
interest |
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56,650 |
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63,961 |
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213,715 |
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178,995 |
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138,579 |
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Income before cumulative effect |
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31,128 |
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33,739 |
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131,864 |
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68,490 |
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39,055 |
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Diluted earnings per share |
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Income before cumulative effect |
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$ |
0.33 |
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$ |
0.33 |
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$ |
1.33 |
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$ |
0.66 |
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$ |
0.38 |
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Cash flow data |
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Net cash provided by operating activities |
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$ |
80,741 |
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$ |
96,211 |
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$ |
283,293 |
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$ |
283,427 |
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$ |
210,149 |
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Net cash used in investing activities |
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(33,315 |
) |
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(19,930 |
) |
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(37,745 |
) |
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(157,881 |
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(124,677 |
) |
Net cash used in financing activities |
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(61,936 |
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(82,603 |
) |
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(241,685 |
) |
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(123,798 |
) |
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(72,816 |
) |
Other financial data |
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Interest expense |
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8,875 |
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9,944 |
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37,651 |
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50,800 |
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60,733 |
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Capital expenditures |
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24,422 |
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23,367 |
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96,615 |
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96,121 |
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127,008 |
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Acquisitions |
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10,868 |
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682 |
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37,331 |
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69,806 |
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22,263 |
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Ratio of earnings to fixed charges(1) |
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5.2 |
x |
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5.4 |
x |
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5.1 |
x |
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2.9 |
x |
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1.7 |
x |
Balance sheet data |
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Total assets |
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$ |
2,286,611 |
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$ |
2,405,879 |
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$ |
2,306,932 |
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$ |
2,424,071 |
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$ |
2,358,468 |
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Total debt |
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611,572 |
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668,586 |
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640,535 |
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721,218 |
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804,533 |
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Total shareholders equity |
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1,015,382 |
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1,050,684 |
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1,016,047 |
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1,046,538 |
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1,012,729 |
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Skilled nursing and assisted living segment data |
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Number of facilities |
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366 |
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366 |
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366 |
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355 |
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354 |
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Number of beds |
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46,662 |
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46,820 |
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46,652 |
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46,281 |
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46,020 |
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(1) Earnings in the ratio of earnings to fixed charges represent the
Companys income before income taxes and minority interest that have been
adjusted to exclude (i) the effect of any fixed charges that reduced such
earnings and (ii) the undistributed income or losses of affiliates accounted
for by the equity method, except for losses of equity method affiliates whose
debt is guaranteed by the Company. |
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Fixed charges include interest expense, whether or not classified as such in
the earnings statement, as well as the portion of rental expense that is
estimated to represent the interest portion (approximately 40%). Interest
expense includes capitalized interest, interest on guaranteed debt of an equity
method affiliate that is incurring losses, and interest on the Companys loans
against the cash surrender value of corporate-owned life insurance
(COLI). |
Ratio of earnings to fixed charges
In the following table, we provide you with our historical and pro forma ratios
of earnings to fixed charges for the 3 months ended March 31, 2003 and 2002 and
the years ended December 31 of the dates indicated:
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Q1 |
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Q1 |
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2003 |
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2002 |
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2002 |
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2001 |
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2000 |
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1999 |
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1998 |
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Ratio(1) |
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5.2x |
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5.4x |
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5.1x |
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2.9x |
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1.7x |
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(1) No fixed charge coverage ratio result is shown for 1998 and 1999 because
earnings are insufficient to cover fixed charges by $38.6 million and $108.8
million, respectively.
16
Earnings in the ratio of earnings to fixed charges represent our income from
continuing operations before taxes and minority interest that have been
adjusted to exclude (i) the effect of any fixed charges that reduced such
earnings and (ii) the undistributed income or losses of affiliates accounted
for by the equity method, except for losses of equity method affiliates whose
debt we guarantee.
Fixed charges include interest expense, whether or not classified as such in
the earnings statement, as well as the portion of rental expense that is
estimated to represent the interest portion approximately 40%. Interest
expense includes capitalized interest, interest on guaranteed debt of an equity
method affiliate that is incurring losses, and interest on our loans against
the cash surrender value of corporate owned life insurance.
General
Manor Care, Inc. is a Delaware corporation. Our principal executive offices are
located at 333 North Summit Street, Toledo, Ohio 43604-2617 and our telephone
number at that address is (419) 252-5500. Our website is located at
www.manorcare.com. The information on our website is not part of this
prospectus.
17
RISK FACTORS
Our business, operations and financial condition are subject to various
risks. We describe some of these risks below, and you should take these risks
into account in deciding whether to participate in the exchange offer proposed
in this prospectus. This section does not describe all risks applicable to us,
our industry or our business, and we intend it only as a summary of certain
material factors.
You may be adversely affected if you do not exchange your notes.
If you do not exchange your old notes for new notes pursuant to the
exchange offer, you will continue to be subject to the transfer restrictions on
your old notes. You will have no further registrations rights. The transfer
restrictions on your old notes arise because we issued the old notes pursuant
to exemptions from, or in transactions not subject to, the registration
requirements of the Securities Act and applicable state securities laws. In
general, you may only offer or sell the old notes if they are registered under
the Securities Act and applicable state securities laws, or offered and sold
pursuant to an exemption from those requirements. We do not intend to register
the old notes under the Securities Act. In addition, if you exchange your old
notes in the exchange offer for the purpose of participating in a distribution
of the new notes, you may be deemed to have received restricted securities. In
those circumstances, you will be required to comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction. To the extent old notes are tendered and accepted in the
exchange offer, the trading market, if any, for the old notes would be
adversely affected. See The Exchange Offer Consequences of Failure to
Exchange Old Notes.
There is no public market for the new notes, so you may be unable to sell them.
We will not list the new notes on any securities exchange. These new
notes are new securities for which there is currently no market. The notes may
trade at a discount from their initial offering price, depending upon
prevailing interest rates, the market for similar securities, our performance
and other factors. We have been advised by the initial purchasers that they
intend to make a market in the new notes, as well as the old notes, as
permitted by applicable laws and regulations. However, they are not obligated
to do so and their market making activities may be limited during our exchange
offer. Therefore, we cannot assure you that an active market for the new notes
will develop.
If a market develops for the new notes, the notes might trade at volatile
prices.
If a market develops for the new notes, the notes might trade at prices
higher or lower than their initial public offering price. The trading price
would depend on many factors, such as prevailing interest rates, the market for
similar securities, general economic conditions and our financial condition,
performance and prospects.
You must tender the old notes in accordance with proper procedures in order to
ensure the exchange will occur.
We will only exchange old notes for new notes if you follow the proper
procedures, as detailed in this prospectus. We will issue the new notes in
exchange for the old notes if the exchange agent receives the old notes or a
book-entry confirmation, a properly completed and executed transmittal letter,
or an agents message, and all other required documentation in a timely manner.
If you want to tender your old notes in exchange for new notes, you should
allow sufficient time to ensure timely delivery. Neither we nor the exchange
agent is under any duty to give you notification of defects or irregularities
with respect to tenders of old notes for exchange. In addition, if you are an
affiliate of ours or you tender the old notes in the exchange offer in order to
participate in a distribution of the new notes, you will be required to comply
with the registration and prospectus delivery requirements of the Securities
Act in connection with any resale transaction. For additional information,
please refer to the sections entitled The Exchange Offer and Plan of
Distribution.
18
Our indebtedness could adversely affect our financial health and make it more
difficult for us to fulfill our obligations under the notes.
At March 31, 2003, our total consolidated indebtedness was $611.6 million.
After giving effect to the issuance of the old notes and the concurrent
issuance of the Convertible Senior Notes and establishment of our new three
year senior revolving credit facility, and the use of proceeds from those
transactions, including the repurchase of $25.0 million of our common stock, at
March 31, 2003, our total consolidated indebtedness would have been
approximately $675.0 million.
Our indebtedness could have important consequences to you. For example, it
could:
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make it more difficult for us to satisfy our obligations with respect to the notes; |
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increase our vulnerability to general adverse economic and industry conditions; |
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require us to dedicate a substantial portion of our cash flow from
operations to payments on our indebtedness, thereby reducing the
availability of our cash flow to fund acquisitions, working capital,
capital expenditures and other general corporate purposes; |
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limit, along with the financial and other restrictive covenants in
our indebtedness, our ability to borrow a significant amount of
additional funds; |
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limit, along with the financial and other restrictive covenants in
our indebtedness, our flexibility in planning for, or reacting to,
changes in our business and the industry in which we operate; and |
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place us at a competitive disadvantage compared to our competitors
that have less debt. |
We may be able to incur additional indebtedness in the future which could
intensify the risks listed above. The indenture relating to the notes does not
limit the amount of debt that we or our subsidiaries may incur.
Our business is conducted through our subsidiaries.
Our operations are conducted through our subsidiaries. As a result, we depend
on dividends, loans or advances, or payments from our subsidiaries to satisfy
our financial obligations and make payments to our investors. The ability of
our subsidiaries to pay dividends and make other payments to us is restricted
by, among other things, applicable corporate and other laws and regulations as
well as, in the future, agreements to which our subsidiaries may be a party.
Although the notes are guaranteed by the subsidiary guarantors, each guarantee
is subordinated to all secured debt of the relevant subsidiary guarantor.
Moreover, not all of our subsidiaries are guarantors. For the year ended
December 31, 2002, our non-guarantor subsidiaries represented less than 3.0% of
our revenues, assets and income before income taxes and minority interest.
Not all of our subsidiaries are guarantors and assets of non-guarantor
subsidiaries may not be available to make payments on the notes and our
subsidiary guarantees may be released in the future if certain events occur.
Our existing and future subsidiaries that do not guarantee the obligations of
our wholly-owned subsidiary Manor Care of America, Inc., which we refer to as
MCA, under its $150.0 million principal amount of 7 1/2% Senior Notes due 2006,
or our obligations under our $200.0 million principal amount 8% Senior Notes
due 2008, are also not guarantors of the notes or the Convertible Senior Notes.
Payments on the new notes are only required to be made by us and the subsidiary
guarantors. As a result, no payments are required to be made from assets of
subsidiaries which do not guarantee the notes unless those assets are
transferred, by dividend or otherwise, to us or a subsidiary guarantor.
In the event of a bankruptcy, liquidation or reorganization of any of the
non-guarantor subsidiaries, holders of their debt, including their trade
creditors, will generally be entitled to payment of their claims from the
assets of those subsidiaries before any assets are made available for
distribution to us. For the year ended December 31, 2002, our
19
non-guarantor subsidiaries represented less than 3.0% of our revenues, assets
and income before income taxes and minority interest.
Each subsidiary guarantor that is released from its obligations under MCAs 7
1/2% Senior Notes due 2006 or any related guarantees, its obligations under our
8% Senior Notes due 2008 or any related guarantees, its obligations under the
Convertible Senior Notes or any related guarantees, its obligations under our
senior revolving credit facility and any guarantee with respect to such credit
facility will also be released as a guarantor under the notes. Upon such
release, the notes will effectively rank junior to all liabilities of such
subsidiary, whether or not such liabilities are secured or unsecured.
Although your notes are referred to as senior notes, and the subsidiary
guarantees are senior obligations of our subsidiaries, each will be effectively
subordinated to our secured debt and any secured liabilities of our
subsidiaries.
The notes will effectively rank junior to any of our secured debt or any
secured debt of our subsidiaries, to the extent of the assets securing that
debt. In the event of bankruptcy, liquidation, reorganization or other winding
up of Manor Care, our assets that secure secured debt will be available to pay
obligations on the notes only after that secured debt has been repaid in full
from these assets. We advise you that there may not be sufficient assets
remaining to pay amounts due on any or all the notes then outstanding. The
guarantees of the notes will similarly effectively rank junior to any secured
debt of the applicable subsidiary, to the extent of the assets securing that
debt. In addition to the guarantees of the credit facilities, MCAs 7 1/2%
Senior Notes due 2006 and our 8% Senior Notes due 2008, subsidiaries of the
Company had additional indebtedness of $25.9 million as of March 31, 2003,
substantially all of which was secured.
A change in control may adversely affect us or the notes.
Our $200.0 million three-year senior revolving credit facility provides that
certain change of control events with respect to us will constitute a default.
In addition, future debt we incur may limit our ability to repurchase the notes
upon a change of control or require us to offer to redeem that future debt upon
a change of control. Moreover, if you or other investors in our notes exercise
the repurchase right for a change of control, it may cause a default under that
debt, even if the change of control itself does not cause a default, due to the
financial effect of such a purchase on us. Finally, if a change of control
event occurs, we cannot assure you that we will have enough funds to repurchase
all the notes.
Furthermore, the change in control provisions may in certain circumstances make
more difficult or discourage a takeover of Manor Care and the removal of
incumbent management.
Our business and financial results depend on our ability to generate sufficient
cash flows to service our debt or refinance our debt on commercially reasonable
terms.
Our ability to make payments on and to refinance our debt and to fund planned
expenditures depends on our ability to generate cash flow in the future. This,
to some extent, is subject to general economic, financial, competitive,
legislative and regulatory factors and other factors that are beyond our
control. In addition, our ability to borrow funds under our $200.0 million
three-year senior revolving credit facility will depend on our satisfying
various covenants. These covenants, among other things:
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limit our ability and the ability of our subsidiaries to borrow and
to place liens on our assets or their assets; |
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require us to comply with a debt to capitalization ratio test, fixed
charge coverage ratio test and leverage ratio test; |
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limit our ability to merge with other parties or sell all or
substantially all of our assets; |
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limit our and our subsidiaries ability to make certain acquisitions
and to dispose of assets; and |
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limit our ability to pay dividends and redeem capital stock. |
20
We cannot assure you that our business will generate cash flows from operations
or that future borrowings will be available to us under our $200.0 million
three-year senior revolving credit facility in an amount sufficient to enable
us to pay our debt or to fund our other liquidity needs.
Our inability to generate sufficient cash flow to service our debt would have a
material adverse effect on our business and results of operations.
We may make acquisitions that could subject us to a number of operating risks.
We anticipate that we may continue to make acquisitions of, investments in, and
strategic alliances with complementary businesses to enable us to add services
for our core customer base and for adjacent markets, and to expand each of our
businesses geographically. However, implementation of this strategy entails a
number of risks, including:
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inaccurate assessment of undisclosed liabilities; |
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entry into markets in which we may have limited or no experience; |
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diversion of managements attention from our core business; |
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difficulties in assimilating the operations of an acquired business
or in realizing projected efficiencies and cost savings; and |
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increase in our indebtedness and a limitation in our ability to
access additional capital when needed. |
Certain changes may be necessary to integrate the acquired businesses into our
operations, to assimilate many new employees and to implement reporting,
monitoring, compliance and forecasting procedures. Obtaining anticipated
revenue synergies or cost reductions are also a risk in many acquisitions.
We depend upon reimbursement by third-party payors.
Substantially all of our revenues are derived from private and governmental
third-party payors. In 2002, approximately 31% of our revenues were derived
from Medicare, 33% from Medicaid and approximately 36% from commercial
insurers, managed care plans, workers compensation payors and other private
pay revenue sources. There are increasing pressures from many payors to control
health care costs and to reduce or limit increases in reimbursement rates for
medical services. Governmental payment programs are subject to statutory and
regulatory changes, retroactive rate adjustments, administrative or executive
orders and government funding restrictions, all of which may materially
increase or decrease the rate of program payments to us for our services. Due
to budgetary shortfalls, many states are considering or have enacted cuts to
their Medicaid programs, including funding for our services. In the recent
past, we have experienced a decrease in revenues primarily attributable to
declines in government reimbursement as a result of the Balanced Budget Act of
1997. Although certain rate reductions resulting from the Balanced Budget Act
of 1997 were mitigated by the SCHIP Balanced Budget Refinement Act of 1999 and
the SCHIP Benefits Improvement and Protection Act of 2000, the Balanced Budget
Act of 1997 significantly changed the method of payment under the Medicare and
Medicaid programs for our services. There can be no assurances that payments
from governmental or private payors will remain at levels comparable to present
levels or will, in the future, be sufficient to cover the costs allocable to
patients eligible for reimbursement pursuant to such programs. Our financial
condition and results of operations may be affected by the reimbursement
process, which in the health care industry is complex and can involve lengthy
delays between the time that revenue is recognized and the time that
reimbursement amounts are settled.
Certain of the increases in Medicare reimbursement for skilled nursing
facilities provided for under the SCHIP Balanced Budget Refinement Act of 1999
and the SCHIP Benefits Improvement and Protection Act of 2000 expired on
September 30, 2002, the so-called Medicare cliff. Congress has not enacted
additional legislation to date to further extend these provisions. No
assurances can be given as to whether Congress will increase or decrease
reimbursement in the future, the timing of any action or the form of relief, if
any, that may be enacted. We believe
21
that much of the decrease in revenues from the Medicare cliff will be offset by a shift in the mix of our patients to
a higher percentage of Medicare and insurance, as well as the Medicare statutory annual inflationary increase effective October 1, 2003.
We are subject to periodic audits by the Medicare and Medicaid programs, and the paying agencies for these
programs have various rights and remedies against us if they assert that we have overcharged the programs or failed
to comply with program requirements. Such payment and government agencies could seek to reopen previously filed and reviewed
cost reports and to require us to repay any overcharges, or could make deductions from future amounts due to us. As a result of these audits,
such agencies are reviewing our cost reports and the payments that we received prior to the implementation of the prospective payment system.
We could also be subject to civil false claims assessments, fines, criminal penalties or program exclusions as a result of Department of Justice and/or the Office
of Inspector General, U.S. Department of Health and Human Services review of any such program violations. Private pay sources also reserve rights to conduct
audits and make monetary adjustments.
If we fail to comply with extensive laws and government regulations, we could suffer penalties or be required to make significant changes to our operations.
The health care industry, including our company, is required to comply with extensive and complex laws and regulations at the federal, state and local government levels
relating to, among other things:
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licensure and certification; |
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adequacy and quality of health care services; |
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qualifications of health care and support personnel; |
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quality of medical equipment; |
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confidentiality, maintenance and security issues associated with medical records; |
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relationships with physicians and other referral sources; |
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operating policies and procedures; |
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addition of facilities and services; and |
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billing for services. |
Many of these laws and regulations are expansive, and we do not always have the benefit of significant regulatory or
judicial interpretation of these laws and regulations. In addition, certain regulatory developments, such as revisions
in the building code requirements for assisted living and skilled nursing facilities, mandatory increases in scope and
quality of care to be offered to residents and revisions in licensing and certification standards, could
have a material adverse effect on us. In the future, different interpretations or enforcement of these laws and
regulations could subject our current or past practices to allegations of impropriety or illegality or could require us
to make changes in our facilities, equipment, personnel, services, capital expenditure programs and operating expenses.
If we fail to comply with applicable laws and regulations, we could be subjected to liabilities, including criminal penalties,
civil penalties (including the loss of our licenses to operate one or more of our facilities) and exclusion of one or more of our facilities
from participation in the Medicare, Medicaid and other federal and state health care programs.
Both federal and state government agencies have heightened and coordinated civil and criminal enforcement efforts as part of numerous
ongoing investigations of health care companies and, in particular, skilled nursing facilities and home health agencies. These investigations relate to
a wide variety of topics, including:
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cost reporting and billing practices; |
22
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quality of care; |
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financial relationships with referral sources; and |
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medical necessity of services provided. |
In addition, the Office of the Inspector General of the U.S. Department of
Health and Human Services and the Department of Justice have, from time to
time, established national enforcement initiatives that focus on specific
billing practices or other suspected areas of abuse. Such initiatives include
review of:
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the appropriateness of therapy services provided to Medicare
beneficiaries in skilled nursing facilities; |
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appropriate cost allocation between the Medicare-certified and
non-certified portions of the facility; and |
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billing for ancillary supplies, resident assessments and quality of
care. |
Like others in the health care industry, we receive requests for information
from governmental agencies in connection with their regulatory or
investigational authority. Moreover, health care providers are also subject to
the federal False Claims Act amendments which in 1986 made it easier for
private parties to bring qui tam whistleblower lawsuits against companies.
Some states have adopted similar state whistleblower and false claims
provisions. See Business-Regulation and licenses contained in our annual
report on Form 10-K for the year ended December 31, 2002, which we incorporate
by reference into this prospectus.
We are required to comply with laws governing the transmission and privacy of
health information.
The Health Insurance Portability and Accountability Act of 1996 requires us to
comply with standards for the exchange of health information within our company
and with third parties, such as payors, business associates and patients. These
include standards for common health care transactions, such as claims
information, plan eligibility, payment information and the use of electronic
signatures; unique, identifiers for providers, employers, health plans and
individuals; security; privacy; and enforcement.
The Department of Health and Human Services finalized the transaction standards
on August 17, 2000. While we initially were required to comply with them by
October 16, 2002, Congress passed legislation in December 2001 that delayed for
one year (until October 16, 2003) the compliance date, but only for entities
that submitted a compliance plan to the Department of Health and Human Services
by the original implementation deadline, which we did. On February 20, 2003,
the Department of Health and Human Services published certain modifications to
the final transaction standards, but these changes do not affect the October
16, 2003 compliance deadline. The Department of Health and Human Services
issued the privacy standards on December 28, 2000, and, after certain delays,
they became effective on April 14, 2001, with a compliance date of April 14,
2003. Sanctions for failing to comply with the Health Insurance Portability and
Accountability Act of 1996 health information practices provisions include
criminal penalties and civil sanctions. The security standards became effective
on April 21, 2003, with a compliance date of April 21, 2005 for most covered
entities.
If we fail to comply with these standards, we could be subject to criminal
penalties and civil sanctions. See Business-Regulation and licenses-Health
information practices contained in our annual report on Form 10-K for the year
ended December 31, 2002, which we incorporate by reference into this
prospectus.
State efforts to regulate the construction or expansion of health care
providers could impair our ability to expand our operations.
Some states require health care providers (including skilled nursing
facilities, home health agencies, hospices and assisted living facilities) to
obtain prior approval, known as a certificate of need, for:
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the purchase, construction or expansion of health care facilities; |
23
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capital expenditures exceeding a prescribed amount; or |
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changes in services or bed capacity. |
To the extent that we require a certificate of need or other similar approvals
to expand our operations, either by acquiring facilities or expanding or
providing new services or other changes, our expansion could be adversely
affected by the failure or inability to obtain the necessary approvals, changes
in the standards applicable to those approvals, and possible delays and
expenses associated with obtaining those approvals. We cannot assure you that
we will be able to obtain certificate of need approval for all future projects
requiring that approval.
If certain of our operations are found not to qualify for an exception under
Medicares related party rule, we may be required to return payments we
received in the past.
Before the Medicare program implemented the prospective payment system for
skilled nursing facilities, it limited certain allowable costs for items and
services provided by companies that are associated or affiliated with a
Medicare provider or have control of, or are controlled by, a Medicare
provider. Many state Medicaid programs have adopted the same rule in
determining costs that will be included in the payment rates. Unless a provider
qualifies for the exception to the related party rule, the Medicare program
will only reimburse the provider for the cost incurred by the related party in
providing products or services, rather than the related partys charge. An
organization can qualify for the exception to the related party rule by meeting
the following criteria:
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the entities are bona fide separate organizations; |
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a substantial part of the supplying organizations business activity
is conducted with non-related organizations and there is an open,
competitive market for the services or products; |
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the services or products are commonly obtained by a provider from
other organizations and are not a basic element of patient care ordinary
furnished directly to patients by the providers; and |
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the charge to the provider is in line with the charge for these
services and products in the open market and no more than the charge
made under comparable circumstances to others. |
The Medicare program has taken the position for cost reporting years 1997
through 1999 that one of our subsidiaries providing rehabilitation management
services is a related party and that certain fees paid to this entity should be
adjusted based upon the related party rule. The Maryland Medicaid program has
taken the same position, based upon the Medicare programs position. We have
appealed the decisions of the Medicare program and Maryland Medicaid program to
adjust these fees. We have signed a settlement agreement with Medicare for cost
reporting years 1997, 1998 and 1999 that involves a payment to Manor Care,
which was not material to our financial results. We have also signed a
settlement agreement with the State of Maryland for cost reporting years 1998
and 1999 related to three Manor Care nursing facilities that involves a payment
to Manor Care, which is not expected to be material to our financial results.
Other state Medicaid programs could take the same position as the Medicare
program and the Maryland Medicaid program.
Health care reform legislation may affect our business.
In recent years, there have been numerous initiatives on the federal and state
levels for comprehensive reforms affecting the payment for and availability of
health care services. Aspects of certain of these health care initiatives, such
as reductions in funding of the Medicare and Medicaid programs; potential
changes in reimbursement regulations by the Centers for Medicare & Medicaid
Services; enhanced pressure to contain health care costs by Medicare, Medicaid
and other payors; and greater state flexibility and additional operational
requirements in the administration of Medicaid, could adversely affect us.
There can be no assurance as to the ultimate content, timing or effect of any
health care reform legislation, nor is it possible at this time to estimate the
impact of potential legislation on us. That impact may be material to our
financial condition or our results of operations.
24
We face national, regional and local competition.
Our nursing facilities compete primarily on a local and regional basis with
many long-term care providers, some of whom may own as few as a single nursing
center. Our ability to compete successfully varies from location to location
depending on a number of factors, including the number of competing centers in
the local market, the types of services available, quality of care, reputation,
age and appearance of each center and the cost of care in each locality.
We also compete with a variety of other companies in providing assisted living
services, rehabilitation therapy services and home health care services. Given
the relatively low barriers to entry and continuing health care cost
containment pressures in the assisted living industry, we expect that the
assisted living industry will become increasingly competitive in the future.
Increased competition in the future could limit our ability to attract and
retain residents, to maintain or increase resident service fees, or to expand
our business.
Labor costs may increase with a potential shortage of qualified personnel.
A shortage of nurses or other trained personnel and general inflationary
pressures have required us to enhance our wage and benefits packages in order
to compete for qualified personnel. Labor costs account for approximately 64%
of the operating expenses of our long-term care segment in 2002. We compete
with other health care providers to attract and retain qualified or skilled
personnel. We also compete with various industries for lower-wage employees.
Although we currently do not face a staffing shortage in all markets where we
operate, we have used high-priced temporary help to supplement staffing levels
in markets with shortages of health care workers, primarily in 2001 and 2000.
If a shortage of nurses or other health care workers occurred in all geographic
areas in which we operate, it could adversely affect our ability to attract and
retain qualified personnel and could further increase our operating costs.
Our operations are subject to occupational health and safety regulations.
We are subject to a wide variety of federal, state and local occupational
health and safety laws and regulations. Among the types of regulatory
requirements faced by health care providers such as us are: air and water
quality control requirements, occupational health and safety requirements (such
as standards regarding blood-borne pathogens and ergonomics), waste management
requirements, specific regulatory requirements applicable to asbestos,
polychlorinated biphenyls and radioactive substances, requirements for
providing notice to employees and members of the public about hazardous
materials and wastes and certain other requirements. If we fail to comply with
these standards, we may be subject to sanctions and penalties.
The cost of general and professional liability claims may increase.
The significant increase in patient care liability costs in the past three
years is a critical issue for our industry. General and professional liability
claims for the long-term care industry have become increasingly expensive. The
long-term care industry received some assistance with the passage of a measure
of tort reform in Florida in May 2001 that became fully effective on October 5,
2001. Despite those reforms, if patient care claims continue to increase in
number and size, our future financial condition and operating results may be
adversely affected.
We are subject to material litigation.
We are, and may in the future be, subject to litigation which, if determined
adversely to us, could have a material adverse effect on our business or
financial condition. In addition, some of the companies and businesses we have
acquired have been subject to similar litigation. Pending, threatened or future
litigation, whether or not described in this prospectus, could have a material
adverse effect on our financial condition or our results of operations. See
Managements discussion and analysis of financial condition and results of
operationsContingencies and commitments and
BusinessLitigation contained
in our annual report on Form 10-K for the year ended December 31, 2002, which
we incorporate by reference into this prospectus.
25
Federal and state statutes allow courts, under specific circumstances, to void
guarantees and require holders
of the notes to return payments received from us or our subsidiary guarantors.
Under the federal bankruptcy law and comparable provisions of state fraudulent
transfer laws, a guarantee could be voided, or claims in respect of a guarantee
could be subordinated to all other debts of that guarantor if, among other
things, the guarantor, at the time it incurred the debt evidenced by its
guarantee:
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issued the guarantee to delay, hinder or defraud present or future creditors; or |
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received less than reasonably equivalent value or fair consideration for the incurrence of such guarantee, |
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and at the time it issued the guarantee: |
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was insolvent or rendered insolvent by reason of such incurrence; or |
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was engaged or about to engage in a business or transaction for which
the guarantors remaining unencumbered assets constituted unreasonably
small capital to carry on its business; or |
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intended to incur, or believed that it would incur, debts beyond its
ability to pay the debts as they mature. |
In addition, any payment by that guarantor pursuant to its guarantee could be
voided and required to be returned to the guarantor, or to a fund for the
benefit of the creditors of the guarantor.
The measures of insolvency for purposes of these fraudulent transfer laws will
vary depending upon the law applied in any proceeding to determine whether a
fraudulent transfer has occurred. Generally, however, a guarantor would be
considered insolvent if, at the time it incurred the debt:
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the sum of its debts, including contingent liabilities, were greater
than the fair saleable value of all of its assets; |
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if the present fair saleable value of its assets were less than the
amount that would be required to pay its probable liability on its
existing debts, including contingent liabilities, as they become
absolute and mature; or |
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it could not pay its debts as they become due. |
We cannot be sure as to the standards that a court would use to determine
whether or not the subsidiary guarantors were solvent at the relevant time, or,
regardless of the standard that the court uses, that the issuance of the
guarantee of the notes would not be voided or the guarantee of the notes would
not be subordinated to that subsidiary guarantors other debt.
If a case were to occur, any guarantee of the notes incurred by one or more of
the subsidiary guarantors could also be subject to the claim that, since the
guarantee was incurred for our benefit, and only indirectly for the benefit of
the subsidiary guarantor, the obligations of the applicable guarantor were
incurred for less than fair consideration.
A court could thus void the obligations under the guarantee or subordinate the
guarantee to the applicable guarantors other debt or take other action
detrimental to holders of the notes.
We may repurchase our stock and reduce cash reserves and shareholders equity
that is available for repayment of the notes.
We have in the past repurchased, and expect to continue to repurchase, our
stock in the open market or in privately negotiated transactions. As of March
31, 2003, we had authority to repurchase $104.9 million of our common stock. As
of April 8, 2003, $34.5 million of this amount had been utilized. In addition,
on April 7, 2003, our board of directors authorized us to repurchase an
additional $100.0 million of our common stock. Concurrently with
our issuance of the old notes and the Convertible Senior Notes, we acquired
$25.0 million of our common stock from purchasers of the Convertible Senior
Notes. As of June 30, 2003, we had remaining authority to repurchase
26
$111.9 million of our common stock. In the future, we may purchase our stock with
cash or other assets of Manor
Care. These purchases may be significant. Any purchase would reduce cash and
shareholders equity that is available to pay the notes.
We may purchase or sell assets which may increase senior debt or reduce cash
flow respectively.
We frequently purchase and sell assets. Purchases may reduce cash or increase
senior debt. We also sell assets, which may reduce our cash flow as earnings
from sold operations are no longer available.
The remainder of this prospectus uses some capitalized terms. We have
defined these terms in a glossary beginning on page 57.
THE TRANSACTIONS
Concurrently with the offering of the old notes, we offered $90.0 million
principal amount of Convertible Senior Notes due 2023. The initial purchasers
of the Convertible Senior Notes were granted an over-allotment option to
purchase up to $10.0 million principal amount of additional Convertible Senior
Notes and exercised the full allotment of that option on April 28, 2003. In
addition, we entered into a new $200.0 million three-year senior revolving
credit facility on April 21, 2003. We used the combined proceeds of the
offerings of the old notes and the Convertible Senior Notes to repay
approximately $235.9 million of borrowings outstanding under our previous
$500.0 million, five-year revolving credit facility, to purchase approximately
$25.0 million of our common stock, to pay related fees and expenses, for
general corporate purposes, including additional repurchases of our common
stock, and to increase working capital. We refer to the offerings of the old
notes and the Convertible Senior Notes and our establishment of the new
three-year senior revolving credit facility in this prospectus collectively as
the Transactions.
Convertible Senior Notes. Concurrently with the offering of the old notes, we
offered $90.0 million principal amount of Convertible Senior Notes due 2023 in
a separate offering. The initial purchasers of the Convertible Senior Notes
were granted an over-allotment option to purchase up to $10.0 million principal
amount of additional Convertible Senior Notes and exercised the full amount of
that option on April 28, 2003. We may pay contingent interest to the holders
of the Convertible Senior Notes. In addition, holders of the Convertible Senior
Notes may convert their convertible senior notes at an initial conversion price
of $31.12 per share of common stock based on the issue price of the notes
(equivalent to an initial conversion rate of approximately 32.1337 shares of
common stock per $1,000 principal amount of notes) which conversion price and
conversion rate are subject to adjustment, prior to the stated maturity, in
multiples of $1,000 principal amount, under the following circumstances:
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if the average of the last reported sale prices of our common stock
for the 20 trading days immediately prior to the conversion date is
greater than or equal to 120% of the conversion price per share of
common stock on such conversion date; or |
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if the Convertible Senior Notes have been called for redemption; or |
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upon the occurrence of specified corporate transactions; or |
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if the credit ratings assigned to the Convertible Senior Notes by
Moodys Investors Service, Inc. and Standard & Poors Ratings Services
are below Ba3 and BB+, respectively, or the Convertible Senior Notes are
no longer rated by at least one of these ratings agencies. |
Revolving credit facility. On April 21, 2003, we entered into a new $200.0
million three-year senior revolving credit facility. The new senior revolving
credit facility contains various covenants, restrictions and events of default.
Among other things, these provisions require us to maintain certain financial
ratios and impose certain limits on our subsidiaries ability to incur
indebtedness, create liens, declare dividends, repurchase stock, dispose of
assets and make acquisitions.
27
USE OF PROCEEDS
We intend the exchange offer to satisfy our obligations under the
registration rights agreement that we entered into in connection with the
private offering of the old notes. We will not receive any cash proceeds from
the issuance of the new notes pursuant to the exchange offer. Old notes
surrendered in exchange for the new notes will be retired and canceled and
cannot be reissued. As a result, the issuance of the new notes will not result
in any increase or decrease in our indebtedness. We have agreed to bear the
expenses of the exchange offer. No underwriter is being used in connection
with the exchange offer.
We received proceeds from the sale of the old notes (after deducting
transaction fees and expenses) of $196.3 million. We received combined proceeds
of $291.9 million from the Transactions (after deducting transaction fees and
expenses). We used, or intend to use, the combined proceeds from the
Transactions as follows: (i) approximately $235.9 million to repay all
borrowings outstanding under our old $500.0 million five-year senior revolving
credit facility, (ii) approximately $25.0 million to purchase our common stock
concurrently with the issuance of the convertible notes, (iii) approximately
$7.5 million to pay related fees and expenses; and (iv) the remainder for
general corporate purposes, including additional repurchases of our common
stock and to increase working capital. After giving effect to the Transactions
and the use of proceeds from the Transactions, including the repurchase of
$25.0 million of our common stock, as of June 30, 2003 approximately $161.4
million remained for future borrowing under the our senior revolving credit
facility.
28
CAPITALIZATION
The following table sets forth our audited consolidated capitalization as of
December 31, 2002, and sets forth our unaudited consolidated capitalization as
of the three months ended March 31, 2003 on an actual basis, and an adjusted
basis to give effect to all of the Transactions and the use of the proceeds
from the Transactions, including the repurchase of $25.0 million of our common
stock concurrently with the completion of the issuance of the convertible
notes. This table should be read in conjunction with Managements discussion
and analysis of financial condition and results of operations and our
consolidated financial statements and related notes incorporated by reference
in this prospectus and Selected historical consolidated financial and
operating data contained elsewhere in this prospectus.
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As of March 31, 2003 (unaudited) |
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As of December 31, |
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(Dollars in thousands) |
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2002 |
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Actual |
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Adjusted |
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Total debt (including current portion of
long-term debt) |
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Five-year $500.0 million credit agreement(1) |
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$ |
259,300 |
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$ |
235,900 |
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$ |
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Three-year $200.0 million credit agreement(2) |
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7 1/2% senior notes due 2006(3) |
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149,795 |
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149,810 |
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149,810 |
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8% senior notes due 2008 |
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200,000 |
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200,000 |
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200,000 |
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6.25% senior notes due 2013 offered hereby(4) |
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199,372 |
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2.125% convertible notes due 2023 |
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100,000 |
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Mortgages and other notes |
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26,325 |
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20,787 |
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20,787 |
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Capital lease obligations |
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5,115 |
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5,075 |
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5,075 |
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|
|
|
|
|
|
|
Total debt |
|
$ |
640,535 |
|
|
$ |
611,572 |
|
|
$ |
675,044 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock, $0.01 par value, 5 million
shares authorized |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
Common stock, $0.01 par value, 300 million
shares authorized, 111 million shares issued |
|
|
1,110 |
|
|
|
1,110 |
|
|
|
1,110 |
|
|
Capital in excess of par value |
|
|
349,304 |
|
|
|
346,966 |
|
|
|
346,966 |
|
|
Retained earnings(5) |
|
|
1,006,295 |
|
|
|
1,037,088 |
|
|
|
1,036,929 |
|
|
Accumulated other comprehensive income (loss) |
|
|
(11 |
) |
|
|
225 |
|
|
|
225 |
|
|
Treasury stock, at cost, 16.0 million, 17.6
million and 18.9 million shares,
respectively(6) |
|
|
(340,651 |
) |
|
|
(370,007 |
) |
|
|
(395,007 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders equity |
|
$ |
1,016,047 |
|
|
$ |
1,015,382 |
|
|
$ |
990,223 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capitalization |
|
$ |
1,656,582 |
|
|
$ |
1,626,954 |
|
|
$ |
1,665,267 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
We refinanced our five-year agreement through the Transactions. On April
15, 2003, the date we received the proceeds of the old notes and the
Convertible Senior Notes, borrowings under the five-year agreement were
reduced to zero. |
|
(2) |
|
There were no borrowings under the new three-year $200 million credit
agreement upon closing of the Transactions. Excess proceeds from the
convertible notes were used to increase working capital. |
|
(3) |
|
Net of unamortized discounts of $205,000 and $190,000, respectively. |
|
(4) |
|
Net of unamortized discount of $628,000. |
|
(5) |
|
Retained earnings has been adjusted to include the after-tax effect of
the write off of the unamortized financing costs related to the five-year
credit agreement. |
|
(6) |
|
Treasury stock includes the repurchase of $25.0 million of our common
stock concurrently with the Transactions. |
29
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
In the following table, we provide you with our selected consolidated
historical information and other operating data for the fiscal years ended
December 31, 2002, 2001, 2000, 1999 and 1998, which have been audited by Ernst
& Young LLP, independent auditors. We have prepared this consolidated selected
financial information using our consolidated financial statements for the five
years ended December 31, 2002. The selected historical information for the
three months ended March 31, 2003 and 2002 has been derived from unaudited
consolidated financial statements which are incorporated by reference into this
prospectus. When you read this selected historical consolidated financial and
other data, it is important that you read along with it the historical
financial statements and related notes in our consolidated financial
statements, as well as the Managements Discussion and Analysis of Financial
Condition and Results of Operations section incorporated by reference into
this prospectus.
Five-year financial history
|
|
|
|
|
|
|
|
|
|
|
|
|
For the 3 months ended |
|
|
|
March 31, |
(Dollars in thousands, except |
|
|
per share and other data) |
|
2003 |
|
2002 |
|
|
|
|
|
|
|
|
(unaudited) |
Results of operations |
|
|
|
|
|
|
|
|
Revenues |
|
$ |
730,520 |
|
|
$ |
715,987 |
|
Expenses: |
|
|
|
|
|
|
|
|
|
Operating |
|
|
611,487 |
|
|
|
590,330 |
|
|
General and administrative |
|
|
30,709 |
|
|
|
29,927 |
|
|
Depreciation and amortization |
|
|
31,674 |
|
|
|
31,769 |
|
|
Provision for restructuring charge,
merger expenses, asset impairment and
other related charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
673,870 |
|
|
|
652,026 |
|
|
|
|
|
|
|
|
|
|
Income from continuing operations before
other income (expenses), income taxes
and minority interest |
|
|
56,650 |
|
|
|
63,961 |
|
Other income (expenses): |
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
(8,875 |
) |
|
|
(9,944 |
) |
|
Gain (loss) on sale of assets |
|
|
189 |
|
|
|
(944 |
) |
|
Impairment of investments |
|
|
|
|
|
|
|
|
|
Equity in earnings of affiliated
companies |
|
|
1,541 |
|
|
|
736 |
|
|
Other income |
|
|
701 |
|
|
|
609 |
|
|
|
|
|
|
|
|
|
|
|
Total other expenses, net |
|
|
(6,444 |
) |
|
|
(9,543 |
) |
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
before income taxes and minority
interest |
|
|
50,206 |
|
|
|
54,418 |
|
Income taxes (benefit) |
|
|
19,078 |
|
|
|
20,679 |
|
Minority interest income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations |
|
$ |
31,128 |
|
|
$ |
33,739 |
|
|
|
|
|
|
|
|
|
|
Earnings per share
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations: |
|
|
|
|
|
|
|
|
|
Basic |
|
$ |
.33 |
|
|
$ |
.33 |
|
|
Diluted |
|
$ |
.33 |
|
|
$ |
.33 |
|
Cash flows data |
|
|
|
|
|
|
|
|
Cash flows from operations |
|
$ |
80,741 |
|
|
$ |
96,211 |
|
Financial position |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
2,286,611 |
|
|
$ |
2,405,879 |
|
Long-term debt |
|
|
608,923 |
|
|
|
660,165 |
|
Shareholders equity |
|
|
1,015,382 |
|
|
|
1,050,684 |
|
Skilled nursing and assisted living
data |
|
|
|
|
|
|
|
|
Number of facilities |
|
|
366 |
|
|
|
368 |
|
Number of beds |
|
|
46,662 |
|
|
|
46,936 |
|
|
|
|
|
|
|
|
|
|
[Additional columns below]
[Continued from above table, first column(s) repeated]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, |
(Dollars in thousands, except |
|
|
per share and other data) |
|
2002 |
|
2001 |
|
2000 |
|
1999 |
|
1998 |
|
|
|
|
|
|
|
|
|
|
|
Results of operations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
2,905,448 |
|
|
$ |
2,694,056 |
|
|
$ |
2,380,578 |
|
|
$ |
2,135,345 |
|
|
$ |
2,209,087 |
|
Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating |
|
|
2,401,636 |
|
|
|
2,271,808 |
|
|
|
2,016,764 |
|
|
|
1,697,459 |
|
|
|
1,715,575 |
|
|
General and administrative |
|
|
131,628 |
|
|
|
115,094 |
|
|
|
104,027 |
|
|
|
89,743 |
|
|
|
96,017 |
|
|
Depreciation and amortization |
|
|
124,895 |
|
|
|
128,159 |
|
|
|
121,208 |
|
|
|
114,601 |
|
|
|
119,223 |
|
|
Provision for restructuring charge,
merger expenses, asset impairment and
other related charges |
|
|
33,574 |
|
|
|
|
|
|
|
|
|
|
|
14,787 |
|
|
|
278,261 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,691,733 |
|
|
|
2,515,061 |
|
|
|
2,241,999 |
|
|
|
1,916,590 |
|
|
|
2,209,076 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations before
other income (expenses), income taxes
and minority interest |
|
|
213,715 |
|
|
|
178,995 |
|
|
|
138,579 |
|
|
|
218,755 |
|
|
|
11 |
|
Other income (expenses): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
(37,651 |
) |
|
|
(50,800 |
) |
|
|
(60,733 |
) |
|
|
(54,082 |
) |
|
|
(46,587 |
) |
|
Gain (loss) on sale of assets |
|
|
30,651 |
|
|
|
(445 |
) |
|
|
506 |
|
|
|
|
|
|
|
|
|
|
Impairment of investments |
|
|
|
|
|
|
|
|
|
|
(20,000 |
) |
|
|
(274,120 |
) |
|
|
|
|
|
Equity in earnings of affiliated
companies |
|
|
4,761 |
|
|
|
1,407 |
|
|
|
812 |
|
|
|
1,729 |
|
|
|
5,376 |
|
|
Other income |
|
|
1,208 |
|
|
|
835 |
|
|
|
2,505 |
|
|
|
5,322 |
|
|
|
16,635 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expenses, net |
|
|
(1,031 |
) |
|
|
(49,003 |
) |
|
|
(76,910 |
) |
|
|
(321,151 |
) |
|
|
(24,576 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations
before income taxes and minority
interest |
|
|
212,684 |
|
|
|
129,992 |
|
|
|
61,669 |
|
|
|
(102,396 |
) |
|
|
(24,565 |
) |
Income taxes (benefit) |
|
|
80,820 |
|
|
|
61,502 |
|
|
|
21,489 |
|
|
|
(47,238 |
) |
|
|
21,597 |
|
Minority interest income |
|
|
|
|
|
|
|
|
|
|
1,125 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations |
|
$ |
131,864 |
|
|
$ |
68,490 |
|
|
$ |
39,055 |
|
|
$ |
(55,158 |
) |
|
$ |
(46,162 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
$ |
1.34 |
|
|
$ |
.67 |
|
|
$ |
.38 |
|
|
$ |
(.51 |
) |
|
$ |
(.42 |
) |
|
Diluted |
|
$ |
1.33 |
|
|
$ |
.66 |
|
|
$ |
.38 |
|
|
$ |
(.51 |
) |
|
$ |
(.42 |
) |
Cash flows data |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from operations |
|
$ |
283,293 |
|
|
$ |
283,427 |
|
|
$ |
210,149 |
|
|
$ |
137,110 |
|
|
$ |
135,403 |
|
Financial position |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
2,306,932 |
|
|
$ |
2,424,071 |
|
|
$ |
2,358,468 |
|
|
$ |
2,289,777 |
|
|
$ |
2,722,727 |
|
Long-term debt |
|
|
373,112 |
|
|
|
715,830 |
|
|
|
644,054 |
|
|
|
687,502 |
|
|
|
693,180 |
|
Shareholders equity |
|
|
1,016,047 |
|
|
|
1,046,538 |
|
|
|
1,012,729 |
|
|
|
980,037 |
|
|
|
1,199,168 |
|
Skilled nursing and assisted living
data |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of facilities |
|
|
366 |
|
|
|
368 |
|
|
|
354 |
|
|
|
346 |
|
|
|
360 |
|
Number of beds |
|
|
46,652 |
|
|
|
47,035 |
|
|
|
46,020 |
|
|
|
45,715 |
|
|
|
47,138 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The financial results represent the combined results of Health Care &
Retirement Corporation and Manor Care of America, Inc., formerly known as Manor
Care, Inc., for all periods presented.
We changed our method of accounting for our investment in In Home Health, Inc.
over the past five years due to changes in ownership or control. In Home
Health, Inc.s financial results were consolidated after 1999 and recorded
under the equity method in 1999 and 1998. We changed from consolidation to the
equity method of accounting for
30
In Home Health, Inc. in 1998 as a result of modifications to a preferred stock
agreement that changed our voting rights related to our preferred stock
ownership. In Home Health, Inc.s results are not included on the individual
line items when recording under the equity method. For a consistent trend, you
must add the amounts above with In Home Health, Inc.s revenues of $84.3
million for 1999 and $87.7 million for 1998, and In Home Health, Inc.s
operating expenses of $72.2 million for 1999 and $83.7 million for 1998.
Ratio of earnings to fixed charges
In the following table, we provide you with our historical and pro forma ratios
of earnings to fixed charges for the 3 months ended March 31, 2003 and 2002 and
the years ended December 31 of the dates indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Q1 |
|
Q1 |
|
2002 |
|
2001 |
|
2000 |
|
1999 |
|
1998 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2003 |
|
2002 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio(1) |
|
|
5.2x |
|
|
|
5.4x |
|
|
|
5.1x |
|
|
|
2.9x |
|
|
|
1.7x |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) No fixed charge coverage ratio result is shown for 1998 and 1999 because
earnings are insufficient to cover fixed charges by $38.6 million and $108.8
million, respectively.
Earnings in the ratio of earnings to fixed charges represent our income from
continuing operations before taxes and minority interest that have been
adjusted to exclude (i) the effect of any fixed charges that reduced such
earnings and (ii) the undistributed income or losses of affiliates accounted
for by the equity method, except for losses of equity method affiliates whose
debt we guarantee.
Fixed charges include interest expense, whether or not classified as such in
the earnings statement, as well as the portion of rental expense that is
estimated to represent the interest portion approximately 40%. Interest
expense includes capitalized interest, interest on guaranteed debt of an equity
method affiliate that is incurring losses, and interest on our loans against
the cash surrender value of corporate owned life insurance.
31
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During 2002 and the first quarter of 2003, National City Corporation and
certain of its subsidiaries provided us and certain of our officers with
commercial banking, private banking and trust services. Mr. Ormond is a
director of National City Corporation and Mr. Siefers is an executive officer
of that company and both served in these capacities during 2002 and the first
quarter of 2003. The trustee with respect to the indenture and NatCity
Investments, Inc., one of the initial purchasers of the old notes, are
wholly-owned by National City Corporation.
THE EXCHANGE OFFER
Purpose of the Exchange Offer
We sold the old notes to the initial purchasers in a private offering on
April 15, 2003. These initial purchasers resold the old notes to qualified
institutional buyers under Rule 144A and outside the United States pursuant to
Regulation S under the Securities Act. As of the date of this prospectus,
$200.0 million aggregate principal amount of old notes are outstanding. In
connection with the private offering of the old notes, we and our subsidiary
guarantors entered into a registration rights agreement in which we and our
subsidiary guarantors agreed to file a registration statement with the
Securities and Exchange Commission relating to an offer to exchange the old
notes and the guarantees under the Securities Act for new notes and guarantees.
We have filed the registration rights agreement as an exhibit to the
registration statement.
Effect of the Exchange Offer
We believe that you may offer for resale, resell or otherwise transfer any
new notes issued to you in the exchange offer without further registration
under the Securities Act or delivery of a prospectus if you:
|
|
|
are acquiring the new notes in the ordinary course of your business; |
|
|
|
|
are not participating, do not intend to participate and have
no arrangement or understanding with any person to participate, in a
distribution of the new notes; |
|
|
|
|
are not an affiliate of ours as defined in Rule 405 under the Securities Act; and |
|
|
|
|
are not a broker-dealer who acquired old notes from us. |
If you do not satisfy these criteria:
|
|
|
you will not be able to rely on the interpretations of the
staff of the SEC in connection with any offer for resale, resale or
other transfer of new notes; and |
|
|
|
|
you must comply with the registration and prospectus delivery
requirements of the Securities Act, or have an exemption available
to you, in connection with any offer for resale, resale or other
transfer of the new notes. |
Each broker-dealer that receives new notes for its own account in exchange
for old notes it acquired as a result of market-making or other trading
activities, may be a statutory underwriter and must acknowledge that it will
deliver a prospectus in connection with any resale of its new notes. This will
not be an admission by the broker-dealer that it is an underwriter within the
meaning of the Securities Act. See Plan of Distribution.
Terms of the Exchange Offer
|
|
|
We will accept all old notes validly tendered and not
withdrawn prior to 5:00 p.m., New York City time, on the expiration
date of the exchange offer. |
32
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You should read Expiration Date; Extensions; Amendments
below for an explanation of how the expiration date may be amended. |
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We will issue and deliver $1,000 principal amount of new
notes in exchange for each $1,000 principal amount of outstanding
old notes accepted in the exchange offer. Holders may exchange some
or all of their old notes in minimum denominations of $1,000 and
integral multiples of $1,000 in excess of $1,000. |
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By tendering old notes in exchange for new notes and by
signing the transmittal letteror delivering an agents message in
lieu of the transmittal letter, you will be representing that, among
other things: |
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(1) any new notes to be received by you will be acquired in the
ordinary course of your business; |
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(2) you are not engaged in, and do not intend to engage in, and
you have no arrangement or understanding with any person to
participate in, a distribution of the new notes; |
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(3) you acknowledge and agree that any person who is a
broker-dealer or is participating in the exchange offer for the
purpose of distributing the new notes must comply with the
registration and prospectus delivery requirements of the
Securities Act; and |
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(4) you are not an affiliate of ours within the meaning of Rule 405
under the Securities Act. |
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The terms of the new notes are identical in all material
respects to the terms of the old notes, except that the registration
rights and related liquidated damages provisions, and the transfer
restrictions that apply to the old notes do not apply to the new
notes. The new notes will evidence the same debt as the old notes
and will be entitled to the benefits of the indenture governing the
old notes. |
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We are sending this prospectus and the transmittal letter to
all registered holders of old notes as of the close of business on
, 2003. |
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We are not conditioning the exchange offer upon the tender of
any minimum amount of old notes. |
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The exchange offer is subject to the condition that the
exchange offer not violate applicable law, rules or regulations or
applicable interpretations of the staff of the SEC. See
Conditions of the Exchange Offer. |
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We may accept tendered old notes by giving oral or written
notice to the exchange agent. We must promptly confirm oral notice
in writing. The exchange agent will act as your agent for the
purpose of receiving the new notes from us and delivering them to
you. |
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You will not be required to pay brokerage commissions or fees
or, subject to the instructions in the transmittal letter, transfer
taxes with respect to the exchange of old notes. We will pay all
charges and expenses in connection with the exchange offer, other
than taxes specified under Transfer Taxes. |
Expiration Date; Extensions; Amendments
The exchange offer will expire at 5:00 p.m., New York City time, on,
, 2003, unless we, in our sole discretion, extend it. We may extend the
exchange offer at any time and from time to time by giving oral or written
notice to the exchange agent and by publicly announcing the extension before
9:00 a.m., New York City time, on the next business day after the previously
scheduled expiration date. We must promptly confirm oral notice in writing.
We may also accept all properly tendered old notes as of the expiration date
and extend the expiration date in respect of the remaining outstanding old
notes. We may, in our sole discretion:
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amend the terms of the exchange offer in any manner; |
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delay acceptance of, or refuse to accept, any old notes not previously accepted; |
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extend the exchange offer; or |
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terminate the exchange offer. |
We will give prompt notice of any amendment to the registered holders of
the old notes. If we materially amend the exchange offer, we will promptly
disclose the amendment in a manner reasonably calculated to inform you of the
amendment and we will extend the exchange offer to the extent required by law.
Procedures for Tendering
Only a holder of old notes may tender them in the exchange offer. For
purposes of the exchange offer, the term holder or registered holder
includes any participant in The Depository Trust Company whose name appears on
a security position listing as a holder of old notes.
To tender in the exchange offer, you must cause the following to be
transmitted to and received by the exchange agent no later than 5:00 p.m., New
York City time, on the expiration date:
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a confirmation of the book-entry transfer of the tendered old
notes into the exchange agents account at The Depository Trust
Company; |
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a properly completed and duly executed transmittal letter in
the form accompanying this prospectus, with any required signature
guarantees, or, at the option of the tendering holder in the case of
a book-entry tender, an agents message in lieu of the transmittal
letter; and |
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any other documents required by the transmittal letter. |
If you wish to tender your old notes and you cannot cause the old notes or
any other required documents to be transmitted to and received by the exchange
agent before 5:00 p.m., New York City time, on the expiration date, you may
tender your old notes according to the guaranteed delivery procedures described
in this section under the heading Guaranteed Delivery Procedures.
If you beneficially own old notes that are registered in the name of a
broker, dealer, commercial bank, trust company, or other nominee and you wish
to participate in the exchange offer, you should promptly contact the person
through which you beneficially own your old notes and instruct that person to
tender your old notes on your behalf. See Instructions Forming Part of the
Terms and Conditions of the Exchange Offer included with the transmittal
letter. If you wish to tender on your own behalf, you must, before completing
and executing the transmittal letter and delivering your old notes, either make
appropriate arrangements to register ownership of the old notes in your name or
obtain a properly completed bond power from the registered holder. The
transfer of registered ownership may take considerable time.
The tender by a holder of old notes will constitute an agreement between
the holder, us and the exchange agent in accordance with the terms and subject
to the conditions specified in this prospectus and in the transmittal letter.
If a holder tenders less than all the old notes held, the holder should fill in
the amount of old notes being tendered in the appropriate box on the
transmittal letter. The exchange agent
will deem the entire amount of old notes delivered to it to have been
tendered unless the holder has indicated otherwise.
The method of delivery of the transmittal letter and all other required
documents to the exchange agent is at your election and risk. Instead of
delivery by mail, we recommend that you use an overnight or hand delivery
service. In all cases, you should allow sufficient time to ensure delivery to
the exchange agent before the expiration date. Do not send your transmittal
letter or other required documents to us.
Signature Requirements and Signature Guarantee
You must arrange for an eligible institution to guarantee your signature
on the transmittal letter or a notice of withdrawal, unless the old notes are
tendered:
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by the registered holder of the old notes; or |
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for the account of an eligible guarantor institution within
the meaning of Rule 17Ad-15 under the Exchange Act. |
The following are eligible institutions:
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a member firm of a registered national securities exchange or
of the National Association of Securities Dealers, Inc.; or |
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a commercial bank or trust company having an office or
correspondent in the United States; or |
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an eligible guarantor institution. |
If a transmittal letter is signed by a person other than the registered
holder of any old notes listed in the transmittal letter, the old notes must be
endorsed or accompanied by a properly completed bond power and signed by the
registered holder as the registered holders name appears on the old notes.
If trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, sign or endorse any required documents, they should so indicate when
signing, and unless waived by us, submit evidence satisfactory to us of their
authority to so act with the transmittal letter.
Book-Entry Transfer
The exchange agent will make a request promptly after the date of this
prospectus to establish an account for the old notes. Once the exchange agent
establishes the account, any financial institution that is a participant in The
Depository Trust Companys system may make book-entry delivery of old notes by
causing The Depository Trust Company to transfer them into the exchange agents
account for the old notes. However, the exchange agent will only exchange the
old notes so tendered after it confirms their book-entry transfer into the
exchange agents account, and receives an agents message and any other
documents required by the transmittal letter in a timely manner.
The term agents message means a message, transmitted by The Depository
Trust Company to, and received by, the exchange agent and forming part of the
confirmation of a book-entry transfer, which states that:
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The Depository Trust Company has received an express
acknowledgment from a participant tendering old notes stating the
aggregate principal amount of old notes that have been tendered by
such participant; |
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the participant has received the transmittal letter and agrees to be bound by its terms; and |
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we may enforce this agreement against the participant. |
Although you may deliver old notes through The Depository Trust Company
into the exchange agents account at The Depository Trust Company, you must
provide the exchange agent a completed and executed transmittal letter with any
required signature guaranteeor an agents message in lieu thereofand all
other required documents before the expiration date. If you comply with the
guaranteed delivery procedures described below, you must provide the
transmittal letteror an agents message in lieu thereofto the exchange agent
within the time period provided. Delivery of documents to The Depository Trust
Company does not constitute delivery to the exchange agent.
Guaranteed Delivery Procedures
If you wish to tender your old notes and (1) you cannot deliver the
transmittal letter or any other required documents to the exchange agent before
the expiration date or (2) you cannot complete the procedure for book-entry
transfer on a timely basis, you may instead effect a tender if:
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you make the tender through an eligible guarantor
institution; |
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before the expiration date, the exchange agent receives from
the eligible guarantor institution, |
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(a) a properly completed and duly executed notice of guaranteed
delivery, by facsimile transmittal, mail or hand delivery,
specifying the name and address of the holder and the principal
amount of the old notes tendered, stating that the tender is being
made, and guaranteeing that, within three New York Stock Exchange
trading days after the date of execution of the notice of
guaranteed delivery, the old notes being tendered, |
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(b) a properly completed and duly executed transmittal letter or a
confirmation of a book-entry transfer into the exchange agents
account at The Depository Trust Company and |
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(c) an agents message and any other documents required by the
transmittal letter, |
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will be deposited by the eligible guarantor institution with the
exchange agent; and |
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the exchange agent receives the old notes and transmittal
letter or confirmation of a book-entry transfer into its account at
The Depository Trust Company and an agents message and all other
documents required by the transmittal letter within three New York
Stock Exchange trading days after the date of execution of the
notice of guaranteed delivery. |
Withdrawal of Tenders
Except as otherwise provided in this prospectus, you may withdraw tendered
old notes at any time before 5:00 p.m., New York City time, on the expiration
date. To do so, you must provide the exchange agent with a written or
facsimile transmission notice of withdrawal before 5:00 p.m., New York City
time, on the expiration date. Any notice of withdrawal must:
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identify the old notes to be withdrawn, including the
principal amount of the old notes and the name and number of the
account at The Depository Trust Company to be credited; and |
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be signed by you in the same manner as the original signature
on your transmittal letter, including any required signature
guarantee, or be accompanied by transfer documents sufficient to
permit the registrar to register the transfer of the withdrawn old
notes into your name. |
Our determination shall be final and binding on all parties. We will not
deem any old notes so withdrawn to be validly tendered for purposes of the
exchange offer and will not issue new notes with respect to them unless the
holder of these old notes validly retenders them. You may retender withdrawn
old notes by following one of the procedures described above under
Procedures for Tendering at any time before the expiration date.
Determination of Validity
We will determine all questions as to the validity, form,
eligibilityincluding time of receipt acceptance and withdrawal of the
tendered old notes, and will interpret the terms and conditions of the exchange
offerincluding any instructions in the transmittal letter in our sole
discretion. Our determination will be final and binding. We may reject any
and all old notes that are not properly tendered or any old notes that, in the
opinion of our counsel, we cannot lawfully accept. We also may waive any
irregularities or conditions of tender as to particular old notes. Unless we
waive them, you must cure any defects or irregularities in your tender of old
notes within such time as we shall determine.
Although we intend to notify tendering holders of defects or
irregularities with respect to tenders of old notes, neither we nor anyone else
has any duty to do so. Neither we nor anyone else will incur any liability for
failing to notify you of these defects or irregularities. Your old notes will
not be deemed tendered until you have cured or we have waived any
irregularities. As soon as practicable following the expiration date, the
exchange agent will return any old notes that we reject due to improper tender
or otherwise unless you cured all defects or irregularities or we waive them.
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We reserve the right in our sole discretion:
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to purchase or make offers for any old notes that remain
outstanding after the expiration date; |
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to terminate the exchange offer, as set forth in
Conditions of the Exchange Offer; and |
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to the extent permitted by applicable law, to purchase old
notes in the open market, in privately negotiated transactions or
otherwise. |
The terms of any of these purchases or offers may differ from the terms of
the exchange offer.
Conditions of the Exchange Offer
Notwithstanding any other term of the exchange offer, we will not be
required to accept for exchange, or to issue new notes for, any old notes, and
we may terminate or amend the exchange offer as provided in this prospectus
before we accept old notes, if the exchange offer violates applicable law,
rules or regulations or an applicable interpretation of the staff of the SEC.
If we reasonably determine that we cannot lawfully complete the exchange
offer we may:
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refuse to accept any old notes and return all
tendered old notes to the tendering holders; or |
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extend the exchange offer and retain all old
notes tendered before the expiration of the exchange offer,
subject, however, to the rights of holders to withdraw such
old notes. See Withdrawal of Tenders. |
Acceptance of Old Notes for Exchange; Delivery of New Notes
Upon satisfaction or waiver of all of the conditions to the exchange
offer, we will accept, promptly after the expiration date, all old notes that
have been validly tendered and not withdrawn, and will issue the applicable new
notes in exchange for such old notes promptly after our acceptance of such old
notes. For purposes of the exchange offer, we will be deemed to have accepted
validly tendered old notes for exchange when, as, and if we have given written
notice of such acceptance to the exchange agent.
For each old note accepted for exchange, the holder of the old note will
receive a new note having a principal amount equal to that of the surrendered
old note. The new notes will bear interest from the most recent date to which
interest has been paid on the old notes or, if no interest has been paid on the
old notes, from April 15, 2003. Accordingly, registered holders of new notes
on the relevant record date for the first interest payment date following the
completion of the exchange offer will receive interest accruing from the most
recent date to which interest has been paid or, if no interest has been paid,
from April 15, 2003. Old notes accepted for exchange will cease to accrue
interest from and after the date we accept them for exchange. You will not
receive any payment for accrued interest on the old notes otherwise payable on
any interest payment date if the record date occurs on or after date on which
we accept the old notes for exchange and you will be deemed to have waived your
rights to receive the accrued interest on the old notes.
If we do not accept any tendered old notes for any reason or if you submit
old notes for a greater principal amount than you desire to exchange, we will
return the unaccepted or non-exchanged old notes at our expense or, if the old
notes were tendered by book-entry transfer, the exchange agent will credit the
non-exchanged old notes to an account maintained with the book-entry transfer
facility. In either case, these old notes will be returned promptly after the
expiration or termination of the exchange offer.
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Registration Rights; Liquidated Damages
Pursuant to the terms of the registration rights agreement, we agreed to
use our best efforts to complete the exchange offer and issue the new notes in
exchange for the old notes. The following description is a summary of the
material provisions of the registration rights agreement. It does not restate
that agreement in its entirety. We urge you to read the registration rights
agreement.
If
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we are not permitted to effect the exchange offer as
contemplated by this prospectus because of any change in law or
applicable interpretations of the law by the staff of the Securities
and Exchange Commission; or |
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for any other reason we do not consummate the exchange offer
within 180 days after we issued the old notes; or |
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any initial purchaser so requests with respect to old notes
held by the initial purchasers that are not eligible to be exchanged
for new notes in the exchange offer; or |
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any applicable law or interpretation does not permit any
holder of old notes to participate in the exchange offer; or |
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any holder of old notes that participates in the exchange
offer does not receive freely transferable new notes in exchange for
tendered old notes, or |
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we decide not to effect the exchange offer, |
then we will use our reasonable best efforts to file with the Securities and
Exchange Commission as promptly as practicable, but in no event more than 20
business days after so required or requested, a shelf registration statement to
cover resales of Transfer Restricted Securities by those holders who provide
the information required for the shelf registration statement.
We will use our commercially reasonable efforts to have the exchange offer
registration statement or, if applicable, the shelf registration statement
declared effective by the Securities and Exchange Commission as promptly as
practicable after it is filed. Unless the exchange offer would not be
permitted
by policy of the Securities and Exchange Commission, we will commence the
exchange offer and will use our reasonable best efforts to consummate the
exchange offer as promptly as practicable, but in any event before 180 days
after the date we issued the old notes. If applicable, we will use our
reasonable best efforts to keep the shelf registration statement effective for
a period ending on the earlier of two years after the date we issued the old
notes or the date all Transfer Restricted Securities become eligible for resale
without volume restrictions under Rule 144 under the Securities Act.
The occurrence of any of the following events is a registration default:
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the shelf registration statement is not filed with the SEC on
or before the 20th business day after it is requested or required to
be filed; or |
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the exchange offer registration statement is not filed with
the SEC on or before 90 days after the date we issued the old notes;
or |
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the exchange offer registration statement is not declared
effective within 150 days after the date we issued the old notes or
the shelf registration statement is not declared effective within 90
days after the shelf filing date; or |
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the exchange offer is not consummated on or before 180 days
after the date we issued the old notes; or |
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the shelf registration statement is declared effective within
90 days after the shelf filing date but thereafter ceases to be
effective, at any time that we and our subsidiary guarantors are
obligated to maintain its effectiveness, without being succeeded
within 30 days by an additional registration statement filed and
declared effective. |
If a registration default occurs, we and our subsidiary guarantors will be
obligated to pay additional interest to each holder of Transfer Restricted
Securities, during the period of one or more registration defaults, in an
amount equal to $0.05 per week per $1,000 principal amount of the old notes
constituting Transfer Restricted Securities held by the holder until the
applicable registration statement is filed, the exchange offer registration
statement is declared effective and the exchange offer is consummated, or the
shelf registration statement is declared effective or again becomes effective,
as the case may be. This rate will be increased by an additional $0.05 per
week per $1,000 principal amount of the old notes for each 90 day period that
any additional interest described in this paragraph continues to accrue.
However, the rate for additional interest will not exceed $0.15 per week per
$1,000 principal amount of old notes. All accrued additional interest will be
paid to holders in the same manner as interest payments on the old notes on
semi-annual payment dates that correspond to interest payment dates for the old
notes. Additional interest only accrues during a registration default.
The registration rights agreement also provides that we will:
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make available, for a period of 90 days after the consummation
of the exchange offer, a prospectus meeting the requirements of the
Securities Act to any broker-dealer for use in connection with any
resale of any new notes; and |
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pay all expenses incident to the exchange offer, including the
expense of one counsel to the holders of the old notes, and will
indemnify certain holders of the old notes, including any
broker-dealer, against some liabilities, including liabilities under
the Securities Act. |
A broker-dealer that delivers a prospectus to purchasers in connection with
resales of the new notes will be subject to civil liability provisions under
the Securities Act and will be bound by the provisions of the registration
rights agreement, including indemnification rights and obligations.
You will be required to deliver information to be used in connection with
the shelf registration statement in order to have your old notes included in
the shelf registration statement and benefit from the provisions regarding
additional interest set forth in the preceding paragraphs. If you sell old
notes pursuant to the shelf registration statement you generally will be
required to be named as a selling securityholder in the related prospectus and
to deliver a prospectus to purchasers. You will also be subject to civil
liability provisions under the Securities Act in connection with these sales
and will be bound by the provisions of the registration rights agreement that
apply to you, including indemnification obligations.
Exchange Agent
We have appointed National City Bank as the exchange agent for the
exchange offer. National City Bank also acts as trustee under the indenture.
You should send all executed transmittal letters to the exchange agent and
direct all communications with the exchange agent, including requests for
assistance or for additional copies of this prospectus or of the transmittal
letters as follows:
NATIONAL CITY BANK, EXCHANGE AGENT
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By Mail: |
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National City Bank |
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P.O. Box 92301 |
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Cleveland, Ohio 44193-0900 |
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By Hand or Overnight Delivery: |
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National City Bank |
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Corporate Trust Operations |
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3rd Floor North Annex |
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4100 West 150th Street |
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Cleveland, Ohio 44135-1385 |
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New York Drop: |
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The Depository Trust Company |
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Transfer Agent Drop Service |
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55 Water Street |
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Jeanette Park Entrance |
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New York, NY 10041 |
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By Facsimile for Eligible Institutions: |
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(216) 222-9326 |
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Facsimile Confirmation: |
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(216) 575-9613 |
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Telephone Confirmation: |
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(216) 222-9352, Attn: James Schultz |
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For Information: |
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(800) 622-6757 |
If you deliver the transmittal letter to an address other than as set
forth above or transmit instructions via facsimile other than as set forth
above, your delivery or instructions will not be effective.
Fees and Expenses
We will bear all expenses of the exchange offer. We are making the
principal solicitation pursuant to the exchange offer by mail. Our officers
and employees and our affiliates may also make solicitations in person, by
telegraph, telephone or facsimile transmission.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We will, however, pay the
exchange agent reasonable and customary fees for its services and will
reimburse its reasonable out-of-pocket costs and expenses and will indemnify
the exchange agent for all losses and
claims incurred by it as a result of the exchange offer. We may also pay
brokerage houses and other custodians, nominees and fiduciaries the reasonable
out-of-pocket expenses incurred by them in forwarding copies of this
prospectus, letters of transmittal and related documents to the beneficial
owners of the old notes and in handling or forwarding tenders for exchange.
Transfer Taxes
We will pay any transfer taxes applicable to the exchange of old notes
pursuant to the exchange offer. If, however, a transfer tax is imposed for any
reason other than the exchange of old notes pursuant to the exchange offer,
then the amount of any of these transfer taxeswhether imposed on you or any
other personwill be payable by you.
For example, you will pay transfer taxes, if:
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new notes for principal amounts not tendered, or accepted for
exchange are to be registered or issued in the name of any person
other than the registered holder of the old notes tendered; or |
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tendered old notes are registered in the name of any person
other than the person signing the transmittal letter. |
If you do not submit satisfactory evidence of payment of taxes for which
you are liable or exemption from them with your transmittal letter, we will
bill you for the amount of these transfer taxes directly.
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Accounting Treatment
We will record the new notes at the same carrying value as the old notes,
which is the principal amount as reflected in our accounting records on the
date of the exchange. Accordingly, we will not recognize any gain or loss for
accounting purposes. We will capitalize the expenses of the exchange offer for
accounting purposes. We will classify these expenses as prepaid expenses and
include them in other assets on our balance sheet. We will amortize these
expenses on a straight line basis over the life of the new notes.
Consequences of Failure To Exchange Old Notes
If you do not exchange your old notes for new notes pursuant to the
exchange offer, you will continue to be subject to the transfer restrictions of
your old notes. The old notes were originally issued in a transaction exempt
from registration under the Securities Act, and may be offered, sold, pledged,
or otherwise transferred only:
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in the United States to a person whom the seller reasonably
believes is a qualified institutional buyer as defined in Rule 144A
under the Securities Act; or |
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outside the United States in an offshore transaction in
accordance with Rule 904 under the Securities Act; or |
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pursuant to an exemption from registration under the
Securities Act provided by Rule 144, if available; or |
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to an institutional accredited investor (within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that is
not a qualified institutional buyer and that is purchasing for its
own account or for the account of another institutional accredited
investor, in each case in
a minimum principal amount of notes of $250,000; pursuant to an
effective registration statement under the Securities Act; or |
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under any other available exemption from the registration
requirements of the Securities Act. |
The offer, sale, pledge or other transfer of old notes must also be made
in accordance with any applicable securities laws of any state of the United
States, and the seller must notify any purchaser of the old notes of the
restrictions on transfer described above. We do not currently anticipate that
we will register the old notes under the Securities Act.
Appraisal or Dissenters Rights
You will not have appraisal or dissenters rights in connection with the
exchange offer.
THE NEW NOTES
We will issue the new notes under an existing indenture dated as of April
15, 2003 between ourselves and National City Bank, as trustee. The terms of
the notes include those expressly set forth in the indenture and those made
part of the indenture by reference to the Trust Indenture Act of 1939.
The following describes some general terms and provisions of the new
notes, which are identical in all material respects to the terms of the old
notes, except that the registration rights and related liquidated damages
provisions, and the transfer restrictions that apply to the old notes, do not
apply to the new notes. The new notes will be a separate series of securities
under the indenture.
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This description of new notes is intended to be a useful overview of the
material provisions of the notes and the indenture. Since this description is
only a summary, you should refer to the indenture for a complete description of
our obligations and your rights.
For purposes of this description, references to Manor Care, we, our,
and us refer only to Manor Care, Inc. and not to our subsidiaries. For the
purposes of this section, the term notes will refer to the new notes.
General
The Notes
The notes:
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are our general unsecured, senior obligations; |
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are limited to an aggregate principal amount of $200.0
million, subject to our ability to issue an unlimited principal
amount of additional notes that have identical terms and conditions
as the notes; |
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mature on May 1, 2013; |
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will be issued in denominations of $1,000 and integral multiples of $1,000; |
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will be represented by one or more registered notes in global
form, but in certain limited circumstances may be represented by
notes in definitive form. See Book-Entry, Delivery and Form; |
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rank equally in right of payment to any of our future
unsecured senior debt; and |
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are unconditionally guaranteed on a senior basis by each of
our subsidiaries that has guaranteed the
7 1/2% Senior Notes due 2006 issued by Manor Care of America, Inc.,
the 8% Senior Notes due 2008 issued by us, the Convertible Notes and
the Senior Credit Agreement. |
Interest
Interest on the notes will compound semi-annually and:
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accrue at the rate of 6.25% per year; |
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accrue from April 15, 2003, or the most recent interest
payment date on which interest has been paid; |
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be payable in cash semi-annually in arrears on May 1 and
November 1, with the first payment on November 1, 2003; |
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be payable to the holders of record on the April 15 and
October 15 immediately preceding the related interest payment dates;
and |
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be computed on the basis of a 360-day year comprised of
twelve 30-day months. |
We will also pay additional interest to holders of the notes if we fail to
consummate this exchange offer within 180 days after April 15, 2003 or if
certain other conditions contained in the registration rights agreement are not
satisfied.
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Payments on the Notes; Paying Agent and Registrar
We will pay principal of, premium, if any, and interest on the notes at
the office or agency designated by us in the Borough of Manhattan, The City of
New York, except that we may, at our option, pay interest on the notes by check
mailed to holders of the notes at their registered address as it appears in the
registrars books. We have initially designated National City Bank as our
paying agent and registrar and its agency in New York, New York as a place
where notes may be presented for payment or for registration of transfer. We
may, however, change the paying agent or registrar without prior notice you,
and we may act as paying agent or registrar.
We will pay principal of, premium, if any, and interest on, notes in
global form registered in the name of or held by The Depository Trust Company
or its nominee in immediately available funds to The Depository Trust Company
or its nominee, as the case may be, as the registered holder of the global
notes.
Transfer and Exchange
You may transfer or exchange the notes at the office of the registrar in
accordance with the indenture. The registrar and the trustee may require you,
among other things, to furnish appropriate endorsements and transfer documents.
No service charge will be imposed by us, the trustee or the registrar to
register, transfer or exchange the notes, but we may require you to pay a sum
sufficient to cover any transfer tax or other similar governmental charge
required by law or permitted by the indenture. We are not required to transfer
or exchange any note selected for redemption. Also, we are not required to
register any transfer or exchange of any note for a period of 15 days before
the notes are selected for redemption.
General
The registered holder of a note will be treated as the owner of it for all
purposes.
We do not intend to list the notes on a national securities exchange.
The indenture does not limit the amount of debt that we or our
subsidiaries may issue under the indenture or otherwise. MCA has issued, and
is permitted to continue to issue, additional series of debt securities under
the other indentures to which it is a party, including the indenture, dated as
of June 4, 1996, between MCA and Wilmington Trust Company, as trustee.
Other
than restrictions described under Change of
Control and in
Limitations on Liens, Limitations on Sale and Lease-Back Transactions
and Consolidation, Merger and Sale of Assets
under Covenants below, the
indenture does not contain any covenants or other provisions designed protect
you if we enter a highly leveraged transaction or if our credit rating or the
rating of the notes declines as the result of a takeover, recapitalization,
highly leveraged transaction or similar restructuring involving us that could
adversely affect you.
Optional Redemption
We may redeem the notes, at our option, in whole at any time or in part
from time to time, on at least 30 days, but not more than 60 days prior notice
mailed to the registered address of each holder of notes to be so redeemed, at
a redemption price equal to the greater of
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(1) |
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100% of their principal amount plus accrued but unpaid interest to the date of redemption, or |
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(2) |
(a)
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the sum of the present values of the remaining scheduled
payments of principal and interest thereon from the date of
redemption to the date of maturity (except for currently accrued but
unpaid interest) discounted to the date of redemption, on a
semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate, plus 50 basis points, plus |
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(b)
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accrued but unpaid interest to the date of
redemption. |
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We are not required to make mandatory redemption payments or sinking fund
payments for the notes.
Change of Control
If a Change of Control occurs and is accompanied by a Rating Decline
(together, a Change of Control Triggering Event), you will have the right to
require us to offer to repurchase all or any part of your notes at a purchase
price in cash equal to 101% of the principal amount of the notes plus accrued
and unpaid interest, if any, to the date of purchase, subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date. We will only redeem notes in a amount of
$1,000 or an integral multiple of $1,000.
Within 30 days following any Change of Control Triggering Event, we will
mail a notice (the Change of Control Offer) to each registered holder with a
copy to the trustee stating:
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that a Change of Control Triggering Event has
occurred and that you have the right to require us to purchase
your notes at a purchase price in cash equal to 101% of the
principal amount of your notes plus accrued and unpaid
interest, if any, to the date of purchase, subject to the right
of holders of record on a record date to receive interest on
the relevant interest payment date (the Change of Control
Payment); |
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(2) |
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the repurchase date, which will be no earlier than
30 days nor later than 60 days from the date we mail the notice
(the Change of Control Payment Date); and |
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the procedures determined by us, consistent with
the indenture, that you must follow to have your notes
repurchased. |
On the Change of Control Payment Date, we will, to the extent lawful:
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accept for payment all notes or portions of notes
in integral multiples of $1,000 properly tendered under the
Change of Control Offer; |
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deposit with the paying agent an amount equal to
the Change of Control Payment for all notes or portions of
notes so tendered; and |
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deliver or cause to be delivered to the trustee the
notes so accepted together with an officers certificate
stating the aggregate principal amount of notes or portions of
notes being purchased by us. |
The paying agent will promptly mail to each holder of notes so tendered
the Change of Control Payment for the notes, and the trustee will promptly
authenticate and mail, or cause to be transferred by book entry, to each holder
a new note equal in principal amount to any unpurchased portion of the notes
surrendered, if any; provided that each such new note will be in a principal
amount of $1,000 or an integral multiple of $1,000.
If the Change of Control Payment Date is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid
interest, will be paid to the person in whose name a note is registered at the
close of business on such record date, and no additional interest will be
payable to holders who tender pursuant to the Change of Control Offer.
The Change of Control provisions described above will apply whether or not
any other provisions of the indenture apply. Except as described above for a
Change of Control Triggering Event, the indenture does not contain provisions
that permit you to require that we repurchase or redeem the notes in the event
of a takeover, recapitalization or similar transaction.
Before mailing a Change of Control Offer, and as a condition to that
mailing:
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the requisite holders of each issue of Debt issued under an
indenture or other agreement that may be violated by the payment will
have consented to the Change of Control Offer and waived any event of
default, caused by the Change of Control Triggering Event or |
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we will repay all outstanding Debt issued under an indenture or
other agreement that may be violated by a payment to the holders of
notes under a Change of Control Offer or we must offer to repay all
such Debt, and make payment to the holders of such Debt that accept
such offer and obtain waivers of any event of default from the
remaining holders of such Debt. |
We covenant to effect this repayment or obtain these consents and waivers
within 30 days after any Change of Control Triggering Event. It will be a
default under the indenture if we fail to comply with this covenant within 30
days after we received written notice from the trustee or the holders of at
least 25% in principal amount of the notes. A default under the indenture will
result in a default under the Senior Credit Agreement.
We will not be required to make a Change of Control Offer upon a Change of
Control Triggering Event if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in the indenture and purchases all notes validly tendered and not
withdrawn under the Change of Control Offer.
We will comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act and any other securities laws or regulations that
apply to the repurchase of notes pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of the indenture, we will comply with the
applicable securities laws and regulations and will not be deemed to have
breached our obligations described in the indenture by virtue of the conflict.
Our ability to repurchase notes pursuant to a Change of Control Offer may
be limited by a number of factors. Some of the events that constitute a Change
of Control Triggering Event would also constitute a default under the Senior
Credit Agreement. In addition, certain events that may constitute a change of
control and cause a default under the Senior Credit Agreement may not
constitute a Change of Control Triggering Event under the indenture. Our
future Debt and that of our subsidiaries may also prohibit certain events that
would constitute a Change of Control or require such Debt to be repurchased
upon a Change of Control. Moreover, the exercise by the holders of their right
to require us to repurchase the notes could cause a default under such Debt,
even if the Change of Control Triggering Event itself does not, due to the
financial effect of such repurchase on us. Finally, our ability to pay cash to
the holders upon a repurchase may be limited by our then existing financial
resources. We cannot assure you that sufficient funds will be available when
necessary to make any required repurchases.
Even if sufficient funds were otherwise available, the terms of the Senior
Credit Agreement will and future Debt may prohibit us from prepaying notes
before their scheduled maturity. Consequently, if we cannot prepay the Bank
Debt and any other Debt containing similar restrictions or obtain requisite
consents, as described above, we will be unable to fulfill our repurchase
obligations you exercise your repurchase rights following a Change of Control
Triggering Event. This will result in a default under the indenture, which may
in turn result in a default under the Senior Credit Agreement.
The Change of Control provisions described above may deter certain
mergers, tender offers and other takeover attempts involving us by increasing
the capital required for these transactions. The definition of Change of
Control includes a disposition of all or substantially all of our property and
assets and those of our subsidiaries taken as a whole to any person. Although
there is a limited body of case law interpreting the phrase substantially
all, there is no precise established definition of the phrase under applicable
law.
Accordingly, we may not know with certainty whether a particular
transaction would involve a disposition of all or substantially all of our
and our subsidiaries, property or assets. As a result, it may be unclear as to
whether a Change of Control Triggering Event has occurred and whether you may
require us to make an offer to repurchase the notes as described above.
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Ranking
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The notes will be our general unsecured obligations that rank
senior in right of payment to all existing and future Debt that is
expressly subordinated in right of payment to the notes. |
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The notes will rank equally in right of payment with all of our
existing and future liabilities that are not so subordinated. |
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The notes will effectively rank junior to any of our secured
indebtedness or our Subsidiary Guarantors, to the extent of the
assets securing such indebtedness. |
In the event of our bankruptcy, liquidation, reorganization or other
winding up, our assets that secure secured Debt will be available to pay
obligations on the notes only after all Debt under the secured Debt has been
repaid in full from those assets. We advise you that there may not be
sufficient assets remaining to pay amounts due on any or all the notes then
outstanding. The guarantees of the notes will have a similar ranking with
respect to secured and unsecured senior Debt of the Subsidiary Guarantors as
the notes do with respect to our secured and unsecured senior Debt as well as
with respect to any unsecured obligations expressly subordinated in right of
payment to the guarantees.
For the year ended December 31, 2002, our non-guarantor subsidiaries
represented less than 3.0% of our revenues, assets and income before income
taxes and minority interest.
At March 31, 2003, our total consolidated indebtedness was $611.6 million.
As of June 30, 2003, our total consolidated indebtedness was $673.6 million,
and we had approximately $161.4 million available under our three-year senior
revolving credit facility.
In addition to the guarantees of indebtedness under our previous Five-Year
Senior Credit Agreement, the 2006 Notes and the 2008 Notes, our subsidiaries
had additional indebtedness of $25.9 million as of March 31, 2003, consisting
of industrial revenue bonds, mortgages and other liabilities. Each Subsidiary
Guarantee of the notes will be effectively subordinated to all secured Debt of
the relevant Subsidiary Guarantor to the extent of the value of the assets
securing that Debt, substantially all of which was secured. The ability of our
subsidiaries to pay dividends and make other payments to us is also restricted
by, among other things, applicable corporate and other laws and regulations as
well as agreements to which our subsidiaries may become a party. We may not be
able to comply with the provision of the notes that provides that upon a Change
of Control each holder may require us to repurchase all or a portion of the
notes.
Subsidiary Guarantees
The Subsidiary Guarantors will, jointly and severally, unconditionally
guarantee our obligations under the notes. Each Subsidiary Guarantee will rank
equally in right of payment with all existing and future liabilities of
Subsidiary Guarantors that are not subordinated. Each Subsidiary Guarantee
will effectively rank junior to any secured indebtedness of its respective
Subsidiary Guarantor to the extent of the value of the assets securing that
indebtedness.
The obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee will be limited as necessary to prevent that Subsidiary Guarantee
from constituting a fraudulent conveyance or fraudulent transfer under
applicable law.
If we sell or dispose of a Subsidiary Guarantor, whether by merger,
consolidation, the sale of its capital stock or the sale of all or
substantially all of its assets, other than by lease, and whether or not the
Subsidiary Guarantor is the surviving corporation in such transactionto a
Person which is not us or one of our subsidiaries, then
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for Subsidiary Guarantors other than MCA, each such Subsidiary
Guarantor will be released from obligations under its Subsidiary
Guarantee if all the obligations of such Subsidiary Guarantor |
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under the Senior Credit Agreement, the 2006 Notes, the 2008 Notes, the
Convertible Notes and related documentation terminate upon
consummation of such transaction and |
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with respect to MCA, MCA will be released from its obligations
under its Subsidiary Guarantee if we and our remaining subsidiaries
are not liable with respect to any Debt of MCA. |
Covenants
Limitation on Liens
Except as provided below, we will not, and will not permit our
subsidiaries to, create, Incur or assume any Lien on any property or assets of
ours or any of our subsidiaries in order to secure any Debt of ours or any of
our subsidiaries, without effectively providing that the notestogether with,
if we shall so determine, any other Debt that is not subordinated to the
noteswill be secured equally and ratably with, or prior to, that Debt, so long
as that Debt will be so secured. This covenant will not apply to:
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any Lien if, after giving effect to those Liens, the
aggregate amount of all our Debt and the Debt of our subsidiaries
secured by Liens existing at the time, excluding any Debt secured by
Liens permitted to be incurred by clauses (2) through (17) below,
would not exceed our Applicable Percentage of the Consolidated Net
Assets; |
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any Lien if we or our subsidiaries use an amount of cash
equal to the net proceeds of the Debt secured by the Lien within 12
months of the creation, incurrence or assumption of the Lien to (a)
acquire additional propertyor assets, or to make investments in
Persons who, after giving effect to those investments, will become
our subsidiariesor (b) make an offer to purchase the notes at 100%
of the principal amount of the notes plus accrued interest, if any,
to the date of purchase; |
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Liens on our property or assets or any subsidiary existing on
April 15, 2003 and Liens created, incurred or assumed after April
15, 2003 on our property or assets or any subsidiary that were
subject to a Liens on our property or assets or any subsidiary
existing on April 15, 2003; |
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Liens on property or assets of any Person existing at the
time the Person becomes a subsidiary or merges into or consolidates
with us or a subsidiary; |
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Liens on property or assets existing at the time we or any
subsidiary acquire the property or assets; |
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Liens to secure the financing of the acquisition,
construction, alteration or improvement of property or assets of
ours or any subsidiary, or of any Person who, after giving effect to
such financing, will become a subsidiary, provided that |
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we or our subsidiaries create the Liens not
later than 18 months after we acquire the property or assets;
or |
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we or our subsidiaries create the Liens no
later than we complete construction, alteration or
improvement of the property or assets, or commence
commercial operation of the property or assets, whichever is
later. |
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Liens in favor of us or any subsidiary; |
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Liens in favor of or required by federal, state or local
governmental authorities, including any department or
instrumentality of one of these authorities; |
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Liens on property or assets of, or on any shares of stock or
other equity interest in, a Foreign Subsidiary to secure Debt of a
Foreign Subsidiary or a Non-Recourse Subsidiary to secure
Non-Recourse Debt; |
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Liens to secure Debt of joint ventures in which we or a
subsidiary has an interest, to the extent those Liens are on
property or assets of or equity interests in those joint ventures; |
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Liens on current assets to secure Debt incurred for working
capital purposes, provided that the Debt matures no later than 18
months from the date we incur the Liens; |
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Liens on receivables in connection with Receivables
Securitizations; |
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Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not
overdue or being contested in good faith by appropriate proceedings
and for which we will have set aside adequate reserves on our books; |
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Liens incurred in the ordinary course of business in
connection with workmens compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of bids, tenders, trade contracts (other than for Debt),
statutory obligations, leases and contracts (other than for Debt),
entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds or performance bonds; |
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easements, restrictions and other minor defects of title that
are not, in the aggregate, material and that do not, individually or
in the aggregate, have a materially adverse effect; |
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leases or subleases granted to others that do not interfere
in any material respect with our business or any subsidiarys
business and any interest or title of a lessor under any lease
permitted under the indenture; and |
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any extension, renewal or replacement as a whole or in part,
of any Lien referred to in the foregoing clauses (1) to (16),
provided, however, that: |
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the extension, renewal or
replacement Lien will be limited to all or a part of
the same property or assets that secured the Lien
being extended, renewed or replaced and |
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(a) the principal amount of the
Debt secured by such extended, renewed or replaced
Lien, does not exceed the principal amount of Debt
that was secured by the Lien being extended, renewed
or replaced, or (b) if the Debt provides for an amount
less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof,
the lesser amount secured by such extended, renewed or
replaced Lien, does not exceed the lesser amount that
was secured by the Lien being extended, renewed or
replaced. |
Limitation on Sale and Lease-Back Transactions
We will not, and will not permit any subsidiary to, enter into any
arrangement with any Person to lease any property or assets from any Person, if
we or our subsidiaries have sold or transferred or will sell or transfer the
applicable property to that Person, unless:
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the arrangement involves a lease for a term, including renewal rights,
of not more than 36 months, |
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the arrangement involves a lease of property within 18 months
from the acquisition or, in the case of the construction, alteration
or improvement of property, the later of the completion of the
construction, alteration or improvement of such property or the
commencement of commercial operation of the property, or |
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the arrangement involves leases between or among us and a
subsidiary or subsidiaries, or |
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we or the subsidiary would, at the time of entering into a
Sale and Lease-Back Transaction, be entitled to Incur Debt secured
by a Lien on the property or asset to be leased in an amount at
least equal to the Attributable Debt in respect of the transaction
without equally and ratably securing the notes pursuant to the
provisions described under Limitations on Liens above, or |
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the proceeds of the sale of the property or assets to be leased
are at least equal to their fair valuethe fair value of such
proceeds, if other than in cash, to be determined by our
chief financial or accounting officerand we or our subsidiaries
apply an amount in cash equal to the net proceeds, within 12
months of the effective date of such transaction, to |
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acquire additional property or assets, or to
make investments in entities that after giving effect to the
investment will become subsidiaries, |
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to retire Debt that is equal in right of
payment with the notesprovided that in connection with any
such retirement, any related loan commitment or the like
shall be reduced in an amount equal to the principal amount
so retired or |
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offer to purchase the notes at 100% of the in
principal amount, plus accrued interest, if any, to the date
of purchase. |
Limitation on Affiliate Transactions
Neither we nor any of our subsidiaries will enter into an Affiliate
Transaction having a value, or for consideration having a value, in excess of
$20,000,000 individually or in the aggregate, unless our board of directors
determines that the terms of the Affiliate Transaction are no less favorable to
us or such subsidiary than those that might be obtained at the time of the
Affiliate Transaction from Persons who are not Affiliates. The restrictions of
this Limitation on Affiliate Transactions covenant do not apply to the
payment of reasonable and customary fees to our directors or the directors of a
subsidiary who are not employees, the payment of compensation to our officers
or the officers of a subsidiary and any transaction between or among us and any
of our subsidiaries.
Consolidation, Merger and Sale of Assets
We will not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all of its properties and assets to, another Person,
unless:
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the resulting, surviving or transferee Person (if not us) is a
Person organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia, and such
entity (if not us) expressly assumes by supplemental indenture all
our obligations under the notes and the indenture; and |
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immediately after giving effect to that transaction, no default
has occurred and is continuing under the indenture. Upon any such
consolidation, merger or transfer, the resulting, surviving or
transferee Person shall succeed to, and may exercise each of our
rights and powers under the indenture. |
If, upon any consolidation or merger of us with or into any other
corporation, or upon any sale, conveyance or lease of all or substantially all
of our property and assets to any other corporation, any of our property or the
property of any subsidiary would become subject to any Lien, we will first
secure the notes equally and ratably with any other of our obligations or any
subsidiarys obligations then entitled to be secured by a direct Lien on all
such property prior to all Liens other than any Liens previously existing on
the property.
Future Subsidiary Guarantors
After April 15, 2003, we will cause each new subsidiary (other than a
subsidiary that does not guarantee obligations under the Senior Credit
Agreement, the 2006 Notes, the 2008 Notes or the Convertible Notes) created or
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acquired by us or one or more of our subsidiaries to execute and deliver to the
trustee a Subsidiary Guarantee to unconditionally guarantee, on a joint and
several basis, the full and prompt payment of the principal of, premium, if
any, and interest on the notes on a senior basis; provided that (A) A
Subsidiary Guarantee from any subsidiary (other than MCA so long as all or any
portion of the 2006 Notes shall remain outstanding) will be released when the
subsidiary is released from any liability
under (x) the indentures relating to the 2006 Notes, the 2008 Notes and
the Convertible Notes or any related guarantee or similar obligation and (y)
any Senior Credit Agreement and any guarantee or similar obligation in respect
of that Senior Credit Agreement and (B) MCA shall be released from its
obligations under its Subsidiary Guarantee upon the repayment in full of the
2006 Notes (so long as no default or event of default has occurred as a
consequence of the repayment) and the release of MCA from any liability under
the indenture relating to the 2008 Notes and the Convertible Notes and any
obligation it may have in respect of the Senior Credit Agreement and any
guarantee or similar obligation in respect of the Senior Credit Agreement;
provided that the release of a Subsidiary Guarantor will not occur in the event
that Subsidiary Guarantor is required to deliver a Guarantee in accordance with
the paragraph below and then will only be released in accordance with the
paragraph below.
We will not permit any subsidiary to guarantee the payment of our Debt
unless:
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the subsidiary simultaneously executes and delivers a
supplemental indenture to the indenture providing for a Guarantee of
payment of the notes by the subsidiary; |
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the subsidiary waives and will not in any manner whatsoever
claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against
us or any subsidiary as a result of any payment by the subsidiary
under its Subsidiary Guarantee; and |
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the subsidiary delivers to the trustee an opinion of counsel to
the effect that (a) the Subsidiary Guarantee of the notes has been
duly executed and authorized and (b) the Subsidiary Guarantee of the
notes constitutes a valid, binding and enforceable obligation of the
subsidiary; however, the enforceability of the Subsidiary Guarantee
may be limited by bankruptcy, insolvency or similar laws, including,
without limitation, all laws relating to fraudulent transfers, and
except insofar as enforcement thereof is subject to general
principles of equity; provided that such Subsidiary Guarantee shall
be released upon the release of such subsidiary from liability in
respect of our Guarantees of Debt; and, provided, further, that any
release of a Subsidiary Guarantee under the preceding proviso will
not impair the rights of the holders to receive Subsidiary Guarantees
of the notes in accordance with this paragraph in the event our
future Debt is Guaranteed by the subsidiary. |
Financial Statements
So long as we are not subject to Section 13 or 15(d) of the Exchange Act,
we will file with the trustee the following:
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within 120 days after the end of each fiscal year, our balance
sheet as of the end of such fiscal year and the preceding fiscal year
and our statements of income, shareholders equity and cash flows for
such fiscal year and the two preceding fiscal years, all audited by
an independent public accounting firm of recognized national standing
and accompanied by a Managements Discussion and Analysis of
Financial Condition and Results of Operations with respect to those
financial statements; and |
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within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, our balance sheet as of the end of such
fiscal quarter and as of the end of the preceding fiscal year and the
statements of income for such fiscal quarter (and the corresponding
quarter in the preceding fiscal year) and the statements of income
and cash flows for the then elapsed portion of such fiscal year (and
the corresponding period in the preceding fiscal year) accompanied by
a Managements Discussion and Analysis of Financial Condition and
Results of Operations with respect to those financial statements. |
50
Events of Default
Each of the following is an Event of Default:
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(1) |
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default in any payment of interest, or additional
interest (as required by the registration rights agreement) on
any note when due and payable and the default continues for a
period of 30 days; |
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(2) |
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default in the payment of principal of or premium,
if any, on any note when due and payable at its Stated
Maturity, upon optional redemption, upon required repurchase,
upon declaration or otherwise; |
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(3) |
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our failure to comply with our obligations under
Covenants Consolidation, Merger and Sale of Assets; |
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(4) |
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our failure for 30 days after written notice from
the trustee or the holders of at least 25% in principal amount
of the notes then outstanding has been received to comply with
any of our obligations described under Change of Control
above or under Covenants above, other than a failure to
comply with Covenants Consolidation, Merger and Sale of
Assets which is covered by clause (3); |
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(5) |
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our failure for 60 days after written notice from
the trustee or the holders of at least 25% in principal amount
of the notes then outstanding has been received to comply with
any of our other agreements contained in the notes or
indenture; |
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(6) |
|
default by us or any subsidiary in the payment of
the principal or interest on any mortgage, agreement or other
instrument under which there may be outstanding, or by which
there may be secured or evidenced any of our and/or our
subsidiaries Debt for money borrowed (other than Non-Recourse
Debt of a Non-Recourse Subsidiary) in excess of $20.0 million
in the aggregate, whether the Debt exists now or will be
created on a later date, resulting in the Debt becoming or
being declared due and payable, and the acceleration will not
have been rescinded or annulled within 10 days after written
notice of the acceleration has been received by us or our
subsidiary; |
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(7) |
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certain events of our bankruptcy, insolvency or
reorganization; or |
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(8) |
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a final judgment for the payment of $20.0 million
or more rendered against us or any subsidiary, which judgment
is not fully covered by insurance or not discharged or stayed
within 90 days after (a) the date on which the right to appeal
the judgment has expired if no appeal has commenced, or (b) the
date on which all rights to appeal have been extinguished. |
If an Event of Default occurs and is continuing, the trustee by notice to
us, or the holders of at least 25% in principal amount of the outstanding notes
by notice to us and the trustee, may, and the trustee at the request of such
holders will, declare 100% of the principal of, premium, if any, and accrued
and unpaid interest, if any, on all the notes to be due and payable. Upon such
a declaration, principal, premium and accrued and unpaid interest will be due
and payable immediately.
The holders of a majority in principal amount of the outstanding notes may
waive all past defaults (except with respect to nonpayment of principal,
premium or interest) and rescind any such acceleration with respect to the
notes and its consequences if (1) rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (2) all existing
Events of Default, other than the nonpayment of the principal of, premium, if
any, and interest on the notes that have become due solely by
such declaration of acceleration, have been cured or waived. Subject to
the provisions of the indenture relating to the duties of the trustee, if an
Event of Default occurs and is continuing, the trustee will be under no
obligation to exercise any of the rights or powers under the indenture
51
at the request or direction of any of the holders unless the holders have offered to
the trustee reasonable indemnity or security against any loss, liability or
expense.
Except to enforce the right to receive payment of principal, premium, if
any, or interest when due, no holder may pursue any remedy with respect to the
indenture or the notes unless:
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(1) |
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the holder has previously given the trustee notice
that an Event of Default is continuing; |
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(2) |
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holders of at least 25% in principal amount of the
outstanding notes have requested the trustee to pursue the
remedy; |
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(3) |
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the holders have offered the trustee reasonable
security or indemnity against any loss, liability or expense; |
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(4) |
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the trustee has not complied with the request
within 60 days after receiving the request and the offer of
security or indemnity; and |
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(5) |
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the holders of a majority in principal amount of
the outstanding notes have not given the trustee a direction
that, in the opinion of the trustee, is inconsistent with that
request within such 60-day period. |
Subject to certain restrictions, the holders of a majority in principal
amount of the outstanding notes may direct the time, method and place of
conducting any proceeding for any remedy available to the trustee or of
exercising any trust or power conferred on the trustee. If an Event of Default
has occurred and is continuing, the trustee will be required in the exercise of
its powers to use the degree of care that a prudent Person would use in the
conduct of its own affairs. The trustee, however, may refuse to follow any
direction that conflicts with law or the indenture or that the trustee
determines is unduly prejudicial to the rights of any other holder or that
would involve the trustee in personal liability. Before taking any action
under the indenture, the trustee will be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
If a default occurs and is continuing and is known to the trustee, the
trustee must mail to each holder notice of the default within 90 days after it
occurs. Except in the case of a default in the payment of principal of,
premium, if any, or interest on any note, the trustee may withhold notice if
and so long as a committee of trust officers of the trustee in good faith
determines that withholding notice is in the interests of the holders. In
addition, we are required to deliver to the trustee, within 120 days after the
end of each fiscal year, a certificate indicating whether the signers of the
certificate know of any default that occurred during the previous year. We
also are required to deliver to the trustee, within 30 days after the
occurrence of any default, written notice of any events that would constitute
certain defaults, their status and what action we are taking or proposes to
take in respect of them.
Amendments and Waivers
Subject to certain exceptions, we may amend the indenture or the notes
with the consent of the holders of at least a majority in principal amount of
the notes then outstanding (including without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, notes)
and, subject to certain exceptions, the holders of a majority in principal
amount of the notes then outstanding may waive any past default or compliance
with any provisions (including, without limitation, by consents obtained in
connection with a purchase of, or tender offer or exchange offer for, notes).
However, without the consent of each holder of an outstanding note affected, we
may not amend this indenture or the notes to, among other things:
|
(1) |
|
reduce the amount of notes whose holders must consent to an
amendment; |
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(2) |
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reduce the stated rate of or extend the stated time for payment
of interest on any note; |
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(3) |
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reduce the principal of or extend the Stated Maturity of any note; |
52
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(4) |
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reduce the premium payable upon
the redemption or repurchase of any note or change the time at
which any note may be redeemed or repurchased as described above
under Optional Redemption, Change of Control or any
similar provision, whether through an amendment or waiver of
provisions in the covenants, definitions or otherwise; |
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(5) |
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make any note payable in money other than that stated
in the note or, other than in accordance with the provisions of
the indenture, eliminate any existing guarantees of the notes; |
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(6) |
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impair the right of any holder to receive payment of,
premium, if any, principal of and interest on such holders
notes on or after the due dates for payment or to institute suit
to enforce any payment on or with respect to such holders
notes; or |
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(7) |
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make any change in the amendment provisions that
require each holders consent or in the waiver provisions. |
Without the consent of any holder, we and the trustee may amend the
indenture to:
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(1) |
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cure any ambiguity, omission, defect or inconsistency; |
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(2) |
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provide for the assumption by a successor
corporation, partnership, trust or limited liability company of
our obligations under the indenture; |
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(3) |
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provide for uncertificated notes in addition to or in
place of certificated notes (provided that the uncertificated
notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated
notes are described in Section 163(f) (2) (b) of the Code); |
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(4) |
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add Guarantees with respect to the notes; |
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(5) |
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secure the notes; |
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(6) |
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add to our covenants for the benefit of the holders
or surrender any right or power conferred upon us; |
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(7) |
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make any change that does not materially adversely affect the
rights of any holder; or |
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(8) |
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comply with any requirement of the Commission in
connection with the qualification of the indenture under the
Trust Indenture Act. |
The consent of the holders is not necessary under the indenture to approve
the particular form of any proposed amendment. It is sufficient if the consent
approves the substance of the proposed amendment. After an amendment under the
indenture becomes effective, we are required to mail to the holders a notice
briefly describing the amendment. However, if we fail to give such notice to
all the holders, or the notice has any defect, the amendment will still be
valid.
Defeasance
We at any time may terminate all of our obligations under the notes and
the indenture, except for certain obligations, including those respecting the
defeasance trust and obligations to register the transfer or exchange of the
notes, to replace mutilated, destroyed, lost or stolen notes and to maintain a
registrar and paying agent for the notes. This is known as legal defeasance.
We at any time may terminate our obligations under the covenants described
under Covenants (other than those described under Consolidation, Merger
and Sale of Assets) the operation of the cross-default upon a
53
payment default, cross acceleration provisions and the judgment default
provision described under Events of Default above. This is know as
covenant defeasance.
We may exercise our legal defeasance option even if we previously
exercised our covenant defeasance option. If we exercise our legal defeasance
option, you may not accelerate payment of the notes because of an Event of
Default. If we exercise our covenant defeasance option, you may not accelerate
payment of the notes because of an Event of Default specified in clause (4),
(5), (6) or (8) under Events of Default above.
In order to exercise either defeasance option, we must irrevocably deposit
in a defeasance trust with the trustee money or U.S. Government Securities for
the payment of principal, premium, if any, and interest on the notes to
redemption or maturity, as the case may be, and must comply with other
conditions, including delivering to the trustee an opinion of counsel, subject
to customary exceptions and exclusions, to the effect that you will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and defeasance and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would have been the
case if we had not made the deposit and defeasance had not occurred. For legal
defeasance only, the opinion of counsel must be based on a ruling of the
Internal Revenue Service or other change in applicable federal income tax law.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of ours, as
such, shall have any liability for our obligations under the notes or the
indenture or for any claim based on, in respect of, or by reason of, those
obligations or their creation. By accepting a note you waive and release all
such liability. The waiver and release are part of the consideration for
issuance of the notes. This waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
Concerning the Trustee
National City Bank is the trustee under the indenture and has been
appointed by us as registrar and paying agent with regard to the notes. Mr.
Ormond, our President and Chief Executive Officer and Chairman of our board of
directors, is a director, and Mr. Siefers, a director on our board of
directors, is an executive officer, of National City Corporation. The trustee
is wholly-owned by National City Corporation. See Certain Relationships and
Related Transactions.
Governing Law
The indenture and the notes will be governed by, and construed in
accordance with, the laws of the State of New York.
DESCRIPTION OF OTHER DEBT
On April 21, 2003, we entered into a three-year $200.0 million senior
revolving credit facility, which we refer to as the Three Year Agreement, with
a group of lenders, which replaced our previous senior revolving credit
facility. This credit facility was established for general corporate purposes,
including working capital, capital expenditures and permitted acquisitions. As
a condition precedent to the closing of the new senior revolving credit
facility, all amounts owing under our previous senior revolving credit facility
were repaid in full and all commitments to lend thereunder were terminated.
Our obligations under the Three Year Agreement are guaranteed by
substantially all of our subsidiaries. This credit agreement, contains various
covenants, restrictions and events of default. Among other things, these
provisions require us to maintain certain financial ratios and impose certain
limits on the ability of us and certain of our subsidiaries to incur
indebtedness, create liens, pay dividends, repurchase stock, dispose of assets
and make acquisitions.
54
Loans under the Three Year Agreement bear interest at variable rates that
reflect, at our election, the agent banks base lending rate, rates offered by
any of the participating banks under bid procedures or an increment over
Eurodollar indices of 1.025% to 1.325%, depending on the quarterly performance
of a key ratio. The Three Year Agreement also provides for a fee on the total
amount of the facility, ranging from 0.225% to 0.425%, depending on the
quarterly performance of the same key ratio. In addition to direct borrowings,
the Three Year Agreement may be used to support the issuance of up to $100
million of letters of credit.
The commitments under this senior revolving credit facility will expire on
April 21, 2006.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of the material federal income tax
considerations relevant to the exchange of old notes for new notes pursuant to
the exchange offer, but does not purport to be a complete analysis of all
potential tax consequences. This discussion is based upon the Internal Revenue
Code of 1986, as amended, Treasury regulations, Internal Revenue Service
rulings and pronouncements, and judicial decisions now in effect, all of which
are subject to change at any time. Any such changes may be applied
retroactively in a manner that could adversely affect your notes. We have not
and will not seek any rulings from the Internal Revenue Service with respect to
the matters discussed below. We cannot assure you that the Internal Revenue
Service will not take positions concerning tax consequences of the exchange
offer which are different from those discussed below. This discussion does not
consider the effect of any applicable foreign, state, local or other tax laws
or estate or gift tax considerations. This discussion also does not address
the federal income tax consequences to holders subject to special treatment
under the federal income tax laws, such as dealers in securities or foreign
currency, tax-exempt entities, banks, thrifts, insurance companies, persons
that hold the notes as part of a straddle, hedge or conversion transaction,
persons that have a functional currency other than the United States dollar,
and investors in pass-through entities.
You should consult your own tax advisor as to the particular tax
consequences to you of exchanging old notes for new notes pursuant to the
exchange offer, including the applicability and effect of any state, local or
foreign tax laws.
The exchange of old notes for new notes pursuant to the exchange offer
will not constitute a taxable exchange for federal income tax purposes. You
will have a tax basis in the new notes equal to your tax basis in the old notes
exchanged therefor and your holding period for the new notes will include your
holding period for the old notes exchanged therefor. Accordingly, the exchange
should have no material federal income tax consequences to you.
CERTAIN ERISA CONSIDERATIONS
The following is a summary of certain considerations associated with the
purchase and holding of the new notes by employee benefit plans that are
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended (ERISA), individual retirement accounts and other arrangements that are
subject to Section 4975 of the Code or provisions under any federal, state,
local, non U.S. or other laws or regulations that are similar to such
provisions of ERISA or the Code (collectively, Similar Laws), and entities
whose underlying assets are considered to include plan assets (within the
meaning of ERISA and any Similar Laws) of such plans, accounts and arrangements
(each, a Plan).
General Fiduciary Matters
ERISA imposes certain duties on persons who are fiduciaries of a Plan subject
to Title I of ERISA and ERISA and the Code prohibit certain transactions
involving the assets of a Plan subject to Title I of ERISA and/or Section 4975
of the Code (an ERISA Plan) and its fiduciaries or other interested parties.
Under ERISA and the Code, any person who exercises any discretionary authority
or control over the administration of such an ERISA Plan or the management or
disposition of the assets of such an ERISA Plan, or who renders investment
advice for a fee or other compensation to such an ERISA Plan, is generally
considered to be a fiduciary of the ERISA Plan.
55
In considering an investment in the new notes of a portion of the assets of any
Plan, a fiduciary should determine whether the investment is in accordance with
the documents and instruments governing the Plan and the applicable provisions
of ERISA, the Code or any Similar Laws relating to a fiduciarys duties to the
Plan including, without limitation, the prudence, diversification, delegation
of control and prohibited transaction provisions of ERISA, the Code and any
other applicable Similar Laws.
Prohibited Transaction Issues
Section 406 of ERISA and Section 4975 of the Code prohibit ERISA Plans from
engaging in specified transactions involving plan assets with persons or
entities who are parties in interest, within the meaning of ERISA, or
disqualified persons, within the meaning of Section 4975 of the Code, unless
an exemption is available. A party in interest or disqualified person who
engages in a non-exempt prohibited transaction maybe subject to excise taxes
and other penalties and liabilities under ERISA and the Code. In addition, the
fiduciary of the ERISA Plan that engages in such a nonexempt prohibited
transaction may be subject to penalties and liabilities under ERISA and the
Code. The acquisition and/or holding of notes by an ERISA Plan with respect to
which we or the Initial Purchasers are considered a party in interest or
disqualified person may constitute or result in a direct or indirect prohibited
transaction under Section 406 of ERISA and/or Section 4975 of the Code, unless
the investment is acquired and is held in accordance with an applicable
statutory, class or individual prohibited transaction exemption. In this
regard, the U.S. Department of Labor has issued prohibited transaction class
exemptions, which are referred to as PTCEs, that may apply to the acquisition
and holding of the notes. These class exemptions include, without limitation,
PTCE 84-14 respecting transactions determined by independent qualified
professional asset managers, PTCE 90-1, respecting insurance company pooled
separate accounts, PTCE 91-38, respecting bank collective investment funds,
PTCE 95-60, respecting life insurance company general accounts and PTCE 96-23,
respecting transactions determined by in-house asset managers, although there
can be no assurance that all of the conditions of any such exemptions will be
satisfied.
Because of the foregoing, the notes and exchange notes should not be purchased
or held by any person investing plan assets of any Plan, unless such purchase
and holding (and the exchange of notes for exchange notes) will not constitute
a non-exempt prohibited transaction under ERISA and the Code or similar
violation of any applicable Similar Laws.
Representation
Accordingly, by acceptance of a new note, each purchaser and subsequent
transferee will be deemed to have represented and warranted that either (i) no
portion of the assets used by such purchaser or transferee to acquire and hold
the new notes constitutes assets of any Plan or (ii) the purchase and holding
of the new notes (and the exchange of the old notes for the new notes) by such
purchaser or transferee will not constitute a nonexempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code or similar violation
under any applicable Similar Laws.
The foregoing discussion is general in nature and is not intended to be all
inclusive. Due to the complexity of these rules and the penalties that may be
imposed upon persons involved in nonexempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering purchasing
the notes (and holding the notes or exchange notes) on behalf of, or with the
assets of, any Plan, consult with their counsel regarding the potential
applicability of ERISA, Section 4975 of the Code and any Similar Laws to such
transactions and whether an exemption would be applicable.
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account in
connection with the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new notes. This prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of
56
new notes received in exchange for old notes where the old notes were
acquired as a result of market-making activities or other trading activities.
We have agreed that for a period ending on the earlier of
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(1) |
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180 days after the date of this prospectus and |
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(2) |
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the date on which a broker-dealer is no longer required to
deliver a prospectus in connection with market- making or other
trading activities, |
we will make available and provide promptly upon reasonable request this
prospectus, in a form meeting the requirements of the Securities Act, to any
broker-dealer for use in connection with any such resale.
We will receive no proceeds in connection with the exchange offer.
Exchange notes received by broker-dealers for their own account in the exchange
offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the new notes or a combination of these methods of resale, at market
prices prevailing at the time of resale, at prices related to the prevailing
market prices or negotiated prices.
A resale may be made directly to purchasers or through brokers or dealers
who may receive compensation in the form of commissions or concessions from the
broker-dealer and/or the purchasers of new notes. Any broker-dealer that
resells new notes that it received for its own account in the exchange offer
and any broker or dealer that participates in a distribution of the new notes
may be an underwriter within the meaning of the Securities Act, and any profit
on the resale of exchange notes and any commissions or concessions received by
these persons may be underwriting compensation under the Securities Act. The
transmittal letter states that by acknowledging that it will deliver, and by
delivering, a prospectus, a broker-dealer will not be considered to admit that
it is an underwriter.
We have agreed to pay all expenses incident to our performance of, or
compliance with, the registration rights agreement and will indemnify the
holders of Transfer Restricted Securities, including any broker-dealers, and
certain parties related to such holders, against certain liabilities including
liabilities under the Securities Act.
VALIDITY OF THE NEW NOTES
The validity of the new notes will be passed upon for us by Latham &
Watkins LLP, Chicago, Illinois, and certain other matters will be passed on for
us by R. Jeffrey Bixler, our Vice President, General Counsel and Secretary.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our annual report on form 10-K
for the year ended December 31, 2002, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLPs report, given on their authority as experts
in accounting and auditing.
GLOSSARY
2006 Notes means MCAs $150.0 million principal amount of 7-1/2% Senior
Notes Due 2006.
2008 Notes means Manor Cares $200.0 million principal amount of 8%
Senior Notes Due 2008.
Affiliate of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
control,
57
when used with respect to any specified Person, means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, and the
terms controlling and controlled have meanings correlative to the
foregoing; provided, however, that the existence of a management contract by us
or an Affiliate of ours to manage another entity shall not be deemed to be
control.
Affiliate Transaction means the sale, lease, transfer or otherwise
disposition of any of our or our subsidiaries properties or assets to or
purchase any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guaranty with, or for the benefit of, an
Affiliate of ours, other than a subsidiary.
Applicable Percentage means
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(1) |
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15%, if the aggregate principal amount of notes and debt
securities issued by us under other indentures or fiscal agency
agreements or other similar instruments then outstanding exceeds
$100,000,000, |
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(2) |
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20%, if the aggregate principal amount of such notes and
securities then outstanding exceeds $50,000,000 but is less than or
equal to $100,000,000, or |
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(3) |
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25%, if the aggregate principal amount of such notes and
securities outstanding is less than or equal to $50,000,000. |
Attributable Debt in respect of a Sale and Lease-Back Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the notes compounded semi-annually) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in the Sale and Lease-Back Transaction (including any period for which such
lease has been extended).
Bank Debt means any and all amounts, whether outstanding on April 15,
2003 or incurred after April 15, 2003, payable by us under or in respect of the
Senior Credit Agreement and any related notes, collateral documents, letters of
credit and guarantees and any Interest Rate Agreement entered into in
connection with the Senior Credit Agreement, including principal, premium, if
any, interest, fees, charges, expenses, reimbursement obligations, guarantees
and all other amounts payable thereunder or in respect thereof. Interest
includes any interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to us at the rate specified therein
whether or not a claim for post filing interest is allowed in such proceedings.
Capitalized
Lease Obligations means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of the obligation represented
by that obligation will be the capitalized amount of the obligation at the time
any determination of the obligations is to be made as determined in accordance
with GAAP, and the Stated Maturity of the obligation will be the date of the
last payment of rent or any other amount due under such lease prior to the
first date the lease may be terminated without penalty.
Change of Control means:
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(1) |
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any person or group of related persons is or
becomes the beneficial owner, directly or indirectly, of more
than 50% of the total voting power of our Voting Stock, or our
successor by merger, consolidation or purchase of all or
substantially all of our assets. For the purposes of this
clause, we refer to a person or group as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act. A beneficial
owner is defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that such person or group shall be deemed to have
beneficial ownership of all shares that any such person or
group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time. In
addition, such person or group shall be deemed to beneficially
own any of our Voting Stock held by a parent entity, if such
person or group beneficially |
58
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owns, directly
or indirectly, more than 50% of the voting power of the
Voting Stock of such parent entity; or |
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(2) |
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the first day on which a majority of the members of
our board of directors are not Continuing Directors; or |
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(3) |
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the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation) in
one or a series of related transactions, of all or substantially
all of our assets and our subsidiaries taken as a whole to any
person as the term is used in Sections 13(d) and 14(d) of the
Exchange Act; or |
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(4) |
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the adoption by our stockholders of a plan or
proposal for our liquidation or dissolution. |
Change of Control Offer means a notice for us stating that you will have
the right to require us to repurchase all or any party of your notes at a
purchase price in cash equal to 101% of the principal amount to your notes plus
accrued and unpaid interest, if any, to the date of purchase, subject to the
right of the holders of record on a record date to receive interest on the
relevant interest pay date.
Change of Control Payment means a cash equal to 101% of the principal
amount to your notes plus accrued and unpaid interest, if any, to the date of
purchase, subject to the right of the holders of record on a record date to
receive interest on the relevant interest pay date.
Change of Control Payment Date means the repurchase date, which will be
no earlier than 30 days no later than 60 days from the date we mail the Change
of Control Offer.
Change of Control Triggering Event means a Change of Control accompanied
by a Rating Decline.
Code means the Internal Revenue Code of 1986, as amended.
Commission means the United States Securities and Exchange Commission.
Comparable Treasury Issue means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the notes to be redeemed that would be used, at the time
of selection and in accordance with customary financial practice, to price new
issues of corporate debt securities of comparable maturity to the remaining
term of the notes.
Comparable Treasury Price means, for any redemption date, the average of
the bid and asked prices for the Comparable Treasury Issue expressed in each
case as a percentage of its principal amount on the third business day
preceding such redemption date,
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as set forth in the daily statistical release, or
any successor release, published by the Federal Reserve Bank
of New York or published on the website of the Federal Reserve
Bank of New York at http://www.ny.frb.org and designated
Composite 3:30 p.m. Quotations for the U.S. Government
Securities or |
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(2) |
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if such release, or any successor release, is not
published or does not contain such prices on such business
day, the average of the Reference Treasury Dealer Quotations
for such redemption date. |
Consolidated Net Assets means, for any Person as of any date of
determination, the total assets of such Person and its subsidiaries on a
consolidated basis less current liabilities of such Person and its subsidiaries
on a consolidated basis as of such date, all determined in accordance with
GAAP.
Continuing Directors means, as of any date of determination, any member
of our board of directors who:
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was a member of the board of directors on the date of the
indenture; or |
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was nominated for election or elected to the board of
directors with the approval of a majority of the Continuing
Directors who were members of the board of directors at the time
of the nomination or election. |
Convertible Notes means our 2.125% Convertible Senior Notes due 2023
that were issued by us concurrently with the old notes.
Debt means, for any Person on any date of determination; without
duplication:
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the principal of and premium, if any, in respect of
debt of the Person for borrowed money; |
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the principal of and premium, if any, in respect of
obligations of the Person evidenced by bonds, debentures, notes
or other similar instruments; |
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the principal component of all obligations of the
Person in respect of letters of credit, bankers acceptances or
other similar instruments. The principal components include
reimbursement obligations except to the extent such
reimbursement obligation relates to a trade payable and such
obligation is satisfied within 30 days of incurrence; |
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the principal component of all obligations of such
Person to pay the deferred and unpaid purchase price of property
(except trade payables) which purchase price is due more than
six months after the date of placing the property in service or
taking delivery and title to the property; |
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Capitalized Lease Obligations and all Attributable Debt of the
Person; and |
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the principal component of Debt of other Persons to
the extent Guaranteed by the Person. |
The amount of Debt of any Person at any date will be the outstanding
balance at the date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Foreign Subsidiary means any subsidiary of ours that is incorporated or
organized in a jurisdiction outside the United States and any subsidiary of
such a subsidiary.
GAAP means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession as in effect from time to time.
Guarantee means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
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to purchase or pay (or advance or supply funds to
purchase or pay) the Debt of the other Person (whether arising
by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or
otherwise); or |
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entered into to assure in any other manner the
obligee of such Debt of the payment or to protect the obligee
against loss in respect of the Debt (in whole or in part); |
provided, however, that the term Guarantee will not include endorsements for
collection or deposit in the ordinary course of business. The term Guarantee
used as a verb has a corresponding meaning.
Incur means issue, create, assume, Guarantee, incur or otherwise become
liable for; and the terms incurred and incurrence have meanings correlative
to the foregoing.
Independent Investment Banker means the Reference Treasury Dealer
appointed by the trustee after consultation with us.
Interest Rate Agreement means with respect to any Person any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement as to which such Person is party or a beneficiary.
Lien means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind; including any conditional sale or other title retention
agreement or lease in the nature of conditional sale or title retention
agreement.
MCA means Manor Care of America, Inc., a Delaware corporation and a
wholly owned subsidiary of ours, or any of our successors and assigns.
Moodys means Moodys Investors Service, Inc. or, if Moodys Investors
Service, Inc. shall cease rating debt securities having a maturity at original
issuance of at least one year and such ratings business shall have been
transferred to a successor Person, the successor Person; provided, however,
that if there is no successor Person, then Moodys will mean any other
national recognized rating agency, other than S&P, that rates debt securities
having a maturity at original issuance of at least one year that we designate.
Non-Recourse Debt means Debt or that portion of Debt:
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as to which neither we nor our subsidiaries, other than a Non-Recourse
Subsidiary: |
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provides credit support; including any
undertaking, agreement or instrument which would constitute
Debt; |
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is directly or indirectly liable; or |
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constitute the lender; and |
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for which a default, including any rights which the holders of
the debt may have to take enforcement action against a Non-Recourse
Subsidiary, would not permit (upon notice, lapse of time or both) any
holder of our or our subsidiaries other Debt, including any
Non-Recourse Subsidiary, to declare a default on such other Debt or
cause a payment thereof to be accelerated or payable prior to its
Stated Maturity. |
Non-Recourse Subsidiary means a subsidiary which (1) has not acquired
any assets (other than cash) directly or indirectly from us or any subsidiary,
(2) only owns assets acquired after April 15, 2003 or assets acquired prior to
the date such entity becomes a subsidiary and (3) has no Debt other than
Non-Recourse Debt.
Person means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, government or any agency or political subdivision hereof or
any other entity.
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Preferred Stock, as applied to the capital stock of any corporation,
means capital stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of the
corporation, over shares of capital stock of any other class of the
corporation.
Primary Treasury Dealer means a primary U.S. Government securities
dealer in The City of New York.
Rating Agencies mean Moodys and S&P.
Rating Date means the earlier of the date of public notice of (1) a
Change of Control or (2) our intention to effect a Change of Control.
Rating Decline shall be deemed to have occurred if, no later than 90
days after the Rating Date (which period shall be extended so long as the
rating of the notes is under publicly announced consideration for possible
downgrade by either of the Rating Agencies) either of the Rating Agencies
assigns a rating to the notes that is lower than the applicable rating of the
notes on the Rating Date. A downgrade within rating categories, as well as
between rating categories, will be considered a Rating Decline.
Receivables Securitization means a public or private transfer of or
creation of an interest in receivables in the ordinary course of our and our
subsidiaries business and by which we or any subsidiary directly or indirectly
securitize a pool of receivables, including but not limited to any such
transaction involving the sale of or creation of an interest in specified
receivables to a special purpose entity.
Reference Treasury Dealer means J.P. Morgan Securities Inc. (JP Morgan),
Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Warburg LLC and
their respective successors; provided, however, that if any of them shall cease
to be a primary U.S. government securities dealer in the United States of
America (a Primary Treasury Dealer), we will substitute one or more other
Primary Treasury Dealers.
Reference Treasury Dealer Quotations means, for each Reference Treasury
Dealer and any redemption date, the average, as determined by the trustee, of
the bid and asked prices for the Comparable Treasury Issue expressed in each
case as a percentage of its principal amount quoted in writing to the
trustee by the Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding the redemption date.
Sale and Lease-Back Transaction means any arrangement with any Person
providing for the leasing by us or our subsidiaries of any property or assets,
other than any arrangement involving:
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a lease for a term, including renewal rights, of not more than 36
months; |
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a lease of property within 18 months from the acquisition or in
the case of construction, alteration or improvement of property, the
later of the completion of the construction, alteration or improvement
of such property; or |
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leases between or among us and a subsidiary or subsidiaries, |
which property or asset has been or is to be sold or transferred by us or our
subsidiary to such Person.
S&P means Standard & Poors Ratings Service, a division of The
McGraw-Hill Companies, Inc. or, if Standard & Poors Ratings Service shall
cease rating debt securities having a maturity at original issuance of at least
one year and such ratings business shall have been transferred to a successor
Person, such successor Person; provided, however, that if there is no successor
Person, then S&P shall mean any other nationally recognized rating agency,
other than Moodys, that rates debt securities having a maturity at original
issuance of at least one year and that shall have been designated by the
Company.
Senior Credit Agreement means, with respect to us, one or more debt
facilities (including, without limitation, the three-year senior revolving
credit facility among Manor Care, Bank of America, N.A., as
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Administrative Agent, JPMorgan Chase Bank, as Syndication Agent, and the
lenders party thereto from time to time, as may be amended or modified from
time to time) or commercial paper facilities with banks or other institutional
lenders providing for revolving credit loans, term loans or letters of credit,
in each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time (and whether or not with the
original administrative agent and lenders or another administrative agent or
agents or other lenders and whether provided under the original Credit
Agreement or any other credit or other agreement or indenture).
Stated Maturity means, for any security, the date specified in the
security as the fixed date on which the payment of principal of such security
is due and payable, including pursuant to any mandatory redemption provision,
but shall not include any contingent obligations to repay, redeem or repurchase
any such principal before the date originally scheduled for payment.
Subsidiary Guarantee means, individually, any guarantee of payment of
the notes by a Subsidiary Guarantor pursuant to the terms of the indenture and
any supplemental indenture, and, collectively, all such guarantees. Each such
Subsidiary Guarantee will be in the form prescribed by the indenture.
Subsidiary Guarantor means MCA, each of our subsidiaries (other than a
Subsidiary that does not guarantee obligations under the Senior Credit
Agreement, the 2006 Notes, the 2008 Notes or the Convertible Notes) and any
subsidiary that is required to guarantee the notes under the terms of the
indenture.
Three Year Agreement means our $200 million three year senior revolving
credit facility.
Transfer Restricted Securities means each old note, until the earliest
to occur of:
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the date on which that old note has been exchanged for a
freely transferable new note in the exchange offer; |
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the date on which that old note has been effectively
registered under the Securities Act and disposed of in accordance
with the shelf registration statement; or |
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the date on which that old note is distributed to the public
pursuant to Rule 144 under the Securities Act or may be sold under
Rule 144(k) under the Securities Act. |
Treasury Rate means, for any redemption date, the rate per year equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue, expressed as a percentage
of its principal amount, equal to the Comparable Treasury Price for the
redemption date.
U.S. Government Securities means securities that are:
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direct obligations of the United States of America for the
timely payment of which its full faith and credit is pledged; or |
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obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America. |
In either case, such securities are not callable or redeemable at the option of
the issuer of the securities, and will also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any such U.S. Government Securities or a specific payment of
principal of or interest on any such U.S. Government Securities held by such
custodian for the account of the holder of such depository receipt; provided
that, except as required by law, such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect to the U.S. Government
Securities or the specific payment of principal of or interest on the U.S.
Government Securities evidenced by such depository receipt.
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Voting Stock of a corporation means all classes of capital stock of the
corporation then outstanding and normally entitled to vote in the election of
directors.
BOOK-ENTRY, DELIVERY AND FORM
The Global Notes
The new notes will be issued in the form of several registered notes in global
form, without interest coupons (the global notes), as follows:
Upon issuance, each of the global notes will be deposited with the trustee as
custodian for The Depository Trust Company (DTC) and registered in the name of
Cede & Co., as nominee of DTC.
Ownership of beneficial interests in each global note will be limited to
persons who have accounts with DTC (DTC participants) or persons who hold
interests through DTC participants. We expect that under procedures established
by DTC:
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upon deposit of each global note with DTCs custodian, DTC will
credit portions of the principal amount of the global note to the
accounts of the DTC participants designated by the initial purchasers;
and |
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ownership of beneficial interests in each global note will be shown
on, and transfer of ownership of those interests will be effected only
through, records maintained by DTC (with respect to interests of DTC
participants) and the records of DTC participants (with respect to other
owners of beneficial interests in the global note). |
Beneficial interests in the global notes may not be exchanged for notes in
physical, certificated form except in the limited circumstances described
below.
Book-entry Procedures for the Global Notes
All interests in the global notes will be subject to the operations and
procedures of DTC, Euroclear S.A./N.V. and Clearstream Banking, société
anonyme. We provide the following summaries of those operations and procedures
solely for the convenience of investors. The operations and procedures of each
settlement system are controlled by that settlement system and may be changed
at any time. We are not responsible for those operations or procedures.
DTC has advised us that it is:
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a limited purpose trust company organized under the laws of the State
of New York; |
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a banking organization within the meaning of the New York State
Banking Law; |
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a member of the Federal Reserve System; |
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a clearing corporation within the meaning of the Uniform Commercial
Code; and |
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a clearing agency registered under Section 17A of the Exchange Act. |
DTC was created to hold securities for its participants and to facilitate the
clearance and settlement of securities transactions between its participants
through electronic book-entry changes to the accounts of its participants.
DTCs participants include securities brokers and dealers, including the
initial purchasers; banks and trust companies; clearing corporations and other
organizations. Indirect access to DTCs system is also available to others such
as banks, brokers, dealers and trust companies; these indirect participants
clear through or maintain a custodial relationship with a DTC participant,
either directly or indirectly. Investors who are not DTC participants may
beneficially own securities held by or on behalf of DTC only through DTC
participants or indirect participants in DTC.
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So long as DTCs nominee is the registered owner of a global note, that nominee
will be considered the sole owner or holder of the notes represented by that
global note for all purposes under the indenture. Except as provided below,
owners of beneficial interests in a global note:
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will not be entitled to have notes represented by the global note
registered in their names; |
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will not receive or be entitled to receive physical, certificated
notes; and |
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will not be considered the owners or holders of the notes under the
indenture for any purpose, including with respect to the giving of any
direction, instruction or approval to the trustee under the
indenture. |
As a result, each investor who owns a beneficial interest in a global note must
rely on the procedures of DTC to exercise any rights of a holder of notes under
the indenture (and, if the investor is not a participant or an indirect
participant in DTC, on the procedures of the DTC participant through which the
investor owns its interest).
Payments of principal, premium (if any) and interest with respect to the notes
represented by a global note will be made by the trustee to DTCs nominee as
the registered holder of the global note. Neither we nor the trustee will have
any responsibility or liability for the payment of amounts to owners of
beneficial interests in a global note, for any aspect of the records relating
to or payments made on account of those interests by DTC, or for maintaining,
supervising or reviewing any records of DTC relating to those interests.
Payments by participants and indirect participants in DTC to the owners of
beneficial interests in a global note will be governed by standing instructions
and customary industry practice and will be the responsibility of those
participants or indirect participants and DTC.
Transfers between participants in DTC will be effected under DTCs procedures
and will be settled in same-day funds. Transfers between participants in
Euroclear or Clearstream will be effected in the ordinary way under the rules
and operating procedures of those systems.
Cross-market transfers between DTC participants, on the one hand, and Euroclear
or Clearstream participants, on the other hand, will be effected within DTC
through the DTC participants that are acting as depositaries for Euroclear and
Clearstream. To deliver or receive an interest in a global note held in a
Euroclear or Clearstream account, an investor must send transfer instructions
to Euroclear or Clearstream, as the case may be, under the rules and procedures
of that system and within the established deadlines of that system. If the
transaction meets its settlement requirements, Euroclear or Clearstream, as the
case may be, will send instructions to its DTC depositary to take action to
effect final settlement by delivering or receiving interests in the relevant
global notes in DTC, and making or receiving payment under normal procedures
for same-day funds settlement applicable to DTC. Euroclear and Clearstream
participants may not deliver instructions directly to the DTC depositaries that
are acting for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or
Clearstream participant that purchases an interest in a global note from a DTC
participant will be credited on the business day for Euroclear or Clearstream
immediately following the DTC settlement date. Cash received in Euroclear or
Clearstream from the sale of an interest in a global note to a DTC participant
will be received with value on the DTC settlement date but will be available in
the relevant Euroclear or Clearstream cash account as of the business day for
Euroclear or Clearstream following the DTC settlement date.
DTC, Euroclear and Clearstream have agreed to the above procedures to
facilitate transfers of interests in the global notes among participants in
those settlement systems. However, the settlement systems are not obligated to
perform these procedures and may discontinue or change these procedures at any
time. Neither we nor the trustee will have any responsibility for the
performance by DTC, Euroclear or Clearstream or their participants or indirect
participants of their obligations under the rules and procedures governing
their operations.
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Certificated Notes
Notes in physical, certificated form will be issued and delivered to each
person that DTC identifies as a beneficial owner of the related notes only if:
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DTC notifies us at any time that it is unwilling or unable to
continue as depositary for the global notes and a successor depositary
is not appointed within 90 days; |
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DTC ceases to be registered as a clearing agency under the Exchange
Act and a successor depositary is not appointed within 90 days; |
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we, at our option, notify the trustee that we elect to cause the
issuance of certificated notes; or |
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certain other events provided in the indenture should occur. |
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 102(b)(7) of the Delaware General Corporation Law (DGCL) grants
corporations the right to limit or eliminate the personal liability of their
directors in certain circumstances in accordance with provisions therein set
forth. Article VIII of the Manor Care Certificate of Incorporation contains a
provision eliminating or limiting director liability to Manor Care and its
stockholders for monetary damages arising from acts or omissions in the
directors capacity as a director. The provision does not, however, eliminate
or limit the personal liability of a director (i) for any breach of such
directors duty of loyalty to Manor Care or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under the Delaware statutory provision making
directors personally liable, under a negligence standard, for unlawful
dividends or unlawful stock purchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit. This
provision offers persons who serve on the board of directors of Manor Care
protection against awards of monetary damages resulting from breaches of their
duty of care (except as indicated above). As a result of this provision, the
ability of Manor Care or a stockholder thereof to successfully prosecute an
action against a director for a breach of his duty of care is limited. However,
the provision does not affect the availability of equitable remedies such as an
injunction or rescission based upon a directors breach of his duty of care.
The SEC has taken the position that the provision will have no effect on claims
arising under the Federal securities laws.
Section 145 of the DGCL grants corporations the right to indemnify their
directors, officers, employees and agents in accordance with the provisions
therein set forth. Article VIII of the Manor Care Certificate of Incorporation
and Article 3, Section 14 of the Manor Care Bylaws provide for mandatory
indemnification rights, subject to limited exceptions, to any director,
officer, employee, or agent of Manor Care who, by reason of the fact that he or
she is a director, officer, employee, or agent of Manor Care, is involved in a
legal proceeding of any nature. Such indemnification rights include
reimbursement for expenses incurred by such director, officer, employee, or
agent in advance of the final disposition of such proceeding in accordance with
the applicable provisions of the DGCL.
Manor Care has entered into agreements with all of its directors and its
executive officers pursuant to which Manor Care has agreed to indemnify such
directors and executive officers against liability incurred by them by reason
of their services as a director or executive officer to the fullest extent
allowable under applicable law.
II-1
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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4.1 |
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Indenture, dated as of April 15, 2003, among Manor Care,
Inc., the subsidiary guarantors as named therein and National City
Bank, as trustee |
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4.2 |
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Form of old 6.25% Senior Note due 2013
(included in Exhibit 4.1) |
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4.3 |
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Form of new 6.25% Senior Note due 2013
(included in Exhibit 4.1) |
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4.4 |
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Registration Rights Agreement, dated April
15, 2003, among Manor Care, Inc, the guarantors as named therein and
J.P. Morgan Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, UBS Warburg LLC, Banc of America Securities LLC, BNY
Capital Markets, Inc., NatCity Investments, Inc. and SunTrust
Capital Markets, Inc. |
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5.1 |
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Opinion of Latham & Watkins LLP |
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5.2 |
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Opinion of R. Jeffrey Bixler |
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10.1 |
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Purchase Agreement, dated April 10, 2003, among Manor Care
Inc., the guarantors as named therein and J.P. Morgan Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, UBS Warburg LLC, Banc of
America Securities LLC, BNY Capital Markets, Inc., NatCity
Investments, Inc. and SunTrust Capital Markets, Inc. |
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12.1 |
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Statement re Computation of Ratios |
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23.1 |
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Consent of Ernst & Young LLP |
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23.2 |
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Consent of Latham & Watkins LLP (included in Exhibit 5.1) |
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23.3 |
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Consent of R. Jeffrey Bixler (included in Exhibit 5.2) |
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24.1 |
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Power of Attorney of the Company |
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24.2 |
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Power of Attorney of the Guarantors |
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25.1 |
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Statement of Eligibility of Trustee |
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99.1 |
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Form of Transmittal Letter |
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99.2 |
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Form of Notice of Guaranteed Delivery |
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99.3 |
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Form of Letter to DTC Participants |
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99.4 |
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Form of Letter to Beneficial Holders |
II-2
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99.5 |
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Form of Letter to Clients |
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99.6 |
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Form of Guidelines for Certification |
ITEM 22. UNDERTAKINGS
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(a) The undersigned registrants hereby undertake: |
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: |
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(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the Securities Act); |
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee
table in the effective registration statement. (iii) To include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement; |
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. |
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering. |
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrants pursuant to the foregoing provisions, or otherwise, the
registrants have been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrants of expenses
incurred or paid by a director, officer or controlling person of the
registrants in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(c) The undersigned registrants hereby undertake to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
(d) The undersigned registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(e) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of each
registrants annual report pursuant to section 13(a) or section 15(d) of the
II-3
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Toledo, State of Ohio,
on date set forth below.
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Manor Care, Inc. |
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By:
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/s/ R. Jeffrey Bixler
R. Jeffrey Bixler |
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Vice President, General Counsel and Secretary |
DATE: July 28, 2003
S-1
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on July
28, 2003 in the capacities indicated.
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SIGNATURE |
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TITLE |
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* |
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Virgis W. Colbert |
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Director |
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* |
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Joseph F. Damico |
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Director |
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* |
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Joseph H. Lemieux |
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Director |
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* |
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William H. Longfield |
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Director |
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* |
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Frederic V. Malek |
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Director |
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* |
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Geoffrey G. Meyers |
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Executive Vice President and Chief |
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Financial Officer |
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(Principal Financial Officer) |
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* |
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Spencer C. Moler |
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Vice President and Controller (Principal |
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Accounting Officer) |
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* |
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Paul Ormond |
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President and Chief Executive Officer |
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(Principal Executive Officer); |
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Chairman of the Board; Director |
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* |
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John T. Schwieters |
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Director |
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* |
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Robert G. Siefers |
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Director |
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* |
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M. Keith Weikel |
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Senior Executive Vice President and |
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Chief Operating Officer; Director |
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* |
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Gail R. Wilensky |
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Director |
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* |
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Thomas L. Young |
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Director |
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R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document on behalf of each of the above-named officers and/or directors of
the Company pursuant to powers of attorney duly executed by such persons. |
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By: |
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/s/ R. Jeffrey Bixler
R. Jeffrey Bixler, Attorney-in-fact |
Group 1 Co-Registrants
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 1 Co-Registrants listed below have duly caused this Registration
Statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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HCR INFORMATION CORPORATION |
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HCR REHABILITATION CORP. |
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HCRC INC. |
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HEALTH CARE AND RETIREMENT CORPORATION OF
AMERICA |
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HEARTLAND REHABILITATION SERVICES, INC. |
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HCR HOME HEALTH CARE AND HOSPICE, INC. |
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HEARTLAND EMPLOYMENT SERVICES, INC. |
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HEARTLAND INFORMATION SERVICES, INC. |
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MANOR CARE OF AMERICA, INC |
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MANORCARE HEALTH SERVICES, INC. |
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By: |
/s/ R. Jeffrey Bixler
Name: R. Jeffrey Bixler |
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Title: Attorney-in-fact of the above- |
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referenced Group 1 Co-Registrants |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
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SIGNATURE |
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TITLE
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*
Paul A. Ormond |
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Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
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*
Geoffrey G. Meyers |
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Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
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*
Spencer C. Moler |
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Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
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*
Paul A. Ormond |
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Director |
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*
Geoffrey G. Meyers |
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Director |
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*
M. Keith Weikel |
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Director |
* |
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R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document on behalf of each of the above-named officers and/or directors of
the Group 1 Co-Registrants pursuant to powers of attorney duly executed by
such persons. |
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By:
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/s/ R. Jeffrey Bixler
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R. Jeffrey Bixler, Attorney-in-fact for the Group |
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1 Co-Registrants |
Group 2 Co-Registrants
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 2 Co-Registrants listed below have duly caused this Registration
Statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
AMERICAN HOSPITAL BUILDING CORPORATION
AMERICANA HEALTHCARE CENTER OF PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION OF GEORGIA
AMERICANA HEALTHCARE CORPORATION OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES, INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES, INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR MANORCARE MEDICAL SERVICES OF FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES, INC.
HCRA OF TEXAS, INC.
HEARTLAND CAREPARTNERS, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND MANAGEMENT SERVICES, INC.
HEARTLAND REHABILITATION SERVICES OF FLORIDA, INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT JOHN MCKENZIE, RPT PHYSICAL THERAPY PROFESSIONAL ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, INC
MANOR CARE OF NORTH OLMSTED, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF VIRGINIA, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES, INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL, OCCUPATIONAL, AND SPEECH THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE, INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES, INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
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By:
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/s/ R. Jeffrey Bixler
Name: R. Jeffrey Bixler |
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Title: Attorney-in-fact of each of the above- |
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referenced Group 2 Co-Registrants |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
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SIGNATURE |
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TITLE
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*
Paul A. Ormond |
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Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
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*
Geoffrey G. Meyers |
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Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
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*
Spencer C. Moler |
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Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
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*
R. Jeffrey Bixler |
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Sole Director |
* |
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R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 2 Co-Registrants pursuant to powers of
attorney duly executed by such persons. |
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By:
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/s/ R. Jeffrey Bixler
R. Jeffrey Bixler, Individually
and as Attorney-in-fact for the
Group 2 Co- Registrants |
Group 3 Co-Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 3 Co-Registrant listed below has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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MNR FINANCE CORP. |
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By:
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/s/ R. Jeffrey Bixler
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Name: R. Jeffrey Bixler |
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Title: Attorney-in-fact of the above- |
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referenced Group 3 Co-Registrant |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
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SIGNATURE |
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TITLE
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*
Paul A. Ormond |
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Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
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*
Geoffrey G. Meyers |
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Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
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*
Spencer C. Moler |
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Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
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*
Paul A. Ormond |
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Director |
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*
R. Jeffrey Bixler |
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Director |
* |
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R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 3 Co-Registrant pursuant to powers of
attorney duly executed by such persons. |
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By:
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/s/ R. Jeffrey Bixler
R. Jeffrey Bixler, Individually and as |
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Attorney-in-fact of the Group 3 Co- |
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Registrant |
Group 4 Co-Registrants
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 4 Co-Registrants listed below have duly caused this Registration
Statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS ARDEN, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN, LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
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By: |
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/s/ R. Jeffrey Bixler |
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Name:
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R. Jeffrey Bixler |
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Title:
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Attorney-in-fact of each of the above-
referenced Group 4 Co-Registrants |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
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SIGNATURE |
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TITLE |
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*
Paul A. Ormond |
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Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
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*
Geoffrey G. Meyers |
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Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
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*
Spencer C. Moler |
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Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
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*
Paul A. Ormond |
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Director of Manor Care of America, Inc., Sole
Member of each of the above-referenced limited
liability companies |
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Geoffrey G. Meyers |
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Director of Manor Care of America, Inc., Sole
Member of each of the above-referenced limited
liability companies |
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*
M. Keith Weikel |
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Director of Manor Care of America, Inc., Sole
Member of each of the above-referenced limited liability
companies |
* |
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R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 4 Co-Registrants pursuant to powers of
attorney duly executed by such persons. |
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By:
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/s/ R. Jeffrey Bixler |
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R. Jeffrey Bixler, Individually and as
Attorney-in-fact of the Group 4
Co-Registrants |
Group 5 Co-Registrants
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 5 Co-Registrants listed below have duly caused this Registration
Statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
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By: |
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/s/ R. Jeffrey Bixler |
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Name:
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R. Jeffrey Bixler |
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Title:
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Attorney-in-fact of each of the
above-referenced Group 5
Co-Registrants |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
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SIGNATURE |
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TITLE |
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*
Paul A. Ormond |
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Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
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*
Geoffrey G. Meyers |
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Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
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*
Spencer C. Moler |
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Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
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*
Paul A. Ormond |
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Director of ManorCare Health Services, Inc.,
Sole Member of each of the above-referenced
limited liability companies |
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*
Geoffrey G. Meyers |
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Director of ManorCare Health Services, Inc.,
Sole Member of each of the above-referenced limited
liability companies |
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*
M. Keith Weikel |
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Director of ManorCare Health Services, Inc.
Sole Member of each of the above-referenced limited
liability companies |
* |
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R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 5 Co-Registrants pursuant to powers of
attorney duly executed by such persons. |
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By: |
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/s/ R. Jeffrey Bixler |
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R. Jeffrey Bixler, Individually and as
Attorney-in-fact of the Group 5
Co-Registrants |
Group 6 Co-Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 6 Co-Registrant listed below has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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ANCILLARY SERVICES, LLC |
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By: |
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/s/ R. Jeffrey Bixler |
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Name:
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R. Jeffrey Bixler |
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Title:
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Attorney-in-fact of the above-
referenced Group 6 Co-Registrant |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
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SIGNATURE |
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TITLE |
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*
Paul A. Ormond |
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Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
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*
Geoffrey G. Meyers |
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Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
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*
Spencer C. Moler |
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Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
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*
Paul A. Ormond |
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Director of Heartland Rehabilitation Services,
Inc., Sole Member of the above-referenced
limited liability company |
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*
Geoffrey G. Meyers |
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Director of Heartland Rehabilitation Services,
Inc., Sole Member of the above-referenced
limited liability company |
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|
|
*
M. Keith Weikel |
|
Director of Heartland Rehabilitation Services,
Inc., Sole Member of the above-referenced
limited liability company |
* |
|
R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 6 Co-Registrant pursuant to powers of
attorney duly executed by such persons. |
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By: |
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/s/ R. Jeffrey Bixler |
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R. Jeffrey Bixler, Individually
and as Attorney-in-fact of the
Group 6 Co-Registrant |
Group 7 Co-Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 7 Co-Registrant listed below has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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HCR HOSPITAL, LLC |
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By: |
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/s/ R. Jeffrey Bixler |
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Name:
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|
R. Jeffrey Bixler |
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Title:
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Attorney-in-fact of the above-
referenced Group 7 Co-Registrant |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
|
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|
SIGNATURE |
|
TITLE |
|
|
|
*
Paul A. Ormond |
|
Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
|
|
|
*
Geoffrey G. Meyers |
|
Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
|
|
|
*
Spencer C. Moler |
|
Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
|
|
|
*
R. Jeffrey Bixler |
|
Vice President, General Counsel, Secretary and
Sole Director of HCR Hospital Holding
Company, Inc., sole member of the above-
referenced limited liability company |
* |
|
R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 7 Co-Registrant pursuant to powers of
attorney duly executed by such persons. |
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By: |
|
/s/ R. Jeffrey Bixler |
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|
R. Jeffrey Bixler, Individually
and as Attorney-in-fact of the
Group 7 Co-Registrant |
Group 8 Co-Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 8 Co-Registrant listed below has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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IN HOME HEALTH, INC. |
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By:
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/s/ R. Jeffrey Bixler
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Name:
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|
R. Jeffrey Bixler |
|
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Title:
|
|
Attorney-in-fact of the above-
referenced Group 8 Co-Registrant |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
|
|
|
SIGNATURE |
|
TITLE
|
|
|
|
*
Paul A. Ormond |
|
Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
|
|
|
*
Geoffrey G. Meyers |
|
Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial Officer) |
|
|
|
*
Spencer C. Moler |
|
Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
|
|
|
*
Geoffrey G. Meyers |
|
Director |
|
|
|
*
M. Keith Weikel |
|
Director |
* |
|
R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 8 Co-Registrant pursuant to powers of
attorney duly executed by such persons. |
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By: |
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/s/ R. Jeffrey Bixler |
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|
R. Jeffrey Bixler, Individually
and as Attorney-in-fact of the
Group 8 Co-Registrant |
Group 9 Co-Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 9 Co-Registrant listed below has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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HCR MANORCARE MESQUITE, L.P. |
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By: |
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/s/ R. Jeffrey Bixler |
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Name:
|
|
R. Jeffrey Bixler |
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Title:
|
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Attorney-in-fact of the above-
referenced Group 9 Co-Registrant |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
|
|
|
SIGNATURE |
|
TITLE
|
|
|
|
*
Paul A. Ormond |
|
Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
|
|
|
*
Geoffrey G. Meyers |
|
Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial Officer) |
|
|
|
*
Spencer C. Moler |
|
Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
|
|
|
*
Paul A. Ormond |
|
Director of ManorCare Health Services, Inc.,
Sole Member of Mesquite Hospital, LLC,
General Partner of the above-referenced limited
partnership |
|
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*
Geoffrey G. Meyers |
|
Director of ManorCare Health Services, Inc.,
Sole Member of Mesquite Hospital, LLC,
General Partner of the above-referenced limited
partnership |
|
|
|
*
M. Keith Weikel |
|
Director of ManorCare Health Services, Inc.,
Sole Member of Mesquite Hospital, LLC,
General Partner of the above-referenced limited
partnership |
* |
|
R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 9 Co-Registrant pursuant to powers of
attorney duly executed by such persons. |
|
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By: |
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/s/ R. Jeffrey Bixler |
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|
R. Jeffrey Bixler, Individually
and as Attorney-in-fact of the
Group 9 Co-Registrant |
Group 10 Co-Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 10 Co-Registrant listed below has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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BOOTH LIMITED PARTNERSHIP |
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By: |
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/s/ R. Jeffrey Bixler |
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Name:
|
|
R. Jeffrey Bixler |
|
|
|
|
Title:
|
|
Attorney-in-fact of the above-
referenced Group 10 Co-Registrant |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
|
|
|
SIGNATURE |
|
TITLE
|
|
|
|
*
Paul A. Ormond |
|
Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
|
|
|
*
Geoffrey G. Meyers |
|
Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial Officer) |
|
|
|
*
Spencer C. Moler |
|
Vice President, Controller, Assistant Treasurer
& Assistant Secretary
(Principal Accounting Officer) |
|
|
|
*
R. Jeffrey Bixler |
|
Vice President, General Counsel, Secretary and
Sole Director of Jacksonville
Healthcare Corporation, General Partner of the
above- referenced limited partnership |
* |
|
R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 10 Co-Registrant pursuant to powers of
attorney duly executed by such persons. |
|
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|
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By: |
|
/s/ R. Jeffrey Bixler |
|
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|
R. Jeffrey Bixler, Individually and as
Attorney-in-fact of the Group 10
Co-Registrant |
Group 11 Co-Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Group 11 Co-Registrant listed below has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on July 28, 2003.
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COLEWOOD LIMITED PARTNERSHIP |
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By: |
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/s/ R. Jeffrey Bixler |
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|
Name:
|
|
R. Jeffrey Bixler |
|
|
|
|
Title:
|
|
Attorney-in-fact of the above-
referenced Group 11 Co-Registrant |
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 28, 2003.
|
|
|
SIGNATURE |
|
TITLE |
|
|
|
*
Paul A. Ormond |
|
Chairman, President & Chief Executive Officer
(Principal Executive Officer) |
|
|
|
*
Geoffrey G. Meyers |
|
Executive Vice President, Chief Financial
Officer & Assistant Secretary
(Principal Financial and Accounting Officer) |
|
|
|
*
Spencer C. Moler |
|
Vice President, Controller, Assistant Treasurer & Assistant Secretary
(Principal Accounting Officer) |
|
|
|
*
R. Jeffrey Bixler |
|
Vice President, General Counsel, Secretary and
Sole Director of American Hospital
Building Corporation, General Partner of the above-
referenced limited partnership |
* |
|
R. Jeffrey Bixler, by signing his name hereto, does hereby sign this
document individually and on behalf of each of the above-named officers
and/or directors of the Group 11 Co-Registrant pursuant to powers of
attorney duly executed by such persons. |
|
|
|
|
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By: |
|
/s/ R. Jeffrey Bixler |
|
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|
|
|
R. Jeffrey Bixler, Individually
and as Attorney-in-fact of the
Group 11 Co-Registrant |
EXHIBIT INDEX
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
4.1 |
|
Indenture, dated as of April 15, 2003, among Manor Care,
Inc., the subsidiary guarantors as named therein and National City
Bank, as trustee |
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|
|
4.2 |
|
Form of old 6.25% Senior Note due 2013 (included in Exhibit 4.1) |
|
|
|
4.3 |
|
Form of new 6.25% Senior Note due 2013 (included in Exhibit 4.1) |
|
|
|
4.4 |
|
Registration Rights Agreement, dated April
15, 2003, among Manor Care, Inc, the guarantors as named therein and
J.P. Morgan Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, UBS Warburg LLC, Banc of America Securities LLC, BNY
Capital Markets, Inc., NatCity Investments, Inc. and SunTrust
Capital Markets, Inc. |
|
|
|
5.1 |
|
Opinion of Latham & Watkins LLP |
|
|
|
5.2 |
|
Opinion of R. Jeffrey Bixler |
|
|
|
10.1 |
|
Purchase Agreement, dated April 10, 2003, among Manor Care
Inc., the guarantors as named therein and J.P. Morgan Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, UBS Warburg LLC, Banc of
America Securities LLC, BNY Capital Markets, Inc., NatCity
Investments, Inc. and SunTrust Capital Markets, Inc. |
|
|
|
12.1 |
|
Statement re Computation of Ratios |
|
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|
23.1 |
|
Consent of Ernst & Young LLP |
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|
|
23.2 |
|
Consent of Latham & Watkins LLP (included in Exhibit 5.1) |
|
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23.3 |
|
Consent of R. Jeffrey Bixler (included in Exhibit 5.2) |
|
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|
24.1 |
|
Power of Attorney of the Company |
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24.2 |
|
Power of Attorney of the Guarantors |
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25.1 |
|
Statement of Eligibility of Trustee |
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99.1 |
|
Form of Transmittal Letter |
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99.2 |
|
Form of Notice of Guaranteed Delivery |
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99.3 |
|
Form of Letter to DTC Participants |
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|
99.4 |
|
Form of Letter to Beneficial Holders |
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99.5 |
|
Form of Letter to Clients |
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99.6 |
|
Form of Guidelines for Certification |
EX-4.1
3
c78303exv4w1.txt
INDENTURE, DATED AS OF APRIL 15, 2003
EXHIBIT 4.1
===============================================================================
MANOR CARE, INC.,
THE SUBSIDIARY GUARANTORS PARTIES HERETO,
AND
NATIONAL CITY BANK,
AS TRUSTEE
6.25% Senior Notes due 2013
=====================
INDENTURE
Dated as of April 15, 2003
=====================
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.................................................................................1
SECTION 1.2. Other Definitions..........................................................................10
SECTION 1.3. Incorporation by Reference of Trust Indenture Act..........................................12
SECTION 1.4. Rules of Construction......................................................................12
ARTICLE II
THE SECURITIES
SECTION 2.1. Form, Dating and Terms.....................................................................13
SECTION 2.2. Execution and Authentication...............................................................20
SECTION 2.3. Registrar and Paying Agent.................................................................21
SECTION 2.4. Paying Agent to Hold Money in Trust........................................................22
SECTION 2.5. Securityholder Lists.......................................................................22
SECTION 2.6. Transfer and Exchange......................................................................23
SECTION 2.7. [RESERVED].................................................................................25
SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors.......................................................................26
SECTION 2.9. Form of Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S...............................................................................27
SECTION 2.10. Mutilated, Destroyed, Lost or Stolen Securities...........................................28
SECTION 2.11. Outstanding Securities....................................................................29
SECTION 2.12. Temporary Securities......................................................................30
SECTION 2.13. Cancellation..............................................................................30
SECTION 2.14. Payment of Interest; Defaulted Interest...................................................30
SECTION 2.15. Computation of Interest...................................................................31
SECTION 2.16. CUSIP and ISIN Numbers....................................................................32
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Securities......................................................................32
SECTION 3.2. [RESERVED].................................................................................32
SECTION 3.3. Limitation on Liens........................................................................32
SECTION 3.4. Limitation on Sale and Lease-Back Transactions.............................................34
SECTION 3.5. Limitation on Affiliate Transactions.......................................................34
SECTION 3.6. Change of Control..........................................................................34
SECTION 3.7. Financial Statements.......................................................................36
SECTION 3.8. Future Subsidiary Guarantors; Release of Guarantees........................................37
SECTION 3.9. Maintenance of Office or Agency............................................................37
SECTION 3.10. Corporate Existence.......................................................................38
ii
Page
----
SECTION 3.11. Payment of Taxes and Other Claims.........................................................38
SECTION 3.12. Payments for Consent......................................................................39
SECTION 3.13. Compliance Certificate....................................................................39
SECTION 3.14. Further Instruments and Acts..............................................................39
SECTION 3.15. Statement by Officers as to Default.......................................................39
ARTICLE IV
SUCCESSOR COMPANY
SECTION 4.1. Consolidation, Merger and Sale of Assets...................................................39
ARTICLE V
REDEMPTION OF SECURITIES
SECTION 5.1. Optional Redemption........................................................................41
SECTION 5.2. Applicability of Article...................................................................41
SECTION 5.3. Election to Redeem; Notice to Trustee......................................................41
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed..........................................41
SECTION 5.5. Notice of Redemption.......................................................................42
SECTION 5.6. Deposit of Redemption Price................................................................43
SECTION 5.7. Securities Payable on Redemption Date......................................................43
SECTION 5.8. Securities Redeemed in Part................................................................43
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default..........................................................................43
SECTION 6.2. Acceleration...............................................................................46
SECTION 6.3. Other Remedies.............................................................................46
SECTION 6.4. Waiver of Past Defaults....................................................................46
SECTION 6.5. Control by Majority........................................................................46
SECTION 6.6. Limitation on Suits........................................................................47
SECTION 6.7. Rights of Holders to Receive Payment.......................................................47
SECTION 6.8. Collection Suit by Trustee.................................................................47
SECTION 6.9. Trustee May File Proofs of Claim...........................................................47
SECTION 6.10. Priorities................................................................................48
SECTION 6.11. Undertaking for Costs.....................................................................48
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee..........................................................................48
SECTION 7.2. Rights of Trustee..........................................................................50
SECTION 7.3. Individual Rights of Trustee...............................................................50
SECTION 7.4. Trustee's Disclaimer.......................................................................50
SECTION 7.5. Notice of Defaults.........................................................................51
SECTION 7.6. Reports by Trustee to Holders..............................................................51
iii
Page
----
SECTION 7.7. Compensation and Indemnity.................................................................51
SECTION 7.8. Replacement of Trustee.....................................................................52
SECTION 7.9. Successor Trustee by Merger................................................................53
SECTION 7.10. Eligibility; Disqualification.............................................................53
SECTION 7.11. Preferential Collection of Claims Against Company.........................................53
SECTION 7.12. Trustee's Application for Instruction from the Company....................................53
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance...........................................54
SECTION 8.2. Conditions to Defeasance...................................................................55
SECTION 8.3. Application of Trust Money.................................................................56
SECTION 8.4. Repayment to Company.......................................................................56
SECTION 8.5. Indemnity for U.S. Government Securities...................................................57
SECTION 8.6. Reinstatement..............................................................................57
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders.................................................................57
SECTION 9.2. With Consent of Holders....................................................................58
SECTION 9.3. Compliance with Trust Indenture Act........................................................59
SECTION 9.4. Revocation and Effect of Consents and Waivers..............................................59
SECTION 9.5. Notation on or Exchange of Securities......................................................59
SECTION 9.6. Trustee To Sign Amendments.................................................................59
ARTICLE X
SUBSIDIARY GUARANTEE
SECTION 10.1. Subsidiary Guarantee......................................................................60
SECTION 10.2. Limitation on Liability; Termination, Release and Discharge...............................61
SECTION 10.3. Right of Contribution.....................................................................62
SECTION 10.4. No Subrogation............................................................................63
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls..............................................................63
SECTION 11.2. Notices...................................................................................63
SECTION 11.3. Communication by Holders with other Holders...............................................64
SECTION 11.4. Certificate and Opinion as to Conditions Precedent........................................64
SECTION 11.5. Statements Required in Certificate or Opinion.............................................65
SECTION 11.6. When Securities Disregarded...............................................................65
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar..............................................65
SECTION 11.8. Legal Holidays............................................................................65
SECTION 11.9. GOVERNING LAW.............................................................................65
iv
Page
----
SECTION 11.10. No Recourse Against Others...............................................................66
SECTION 11.11. Successors...............................................................................66
SECTION 11.12. Multiple Originals.......................................................................66
SECTION 11.13. Qualification of Indenture...............................................................66
SECTION 11.14. Table of Contents; Headings..............................................................66
EXHIBIT A Form of the Series A Note A-1
EXHIBIT B Form of the Series B Note B-1
EXHIBIT C Form of Indenture Supplement to Add Subsidiary Guarantors
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
310(a)(1) ............................................................. 7.10
(a)(2) ............................................................. 7.10
(a)(3) ............................................................. N.A.
(a)(4) ............................................................. N.A.
(a)(5) ............................................................. 7.10
(b) ............................................................. 7.8; 7.10
(c) ............................................................. N.A.
311(a) ............................................................. 7.11
(b) ............................................................. 7.11
(c) ............................................................. N.A.
312(a) ............................................................. 2.5
(b) ............................................................. 11.3
(c) ............................................................. 11.3
313(a) ............................................................. 7.6
(b)(1) ............................................................. N.A.
(b)(2) ............................................................. 7.6
(c) ............................................................. 7.6
(d) ............................................................. 7.6
314(a) ............................................................. 3.7; 3.13; 11.5
(b) ............................................................. N.A.
(c)(1) ............................................................. 11.4
(c)(2) ............................................................. 11.4
(c)(3) ............................................................. N.A.
(d) ............................................................. N.A.
(e) ............................................................. 11.5
315(a) ............................................................. 7.1
(b) ............................................................. 7.5; 11.2
(c) ............................................................. 7.1
(d) ............................................................. 7.1
(e) ............................................................. 6.11
316(a)(last sentence) ............................................................. 11.6
(a)(1)(A) ............................................................. 6.5
(a)(1)(B) ............................................................. 6.4
(a)(2) ............................................................. N.A.
(b) ............................................................. 6.7
(c) ............................................................. 6.5
317(a)(1) ............................................................. 6.8
(a)(2) ............................................................. 6.9
(b) ............................................................. 2.4
318(a) ............................................................. 11.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
INDENTURE dated as of April 15, 2003, among MANOR CARE, INC., a
Delaware corporation (the "Company"), THE SUBSIDIARY GUARANTORS (as defined) and
NATIONAL CITY Bank, a national banking association (the "Trustee"), as Trustee.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (i) the Company's 6.25%
Senior Notes, Series A, due 2013, issued on the date hereof and the guarantees
thereof by certain of the Company's subsidiaries (the "Initial Securities"),
(ii) if and when issued, an unlimited principal amount of additional 6.25%
Senior Notes, Series A, due 2013 in a non-registered offering or 6.25% Senior
Notes, Series B, due 2013 in a registered offering of the Company that may be
offered from time to time subsequent to the Issue Date (the "Additional
Securities") and (iii) if and when issued, the Company's 6.25% Senior Notes,
Series B, due 2013 and the guarantees thereof by certain of the Company's
subsidiaries that may be issued from time to time in exchange for Initial
Securities or any Additional Securities in an offer registered under the
Securities Act as provided in the Registration Rights Agreement (as hereinafter
defined the "Exchange Securities," and together with the Initial Securities and
Additional Securities, the "Securities").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"2006 Notes" means MCA's $150.0 million principal amount of 7 1/2%
Senior Notes due 2006.
"2008 Notes" means the Company's $200.0 million principal amount of 8%
Senior Notes due 2008.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing;
provided, however, that the existence of a management contract by the Company or
an Affiliate of the Company to manage another entity shall not be deemed to be
control.
"Applicable Percentage" means (i) 15%, if the aggregate principal
amount of Securities and debt securities issued under other indentures or fiscal
agency agreements or other similar instruments (collectively, "Debt Securities")
then outstanding exceeds $100,000,000, (ii) 20%, if the aggregate principal
amount of Debt Securities then outstanding exceeds $50,000,000 but is less than
or equal to $100,000,000 or (iii) 25%, if the aggregate principal amount of Debt
Securities outstanding is less than or equal to $50,000,000.
"Attributable Debt" in respect of a Sale and Lease-Back Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded semi-annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Lease-Back Transaction (including any period for
which such lease has been extended).
"Bank Debt" means any and all amounts, whether outstanding on the Issue
Date or Incurred after the Issue Date, payable by the Company under or in
respect of the Senior Credit Agreement and any related notes, collateral
documents, letters of credit and guarantees and any Interest Rate Agreement
entered into in connection with the Senior Credit Agreement, including
principal, premium, if any, interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company at the rate specified therein whether or not a claim for post filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
"Bankruptcy Law" means Title 11 of the United States Code or any
similar federal or state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"Business Day" means each day that is not a Saturday, Sunday or other
day on which banking institutions in New York, New York and Cleveland, Ohio are
authorized or required by law to close.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Debt represented by such
obligation will be the capitalized amount of such obligation at the time any
determination thereof is to be made as determined in accordance with GAAP, and
the Stated Maturity thereof will be the date of the last payment of rent or any
other amount due under such lease prior to the first date such lease may be
terminated without penalty.
"Change of Control" means:
(1) any "person" or "group" of related persons (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that such person or group
shall be deemed to have "beneficial ownership" of all shares
that any such person or group has the right to acquire,
whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 50%
of the total
2
voting power of the Voting Stock of the Company (or its
successor by merger, consolidation or purchase of all or
substantially all of its assets) (for the purposes of this
clause, such person or group shall be deemed to beneficially
own any Voting Stock of the Company held by a parent entity,
if such person or group "beneficially owns" (as defined
above), directly or indirectly, more than 50% of the voting
power of the Voting Stock of such parent entity); or
(2) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors; or
(3) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of
the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act); or
(4) the adoption by the stockholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company.
"Change of Control Triggering Event" means the occurrence of a Change
of Control accompanied by a Rating Decline.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Manor Care, Inc. or its successors and assigns.
"Consolidated Net Assets" means, with respect to any Person as of any
date of determination, the total assets of such Person and its subsidiaries on a
consolidated basis less current liabilities of such Person and its subsidiaries
on a consolidated basis as of such date, all determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (1) was a member of such
Board of Directors on the date of this Indenture; or (2) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Convertible Notes" means the Company's $90.0 million principal amount
of 2.125% Convertible Senior Notes due 2023 (which may be increased to $100.0
million principal amount of such notes if the option of the initial purchasers
of such notes to purchase additional notes is exercised in full).
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
3
"Debt" means, with respect to any Person on any date of determination
(without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) the principal component of all obligations of such Person in
respect of letters of credit, bankers' acceptances or other
similar instruments (including reimbursement obligations with
respect thereto except to the extent such reimbursement
obligation relates to a trade payable and such obligation is
satisfied within 30 days of Incurrence);
(4) the principal component of all obligations of such Person to
pay the deferred and unpaid purchase price of property (except
trade payables), which purchase price is due more than six
months after the date of placing such property in service or
taking delivery and title thereto;
(5) Capitalized Lease Obligations and all Attributable Debt of
such Person; and
(6) the principal component of Debt of other Persons to the extent
Guaranteed by such Person.
The amount of Debt of any Person at any date will be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Euroclear" means Euroclear Bank S.A./N.V. or any successor securities
clearing agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
4
"Existing Liens" mean Liens on property or assets of the Company or any
Subsidiary existing on the Issue Date.
"Fiscal Year" means the fiscal year of the Company ending on December
31 of each year.
"Foreign Subsidiary" of the Company shall mean any Subsidiary which is
incorporated or organized in a jurisdiction outside the United States and any
Subsidiary of such a Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession as in effect from time to time.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt of such other Person
(whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial
statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the
obligee of such Debt of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder or Securityholder" means the Person in whose name a Security is
registered in the Securities Register.
"IAI" means an institutional "accredited investor" as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"Incur" means issue, create, assume, Guarantee, incur or otherwise
become liable for; and the terms "Incurred" and "Incurrence" have meanings
correlative to the foregoing.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Initial Purchasers" means, collectively, J.P. Morgan Securities, Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Warburg LLC, Banc of
America Securities LLC, BNY Capital Markets, Inc., NatCity Investments, Inc. and
SunTrust Capital Markets, Inc.
5
with respect to the Initial Securities and financial institutions with respect
to future issuances of Securities.
"Initial Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Interest Rate Agreement" means with respect to any Person any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement as to which such Person is party or a beneficiary.
"Issue Date" means April 15, 2003.
"Legal Holiday" has the meaning ascribed to it in Section 11.8.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"MCA" means Manor Care of America, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company, or any of its successors and assigns.
"Moody's" means Moody's Investors Service, Inc. or, if Moody's
Investors Service, Inc. shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if there is no successor Person, then "Moody's" shall mean any other
nationally recognized rating agency, other than S&P, that rates debt securities
having a maturity at original issuance of at least one year and that shall have
been designated by the Company.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as to which
neither the Company nor its Subsidiaries (other than a Non-Recourse Subsidiary)
(A) provides credit support (including any undertaking, agreement or instrument
which would constitute Debt), (B) is directly or indirectly liable or (C)
constitute the lender and (ii) in respect of which a default (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would not permit (upon notice, lapse of time or both)
any holder of any other Debt of the Company or its Subsidiaries (including any
Non-Recourse Subsidiary) to declare a default on such other Debt or cause a
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary which (i) has not acquired
any assets (other than cash) directly or indirectly from the Company or any
Subsidiary, (ii) only owns assets acquired after the Issue Date or assets
acquired prior to the date such entity becomes a Subsidiary and (iii) has no
Debt other than Non-Recourse Debt.
"Non-U.S. Person" means a Person who is not a U.S. Person (as defined
in Regulation S).
6
"Offering Memorandum" means the offering memorandum, dated April 10,
2003, relating to the offering by the Company of $200.0 million of the 6.25%
Senior Notes due 2013 and any future offering memoranda relating to Additional
Securities.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Financial Officer, any Vice President, the Treasurer or
the Secretary of the Company. The term Officer of any Subsidiary Guarantor has a
correlative meaning.
"Officers' Certificate" means a certificate signed by two Officers or
attorneys-in-fact or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company or the Subsidiary Guarantors, as applicable.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, government or any agency or political subdivision hereof or
any other entity.
"Preferred Stock", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"QIB" means any "qualified institutional buyer" as such term is defined
in Rule 144A.
"Rating Agencies" mean Moody's and S&P.
"Rating Date" means the earlier of the date of public notice of (i) the
occurrence of a Change of Control or (ii) the intention of the Company to effect
a Change of Control.
"Rating Decline" shall be deemed to have occurred if, no later than 90
days after the Rating Date (which period shall be extended so long as the rating
of the Securities is under publicly announced consideration for possible
downgrade by either of the Rating Agencies), either of the Rating Agencies
assigns a rating to the Securities that is lower than the applicable rating of
the Securities on the Rating Date. A downgrade within rating categories, as well
as between rating categories, will be considered a Rating Decline.
"Receivables Securitization" means a public or private transfer of or
creation of an interest in receivables in the ordinary course of business of the
Company and its Subsidiaries and by which the Company or any such Subsidiary
directly or indirectly securitizes a pool of receivables, including but not
limited to any such transaction involving the sale of or creation of an interest
in specified receivables to a special purpose entity.
7
"Redemption Date" means, with respect to any redemption of Securities,
the date of redemption with respect thereto.
"Registered Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" means that certain registration rights
agreement dated as of the Issue Date by and among the Company, the Subsidiary
Guarantors and the Initial Purchasers and future registration rights agreements
with respect to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Period", with respect to any Securities, means the period
of 40 consecutive days beginning on and including the later of (A) the day on
which the Securities are first offered to Persons other than distributors (as
defined in Regulation S), notice of which day shall be promptly given by the
Company to the Trustee, and (B) the issue date with respect to such Securities.
"Restricted Securities Legend" means the Private Placement Legend set
forth in clause (1) of Section 2.1(c) or the Regulation S Legend set forth in
clause (2) of Section 2.1(c), as applicable.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Service, a division of The
McGraw-Hill Companies, Inc. or, if Standard & Poor's Ratings Service shall cease
rating debt securities having a maturity at original issuance of at least one
year and such ratings business shall have been transferred to a successor
Person, such successor Person; provided, however, that if there is no successor
Person, then "S&P" shall mean any other nationally recognized rating agency,
other than Moody's, that rates debt securities having a maturity at original
issuance of at least one year and that shall have been designated by the
Company.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or its Subsidiaries of any property or
assets (other than any such arrangement involving (i) a lease for a term,
including renewal rights, of not more than 36 months, (ii) a lease of property
within 18 months from the acquisition or, in the case of the construction,
alteration or improvement of property, the later of the completion of the
construction, alteration or improvement of such property or the commencement of
commercial operation of the property, or (iii) leases between or among the
Company and a Subsidiary or Subsidiaries), which property or asset has been or
is to be sold or transferred by the Company or a Subsidiary to such Person.
"SEC" means the United States Securities and Exchange Commission.
"Securities" has the meaning ascribed to it in the second introductory
paragraph of this Indenture.
8
"Securities Act" means the Securities Act of 1933 (15 U.S.C. Sections
77a-77aa), as amended, and the rules and regulations of the SEC promulgated
thereunder.
"Securities Custodian" means the custodian with respect to the Global
Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Securities Register" means the register of Securities, maintained by
the Registrar, pursuant to Section 2.3.
"Senior Credit Agreement" means, with respect to the Company, one or
more debt facilities (including, without limitation, (i) the Credit Agreement,
dated as of September 25, 1998, among the Company, MCA, Bank of America, N.A.,
as Administrative Agent, and the lenders parties thereto from time to time, as
amended by the First Amendment to the Five Year Credit Agreement, dated as of
February 9, 2000, and by the Second Amendment to the Five Year Credit Agreement,
dated as of September 22, 2000, and as may be further amended from time to time
and (ii) the proposed three-year senior revolving credit facility which may be
among the Company, Bank of America, N.A., as Administrative Agent, JPMorgan
Chase Bank, as Syndication Agent, and the lenders parties thereto from time to
time, as may be amended or modified from time to time) or commercial paper
facilities with banks or other institutional lenders providing for revolving
credit loans, term loans or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time (and whether or not with the original administrative
agent and lenders or another administrative agent or agents or other lenders and
whether provided under the original Credit Agreement or any other credit or
other agreement or indenture).
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to repay,
redeem or repurchase any such principal prior to the date originally scheduled
for the payment thereof.
"Subsidiary" of the Company means (i) a corporation a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by the
Company and one or more Subsidiaries of the Company or by one or more
Subsidiaries of the Company or (ii) any other Person (other than a corporation)
in which the Company, one or more Subsidiaries of the Company or the Company and
one or more Subsidiaries of the Company, directly or indirectly, at the date of
determination thereof, has greater than a 50% ownership interest.
"Subsidiary Guarantee" means, individually, any Guarantee of payment of
the Securities by a Subsidiary Guarantor pursuant to the terms of this Indenture
and any
9
supplemental indenture hereto (including pursuant to Exhibit C), and,
collectively, all such Guarantees. Each such Subsidiary Guarantee will be in the
form prescribed by this Indenture.
"Subsidiary Guarantor" means MCA and each Subsidiary of the Company
(other than a Subsidiary that does not guarantee obligations under the Senior
Credit Agreement, the 2006 Notes, the 2008 Notes or the Convertible Notes) in
existence on the Issue Date and any Subsidiary that is required to Guarantee the
Securities under the terms of this Indenture.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor. "Trust Officer"
shall mean, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"U.S. Government Securities" mean securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Securities or a specific payment of principal of or interest on any
such U.S. Government Securities held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Securities or the specific payment
of principal of or interest on the U.S. Government Securities evidenced by such
depository receipt.
"Voting Stock" of a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
SECTION 1.2. Other Definitions.
10
Defined in
Term Section
- ---- -----------
"Additional Restricted Securities" ................................ 2.1(b)
"Affiliate Transaction"............................................ 3.5
"Agent"............................................................ 3.9
"Agent Member"..................................................... 2.1(e)
"Authenticating Agent"............................................. 2.2
"Certificate of Destruction"....................................... 2.13
"Change of Control Offer".......................................... 3.6
"Change of Control Payment"........................................ 3.6
"Change of Control Payment Date"................................... 3.6
"Company Order".................................................... 2.2
"covenant defeasance option"....................................... 8.1(b)
"cross acceleration provision"..................................... 6.1(6)(b)
"Defaulted Interest"............................................... 2.14
"Event of Default"................................................. 6.1
"Exchange Global Note"............................................. 2.1(b)
"Global Securities"................................................ 2.1(b)
"Institutional Accredited Investor Note"........................... 2.1(b)
"Institutional Accredited Investor Global Note".................... 2.1(b)
"judgment default provision"....................................... 6.1(9)
"legal defeasance option".......................................... 8.1(b)
"Obligations"..................................................... 10.1
"Payment Default" ................................................ 6.1(6)(a)
"Paying Agent".................................................... 2.3
"Private Placement Legend"........................................ 2.1(d)
"Registrar"....................................................... 2.3
11
Defined in
Term Section
- ---- -----------
"Regulation S Global Note"........................................ 2.1(b)
"Regulation S Legend"............................................. 2.1(d)
"Regulation S Note"............................................... 2.1(b)
"Resale Restriction Termination Date"............................. 2.6(a)
"Restricted Securities"........................................... 2.1(a)
"Rule 144A Global Note"........................................... 2.1(b)
"Rule 144A Note".................................................. 2.1(b)
"Special Interest Payment Date"................................... 2.14(a)
"Special Record Date"............................................. 2.14(a)
"Successor Company"............................................... 4.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
12
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be shown
on a balance sheet of the issuer dated such date prepared in accordance with
GAAP; and
(7) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form, Dating and Terms.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Initial
Securities issued on the date hereof will be in an aggregate principal amount of
$200,000,000. In addition, the Company may issue, from time to time in
accordance with the provisions of this Indenture, Additional Securities and
Exchange Securities. Furthermore, Securities may be authenticated and delivered
upon registration or transfer, or in lieu of, other Securities pursuant to
Section 2.6, 2.10, 2.12 or 9.5 or in connection with a Change of Control Offer
pursuant to Section 3.6.
The Initial Securities shall be known and designated as "6.25% Senior
Notes, Series A, due 2013" of the Company. Additional Securities issued as
securities bearing one of the restrictive legends described in Section 2.1(d)
("Restricted Securities") shall be known and designated as "6.25% Senior Notes,
Series A, due 2013" of the Company. Additional Securities issued other than as
Restricted Securities shall be known and designated as "6.25% Senior Notes,
Series B, due 2013" of the Company, and Exchange Securities shall be known and
designated as "6.25% Senior Notes, Series B, due 2013" of the Company.
With respect to any Additional Securities, the Company shall set forth
in (a) a Board Resolution and (b) (i) an Officers' Certificate or (ii) one or
more indentures supplemental hereto, the following information:
(1) the aggregate principal amount of such Additional Securities to be
authenticated and delivered pursuant to this Indenture;
(2) the issue price and the issue date of such Additional Securities,
including the date from which interest shall accrue; and
(3) whether such Additional Securities shall be Restricted Securities
issued in the form of Exhibit A hereto and/or shall be issued in the form
of Exhibit B hereto.
13
The Initial Securities, the Additional Securities and the Exchange
Securities shall be considered collectively as a single class for all purposes
of this Indenture. Holders of the Initial Securities, the Additional Securities
and the Exchange Securities will vote and consent together on all matters to
which such Holders are entitled to vote or consent as one class, and none of the
Holders of the Initial Securities, the Additional Securities or the Exchange
Securities shall have the right to vote or consent as a separate class on any
matter to which such Holders are entitled to vote or consent.
If any of the terms of any Additional Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or any Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or the indenture supplemental hereto setting forth the
terms of the Additional Securities.
(b) The Initial Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated April 10, 2003, among the Company, the
Subsidiary Guarantors, J.P. Morgan Securities Inc. and the other initial
purchasers named therein. The Initial Securities and any Additional Securities
(if issued as Restricted Securities) (the "Additional Restricted Securities")
will be resold initially only to (A) QIBs in reliance on Rule 144A and (B)
Non-U.S. Persons in reliance on Regulation S. Such Initial Securities and
Additional Restricted Securities may thereafter be transferred to, among others,
QIBs, purchasers in reliance on Regulation S and IAIs in accordance with Rule
501 of the Securities Act, in each case, in accordance with the procedure
described herein. Additional Securities offered after the date hereof may be
offered and sold by the Company from time to time pursuant to one or more
purchase agreements in accordance with applicable law.
Initial Securities and Additional Restricted Securities offered and
sold to QIBs in the United States of America in reliance on Rule 144A (the "Rule
144A Notes") shall be issued in the form of a permanent global Security, without
interest coupons, substantially in the form of Exhibit A, which is hereby
incorporated by reference and made a part of this Indenture, including
appropriate legends as set forth in Section 2.1(d) (the "Rule 144A Global
Note"), deposited with the Trustee, as custodian for DTC, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The Rule 144A
Global Note may be represented by more than one certificate, if so required by
DTC's rules regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Rule 144A Global Note may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Securities and Additional Securities offered and sold outside
the United States of America (the "Regulation S Notes") in reliance on
Regulation S shall initially be issued in the form of a permanent global
Security, without interest coupons, substantially in the form of Exhibit A
including appropriate legends as set forth in Section 2.1(d) (the "Regulation S
Global Note"). The Regulation S Global Note will be deposited upon issuance
with, or on behalf of, the Trustee as custodian for DTC in the manner described
in this Article II for credit to the respective accounts of the purchasers (or
to such other accounts as they may direct) at Euroclear or Clearstream. During
the Restricted Period, interests in the Regulation S Global Note may only be
held through Euroclear or Clearstream (as indirect participants in DTC) unless
14
exchanged for interests in a Global Security in accordance with the transfer and
certification requirements described herein.
Investors may hold their interests in the Regulation S Global Note
directly through Euroclear or Clearstream, if they are participants in such
systems, or indirectly through organizations which are participants in such
systems. After the expiration of the Restricted Period (but not earlier),
investors may also hold such interests through organizations other than
Euroclear or Clearstream that are participants in DTC's system. Euroclear and
Clearstream will hold such interests in the Regulation S Global Note on behalf
of their participants through customers' securities accounts in their respective
names on the books of their respective depositaries. Such depositaries, in turn,
will hold such interests in the applicable Regulation S Global Note in
customers' securities accounts in the depositaries' names on the books of DTC.
The Regulation S Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of the Regulation S Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities and Additional Securities resold to IAIs (the
"Institutional Accredited Investor Notes") in the United States of America shall
be issued in the form of a permanent global Security, without interest coupons,
substantially in the form of Exhibit A including appropriate legends as set
forth in Section 2.1(d) (the "Institutional Accredited Investor Global Note")
deposited with the Trustee, as custodian for DTC, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The Institutional
Accredited Investor Global Note may be represented by more than one certificate,
if so required by DTC's rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of the
Institutional Accredited Investor Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
Exchange Securities exchanged for interests in the Rule 144A Notes, the
Regulation S Notes and the Institutional Accredited Investor Notes will be
issued in the form of a permanent global Security, without interest coupons,
substantially in the form of Exhibit B, which is hereby incorporated by
reference and made a part of this Indenture, deposited with the Trustee as
hereinafter provided, including the appropriate legend set forth in Section
2.1(d) (the "Exchange Global Note"). The Exchange Global Note may be represented
by more than one certificate, if so required by DTC's rules regarding the
maximum principal amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Institutional Accredited Investor Global Note and the Exchange Global Note are
sometimes collectively herein referred to as the "Global Securities."
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose
15
pursuant to Section 2.3; provided, however, that, at the option of the Company,
each installment of interest may be paid by (i) check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Securities
Register or (ii) wire transfer to an account located in the United States
maintained by the payee. Payments in respect of Securities represented by a
Global Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by DTC.
Payments in respect of Securities represented by Definitive Securities
(including principal, premium, if any, and interest) held by a Holder of at
least $1,000,000 aggregate principal amount of Securities represented by
Definitive Securities will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage, in addition to those set forth on Exhibit A
and Exhibit B and in Section 2.1(d). The Company and the Trustee shall approve
the forms of the Securities and any notation, endorsement or legend on them.
Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in Exhibit A and Exhibit B are part of the terms of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to be bound by such
terms.
(c) Denominations. The Securities shall be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and any
integral multiple thereof.
(d) Restrictive Legends. Unless and until (i) an Initial Security is
sold under an effective registration statement or (ii) an Initial Security is
exchanged for an Exchange Security in connection with an effective registration
statement, in each case pursuant to the Registration Rights Agreement or a
similar agreement,
(A) the Rule 144A Global Note and the Institutional Accredited Investor
Global Note shall bear the following legend (the "Private Placement Legend") on
the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF
AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE
16
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
(B) the Regulation S Global Note shall bear the following legend (the
"Regulation S Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S.
PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"), (2) BY ITS
ACCEPTANCE HEREOF AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE
17
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED AFTER 40
CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON
WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS
DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL
OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
(C) Each Global Security, whether or not an Initial Security, shall
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
18
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(e) Book-Entry Provisions.
(i) This Section 2.1(e) shall apply only to Global Securities deposited
with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (x) be registered in the name
of DTC for such Global Security or the nominee of DTC, (y) be delivered to the
Trustee as custodian for DTC and (z) bear legends as set forth in Section
2.1(d).
(iii) Members of, or participants in, DTC ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by DTC or by the Trustee as the custodian of DTC or under such Global
Security, and DTC may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
DTC or impair, as between DTC and its Agent Members, the operation of customary
practices of DTC governing the exercise of the rights of a Holder of a
beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to subsection (f) of this Section 2.1 to
beneficial owners who are required to hold Definitive Securities, the Securities
Custodian shall reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Definitive Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to subsection (f) of this Section 2.1, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by DTC in exchange for its beneficial interest
in such Global Security, an equal aggregate principal amount of Definitive
Securities of authorized denominations.
(vi) The registered Holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
19
(vii) Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
(f) Definitive Securities. (i) Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
Definitive Securities. If required to do so pursuant to any applicable law or
regulation, beneficial owners may obtain Definitive Securities in exchange for
their beneficial interests in a Global Security upon written request in
accordance with DTC's and the Registrar's procedures. In addition, Definitive
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (A) DTC notifies the Company that
it is unwilling or unable to continue as depositary for such Global Security or
DTC ceases to be a clearing agency registered under the Exchange Act, at a time
when DTC is required to be so registered in order to act as depositary, and in
each case a successor depositary is not appointed by the Company within 90 days
of such notice or, (B) the Company in its sole discretion executes and delivers
to the Trustee and Registrar an Officers' Certificate stating that such Global
Security shall be so exchangeable or (C) an Event of Default has occurred and is
continuing and the Registrar has received a request from DTC. In the event of
the occurrence of any of the events specified in clause (A), (B) or (C) of the
preceding sentence, the Company shall promptly make available to the Trustee a
reasonable supply of Definitive Securities in fully registered form without
interest coupons.
(ii) Any Definitive Security delivered in exchange for an interest in a
Global Security pursuant to Section 2.1(e)(iv) or (v) shall, except as otherwise
provided by Section 2.6(c), bear the applicable legend regarding transfer
restrictions applicable to the Definitive Security set forth in Section 2.1(d).
(iii) In connection with the exchange of a portion of a Definitive
Security for a beneficial interest in a Global Security, the Trustee shall
cancel such Definitive Security, and the Company shall execute, and the Trustee
shall authenticate and deliver, to the transferring Holder a new Definitive
Security representing the principal amount not so transferred.
SECTION 2.2. Execution and Authentication. One Officer shall sign the
Securities for the Company by manual or facsimile signature. If an Officer whose
signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and make available for delivery:
(1) Initial Securities for original issue on the Issue Date in an aggregate
principal amount of $200,000,000, (2) subject to the terms of this Indenture,
Additional Securities for original issue in an unlimited principal
20
amount and (3) Exchange Securities for issue only in a Registered Exchange Offer
pursuant to the Registration Rights Agreement or upon resale under an effective
Shelf Registration Statement, and only in exchange for Initial Securities or
Additional Securities of an equal principal amount, in each case upon a written
order of the Company signed by two Officers (the "Company Order"). Such Company
Order shall specify the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated and
whether the Securities are to be Initial Securities, Additional Securities or
Exchange Securities. Notwithstanding anything to the contrary in this Indenture,
any issuance of Additional Securities after the Issue Date shall be in a
principal amount of at least $1.0 million, whether such Additional Securities
are of the same or a different series from the Initial Securities.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Any such
instrument shall be evidenced by an instrument signed by a Trust Officer, a copy
of which shall be furnished to the Company. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by the Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
In case the Company or any Subsidiary Guarantor, pursuant to Article IV
or Section 10.2, shall be consolidated or merged with or into any other Person
or shall convey, transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any Person, and the successor Person
resulting from such consolidation, or surviving such merger, or into which the
Company or any Subsidiary Guarantor shall have been merged, or the Person which
shall have received a conveyance, transfer, lease or other disposition as
aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article IV, any of the Securities authenticated or delivered prior
to such consolidation, merger, conveyance, transfer, lease or other disposition
may, from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the successor Person, shall
authenticate and deliver Securities as specified in such order for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section 2.2 in exchange
or substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Company shall cause each of
the Registrar and the Paying Agent to maintain an office or agency in the
Borough of Manhattan, The City of New York. The Registrar shall keep a register
of the Securities and of their transfer and exchange (the "Securities
Register"). The Company may have one or more co-registrars and one or more
additional paying
21
agents. The term "Paying Agent" includes any additional paying agent and the
term "Registrar" includes any co-registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the terms of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of each such agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.7. The Company or any
of its domestically organized, wholly owned Subsidiaries may act as Paying
Agent, Registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Securities. The Company may remove any Registrar or Paying Agent
upon written notice to such Registrar or Paying Agent and to the Trustee;
provided, however, that no such removal shall become effective until (i)
acceptance of any appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Registrar or Paying
Agent, as the case may be, and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (i) above. The Registrar or
Paying Agent may resign at any time upon written notice to the Company and the
Trustee.
SECTION 2.4. Paying Agent to Hold Money in Trust. By no later than
10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with the
Paying Agent a sum sufficient in immediately available funds to pay such
principal or interest when due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held by
such Paying Agent for the payment of principal of or interest on the Securities
and shall notify the Trustee in writing of any default by the Company or any
Subsidiary Guarantor in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent (other than the Trustee) to pay all money held by it to the Trustee
and to account for any funds disbursed by such Paying Agent. Upon complying with
this Section, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the Registrar, or to the extent
otherwise required under the TIA, the Company, on its own behalf and on behalf
of each of the Subsidiary Guarantors, shall furnish or cause the Registrar to
furnish to the Trustee, in writing at least five Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders and the Company shall
otherwise comply with TIA Section 312(a).
22
SECTION 2.6. Transfer and Exchange.
(a) The following provisions shall apply with respect to any proposed
transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior
to the date which is two years after the later of the date of its original issue
and the last date on which the Company or any Affiliate of the Company was the
owner of such Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date"):
(i) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a QIB shall be made upon
the representation of the transferee in the form as set forth on the
reverse of the Security that it is purchasing for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional buyer" within
the meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it
is aware that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to an IAI shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the
form set forth in Section 2.8 from the proposed transferee and, if
requested by the Company or the Trustee, the delivery of an opinion of
counsel, certification and/or other information satisfactory to each of
them; and
(iii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a Non-U.S. Person shall
be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 2.9 from the proposed
transferee and, if requested by the Company or the Trustee, the delivery of
an opinion of counsel, certification and/or other information satisfactory
to each of them.
(b) The following provisions shall apply with respect to any proposed
transfer of a Regulation S Note prior to the expiration of the Restricted
Period:
(i) a transfer of a Regulation S Note or a beneficial interest therein
to a QIB shall be made upon the representation of the transferee, in the
form of assignment on the reverse of the certificate, that it is purchasing
the Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;
23
(ii) a transfer of a Regulation S Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of
a certificate substantially in the form set forth in Section 2.8 from the
proposed transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest
therein to a Non-U.S. Person shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in Section
2.9 hereof from the proposed transferee and, if requested by the Company or
the Trustee, receipt by the Trustee or its agent of an opinion of counsel,
certification and/or other information satisfactory to each of them.
After the expiration of the Restricted Period, interests in the
Regulation S Note may be transferred in accordance with applicable law without
requiring the certification set forth in Section 2.8, Section 2.9 or any
additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless (i) Initial Securities are being
exchanged for Exchange Securities in a Registered Exchange Offer in which case
the Exchange Securities shall not bear a Restricted Securities Legend, (ii) an
Initial Security is being transferred pursuant to an effective registration
statement or (iii) there is delivered to the Registrar an Opinion of Counsel to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act. Any Additional Securities sold in a registered offering shall not be
required to bear the Restricted Securities Legend.
(d) The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.1 or this Section 2.6. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable prior written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company
shall, subject to the other terms and conditions of this Article II,
execute and the Trustee shall authenticate Definitive Securities and Global
Securities at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charges payable upon exchange or
transfer pursuant to Sections 3.6 or 9.5).
(iii) The Registrar shall not be required to register the transfer of
or exchange of any Security for a period beginning (1) 15 days before the
mailing of a notice of an offer to repurchase or redeem Securities and
ending at the close of business on the day of such
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mailing or (2) 15 days before an interest payment date and ending on such
interest payment date.
(iv) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent or the Registrar may
deem and treat the person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, including without limitation the transfer or exchange of such
Security, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent or the Registrar shall be affected by notice
to the contrary.
(v) Any Definitive Security delivered in exchange for an interest in a
Global Security pursuant to Section 2.1(e) shall, except as otherwise
provided by Section 2.6(c), bear the applicable legend regarding transfer
restrictions applicable to the Definitive Security set forth in Section
2.1(d).
(vi) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in, DTC or
other Person with respect to the accuracy of the records of DTC or its nominee
or of any participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than DTC) of any notice (including any
notice of redemption) or the payment of any amount or delivery of any Securities
(or other security or property) under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments to be
made to Holders in respect of the Securities shall be given or made only to or
upon the order of the registered Holders (which shall be DTC or its nominee in
the case of a Global Security). The rights of beneficial owners in any Global
Security shall be exercised only through DTC subject to the applicable rules and
procedures of DTC. The Trustee may rely and shall be fully protected in relying
upon information furnished by DTC with respect to its members, participants and
any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among DTC participants,
members or beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 2.7. [RESERVED]
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SECTION 2.8. Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors.
[Date]
Manor Care, Inc.
c/o National City Bank
4100 W. 150th Street, 3rd Floor
Cleveland, Ohio 44135-1385
Attention: Corporate Trust Operations
Locator 01-5352
Dear Sirs:
This certificate is delivered to request a transfer of $[_________]
principal amount of the 6.25% Senior Notes due 2013 (the "Securities") of Manor
Care, Inc. (the "Company").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Securities
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement which has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that is purchasing for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur
26
outside the United States within the meaning of Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing
for its own account or for the account of such an institutional "accredited
investor," in each case in a minimum principal amount of Securities of $250,000
or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Securities is proposed
to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Company and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to any offer, sale or other transfer prior to the Resale Termination Date
of the Securities pursuant to clauses (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trustee.
TRANSFEREE:___________________________________
BY:___________________________________________
SECTION 2.9. Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S.
[Date]
Manor Care, Inc.
c/o National City Bank
4100 W. 150th Street, 3rd Floor
Cleveland, Ohio 44135-1385
Attention: Corporate Trust Operations
Locator 01-5352
Re: Manor Care, Inc.
6.25% Senior Notes due 2013 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $[________] aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United
States;
27
(b) either (i) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or (ii)
the transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of
Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
Authorized Signature
SECTION 2.10. Mutilated, Destroyed, Lost or Stolen Securities. If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are
met, such that the Securityholder (a) satisfies the Company or the Trustee
within a reasonable time after such Securityholder has notice of such loss,
destruction or wrongful taking and the Registrar has not registered a transfer
prior to receiving such notification, (b) makes such request to the Company or
Trustee prior to the Security being acquired by a protected purchaser as defined
in Section 8-303 of the Uniform Commercial Code (a "protected purchaser") and
(c) satisfies any other reasonable requirements of the Trustee. If required by
the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent and the Registrar from any loss which any
of them may suffer if a Security is replaced, and, in the absence of notice to
the Company, any Subsidiary Guarantor or the Trustee that such
28
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and make available for
delivery, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, any Subsidiary Guarantor (if
applicable) and any other obligor upon the Securities, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.11. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding in the
event the Company or a Subsidiary of the Company holds the Security, provided,
however, that (i) for purposes of determining which are outstanding for consent
or voting purposes hereunder, the provisions of Section 11.6 shall apply and
(ii) in determining whether the Trustee shall be protected in making a
determination whether the Holders of the requisite principal amount of
outstanding Securities are present at a meeting of Holders of Securities for
quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company or
an Affiliate of the Company shall not be considered outstanding.
If a Security is replaced pursuant to Section 2.10, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
(or portions thereof) to be redeemed or
29
maturing, as the case may be, and the Paying Agent is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture, then on and after that date such Securities (or portions thereof)
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.12. Temporary Securities. In the event that Definitive
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Definitive
Securities. After the preparation of Definitive Securities, the temporary
Securities shall be exchangeable for Definitive Securities upon surrender of the
temporary Securities at any office or agency maintained by the Company for that
purpose and such exchange shall be without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities, the Company shall
execute, and the Trustee shall authenticate and make available for delivery in
exchange therefor, one or more Definitive Securities representing an equal
principal amount of Securities. Until so exchanged, the Holder of temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as a Holder of Definitive Securities.
SECTION 2.13. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and destroy such Securities in accordance with its internal
policies and customary procedures including delivery of a certificate (a
"Certificate of Destruction") describing such Securities disposed (subject to
the record retention requirements of the Exchange Act) or deliver canceled
Securities to the Company pursuant to written direction by an Officer. The
Company may not issue new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.
At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, transferred, redeemed,
repurchased or canceled, such Global Security shall be returned by DTC to the
Trustee for cancellation or retained and canceled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for an interest in
another Global Security, redeemed, repurchased or canceled, the principal amount
of Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such reduction.
SECTION 2.14. Payment of Interest; Defaulted Interest. Interest on any
Security which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid to the Person in whose name such Security
(or one or more predecessor Securities) is registered at the close of business
on the regular record date for such payment at the office or agency of the
Company maintained for such purpose pursuant to Section 2.3.
30
Any interest on any Security which is payable, but is not paid when the
same becomes due and payable and such nonpayment continues for a period of 30
days shall forthwith cease to be payable to the Holder on the regular record
date, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") shall be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record
Date (as defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date (not less than 30 days after such notice) of
the proposed payment (the "Special Interest Payment Date"), and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a record date (the "Special Record Date") for the payment of such
Defaulted Interest, which date shall be not more than 15 days and not less
than 10 days prior to the Special Interest Payment Date and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date, and in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date and Special Interest Payment Date therefor to be given in the
manner provided for in Section 11.2, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date
therefor having been so given, such Defaulted Interest shall be paid on the
Special Interest Payment Date to the Persons in whose names the Securities
(or their respective predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.15. Computation of Interest. Interest on the Securities shall
be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 2.16. CUSIP and ISIN Numbers. The Company in issuing the
Securities may use "CUSIP" and "ISIN" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of redemption as
a convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such CUSIP or ISIN numbers. The Company shall promptly notify the
Trustee in writing of any change in the CUSIP and ISIN numbers.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Securities. The Company shall promptly pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture immediately available funds
sufficient to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Securityholders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this Indenture,
the Company may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
SECTION 3.2. [RESERVED]
SECTION 3.3. Limitation on Liens. (a) Except as provided in Section
3.3(b), the Company shall not, and shall not permit any Subsidiary to, create,
Incur or assume any Lien on any property or assets of the Company or any
Subsidiary in order to secure any Debt of the Company or any Subsidiary, without
effectively providing that the Securities (together with, if the Company shall
so determine, any other Debt which is not subordinated to the Securities) shall
be secured equally and ratably with (or prior to) such Debt, so long as such
Debt shall be so secured.
(b) The limitation set forth in Section 3.3(a) shall not apply to (i)
any Lien if, after giving effect thereto, the aggregate amount of all Debt of
the Company and its Subsidiaries secured by Liens existing at the time
(excluding any Debt secured by Liens permitted to be Incurred by clauses (ii)
through (xvii) below) would not exceed the Applicable Percentage of the
Consolidated Net Assets of the Company; (ii) any Lien if an amount of cash equal
to the net
32
proceeds of the Debt secured by such Lien is used within 12 months of such
creation, Incurrence or assumption to (x) acquire additional property or assets
(or to make investments in Persons who, after giving effect to such investments,
will become Subsidiaries) or (y) make an offer to purchase the Securities at
100% of the principal amount thereof plus accrued interest, if any, to the date
of purchase; (iii) Existing Liens and Liens created, Incurred or assumed after
the Issue Date on property or assets of the Company or of any Subsidiary that
were subject to an Existing Lien; (iv) Liens on property or assets of any Person
existing at the time such Person becomes a Subsidiary or merges into or
consolidates with the Company or a Subsidiary; (v) Liens on property or assets
existing at the time of acquisition thereof by the Company or any Subsidiary;
(vi) Liens to secure the financing of the acquisition, construction, alteration
or improvement of property or assets of the Company or any Subsidiary (or of any
Person who, after giving effect to such financing, will become Subsidiaries),
provided that such Liens are created not later than 18 months after such
acquisition or, in the case of construction, alteration or improvement of
property or assets, the later of the completion thereof or commencement of
commercial operation of such property or assets; (vii) Liens in favor of the
Company or any Subsidiary; (viii) Liens in favor of or required by federal,
state or local governmental authorities, including any department or
instrumentality thereof; (ix) Liens on property or assets of, or on any shares
of stock or other equity interest in, a Foreign Subsidiary to secure Debt of a
Foreign Subsidiary or, a Non-Recourse Subsidiary to secure Non-Recourse Debt;
(x) Liens to secure Debt of joint ventures in which the Company or a Subsidiary
has an interest, to the extent such Liens are on property or assets of or equity
interests in such joint ventures; (xi) Liens on current assets to secure Debt
Incurred for working capital purposes, provided that such Debt matures no later
than 18 months from the date of Incurrence; (xii) Liens on receivables in
connection with Receivables Securitizations; (xiii) Liens of carriers,
warehousemen, mechanics, materialmen and landlords Incurred in the ordinary
course of business for sums not overdue or being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the Company's books; (xiv) Liens Incurred in the ordinary course of
business in connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure performance of
bids, tenders, trade contracts (other than for Debt), statutory obligations,
leases and contracts (other than for Debt) entered into in the ordinary course
of business or to secure obligations on surety or appeal bonds or performance
bonds; (xv) easements, restrictions and other minor defects of title which are
not, in the aggregate, material and which do not, individually or in the
aggregate, have a materially adverse effect; (xvi) leases or subleases granted
to others not interfering in any material respect with the business of the
Company or any Subsidiary, and any interest or title of a lessor under any lease
permitted under the Indenture; and (xvii) any extension, renewal or replacement,
as a whole or in part, of any Lien referred to in the foregoing clauses (i) to
(xvi), provided, however, that (a) such extension, renewal or replacement Lien
shall be limited to all or a part of the same property or assets that secured
the Lien being extended, renewed or replaced and (b) the principal amount of
Debt (or, if such Debt provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration thereof, such
lesser amount) secured by such extended, renewed or replaced Lien does not
exceed the principal amount of Debt (or, if such Debt provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration thereof, such lesser amount) which was secured by the Lien being
extended, renewed or replaced.
33
SECTION 3.4. Limitation on Sale and Lease-Back Transactions. The
Company will not, and will not permit any Subsidiary to, enter into any Sale and
Lease-Back Transaction unless (a) the Company or such Subsidiary would, at the
time of entering into a Sale and Lease-Back Transaction, be entitled to Incur
Debt secured by a Lien on the property or asset to be leased in an amount at
least equal to the Attributable Debt in respect of such transaction without
equally and ratably securing the Securities pursuant to Section 3.3, or (b) the
proceeds of the sale of the property or assets to be leased are at least equal
to their fair value (the fair value of such proceeds, if other than in cash, to
be determined by the chief financial or accounting officer of the Company whose
determination shall be conclusive) and an amount in cash equal to the net
proceeds is applied, within 12 months of the effective date of such transaction
to (i) acquire additional property or assets (or to make investments in entities
which, after giving effect to such investment, will become Subsidiaries), (ii)
to retire Debt which is pari passu with the Securities (provided that in
connection with any such retirement, any related loan commitment or the like
shall be reduced in an amount equal to the principal amount so retired) or (iii)
offer to purchase the Securities at 100% of the principal amount thereof, plus
accrued interest, if any, to the date of purchase.
SECTION 3.5. Limitation on Affiliate Transactions. Neither the Company
nor any of its Subsidiaries shall sell, lease, transfer or otherwise dispose of
any of its properties or assets to or purchase any property or assets from, or
enter into any contract, agreement, understanding, loan, advance or guaranty
with, or for the benefit of, an Affiliate of the Company (other than a
Subsidiary) (an "Affiliate Transaction") having a value, or for consideration
having a value, in excess of $20,000,000 individually or in the aggregate unless
the Board of Directors of the Company shall determine that the terms of such
Affiliate Transaction are no less favorable to the Company or such Subsidiary
than those which might be obtained at the time of such Affiliate Transaction
from Persons who are not Affiliates. The restrictions of this Section 3.5 are
not applicable to the payment of reasonable and customary fees to directors of
the Company or a Subsidiary who are not employees, the payment of compensation
to officers of the Company or a Subsidiary and any transaction between or among
any of the Company and its Subsidiaries.
SECTION 3.6. Change of Control. Upon the occurrence of a Change of
Control Triggering Event, each Holder will have the right to require the Company
to offer to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount of the Securities plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date).
Within 30 days following any Change of Control Triggering Event, the
Company shall mail a notice (the "Change of Control Offer") to each Holder at
the address as it appears on the Securities Register, with a copy to the
Trustee, stating: (i) that a Change of Control Triggering Event has occurred and
that such Holder has the right to require the Company pursuant to this Section
3.6 to purchase such Holder's Securities at a purchase price in cash equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of purchase (subject to the right of Holders of record on a record
date to receive interest on the relevant interest payment date) (the "Change of
Control Payment"); (ii) the repurchase date (which shall be a Business Day that
is no earlier than 30 days nor later than 60 days from the date that the Company
mails or causes to be mailed such notice to the Holders) (the "Change of
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Control Payment Date"); (iii) that any Security not tendered shall continue to
accrue interest, if any; (iv) that, unless the Company defaults in the payment
of principal or interest, all Securities accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest, if any, after the Change
of Control Payment Date; (v) that Holders electing to have any Securities
purchased pursuant to a Change of Control Offer shall be required to surrender
the Securities to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day preceding the date of
purchase for the Change of Control Payment Date; (vi) that Holders shall be
entitled to withdraw their election if the Paying Agent receives, not later than
the close of business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Securities delivered for
purchase, and a statement that such Holder is withdrawing its election to have
the Securities purchased; (vii) that Holders whose Securities are being
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral multiple
thereof; and (viii) the procedures determined by the Company, consistent with
this Section 3.6, that a Holder must follow in order to have its Securities
repurchased.
Prior to mailing a Change of Control Offer, and as a condition to such
mailing (i) the requisite holders of each issue of Debt issued under an
indenture or other agreement that may be violated by such payment shall have
consented to such Change of Control Offer being made and waived the event of
default, if any, caused by the Change of Control Triggering Event or (ii) the
Company will repay all outstanding Debt issued under an indenture or other
agreement that may be violated by a payment to the holders of Securities under a
Change of Control Offer or the Company must offer to repay all such Debt, and
make payment to the holders of such Debt that accept such offer and obtain
waivers of any event of default from the remaining holders of such Debt. The
Company will effect such repayment or obtain such consent and waiver within 30
days following any Change of Control Triggering Event, it being a Default of
this Section 3.6 if the Company fails to so comply with this Section 3.6 within
30 days after receipt of written notice from the Trustee or the Holders of at
least 25% in principal amount of the Securities.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (i) accept for payment all Securities or portions thereof (equal to
$1,000 or an in integral multiple thereof) properly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to
the Change of Control Payment in respect of all the Securities or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
the Securities so accepted together with an Officers' Certificate stating the
aggregate principal amount of such Securities or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder of
the Securities so tendered the Change of Control Payment for such Securities,
and the Trustee shall promptly authenticate and mail (or cause to be transferred
by book-entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each
such new Security shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
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If the Change of Control Payment Date is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid
interest, if any, will be paid to the Person in whose name a note is registered
at the close of business on such record date, and no additional interest will be
payable to holders who tender pursuant to the Change of Control Offer.
The Company will not be required to make a Change of Control Offer upon
a Change of Control Triggering Event if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 3.6 applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section 3.6. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Indenture, the Company will comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
SECTION 3.7. Financial Statements. In the event and for so long as the
Company is not subject to Section 13 or 15(d) of the Exchange Act, it shall file
with the Trustee and mail to each Holder at such Holder's registered address the
following:
(a) within 120 days after the end of each fiscal year, its consolidated
balance sheets as of the close of such fiscal year and the preceding fiscal year
and related consolidated statements of income and shareholders' equity and cash
flows, showing the financial condition of the Company and its consolidated
Subsidiaries as of the close of such fiscal year and the two preceding fiscal
years, all audited by an independent public accounting firm of recognized
national standing and accompanied by an opinion of such accounting firm to the
effect that such financial statements fairly present the financial condition and
results of operations of the Company and its consolidated Subsidiaries in
accordance with GAAP consistently applied, except as disclosed in the notes
thereto. Such balance sheets and related statements shall be substantially
comparable in detail to the audited balance sheets and related statements
included in the Company's Offering Memorandum and shall be accompanied by a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" ("MD&A") substantially comparable in detail to the MD&A included in
the Offering Memorandum with respect to the Company's fiscal years ended
December 31, 2000, 2001 and 2002; and
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheets and related
consolidated statements of income and cash flows, stating the financial
condition of the Company and its consolidated Subsidiaries as of the close of
such fiscal quarter and as of the end of the preceding fiscal year (and the
corresponding quarter in the preceding fiscal year) and the then-elapsed portion
of such fiscal year (and the corresponding period in the preceding fiscal year).
Such balance sheets and related statements shall be prepared in accordance with
GAAP consistently applied except as disclosed in the notes thereto and shall be
accompanied by an MD&A substantially comparable in detail to the MD&A included
in the Offering Memorandum.
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(c) The Company shall deliver to the Holder, upon request of such
Holder, as many copies of the foregoing as may be reasonably requested by such
Holder.
SECTION 3.8. Future Subsidiary Guarantors; Release of Guarantees. (a)
After the Issue Date, the Company will cause (i) each Subsidiary (other than a
Subsidiary that does not guarantee obligations under the Senior Credit
Agreement, the 2006 Notes, the 2008 Notes or the Convertible Notes) created or
acquired by the Company or one or more of its Subsidiaries to execute and
deliver to the Trustee a Subsidiary Guarantee pursuant to which such Subsidiary
Guarantor will unconditionally Guarantee, on a joint and several basis, the full
and prompt payment of the principal of, premium, if any, and interest on the
Securities on a senior basis; provided that (A) a Subsidiary Guarantee from any
Subsidiary (other than MCA so long as all or any portion of the 2006 Notes shall
remain outstanding) shall be released upon the release of such Subsidiary from
any liability under (x) the indentures relating to the 2006 Notes, the 2008
Notes and the Convertible Notes or any related guarantee or similar obligation
and (y) any Senior Credit Agreement and any guarantee or similar obligation in
respect thereof and (B) MCA shall be released from its obligations under its
Subsidiary Guarantee upon the repayment in full of the 2006 Notes (so long as no
default or event of default shall have occurred as a consequence thereof) and
the release of MCA from any liability under the indentures relating to the 2008
Notes and the Convertible Notes and any obligation it may have in respect of the
Senior Credit Agreement and any guarantee or similar obligation in respect
thereof; provided that such release of a Subsidiary Guarantor shall not occur in
the event such Subsidiary Guarantor is required to deliver a Subsidiary
Guarantee in accordance with the paragraph below and then such Subsidiary
Guarantee shall only be released in accordance with the paragraph below. Upon
notice by the Company to the Trustee of the occurrence of the events described
in either of the two preceding sentences, the Trustee shall execute any
documents reasonably required in order to evidence the release of any Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee.
(b) The Company will not permit any Subsidiary to Guarantee the payment
of any Debt of the Company unless (i) such Subsidiary simultaneously executes
and delivers a supplemental indenture to the Indenture providing for a Guarantee
of payment of the Securities by such Subsidiary; (ii) such Subsidiary waives and
will not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against
the Company or any Subsidiary as a result of any payment by such Subsidiary
under its Subsidiary Guarantee; and (iii) such Subsidiary shall deliver to the
Trustee an Opinion of Counsel to the effect that (A) the supplemental indenture
has been duly executed and authorized and (B) the supplemental indenture
constitutes a valid, binding and enforceable obligation of such Subsidiary,
except insofar as enforcement thereof may be limited by bankruptcy, insolvency
or similar laws (including, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity; provided that such Subsidiary Guarantee shall be released
upon the release of such Subsidiary from liability in respect of Guarantees of
Debt of the Company; and, provided, further, that any release of a Subsidiary
Guarantee under the preceding proviso will not impair the rights of the Holders
to receive Subsidiary Guarantees of the Securities in accordance with this
paragraph in the event future Debt of the Company is Guaranteed by such
Subsidiary.
SECTION 3.9. Maintenance of Office or Agency. The Company will maintain
in The City of New York, an office or agency where the Securities may be
presented or
37
surrendered for payment, where, if applicable, the Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The agency of National City Bank (the "Agent") currently located at National
City Bank c/o The Depository Trust Company, Transfer Agent Drop Service, 55
Water Street, Jeanette Park Entrance, New York, New York 10041 in the City of
New York shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Agent of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes and may from time
to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 3.10. Corporate Existence. Except as otherwise provided in
Article IV and Sections 4.1 and 10.2(b), the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership, limited liability company or other
existence of each Significant Subsidiary or the respective corporate,
partnership, limited liability company or other existences of each member of any
group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company and the rights (charter and statutory) licenses and
franchises of the Company and each Significant Subsidiary or each member of any
group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company; provided, however, that the Company shall not be
required to preserve any such right, license or franchise or the corporate,
partnership, limited liability company or other existence of any Significant
Subsidiary or the respective corporate, partnership, limited liability company
or other existences of each member of any group of Subsidiaries that taken
together would constitute a Significant Subsidiary of the Company if the Board
of Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and each of its
Subsidiaries, taken as a whole, and that the loss thereof is not, and will not
be, disadvantageous in any material respect to the Holders; provided, further,
that the Company shall not be required to preserve any such right, license or
franchise or the corporate, partnership, limited liability company or other
existence of a Subsidiary that is neither a Significant Subsidiary nor a member
of any group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company.
SECTION 3.11. Payment of Taxes and Other Claims. The Company shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and
38
(ii) all lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a material liability or lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
reserves, if necessary (in the good faith judgment of management of the
Company), are being maintained in accordance with GAAP or where the failure to
effect such payment will not be disadvantageous to the Holders.
SECTION 3.12. Payments for Consent. Neither the Company nor any of its
Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fees or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid or is paid to all Holders of the Securities
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or amendment.
SECTION 3.13. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each Fiscal Year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not the signers know
of any Default or Event of Default that occurred during such period. If they do,
the certificate shall describe the Default or Event of Default, its status and
the action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA Section 314(a)(4).
SECTION 3.14. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.15. Statement by Officers as to Default. The Company shall
deliver to the Trustee, as soon as possible and in any event within 30 days
after the Company becomes aware of the occurrence of any Event of Default or an
event which, with notice or the lapse of time or both, would constitute an Event
of Default, an Officers' Certificate setting forth the details of such Event of
Default or default, its status and the action which the Company proposes to take
with respect thereto.
ARTICLE IV
SUCCESSOR COMPANY
SECTION 4.1. Consolidation, Merger and Sale of Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
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(a) the resulting, surviving or transferee Person (the "Successor
Company") if not the Company shall be a corporation,
partnership, trust or limited liability company organized and
existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor
Company (if not the Company) shall expressly assume, by
supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of
the Company under the Securities, this Indenture and the
Registration Rights Agreement;
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing;
(c) each Subsidiary Guarantor (unless it is the other party to the
transactions described above, in which case clause (a) and
Section 10.2 shall apply) shall have by supplemental indenture
confirmed that its Subsidiary Guarantee shall apply for such
Person's obligations in respect of this Indenture and the
Securities and its obligations under the Registration Rights
Agreement shall continue to be in effect; and
(d) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental
indenture, if any, comply with this Indenture.
For purposes of this Section 4.1, the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
The Successor Company will succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture, but, in the
case of a lease of all or substantially all its assets, the Company will not be
released from the obligation to pay the principal of and interest on the
Securities.
If, upon any consolidation or merger of the Company with or into any
other corporation, or upon any sale, conveyance or lease of all or substantially
all of its property and assets to any other corporation, any of the property of
the Company or of any Subsidiary would thereupon become subject to any Lien, the
Company will first secure the Securities equally and ratably with any other
obligations of the Company or any Subsidiary then entitled thereto by a direct
Lien on all such property prior to all Liens other than any theretofore existing
thereon.
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ARTICLE V
REDEMPTION OF SECURITIES
SECTION 5.1. Optional Redemption. The Securities may be redeemed, as a
whole or from time to time in part, subject to the conditions and at the
redemption prices specified in paragraph 5 of the form of Securities set forth
in Exhibit A and Exhibit B hereto, which are hereby incorporated by reference
and made a part of this Indenture, together with accrued and unpaid interest to
the Redemption Date.
SECTION 5.2. Applicability of Article. Redemption of Securities at the
election of the Company or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.
SECTION 5.3. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities pursuant to Section 5.1 shall be evidenced by a
Board Resolution. In case of any redemption at the election of the Company, the
Company shall, upon not later than the earlier of the date that is 30 days prior
to the Redemption Date fixed by the Company or the date on which notice is given
to the Holders (except as provided in Section 5.5 or unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 5.4. Any such notice
may be cancelled at any time prior to notice of such redemption being mailed to
any Holder and shall thereby be void and of no effect.
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities are to be redeemed at any time pursuant to an optional
redemption, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the outstanding
Securities not previously called for redemption, in compliance with the
requirements of the principal securities exchange, if any, on which such
Securities are listed, or, if such Securities are not so listed, on a pro rata
basis among the classes of Securities, by lot or by such other method as the
Trustee shall deem fair and appropriate (and in such manner as complies with
applicable legal requirements) and which may provide for the selection for
redemption of portions of the principal of the Securities; provided, however,
that no such partial redemption shall reduce the portion of the principal amount
of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the method it has chosen for the selection of Securities
and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
41
SECTION 5.5. Notice of Redemption. Notice of redemption shall be given
in the manner provided for in Section 11.2 not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed.
At the Company's request, the Trustee shall give notice of redemption in the
Company's name and at the Company's expense; provided, however, that the Company
shall deliver to the Trustee, at least 45 days prior to the Redemption Date, an
Officers' Certificate requesting that the Trustee give such notice at the
Company's expense and setting forth the information to be stated in such notice
as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the redemption price and the amount of accrued interest to the
Redemption Date payable as provided in Section 5.7, if any,
(3) if less than all outstanding Securities are to be redeemed,
the identification of the particular Securities (or portion
thereof) to be redeemed, as well as the aggregate principal
amount of Securities to be redeemed and the aggregate
principal amount of Securities to be outstanding after such
partial redemption,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security,
the Holder will receive, without charge, a new Security or
Securities of authorized denominations for the principal
amount thereof remaining unredeemed,
(5) that on the Redemption Date the redemption price (and accrued
interest, if any, to the Redemption Date payable as provided
in Section 5.7) will become due and payable upon each such
Security, or the portion thereof, to be redeemed, and, unless
the Company defaults in making the redemption payment, that
interest on Securities called for redemption (or the portion
thereof) will cease to accrue on and after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the redemption price and accrued
interest, if any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price,
(9) the CUSIP number, and that no representation is made as to the
accuracy or correctness of the CUSIP number, if any, listed in
such notice or printed on the Securities, and
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(10) the paragraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 5.6. Deposit of Redemption Price. Prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.4) an amount of money sufficient to pay the redemption
price of, and accrued interest on, all the Securities which are to be redeemed
on that date, other than Securities or portions of Securities called for
redemption that are beneficially owned by the Company and have been delivered by
the Company to the Trustee for cancellation.
SECTION 5.7. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities or portions of
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the redemption price therein specified (together with accrued
interest, if any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the redemption price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the redemption price, together with accrued interest,
if any, to the Redemption Date (subject to the rights of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date).
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Securities.
SECTION 5.8. Securities Redeemed in Part. Any Security which is to be
redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 3.9 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such
Security at the expense of the Company, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered, provided, that each such new Security will be in a
principal amount of $1,000 or integral multiple thereof.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. Each of the following is an "Event of
Default":
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(1) default in any payment of interest or additional interest (as
required by the Registration Rights Agreement) on any Security when the same
becomes due and payable, and such default continues for a period of 30 days;
(2) default in the payment of principal of or premium, if any, on any
Security when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or otherwise;
(3) failure by the Company or any Subsidiary Guarantor to comply with
its obligations under Article IV or Section 10.2;
(4) failure by the Company to comply with any of its obligations under
Section 3.3, Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8 or
Section 3.12, (in each case, other than a failure to purchase Securities when
required pursuant to Section 3.6, which failure shall constitute an Event of
Default under Section 6.1(2)) and such failure continues for 30 days after the
notice specified below;
(5) the Company defaults in the performance of or a breach by the
Company of any other covenant or agreement in this Indenture or under the
Securities (other than those referred to in (1), (2), (3) or (4) above) and such
default continues for 60 days after the notice specified below;
(6) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be outstanding, or by which there may
be secured or evidenced any Debt for money borrowed by the Company or any of its
Subsidiaries (other than Non-Recourse Debt of a Non-Recourse Subsidiary),
whether such Debt now exists, or is created after the date of this Indenture,
which default:
(a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Debt prior to the expiration of the
grace period provided in such Debt ("Payment Default") or
(b) results in the acceleration of such Debt prior to its maturity
(the "cross acceleration provision");
and, in each case, the principal amount of any such Debt, together with the
principal amount of any other such Debt under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $20.0
million or more or its foreign currency equivalent at the time and such
acceleration shall not have been rescinded or annulled within 10 days after
written notice of such acceleration has been received by the Company or such
Subsidiary;
(7) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of judgment, decree or order for relief
against it in an involuntary case or proceeding;
44
(c) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(d) makes a general assignment for the benefit of its creditors;
(e) consents to or acquiesces in the institution of a bankruptcy
or an insolvency proceeding against it;
(f) takes any corporate action to authorize or effect any of the
foregoing; or
(g) takes any comparable action under any foreign laws relating to
insolvency; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company in an involuntary case;
(b) appoints a Custodian of the Company for all or substantially
all of the Company's property; or
(c) orders the winding up or liquidation of the Company; and
(d) in each case the order, decree or relief remains unstayed and
in effect for 90 days;
(9) there has been entered in a court of competent jurisdiction a final
judgment for the payment of $20.0 million or more rendered against the Company
or any Subsidiary, which judgment is not fully covered by insurance or not
discharged or stayed within 90 days after (A) the date on which the right to
appeal thereof has expired if no such appeal has commenced, or (B) the date on
which all rights to appeal have been extinguished (the "judgment default
provision").
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
Notwithstanding the foregoing, a Default under clauses (4) or (5) of
this Section 6.1 will not constitute an Event of Default until the Trustee or
the Holders of 25% or more in principal amount of the outstanding Securities
notify the Company of the Default in writing and the Company does not cure such
Default within the time specified in clauses (4) or (5) of this Section 6.1
after receipt of such notice.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Default or Event of Default under clauses (3), (4), (5), (6), (7), (8) or
(9) of this Section 6.1, which such notice shall contain
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the status thereof and a description of the action being taken or proposed to be
taken by the Company in respect thereof.
SECTION 6.2. Acceleration. If an Event of Default occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in principal amount of the outstanding Securities by notice to the Company and
the Trustee, may, and the Trustee at the request of such Holders shall, declare
the principal of, premium, if any, and accrued and unpaid interest, if any, on
all the Securities to be due and payable. Upon such a declaration, such
principal, premium and accrued and unpaid interest shall be due and payable
immediately.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of (or premium, if any) or interest on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may (a)
waive, by their consent (including, without limitation consents obtained in
connection with a purchase of, or tender offer or exchange offer for,
Securities), an existing Default or Event of Default and its consequences except
(i) a Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on a Security or (ii) a Default or Event of Default
in respect of a provision that under Section 9.2 cannot be amended without the
consent of each Securityholder affected and (b) rescind any such acceleration
with respect to the Securities and its consequences if (1) rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(2) all existing Events of Default, other than the nonpayment of the principal
of, premium, if any, and interest on the Securities that have become due solely
by such declaration of acceleration, have been cured or waived. When a Default
or Event of Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
consequent right.
SECTION 6.5. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Sections 7.1 and 7.2, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
46
SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) such Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the outstanding
Securities have requested that the Trustee to pursue the
remedy;
(3) such Holders have offered to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days
after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
outstanding Securities have not given the Trustee a direction
that, in the opinion of the Trustee, is inconsistent with such
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture (including, without limitation, Section 6.6),
the right of any Holder to receive payment of principal of, premium (if any) or
interest on the Securities held by such Holder, on or after the respective due
dates expressed in the Securities, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in clauses (1) or (2) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective
creditors or properties and, unless prohibited by law or applicable regulations,
may be entitled and empowered to participate as a member of any official
committee of creditors appointed in such matter and may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements
47
and advances of the Trustee, its agents and its counsel, and any other amounts
due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a
suit by Holders of more than 10% in outstanding principal amount of the
Securities.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in their exercise as
a prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs; provided that if an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any of the
Holders unless such Holders have offered the Trustee reasonable indemnity or
security against loss, liability or expense.
(b) Except during the continuance of an Event of Default:
48
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates, opinions or orders furnished to the Trustee and
conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
49
(i) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(j) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
(including reasonable attorneys' fees and expenses) and liabilities that might
be incurred by it in compliance with such request or direction.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document. The Trustee shall receive and retain
financial reports and statements of the Company as provided herein, but shall
have no duty to review or analyze such reports or statements to determine
compliance under covenants or other obligations of the Company.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on an
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers, unless the Trustee's conduct constitutes willful misconduct or
negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11. In addition, the Trustee shall be permitted
to engage in transactions with the Company; provided, however, that if the
Trustee acquires any conflicting interest the Trustee must (i) eliminate such
conflict within 90 days of acquiring such conflicting interest, (ii) apply to
the SEC for permission to continue acting as Trustee or (iii) resign.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Securities, shall not be accountable for the Company's use of the
proceeds from the Securities, shall not be
50
responsible for the use or application of any money received by any Paying Agent
other than the Trustee and shall not be responsible for any statement of the
Company in this Indenture or in any document issued in connection with the sale
of the Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if a Trust Officer has actual knowledge thereof,
the Trustee shall mail by first class mail to each Securityholder at the address
set forth in the Securities Register notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, premium (if any), or interest on any
Security (including payments pursuant to the optional redemption or required
repurchase provisions of such Security, if any), the Trustee may withhold the
notice if and so long as its board of directors, a committee of its board of
directors or a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with the May 15 following the date of this
Indenture, and in any event prior to July 15 in each year, the Trustee shall
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b).
The Trustee shall also transmit by mail all reports required by TIA Section
313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder as the Company and the Trustee shall from time
to time agree in writing. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Securityholders and reasonable costs of counsel retained
by the Trustee in connection with the delivery of an Opinion of Counsel or
otherwise, in addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Company shall
indemnify the Trustee against any and all loss, liability, damages, claims or
expense (including reasonable attorneys' fees and expenses) incurred by it
without negligence or bad faith on its part in connection with the
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this
Section 7.7) and of defending itself against any claims (whether asserted by any
Securityholder, the Company or otherwise). The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall provide
reasonable cooperation at the Company's expense in the defense. The Trustee may
have separate counsel and the Company shall pay the fees and expenses of such
counsel, provided that
51
the Company shall not be required to pay such fees and expenses if it assumes
the Trustee's defense, and, in the reasonable judgment of outside counsel to the
Trustee, there is no conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture. The Trustee's right to receive
payment of any amounts due under this Section 7.7 shall not be subordinate to
any other liability or Debt of the Company.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in clause (7) or clause (8) of Section 6.1
with respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any time
by so notifying the Company. The Holders of a majority in principal amount of
the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of the Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
at least 10% in principal amount of the Securities may petition, at the
Company's expense, any court of competent jurisdiction for the appointment of a
successor Trustee.
52
If the Trustee fails to comply with Section 7.10, unless the Trustee's
duty to resign is stayed as provided in TIA Section 310(b), any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or conversion.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 7.12. Trustee's Application for Instruction from the Company.
Any application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
53
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance. (a)
Subject to Section 8.1(c), when (i)(x) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to Section 2.10)
for cancellation or (y) all outstanding Securities not theretofore delivered for
cancellation have /become due and payable, whether at maturity or upon
redemption or will become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption pursuant to Article V hereof and the
Company or any Subsidiary Guarantor irrevocably deposits or causes to be
deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders money in U.S. dollars, non-callable U.S. Government Securities, or a
combination thereof, in such amounts as will be sufficient without consideration
of any reinvestment of interest to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of maturity or
redemption; (ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any
Subsidiary Guarantor is a party or by which the Company or any Subsidiary
Guarantor is bound; (iii) the Company or any Subsidiary Guarantor has paid or
caused to be paid all sums payable under this Indenture and the Securities; and
(iv) the Company has delivered irrevocable instructions to the Trustee under
this Indenture to apply the deposited money toward the payment of such
Securities at maturity or the Redemption Date, as the case may be, then the
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Company (accompanied by an Officers' Certificate and an Opinion of
Counsel stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied with) and at the
cost and expense of the Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at any time may
terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option"), and after giving effect to such legal defeasance,
any omission to comply with such obligations shall no longer constitute a
Default or Event of Default or (ii) its obligations under Section 3.3, Section
3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8 and Section 3.12, and
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply with such
covenants shall no longer constitute a Default or an Event of Default under
Section 6.1(4) and the operation of Section 6.1(5), Section 6.1(6), and Section
6.1(9), and the events specified in such Sections shall no longer constitute an
Event of Default (clause (ii) being referred to as the "covenant defeasance
option"), but except as specified above, the remainder of this Indenture and the
Securities shall be unaffected thereby. The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its covenant defeasance option, the Company may
elect to have any Subsidiary Guarantees in effect at such time terminate.
54
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default, and the
Subsidiary Guarantees in effect at such time shall terminate. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.1(4) (as such
Section relates to Section 3.3, Section 3.4, Section 3.5, Section 3.6, Section
3.7, Section 3.8, and Section 3.12), Section 6.1(5), Section 6.1(6), or Section
6.1(9).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.1(a) and (b), the
Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.10, 2.11, 2.12,
2.13, 3.1, 3.9, 3.10, 3.11, 3.13, 3.14, 3.15, 6.7, 7.7 and 7.8 and in this
Article VIII shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.7, 8.4 and 8.5 shall
survive.
SECTION 8.2. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee for the
benefit of the Holders money in U.S. dollars or U.S. Government Securities
or a combination thereof, the principal of and interest (without
reinvestment) on which will be sufficient, or a combination thereof
sufficient, for the payment of principal, premium, if any, and interest on
the Securities to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Securities plus any deposited
money without investment will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest when due on all
the Securities to maturity or redemption, as the case may be;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, with respect to certain
bankruptcy or insolvency Events of Default, on the 91st day after such date
of deposit;
(4) such legal defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture or
any other material agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel (subject to customary assumptions and exclusions) to the effect
that (A) the Securities and (B) assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the deposit
and that no Holder of the Securities is an insider of the Company, after
the 91st day following the deposit, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' right generally;
55
(6) the deposit does not constitute a default under any other
agreement binding on the Company;
(7) the Company delivers to the Trustee an Opinion of Counsel (subject
to customary assumptions and exclusions) to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of 1940;
(8) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) in the United States stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Securityholders will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such legal defeasance had
not occurred;
(9) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel (subject to customary
assumptions and exclusions) in the United States to the effect that the
Securityholders will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit and covenant
defeasance had not occurred; and
(10) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities and this Indenture as
contemplated by this Article VIII have been complied with.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Securities deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Securities through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.4. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money, U.S.
Government Securities or securities held by them upon payment of all the
obligations under this Indenture.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal of or interest on the Securities that remains unclaimed
for two years, and, thereafter, Securityholders entitled to the money must look
to the Company for payment as general creditors.
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SECTION 8.5. Indemnity for U.S. Government Securities. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Securities or the
principal and interest received on such U.S. Government Securities.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Securities in accordance with this Article
VIII by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Securities in accordance with this Article VIII; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Securities held by the Trustee or Paying Agent.
The Trustee's rights under this Article VIII shall survive termination
of this Indenture.
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article IV in respect of the assumption by a
Successor Company of an obligation of the Company under this Indenture;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Securities;
(5) to secure the Securities;
(6) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(7) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA;
57
(8) to make any change that does not materially adversely affect the
rights of any Securityholder; or
(9) to provide for the issuance of the Exchange Securities, which will
have terms substantially identical in all material respects to the Initial
Securities or the Additional Securities, as the case may be (except that
the transfer restrictions contained in the Initial Securities or the
Additional Securities, if any, will be modified or eliminated, as
appropriate), and which will be treated, together with any outstanding
Initial Securities or Additional Securities, as a single class of
securities.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.2. With Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities) and compliance with the
provisions of this Indenture may be waived with the written consent of the
Holders of at least a majority in principal amount of the Securities then
outstanding (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Securities). However,
without the consent of each Securityholder affected, an amendment or waiver may
not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the stated rate of or extend the stated time for payment of
interest or additional interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption or repurchase of
any Security or change the time at which any Security may or shall be
redeemed or repurchased as described under Section 3.6 (including an
amendment to the definition of "Change of Control") or Article V or any
similar provision, whether through an amendment or waiver of Section 3.6 or
Article V, a definition or otherwise;
(5) make any Security payable in money other than that stated in the
Security or, other than in accordance with the provisions of this Indenture
in effect on the Issue Date, eliminate any existing Guarantee of the
Securities;
(6) impair the right of any Holder to receive payment of, premium, if
any, principal of and interest on such Holder's Securities on or after the
due dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Securities; or
58
(7) make any change to the amendment provisions which require each
Holder's consent or to the waiver provisions.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof. A consent
to any amendment or waiver under this Indenture by any Holder of the Securities
given in connection with a tender or exchange of such Holder's Securities will
not be rendered invalid by such tender or exchange.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective or otherwise in
accordance with any related solicitation documents. After an amendment or waiver
becomes effective, it shall bind every Securityholder. An amendment or waiver
shall become effective upon receipt by the Trustee of the requisite number of
written consents under Section 9.1 or 9.2 as applicable.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall become valid or effective more than 120
days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the
59
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing such amendment the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and to receive, and
(subject to Sections 7.1 and 7.2) shall be fully protected in relying upon an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture and that such amendment is the legal,
valid and binding obligation of the Company and any Subsidiary Guarantors,
enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including Section 9.3).
ARTICLE X
SUBSIDIARY GUARANTEE
SECTION 10.1. Subsidiary Guarantee. Each Subsidiary Guarantor hereby
fully, unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety, jointly and severally with each other Subsidiary Guarantor, to
each Holder of the Securities and the Trustee the full and punctual payment when
due, whether at maturity, by acceleration, by redemption or otherwise, of the
principal of, premium, if any, and interest on the Securities and all other
obligations and liabilities of the Company under this Indenture (including
without limitation interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company or any Subsidiary Guarantor whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
(all the foregoing being hereinafter collectively called the "Obligations").
Each Subsidiary Guarantor further agrees (to the extent permitted by law) that
the Obligations may be extended or renewed, in whole or in part, without notice
or further assent from it, and that it will remain bound under this Article X
notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of payment
from and protest to the Company of any of the Obligations and also waives notice
of protest for nonpayment. Each Subsidiary Guarantor waives notice of any
default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder to assert any claim or demand or to enforce any right or remedy against
the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations or
any of them; (e) the failure of any Holder to exercise any right or remedy
against any other Subsidiary Guarantor; or (f) any change in the ownership of
the Company.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a Guarantee of payment when due (and not a Guarantee of
collection) and waives any right to require that any resort be had by any Holder
to any security held for payment of the Obligations.
The obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason
(other than payment of the
60
Obligations in full), including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Subsidiary Guarantor herein shall not be discharged or impaired or otherwise
affected by the failure of any Holder to assert any claim or demand or to
enforce any remedy under this Indenture, the Securities or any other agreement,
by any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.
Subject to the provisions of Section 3.8, each Subsidiary Guarantor
agrees that its Subsidiary Guarantee herein shall remain in full force and
effect until payment in full of all the Obligations or such Subsidiary Guarantor
is released from its Subsidiary Guarantee upon the merger or the sale of all the
Capital Stock or assets of the Subsidiary Guarantor in compliance with Section
10.2. Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any of
the Obligations is rescinded or must otherwise be restored by any Holder upon
the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder has at law or in equity against any Subsidiary Guarantor
by virtue hereof, upon the failure of the Company to pay any of the Obligations
when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, each Subsidiary Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid
amount of such Obligations then due and owing and (ii) accrued and unpaid
interest on such Obligations then due and owing (but only to the extent not
prohibited by law).
Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (x)
the maturity of the Obligations guaranteed hereby may be accelerated as provided
in this Indenture for the purposes of its Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby and (y) in the
event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantor for the purposes of this Subsidiary
Guarantee.
Each Subsidiary Guarantor also agrees to pay any and all reasonable
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or the Holders in enforcing any rights under this Section.
SECTION 10.2. Limitation on Liability; Termination, Release and
Discharge.
(a) The obligations of each Subsidiary Guarantor hereunder will be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of
61
such Subsidiary Guarantor (including, without limitation, any guarantees under
the Senior Credit Agreement, the 2006 Notes, the 2008 Notes and the Convertible
Notes) and after giving effect to any collections from or payments made by or on
behalf of any other Subsidiary Guarantor in respect of the obligations of such
other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its
contribution obligations under this Indenture, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law and not
otherwise being void or voidable under any similar laws affecting the rights of
creditors generally.
(b) Each Subsidiary Guarantor may consolidate with or merge into or
sell its assets to the Company or another Subsidiary Guarantor without
limitation. Subject to Article III and Article IV, each Subsidiary Guarantor may
consolidate with or merge into or sell all or substantially all its assets to a
corporation, partnership or trust other than the Company or another Subsidiary
Guarantor (whether or not affiliated with the Subsidiary Guarantor), except that
if the surviving corporation of any such merger or consolidation is a Subsidiary
of the Company, such merger, consolidation or sale shall not be permitted unless
(i) the Person formed by or surviving any such consolidation or merger assumes
all the obligations of such Subsidiary under the Subsidiary Guarantee pursuant
to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee in respect of the Securities, this Indenture and the Subsidiary
Guarantee, (ii) immediately after giving effect to such transaction, no Default
or Event of Default exists; and (iii) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the Trustee with
respect to the foregoing matters. Upon the sale or disposition of a Subsidiary
Guarantor (by merger, consolidation, the sale of its Capital Stock or the sale
of all or substantially all of its assets (other than by lease)) and whether or
not the Subsidiary Guarantor is the surviving corporation in such transaction to
a Person (whether or not an Affiliate of the Subsidiary Guarantor) which is not
the Company or a Subsidiary of the Company, which sale or disposition is
otherwise in compliance with this Indenture, such Subsidiary Guarantor will be
released from all its obligations under this Indenture and its Subsidiary
Guarantee and such Subsidiary Guarantee will terminate; provided, however, that
any such termination will occur only to the extent that (x) with respect to each
Subsidiary Guarantor other than MCA, each such Subsidiary Guarantor will be
released from obligations under its Subsidiary Guarantee if all the obligations
of such Subsidiary Guarantor under the Senior Credit Agreement, the 2006 Notes,
the 2008 Notes, the Convertible Notes and related documentation terminate upon
consummation of such transaction and (y) with respect to MCA, MCA will be
released from its obligations under its Subsidiary Guarantee if the Company and
its remaining Subsidiaries are not liable with respect to any Debt of MCA.
(c) Each Subsidiary Guarantor will be deemed released from all its
obligations under this Indenture, its Subsidiary Guarantee and the Registration
Rights Agreement and such Subsidiary Guarantee will terminate upon the legal
defeasance or covenant defeasance of the Securities pursuant to the provisions
of Article VIII hereof.
SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor hereby
agrees that to the extent that any Subsidiary Guarantor shall have paid more
than its proportionate share of any payment made on the obligations under the
Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek and
receive contribution from and against the Company or any other Subsidiary
Guarantor who has not paid its proportionate share of such
62
payment. The provisions of this Section 10.3 shall in no respect limit the
obligations and liabilities of each Subsidiary Guarantor to the Trustee and the
Holders and each Subsidiary Guarantor shall remain liable to the Trustee and the
Holders for the full amount guaranteed by such Subsidiary Guarantor hereunder.
SECTION 10.4. No Subrogation. Notwithstanding any payment or payments
made by each Subsidiary Guarantor hereunder, no Subsidiary Guarantor shall be
entitled to be subrogated to any of the rights of the Trustee or any Holder
against the Company or any other Subsidiary Guarantor or any collateral security
or guarantee or right of offset held by the Trustee or any Holder for the
payment of the Obligations, nor shall any Subsidiary Guarantor seek or be
entitled to seek any contribution or reimbursement from the Company or any other
Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor
hereunder, until all amounts owing to the Trustee and the Holders by the Company
on account of the Obligations are paid in full. If any amount shall be paid to
any Subsidiary Guarantor on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full, such amount shall be
held by such Subsidiary Guarantor in trust for the Trustee and the Holders,
segregated from other funds of such Subsidiary Guarantor, and shall, forthwith
upon receipt by such Subsidiary Guarantor, be turned over to the Trustee in the
exact form received by such Subsidiary Guarantor (duly indorsed by such
Subsidiary Guarantor to the Trustee, if required), to be applied against the
Obligations.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control. Each Subsidiary Guarantor in addition to performing its
obligations under its Subsidiary Guarantee shall perform such other obligations
as may be imposed upon it with respect to this Indenture under the TIA.
SECTION 11.2. Notices. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Manor Care, Inc.
333 North Summit Street, 16th Floor
Toledo, OH 43699-0086
Attention: Paul Ormond
Chief Executive Officer
63
with a copy to:
Latham & Watkins Illinois LLC
Sears Tower, Suite 5800
Chicago, IL 60606
Attention: Michael Levin, Esq.
if to the Trustee:
National City Bank
629 Euclid Avenue
Cleveland, Ohio 44114-3484
Attention: Corporate Trust Department
Locator 01-3116
For purposes of Section 2.3 (with respect to presentation of Securities
for payment or for registrations of transfer or exchange) if to the Trustee:
National City Bank, c/o The Depository Trust Company, Transfer Agent Drop
Service, 55 Water Street, Jeanette Park Entrance, New York, New York 10041.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it, except that
notices to the Trustee shall be effective only upon receipt.
SECTION 11.3. Communication by Holders with other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
64
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 11.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officers' Certificate or on certificates of public officials.
SECTION 11.6. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by, or a meeting of, Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.8. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday
or other day on which commercial banking institutions are authorized or required
to be closed in New York, New York or Cleveland, Ohio. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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SECTION 11.10. No Recourse Against Others. An incorporator, director,
officer, employee, Affiliate or stockholder of the Company or any Subsidiary
Guarantor, solely by reason of this status, shall not have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Securities,
this Indenture or the Subsidiary Guarantees or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION 11.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.13. Qualification of Indenture. The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees and expenses for the Company, the Trustee and the
Holders) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Securities and printing
this Indenture and the Securities. The Trustee shall be entitled to receive from
the Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 11.14. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
MANOR CARE, INC.
By: /s/ Geoffrey G. Meyers
---------------------------------------------------
Name: Geoffrey G. Meyers
Title: Executive Vice President and Chief
Financial Officer
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SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES, INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
68
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(fka Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES,
INC.
69
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, INC
70
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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, INC
MANOR CARE OF NORTH OLMSTEAD, INC.
MANOR CARE OF PINEHURST, INC.
MANOR CARE OF PLANTATION, INC.
71
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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
72
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
73
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
By: /s/ R. Jeffrey Bixler
-------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel and
Secretary of each of the above-
referenced corporations
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
74
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation, its
General Partner
By: /s/ R. Jeffrey Bixler
------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
75
HCR HOSPITAL, LLC
By: HCR Hospital Holding Company, Inc., its
sole member
By: /s/ R. Jeffrey Bixler
----------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
76
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Services, Inc., its
sole member
By: /s/ R. Jeffrey Bixler
-----------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
77
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation, its
General Partner
By: /s/ R. Jeffrey Bixler
-----------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
78
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
79
WILLIAMS VILLE ARDEN, LLC
By: Manor Care of America, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
---------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
80
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
By: Manor Care Health Services, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
-------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
81
HCR MANORCARE MESQUITE, L.P.
By: Mesquite Hospital, LLC, its
General Partner
By: /s/ R. Jeffrey Bixler
-----------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
82
NATIONAL CITY BANK, as Trustee
By: /s/ James E. Schultz
---------------------------------------------------
Name: James E. Schultz
Title: Vice President
83
EXHIBIT A
[FORM OF FACE OF SERIES A NOTE]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No. [___] Principal Amount $[___________], as
revised by the Schedule of Increases and
Decreases in Global Security attached hereto
CUSIP NO. __________________________
ISIN: _______________________________
MANOR CARE, INC.
6.25% Senior Note, Series A, due 2013
Manor Care, Inc., a Delaware corporation, promises to pay to
[__________], or registered assigns, the principal sum of [_______________]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on May 1, 2013.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the other side
of this Security.
MANOR CARE, INC.
By:
---------------------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NATIONAL CITY BANK
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By________________________________
Authorized Signatory Date: ________ __, 20__
A-1
[FORM OF REVERSE SIDE OF SERIES A NOTE]
6.25% Senior Note, Series A, due 2013
1. Interest
Manor Care, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above.
The Company will pay interest semiannually on May 1 and November 1 of
each year commencing November 1, 2003. Interest on the Securities will accrue
from the most recent date to which interest has been paid on the Securities or,
if no interest has been paid, from April 15, 2003. The Company shall pay
interest on overdue principal or premium, if any (plus interest on such interest
to the extent lawful), at the rate borne by the Securities to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which
any principal of or interest on any Security is due and payable, the Company
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal, premium, if any, and/or interest. The Company will pay
interest (except Defaulted Interest) to the Persons who are registered Holders
of Securities at the close of business on the April 15 or October 15 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Securities represented by a Global
Security (including principal, premium, if any, and interest) will be made by
the transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
Definitive Security (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Securities may also be made, in the case of a
Holder of at least $1,000,000 aggregate principal amount of Securities, by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, National City Bank (the "Trustee") will act as Trustee,
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The Company or
any of its domestically organized, wholly owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
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4. Indenture
The Company issued the Securities under an Indenture dated as of April
15, 2003 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date
of the Indenture (the "Act"). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the Company.
The aggregate principal amount of securities that may be authenticated and
delivered under the Indenture is unlimited. This Security is one of the 6.25%
Senior Notes, Series A, due 2013 referred to in the Indenture. The Securities
include (i) $200,000,000 aggregate principal amount of the Company's 6.25%
Senior Notes, Series A, due 2013 issued under the Indenture on April 15, 2003
(herein called "Initial Securities"), (ii) if and when issued, additional 6.25%
Senior Notes, Series A, due 2013 or 6.25% Senior Notes, Series B, due 2013 of
the Company that may be issued from time to time under the Indenture subsequent
to April 15, 2003 (herein called "Additional Securities") and (iii) if and when
issued, the Company's 6.25% Senior Notes, Series B, due 2013 that may be issued
from time to time under the Indenture in exchange for Initial Securities or
Additional Securities in an offer registered under the Securities Act as
provided in the Registration Rights Agreement (herein called "Exchange
Securities"). The Initial Securities, Additional Securities and Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on, and certain requirements with respect
to, among other things, the incurrence of certain liens, sale-leaseback
transactions, guarantees of the Securities, mergers and consolidations, the
provision of financial information and transactions with Affiliates.
To guarantee the due and punctual payment of the principal, premium, if
any, and interest (including post-filing or post-petition interest) on the
Securities and all other amounts payable by the Company under the Indenture and
the Securities when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Securities
and the Indenture, the Subsidiary Guarantors have unconditionally guaranteed
(and future guarantors, together with the Subsidiary Guarantors, will
unconditionally Guarantee), jointly and severally, such obligations on a senior
basis pursuant to the terms of the Indenture.
5. Redemption
The Securities will be redeemable, at the option of the Company, in
whole at any time or in part from time to time, on at least 30 days but not more
than 60 days' prior notice mailed to the registered address of each Holder of
Securities to be so redeemed, at a redemption price equal to the greater of (i)
100% of their principal amount plus accrued but unpaid interest to the date of
redemption or (ii) the sum of (a) the present values of the remaining scheduled
payments of principal and interest thereon from the date of redemption to the
date of maturity (except for currently accrued but unpaid interest) discounted
to the date of redemption, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury
A-3
Rate (as defined below), plus 50 basis points, plus (b) accrued but unpaid
interest to the date of redemption.
For purposes of determining the optional redemption price, the
following definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, (i) as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York or published on the website of the Federal Reserve Bank of New
York at http://www.ny.frb.org and designated "Composite 3:30 p.m. Quotations for
the U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such business day,
the average of the Reference Treasury Dealer Quotations for such Redemption
Date.
"Independent Investment Banker" means the Reference Treasury Dealer
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of J.P. Morgan Securities Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Warburg LLC and their
respective successors; provided, however, that if any of them shall cease to be
a primary U.S. Government Securities dealer in the United States of America (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed, then on a pro rata basis, by lot or
by such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Securities of $1,000 in original principal amount
or less will be redeemed in part. If any Security is to be redeemed in part
only, the notice of
A-4
redemption relating to such Security shall state the portion of the principal
amount thereof to be redeemed. A new Security in principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to the Indenture.
6. Repurchase Provisions
Upon the occurrence of a Change of Control Triggering Event, any Holder
of Securities will have the right to cause the Company to offer to repurchase
all or any part of the Securities of such Holder at a purchase price in cash
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of repurchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date) as provided in, and subject to the terms of, the Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of principal amount of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange (i)
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) for a period
beginning 15 days before the mailing of a notice of Securities to be redeemed
and ending on the date of such mailing or (ii) any Securities for a period
beginning 15 days before an interest payment date and ending on such interest
payment date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the Company
at any time may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Securities for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
A-5
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, or to secure the Securities, or to add additional covenants of the
Company or its Subsidiaries, or surrender rights and powers conferred on the
Company or its Subsidiaries, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest when due on the Securities; (ii) default in payment of
principal or premium, if any, on the Securities at Stated Maturity, upon
required repurchase or upon optional redemption pursuant to paragraph 5 of the
Securities, upon declaration or otherwise; (iii) the failure by the Company or
any Subsidiary Guarantor to comply with its obligations under Article IV or
Section 10.2 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.3 through 3.8 inclusive and Section 3.12 of the Indenture (in each
case, other than a failure to purchase Securities when required pursuant to
Section 3.6, which failure shall constitute an Event of Default under clause
(ii) above); (v) the failure by the Company to comply for 60 days after written
notice with its other agreements contained in the Indenture or under the
Securities (other than those referred to in (i), (ii), (iii) or (iv) above);
(vi) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be outstanding, or by which there may be secured
or evidenced any Debt for money borrowed by the Company or any of its
Subsidiaries (other than Non-Recourse Debt of a Non-Recourse Subsidiary),
whether such Debt now exists, or is created after the date of the Indenture,
which default (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the acceleration of
such Debt prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Debt, together with the principal
amount of any other such Debt under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $20.0 million or more
or its foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of such
acceleration has been received by the Company or such Subsidiary; (vii) certain
events of bankruptcy, insolvency or reorganization of the Company (the
"bankruptcy provisions"); or (viii) entry in a court of competent jurisdiction
of a final judgment for the payment of $20.0 million or more rendered against
the Company or any Subsidiary, which judgment is not fully covered by insurance
or not discharged or stayed within
A-6
90 days after (A) the date on which the right to appeal thereof has expired if
no such appeal has commenced, or (B) the date on which all rights to appeal have
been extinguished (the "judgment default provision"). However, a default under
clauses (iv) and (v) will not constitute an Event of Default until the Trustee
or the Holders of at least 25% in principal amount of the outstanding Securities
notify the Company of the default and the Company does not cure such default
within the time specified in clauses (iv) and (v) hereof after receipt of such
notice.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities by notice to the Company to be due and payable immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of
Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, Affiliate or stockholder,
of each of the Company, or any Subsidiary Guarantor, solely by reason of this
status, shall not have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities, the Indenture or any Subsidiary
Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT
A-7
TEN (= joint tenants with rights of survivorship and not as tenants in common),
CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company will furnish to any Securityholder upon written request and
without charge to the Securityholder a copy of the Indenture, which has in it
the text of this Security in larger type. Requests may be made to:
Manor Care, Inc.
333 North Summit Street, 16th Floor
Toledo, Ohio 43699-0086
Attention: Geoffrey G. Meyers, Chief Financial Officer
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
____________________________________________________
(Print or type assignee's name, address and zip code)
__________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for
him.
________________________________________________________________________________
Date:____________________ Your Signature:___________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Securities and the last
date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account, without transfer;
or
2 [ ] transferred to the Company; or
3 [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act");
or
4 [ ] transferred pursuant to an effective registration statement
under the Securities Act; or
5 [ ] transferred pursuant to and in compliance with Regulation S
under the Securities Act; or
A-9
6 [ ] transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act), that has furnished to the Trustee a signed
letter containing certain representations and agreements (the
form of which letter appears as Section 2.8 of the Indenture);
or
7 [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
------------------------------
Signature
Signature Guarantee:
- ------------------------- -----------------------------
(Signature must be guaranteed) Signature
- --------------------------------------------------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
---------------------------------
Dated:
A-10
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
- ------- -------------- --------------- --------------- --------------
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.6 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: __________ Your Signature ________________________________________________
(Sign exactly as your name appears on the
other side of the Security)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
A-12
EXHIBIT B
[FORM OF FACE OF SERIES B NOTE]
[Depository Legend, if applicable]
No. [___] Principal Amount $[___________], as revised by the
Schedule of Increases and Decreases in Global
Security attached hereto
CUSIP NO. __________________________
ISIN:_______________________________
MANOR CARE, INC.
6.25% Senior Note, Series B, due 2013
Manor Care, Inc., a Delaware Corporation, promises to pay to
[__________], or registered assigns, the principal sum of [_______________]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on May 1, 2013.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the other side
of this Security.
MANOR CARE, INC.
By:
--------------------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NATIONAL CITY BANK
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By________________________________
Authorized Signatory Date: ________ __, 20__
B-1
[FORM OF REVERSE SIDE OF SERIES B NOTE]
6.25% Senior Note, Series B, due 2013
1. Interest
Manor Care, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above.
The Company will pay interest semiannually on May 1 and November 1 of
each year commencing November 1, 2003. Interest on the Securities will accrue
from the most recent date to which interest has been paid on the Securities or,
if no interest has been paid, from April 15, 2003. The Company shall pay
interest on overdue principal or premium, if any (plus interest on such interest
to the extent lawful), at the rate borne by the Securities to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which
any principal of or interest on any Security is due and payable, the Company
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal, premium, if any, and/or interest. The Company will pay
interest (except Defaulted Interest) to the Persons who are registered Holders
of Securities at the close of business on the April 15 or October 15 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Securities represented by a Global
Security (including principal, premium, if any, and interest) will be made by
the transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
Definitive Security (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Securities may also be made, in the case of a
Holder of a least $1,000,000 aggregate principal amount of Securities, by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, National City Bank (the "Trustee") will act as Trustee,
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The Company or
any of its domestically organized, wholly owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.
B-2
4. Indenture
The Company issued the Securities under an Indenture dated as of April
15, 2003 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date
of the Indenture (the "Act"). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the
Company. The aggregate principal amount of securities that may be authenticated
and delivered under the Indenture is unlimited. This Security is one of the
6.25% Senior Notes, Series B, due 2013 referred to in the Indenture. The
Securities include (i) $200,000,000 aggregate principal amount of the Company's
6.25% Senior Notes, Series A, due 2013 issued under the Indenture on April 15,
2003 (herein called "Initial Securities"), (ii) if and when issued, additional
6.25% Senior Notes, Series A, due 2013 or 6.25% Senior Notes, Series B, due 2013
of the Company that may be issued from time to time under the Indenture
subsequent to April 15, 2003 (herein called "Additional Securities") and (iii)
if and when issued, the Company's 6.25% Senior Notes, Series B, due 2013 that
may be issued from time to time under the Indenture in exchange for Initial
Securities or Additional Securities in an offer registered under the Securities
Act as provided in the Registration Rights Agreement (herein called "Exchange
Securities"). The Initial Securities, Additional Securities and Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on, and certain requirements with respect
to, among other things, the incurrence of certain liens, sale-leaseback
transactions, guarantees of the Securities, mergers and consolidations, the
provision of financial information and transactions with Affiliates.
To guarantee the due and punctual payment of the principal, premium, if
any, and interest (including post-filing or post-petition interest) on the
Securities and all other amounts payable by the Company under the Indenture and
the Securities when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Securities
and the Indenture, the Subsidiary Guarantors have unconditionally guaranteed
(and future guarantors, together with the Subsidiary Guarantors, will
unconditionally Guarantee), jointly and severally, such obligations on a senior
basis pursuant to the terms of the Indenture.
5. Redemption
The Securities will be redeemable, at the option of the Company, in
whole at any time or in part from time to time, on at least 30 days but not more
than 60 days' prior notice mailed to the registered address of each Holder of
Securities to be so redeemed, at a redemption price equal to the greater of (i)
100% of their principal amount plus accrued but unpaid interest to the date of
redemption or (ii) the sum of (a) the present values of the remaining scheduled
payments of principal and interest thereon from the date of redemption to the
date of maturity (except for currently accrued but unpaid interest) discounted
to the date of redemption, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury
B-3
Rate (as defined below), plus 50 basis points, plus (b) accrued but unpaid
interest to the date of redemption.
For purposes of determining the optional redemption price, the
following definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, (i) as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York or published on the website of the Federal Reserve Bank of New
York at http://www.ny.frb.org and designated "Composite 3:30 p.m. Quotations for
the U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such business day,
the average of the Reference Treasury Dealer Quotations for such Redemption
Date.
"Independent Investment Banker" means the Reference Treasury Dealer
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of J.P. Morgan Securities Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Warburg LLC and their
respective successors; provided, however, that if any of them shall cease to be
a primary U.S. Government Securities dealer in the United States of America (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed, then on a pro rata basis, by lot or
by such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Securities of $1,000 in original principal amount
or less will be redeemed in part. If any Security is to be redeemed in part
only, the notice of
B-4
redemption relating to such Security shall state the portion of the principal
amount thereof to be redeemed. A new Security in principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to the Indenture.
6. Repurchase Provisions
Upon the occurrence of a Change of Control Triggering Event, any Holder
of Securities will have the right to cause the Company to offer to repurchase
all or any part of the Securities of such Holder at a purchase price in cash
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of repurchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date) as provided in, and subject to the terms of, the Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of principal amount of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange (i)
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) for a period
beginning 15 days before the mailing of a notice of Securities to be redeemed
and ending on the date of such mailing or (ii) any Securities for a period
beginning 15 days before an interest payment date and ending on such interest
payment date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the Company
at any time may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Securities for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
B-5
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, or to secure the Securities, or to add additional covenants of the
Company or its Subsidiaries, or surrender rights and powers conferred on the
Company or its Subsidiaries, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest when due on the Securities; (ii) default in payment of
principal or premium, if any, on the Securities at Stated Maturity, upon
required repurchase or upon optional redemption pursuant to paragraph 5 of the
Securities, upon declaration or otherwise; (iii) the failure by the Company or
any Subsidiary Guarantor to comply with its obligations under Article IV or
Section 10.2 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.3 through 3.8 inclusive and Section 3.12 of the Indenture (in each
case, other than a failure to purchase Securities when required pursuant to
Section 3.6, which failure shall constitute an Event of Default under clause
(ii) above); (v) the failure by the Company to comply for 60 days after written
notice with its other agreements contained in the Indenture or under the
Securities (other than those referred to in (i), (ii), (iii) or (iv) above);
(vi) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be outstanding, or by which there may be secured
or evidenced any Debt for money borrowed by the Company or any of its
Subsidiaries (other than Non-Recourse Debt of a Non-Recourse Subsidiary),
whether such Debt now exists, or is created after the date of the Indenture,
which default (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the acceleration of
such Debt prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Debt, together with the principal
amount of any other such Debt under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $20.0 million or more
or its foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of such
acceleration has been received by the Company or such Subsidiary; (vii) certain
events of bankruptcy, insolvency or reorganization of the Company (the
"bankruptcy provisions"); or (viii) entry in a court of competent jurisdiction
of a final judgment for the payment of $20.0 million or more rendered against
the Company or any Subsidiary, which judgment is not fully covered by insurance
or not discharged or stayed within
B-6
90 days after (A) the date on which the right to appeal thereof has expired if
no such appeal has commenced, or (B) the date on which all rights to appeal have
been extinguished (the "judgment default provision"). However, a default under
clauses (iv) and (v) will not constitute an Event of Default until the Trustee
or the Holders of at least 25% in principal amount of the outstanding Securities
notify the Company of the default and the Company does not cure such default
within the time specified in clauses (iv) and (v) hereof after receipt of such
notice.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities by notice to the Company to be due and payable immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of
Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, Affiliate or stockholder,
of each of the Company, or any Subsidiary Guarantor, solely by reason of this
status, shall not have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities, the Indenture or any Subsidiary
Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT
B-7
TEN (= joint tenants with rights of survivorship and not as tenants in common),
CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company will furnish to any Securityholder upon written request and
without charge to the Securityholder a copy of the Indenture which has in it the
text of this Security in larger type. Requests may be made to:
Manor Care, Inc.
333 North Summit Street, 16th Floor
Toledo, Ohio 43699-0086
Attention: Geoffrey G. Meyers, Chief Financial Officer
B-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
__________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: _______________ Your Signature __________________________________________
Signature Guarantee: __________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-9
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
- ------- -------------- --------------- --------------- --------------
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.6 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: _______________ Your Signature: _____________________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-11
EXHIBIT C
FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS
This Supplemental Indenture, dated as of [_______ __], 20__ (this
"Supplemental Indenture" or "Guarantee"), among [name of future Subsidiary
Guarantor] (the "Guarantor"), Manor Care, Inc. (together with its successors and
assigns, the "Company"), each other then existing Subsidiary Guarantor under the
Indenture referred to below, and National City Bank, as Trustee under the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
heretofore executed and delivered an Indenture, dated as of April 15, 2003 (as
amended, supplemented, waived or otherwise modified, the "Indenture"), providing
for the issuance of an aggregate principal amount of $200,000,000 of 6.25%
Senior Notes due 2013 of the Company (the "Securities");
WHEREAS, Section 3.12 of the Indenture provides that the Company is
required to cause each Subsidiary (other than a Subsidiary that does not
Guarantee obligations under the Senior Credit Agreement, the 2006 Notes, the
2008 Notes or the Convertible Notes) created or acquired by the Company or one
or more of its Subsidiaries or any Subsidiary that Guarantees the payment of
Debt of the Company to execute and deliver to the Trustee a supplemental
indenture pursuant to which such Subsidiary will unconditionally Guarantee, on a
joint and several basis with the other Subsidiary Guarantors, the full and
prompt payment of the principal of, premium, if any, and interest on the
Securities on a senior basis; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee and the
Company are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor, the Company, the other Subsidiary Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Guarantee
shall refer to the term "Holders" as defined in the Indenture and the Trustee
acting on behalf or for the benefit of such Holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. The Guarantor hereby becomes a party
to the Indenture as a Subsidiary Guarantor and as such will have all of the
rights and be subject to all of the obligations and agreements of a Subsidiary
Guarantor under the Indenture. The Guarantor agrees to be bound by all of the
provisions of the Indenture applicable to a Subsidiary Guarantor and to perform
all of the obligations and agreements of a Subsidiary Guarantor under the
Indenture.
SECTION 2.2 Guarantee. The Guarantor fully, unconditionally and
irrevocably Guarantees to each Holder of the Securities and the Trustee the
Obligations pursuant to Article X of the Indenture on a senior basis.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to the
Guarantor shall be given as provided in the Indenture to the Guarantor, at its
address set forth below, with a copy to the Company as provided in the Indenture
for notices to the Company.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended
or shall be construed to give any Person, firm or corporation, other than the
Holders and the Trustee, any legal or equitable right, remedy or claim under or
in respect of this Supplemental Indenture or the Indenture or any provision
herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 3.4 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
C-2
SECTION 3.6 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the sections in
this Guarantee are for convenience of reference only and shall not be deemed to
alter or affect the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[SUBSIDIARY GUARANTOR],
as a Guarantor
By:_______________________________________
Name:
Title:
NATIONAL CITY BANK, as Trustee
By:_______________________________________
Name:
Title:
MANOR CARE, INC.
By:_______________________________________
Name:
Title:
[INSERT OTHER SUBSIDIARY GUARANTORS]
By:_______________________
Title:
C-3
EX-4.4
4
c78303exv4w4.txt
REGISTRATION RIGHTS AGREEMENT, DATED APRIL 15,2003
EXHIBIT 4.4
MANOR CARE, INC.
$200,000,000
6.25% Senior Notes due 2013
REGISTRATION RIGHTS AGREEMENT
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Manor Care, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to J.P. Morgan Securities Inc. ("JPMorgan") Merrill Lynch,
Pierce, Fenner & Smith Incorporated, UBS Warburg LLC, Banc of America Securities
LLC, BNY Capital Markets, Inc., NatCity Investments, Inc., and SunTrust Capital
Markets, Inc. (together with JPMorgan, the "Initial Purchasers"), upon the terms
and subject to the conditions set forth in a purchase agreement dated April 10,
2003 (the "Purchase Agreement"), $200,000,000 aggregate principal amount of its
6.25% Senior Notes due 2013 (the "Securities") to be jointly and severally
guaranteed (the "Guarantees") by the subsidiaries of the Company listed on
Schedule 1 and signatories hereto (collectively, the "Guarantors"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company and the Guarantors agree with the Initial
Purchasers, for the benefit of the holders (including the Initial Purchasers) of
the Securities and the Exchange Securities (as defined herein) (collectively,
the "Holders"), as follows:
1. Registered Exchange Offer. Unless the Registered Exchange Offer (as
defined herein) shall not be permitted by applicable federal law, the Company
shall (i) use reasonable best efforts to prepare and, not later than 90 days
following the date of original issuance of the Securities (the "Issue Date"),
file with the Commission a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer to
the Holders of the Securities and the Guarantees (the "Registered Exchange
Offer") to issue and deliver to such Holders, in exchange for the Securities and
the Guarantees, a like aggregate principal amount of debt securities of the
Company and guarantees thereof by the Guarantors (the "Exchange Securities")
that are identical in all material respects to the Securities, except for the
transfer restrictions relating to the Securities, (ii) use its commercially
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 150 days after the Issue Date
and the Registered Exchange Offer to be consummated no later than 180 days after
the Issue Date and (iii) keep the Exchange Offer Registration Statement
effective for not less than 20 business days (or longer, if required by
applicable law) after the date on which notice of the Registered Exchange Offer
is mailed to the Holders (such period being called the "Exchange Offer
Registration Period"). The Exchange Securities will be issued under the
Indenture or an indenture (the "Exchange Securities Indenture") between the
Company, the Guarantors and the Trustee or such other bank or trust company that
is reasonably satisfactory to the Initial Purchasers, as trustee (the "Exchange
Securities Trustee"), such indenture to be identical in all material respects to
the Indenture, except for the transfer restrictions relating to the Securities
(as described above).
As soon as practicable after the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder (a) is not an affiliate of the Company or an
Exchanging Dealer (as defined herein) not complying with the requirements of the
next sentence, (b) is not an Initial Purchaser holding Securities that have, or
that are reasonably likely to have, the status of an unsold allotment in an
initial distribution, (c) acquires the Exchange Securities in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any person to participate in the distribution of the Exchange Securities)
and to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Company, the Guarantors, the Initial Purchasers and each Exchanging
Dealer acknowledge that, pursuant to current interpretations by the Commission's
staff of Section 5 of the Securities Act, each Holder that is a broker-dealer
electing to exchange Securities, acquired for its own account as a result of
market-making activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), is required to deliver a prospectus containing
substantially the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer.
- 2 -
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior to
the close of business, New York City time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder, Exchange Securities
equal in principal amount to the Securities of such Holder so accepted for
exchange.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
- 3 -
The Indenture or the Exchange Securities Indenture, as the case may be,
shall provide that the Securities and the Exchange Securities shall vote and
consent together on all matters as one class and that none of the Securities or
the Exchange Securities will have the right to vote or consent as a separate
class on any matter.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Securities surrendered in exchange therefor or, if no interest
has been paid on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an affiliate of the Company or,
if it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) for any other reason the Registered Exchange Offer is not
consummated within 180 days after the Issue Date, or (iii) any Initial Purchaser
so requests with respect to Securities or (iv) any applicable law or
interpretations do not permit any Holder to participate in the Registered
Exchange Offer, or (v) any Holder that participates in the Registered Exchange
Offer does not receive freely transferable Exchange Securities in exchange for
tendered Securities, or (vi) the Company so elects, then the following
provisions shall apply:
- 4 -
(a) The Company and the Guarantors shall use their reasonable best
efforts to file as promptly as practicable (but in no event more than 20
business days after so required or requested pursuant to this Section 2) with
the Commission (the "Shelf Filing Date"), and thereafter shall use their
commercially reasonable efforts to cause to be declared effective, a shelf
registration statement on an appropriate form under the Securities Act relating
to the offer and sale of the Transfer Restricted Securities (as defined below)
by the Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "Shelf
Registration Statement" and, together with any Exchange Offer Registration
Statement, a "Registration Statement").
(b) The Company and the Guarantors shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the prospectus forming part thereof to be used by Holders of Transfer
Restricted Securities for a period ending on the earlier of (i) two years from
the Issue Date or such shorter period that will terminate when all the Transfer
Restricted Securities covered by the Shelf Registration Statement have been sold
pursuant thereto and (ii) the date on which the Securities become eligible for
resale without volume restrictions pursuant to Rule 144 under the Securities Act
(in any such case, such period being called the "Shelf Registration Period").
The Company and the Guarantors shall be deemed not to have used their reasonable
best efforts to keep the Shelf Registration Statement effective during the
requisite period if they voluntarily take any action that would result in
Holders of Transfer Restricted Securities covered thereby not being able to
offer and sell such Transfer Restricted Securities during that period, unless
such action is required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Company by or on behalf of any Holder specifically for use therein (the
"Holders' Information")) does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such prospectus (in
either case, other than with respect to Holders' Information), does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) In the absence of the events described in clauses (i) through (vi)
of the first paragraph of this Section 2, the Company and the Guarantors shall
not be
- 5 -
permitted to discharge its obligations hereunder by means of the filing of a
Shelf Registration Statement.
3. Additional Interest. (a) The parties hereto agree that the Holders
of Transfer Restricted Securities will suffer damages if the Company and the
Guarantors fail to fulfill their obligations under Section 1 or Section 2, as
applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to 90 days after the Issue Date or the
Shelf Registration Statement is not filed with the Commission on or before the
Shelf Filing Date, (ii) the Exchange Offer Registration Statement is not
declared effective within 150 days after the Issue Date or the Shelf
Registration Statement is not declared effective within 90 days of the Shelf
Filing Date, (iii) the Registered Exchange Offer is not consummated on or prior
to 180 days after the Issue Date, or (iv) the Shelf Registration Statement is
filed and declared effective within 90 days after the Shelf Filing Date but
shall thereafter cease to be effective (at any time that the Company and the
Guarantors are obligated to maintain the effectiveness thereof) without being
succeeded within 30 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company and the Guarantors will be jointly and
severally obligated to pay additional interest to each Holder of Transfer
Restricted Securities, during the period of one or more such Registration
Defaults, in an amount equal to $0.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder until (i) the applicable
Registration Statement is filed, (ii) the Exchange Offer Registration Statement
is declared effective and the Registered Exchange Offer is consummated, (iii)
the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be, which rate
will be increased by an additional $ 0.05 per week per $1,000 principal amount
of Transfer Restricted Securities for each 90-day period that any additional
interest described in this Section 3 continues to accrue; provided that the rate
for additional interest will not exceed $0.15 per week per $1,000 principal
amount of Transfer Restricted Securities. All accrued additional interest will
be paid to each Holder in the same manner as interest payments on the Transfer
Restricted Securities on semi-annual payment dates that correspond to interest
payment dates for the Transfer Restricted Securities. Additional interest only
accrues during a Registration Default. Following the cure of all Registration
Defaults, the accrual of additional interest will cease. As used herein, the
term "Transfer Restricted Securities" means each Security, until the earliest to
occur of: (i) the date on which such Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) the date
on which such Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iii) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act. Notwithstanding anything to the contrary in this Section 3(a),
neither the Company nor the Guarantors shall be required to pay additional
interest to a Holder of Transfer Restricted Securities if such Holder failed to
comply with its obligations to make the
- 6 -
representations set forth in the second to last paragraph of Section 1 or failed
to provide the information required to be provided by it, if any, pursuant to
Section 4(n).
(b) The Company shall notify the Trustee and the Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company and the Guarantors shall pay the additional interest due on the
Transfer Restricted Securities by depositing with the Paying Agent (which may
not be the Company for these purposes), in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time, on the next interest payment
date specified by the Indenture and the Securities, sums sufficient to pay the
additional interest then due. The additional interest due shall be payable on
each interest payment date specified by the Indenture and the Securities to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay additional interest shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the additional interest provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as any Initial
Purchaser may reasonably propose within five business days after the delivery of
such document to such Initial Purchaser; (ii) include the information set forth
in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of the prospectus forming a part
of the Exchange Offer Registration Statement, and include the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and (iii) if requested by any Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Company shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such person,
confirm such advice in writing (which advice pursuant to clauses (ii)-(v) hereof
shall be
- 7 -
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities or the Exchange
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) The Company and the Guarantors will make every reasonable effort to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of such prospectus
or any amendment or supplement thereto by each of the selling Holders of
Transfer Restricted Securities in connection with the offer and sale of the
Transfer Restricted Securities covered by such prospectus or any amendment or
supplement thereto.
- 8 -
(f) The Company will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) The Company will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to each Initial
Purchaser, each Exchanging Dealer and such other persons that are required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus included in the Exchange Offer Registration
Statement or the Shelf Registration Statement and any amendment or supplement
thereto as such Initial Purchaser, Exchanging Dealer or other persons may
reasonably request; and the Company and the Guarantors consent to the use of
such prospectus or any amendment or supplement thereto by any such Initial
Purchaser, Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company and the Guarantors will use their reasonable best efforts to register or
qualify, or cooperate with the Holders of Securities or Exchange Securities
included therein and their respective counsel in connection with the
registration or qualification of, such Securities or Exchange Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
any such Holder reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Securities or Exchange Securities covered by such Registration Statement;
provided that the Company and the Guarantors will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(i) The Company and the Guarantors will cooperate with the Holders of
Securities or Exchange Securities to facilitate the timely preparation and
delivery of certificates representing Securities or Exchange Securities to be
sold pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as the Holders thereof may
request in writing at least two business days prior to sales of Securities or
Exchange Securities pursuant to such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Company and the Guarantors are required to
maintain an effective Registration Statement, the Company will promptly prepare
and file with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Securities or
Exchange Securities from a Holder, the
- 9 -
prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or the
Exchange Securities, as the case may be, and provide the applicable trustee with
the Securities or the Exchange Securities, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company and the Guarantors will comply with all applicable
rules and regulations of the Commission and will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earning statement satisfying the provisions
of Section 11(a) of the Securities Act covering a twelve month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act); provided that in no event shall
such earning statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statement shall cover such
12-month period.
(m) The Company and the Guarantors will cause the Indenture or the
Exchange Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act as required by applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Company may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (v) (a "Suspension
Notice"), such Holder will discontinue disposition of such Transfer Restricted
Securities until such Holder's receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(j) or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated prospectuses or (ii) deliver to the Company (at the Company's
expense)
- 10 -
all copies, other than permanent file copies, then in such Holder's possession
of the prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of the Suspension Notice. If the Company shall give any
notice under Section 4(b)(ii) through (v) during the period that the Company is
required to maintain an effective Registration Statement (the "Effectiveness
Period"), such Effectiveness Period shall be extended by the number of days
during such period from and including the date of the giving of such notice to
and including the date when each seller of Transfer Restricted Securities
covered by such Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus contemplated by Section 4(j) (if an amended
or supplemental prospectus is required) or (y) the Advice (if no amended or
supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company and the
Guarantors shall enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Securities
and Exchange Securities being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of Securities or
Exchange Securities pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Securities and Exchange Securities being sold and any
underwriter participating in any disposition of Securities or Exchange
Securities pursuant to such Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) use its reasonable best efforts to have its
officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative, Special Counsel or any
such underwriter (an "Inspector") in connection with such Shelf Registration
Statement.
(r) In the case of a Shelf Registration Statement, the Company shall,
if requested by Holders of a majority in aggregate principal amount of the
Securities and Exchange Securities being sold, their Special Counsel or the
managing underwriters (if any) in connection with such Shelf Registration
Statement, use its reasonable best efforts to cause (i) its counsel to deliver
an opinion relating to the Shelf Registration Statement and the Securities or
Exchange Securities, as applicable, in customary form, (ii) its officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Securities and
Exchange Securities being sold, their Special Counsel or the managing
underwriters (if any) and (iii) its independent public accountants to provide a
comfort letter or letters in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
- 11 -
5. Registration Expenses. The Company and the Guarantors will bear all
expenses incurred in connection with the performance of its obligations under
Sections 1, 2, 3 and 4 and the Company will reimburse the Initial Purchasers and
the Holders for the reasonable fees and disbursements of one firm of attorneys
(in addition to any local counsel) chosen by the Holders of a majority in
aggregate principal amount of the Securities and the Exchange Securities to be
sold pursuant to each Registration Statement (the "Special Counsel") acting for
the Initial Purchasers or Holders in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration Statement
or in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company and each of the Guarantors shall jointly and severally
indemnify and hold harmless each Holder (including, without limitation, any such
Initial Purchaser or Exchanging Dealer), its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 6 and
Section 7 as a Holder) from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, without
limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Securities or Exchange Securities), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and shall
reimburse each Holder promptly upon demand for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Guarantors
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Holders' Information; and
provided, further, that with respect to any such untrue statement in or omission
from any related preliminary prospectus, the indemnity agreement contained in
this Section 6(a) shall not inure to the benefit of any Holder from whom the
person asserting any such loss, claim, damage, liability or action received
Securities or Exchange Securities to the extent that such loss, claim, damage,
liability or action of or with respect to such Holder results from the fact that
both (A) a copy of the final prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Securities or Exchange
Securities to such person and (B) the untrue statement in or omission from
- 12 -
the related preliminary prospectus was corrected in the final prospectus unless,
in either case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Company, each Guarantor and their respective
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls the Company or any Guarantor
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6(b) and Section 7 as the Company),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any
Holders' Information furnished to the Company by such Holder, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that no such Holder shall be liable for any indemnity claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Securities or Exchange Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 6(a) or 6(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 6 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its
- 13 -
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than the reasonable costs of investigation;
provided, however, that an indemnified party shall have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based upon advice of counsel
to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory to
the indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment or if the
indemnifying party has not paid the expenses and fees for which it is liable 20
days after notice by the indemnified party of request for reimbursement. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement or admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such
- 14 -
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and the Guarantors from the offering and sale of the Securities, on
the one hand, and a Holder with respect to the sale by such Holder of Securities
or Exchange Securities, on the other, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and each of the Guarantors on
the one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company and each of the Guarantors on the one
hand and a Holder on the other with respect to such offering and such sale shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities (before deducting expenses) received by or on behalf
of the Company and each of the Guarantors, on the one hand, and the total
discounts and commissions received by such Holder with respect to the Securities
or Exchange Securities, on the other, bear to the total gross proceeds from the
sale of Securities or Exchange Securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Company and each of the Guarantors or information
supplied by the Company and each of the Guarantors on the one hand or to any
Holders' Information supplied by such Holder on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 7 shall be deemed to include, for purposes of this Section
7, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Securities or Exchange Securities shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities or Exchange Securities sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A. So long as any Transfer Restricted Securities
remain outstanding, the Company shall use its reasonable best efforts to file
the reports required to be filed by it under Rule 144A(d)(4) under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file
- 15 -
such reports, it will, upon the written request of any Holder of Transfer
Restricted Securities, make publicly available other information so long as
necessary to permit sales of such Holder's securities pursuant to Rules 144 and
144A. The Company and the Guarantors covenant that they will take such further
action as any Holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rules 144 and 144A
(including, without limitation, the requirements of Rule 144A(d)(4)). Upon the
written request of any Holder of Transfer Restricted Securities, the Company and
the Guarantors shall deliver to such Holder a written statement as to whether it
has complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 8 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Securities
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of a majority in aggregate principal
amount of the Securities, the Exchange Securities and the Private Exchange
Securities, taken as a single class. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Exchange
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate principal amount of the Securities and the
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
- 16 -
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to the Initial Purchasers.
(2) if to an Initial Purchaser, initially at its address set forth in
the Purchase Agreement;
(3) if to the Company, initially at the address of the Company set
forth in the Purchase Agreement; and
(4) if to the Guarantors, initially at the address of the Guarantors
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
Company, the Guarantors and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
- 17 -
(h) Remedies. In the event of a breach by the Company or any of the
Guarantors or by any Holder of any of their respective obligations under this
Agreement, each Holder or the Company or any Guarantor, as the case may be, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages (other than the recovery of damages for a breach by the
Company or any Guarantor of their obligations under Sections 1 or 2 hereof for
which additional interest has been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The
Company, each Guarantor and each Holder agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agree that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. Each of the Company and each Guarantor
represents, warrants and agrees that (i) it has not entered into, shall not, on
or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii)
without limiting the generality of the foregoing, without the written consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, it shall not grant to any person the right to
request the Company to register any debt securities of the Company under the
Securities Act unless the rights so granted are not in conflict or inconsistent
with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor the
Guarantors nor any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity) shall have the right to include any
securities of the Company in any Shelf Registration or Registered Exchange Offer
other than Transfer Restricted Securities.
(k) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
- 18 -
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
MANOR CARE, INC.
By: /s/ R. Jeffrey Bixler
-------------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, Secretary and
General Counsel
- 19 -
SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
- 20 -
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(fka Heartland Medical Information Services)
- 21 -
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
- 22 -
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, INC
- 23 -
MANOR CARE OF NORTH OLMSTED, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
- 24 -
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
- 25 -
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
By: /s/ R. Jeffrey Bixler
----------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary of each of the
above-referenced corporations
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 26 -
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation, its
General Partner
By: /s/ R. Jeffrey Bixler
------------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 27 -
HCR HOSPITAL, LLC
By: HCR Hospital Holding Company, Inc., its
sole member
By: /s/ R. Jeffrey Bixler
--------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 28 -
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Services, Inc., its
sole member
By: /s/ R. Jeffrey Bixler
-------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 29 -
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation, its
General Partner
By: /s/ R. Jeffrey Bixler
-------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 30 -
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
- 31 -
By: Manor Care of America, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 32 -
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
By: Manor Care Health Services, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
----------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 33 -
HCR MANORCARE MESQUITE, L.P.
By: Mesquite Hospital, LLC, its
General Partner
By: /s/ R. Jeffrey Bixler
---------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 34 -
Confirmed and accepted as of the date first above written:
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
NATCITY INVESTMENTS, INC.
SUNTRUST CAPITAL MARKETS, INC.
By: J.P. MORGAN SECURITIES INC.
By /s/ Geoffrey Benson
__________________________
Authorized Signatory
- 35 -
SCHEDULE I
GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(f/k/a Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
COLEWOOD LIMITED PARTNERSHIP
HCR HOSPITAL, LLC
ANCILLARY SERVICES, LLC
BOOTH LIMITED PARTNERSHIP
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
HCR MANORCARE MESQUITE, L.P.
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until ______, 2013, all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
EX-5.1
5
c78303exv5w1.txt
OPINION OF LATHAM & WATKINS LLP
EXHIBIT 5.1
Sears Tower, Suite 5800
233 S. Wacker Dr.
Chicago, Illinois 60606
Tel: (312) 876-7700 Fax: (312) 993-9767
www.lw.com
[LATHAM & WATKINS LLP LOGO]
FIRM / AFFILIATE OFFICES
Boston New Jersey
Brussels New York
Chicago Northern Virginia
July 28, 2003 Frankfurt Orange County
Hamburg Paris
Hong Kong San Diego
Manor Care, Inc. London San Francisco
333 N. Summit Street Los Angeles Silicon Valley
Toledo, Ohio 43604-2617 Milan Singapore
Moscow Tokyo
Washington, D.C.
Re: Registration Statement for $200,000,000 Aggregate Principal
Amount of Senior Notes and Related Guarantees
Ladies and Gentlemen:
In connection with the registration by Manor Care, Inc., a Delaware
corporation (the "COMPANY"), under the Securities Act of 1933, as amended, on
Form S-4 filed with the Securities and Exchange Commission on July 28, 2003 (the
"REGISTRATION STATEMENT"), of $200,000,000 6.25% Senior Notes due 2013 (the
"EXCHANGE NOTES") and the guarantees of the Exchange Notes (the "GUARANTEES") by
the guarantors listed on Schedule 1 attached hereto (the "GUARANTORS"), to be
issued under an Indenture dated as of April 15, 2003 (the "INDENTURE") among the
Company, the Guarantors and National City Bank, as trustee (the "TRUSTEE"), you
have requested our opinion set forth below. The Exchange Notes will be issued in
exchange for the Company's outstanding 6.25% Senior Notes due 2013 (the "PRIVATE
NOTES") on the terms set forth in the prospectus contained in the Registration
Statement and the Transmittal Letter filed as an exhibit thereto (the "EXCHANGE
OFFER").
In our capacity as your special counsel in connection with the Exchange
Offer, we are familiar with the proceedings taken by the Company in connection
with the authorization of the Exchange Notes. In addition, we have examined such
matters of fact and questions of law as we have considered appropriate for
purposes of this letter.
We are opining herein as to the effect on the subject transaction only of
the internal laws of the State of New York and the General Corporation Law of
the State of Delaware, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agencies within any state. Various
issues concerning the Guarantees are addressed in the opinion of R. Jeffrey
Bixler of even date herewith, which has separately been provided to you, and we
express no opinion with respect to those matters.
July 28, 2003
PAGE 2
[LATHAM & WATKINS LLP LOGO]
Subject to the foregoing and the other matters set forth herein, it is our
opinion that, as of the date hereof,
(1) The Indenture has been duly authorized by all necessary corporate
action of the Company, has been duly executed and delivered by the
Company, and is a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(2) The Exchange Notes to be exchanged for the Private Notes pursuant
to the Exchange Offer have been duly authorized by the Company and,
when executed, issued, authenticated and delivered by or on behalf of
the Company against payment therefor in accordance with the Indenture
in the manner contemplated by the Registration Statement, will be
legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
The opinions rendered in paragraphs 1 and 2 above relating to the
enforceability of the Indenture and the Exchange Notes are subject to the
following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors; (ii)
the effect of general principles of equity, whether enforcement is considered in
a proceeding in equity or at law (including the possible unavailability of
specific performance or injunctive relief), concepts of materiality,
reasonableness, good faith and fair dealing, and the discretion of the court
before which any proceeding therefor may be brought; and (iii) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy.
To the extent the obligations of the Company under the Indenture and the
Exchange Notes may be dependent upon such matters, we assume for purposes of
this opinion that the Indenture constitutes a legally valid and binding
agreement of the Trustee, enforceable against the Trustee in accordance with its
terms.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm contained under the heading "Validity
of the New Notes."
Very truly yours,
Latham & Watkins LLP
SCHEDULE 1
GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(f/k/a Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
COLEWOOD LIMITED PARTNERSHIP
HCR HOSPITAL, LLC
ANCILLARY SERVICES, LLC
BOOTH LIMITED PARTNERSHIP
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
HCR MANORCARE MESQUITE, L.P.
EX-5.2
6
c78303exv5w2.txt
OPINION OF R. JEFFERY BIXLER
EXHIBIT 5.2
MANOR CARE INC.
333 North Summit Street
Toledo, Ohio 43604
July 28, 2003
Manor Care, Inc.
333 N. Summit Street
Toledo, Ohio 43604-2617
Re: Registration Statement for $200,000,000 Aggregate Principal
Amount of Senior Notes and Related Guarantees
Ladies and Gentlemen:
In connection with the registration by Manor Care, Inc., a Delaware
corporation (the "COMPANY"), under the Securities Act of 1933, as amended, on
Form S-4 filed with the Securities and Exchange Commission on July 28, 2003
(the "REGISTRATION STATEMENT"), of $200,000,000 6.25% Senior Notes due 2013 (the
"EXCHANGE NOTES") and the guarantees of the Exchange Notes (the "GUARANTEES") by
the guarantors listed on Schedule 1 attached hereto (the "GUARANTORS"), to be
issued under an Indenture dated as of April 15, 2003 (the "INDENTURE") among the
Company, the Guarantors and National City Bank, as trustee (the "TRUSTEE"), you
have requested my opinion set forth below. The Exchange Notes will be issued in
exchange for the Company's outstanding 6.25% Senior Notes due 2013 (the "PRIVATE
NOTES") on the terms set forth in the prospectus contained in the Registration
Statement and the Transmittal Letter filed as an exhibit thereto (the "EXCHANGE
OFFER").
In my capacity as Vice President and General Counsel of the Company, I am
familiar with the proceedings taken by the Company and the Guarantors in
connection with the authorization of the Indenture, the Exchange Notes and the
Guarantees, respectively. In addition, I have examined such matters of fact and
questions of law as I have considered appropriate for purposes of this letter.
Various issues concerning the Exchange Notes are addressed in the opinion
of Latham & Watkins LLP of even date herewith, which has separately been
provided to you, and I express no opinion with respect to those matters.
Subject to the foregoing and the other matters set forth herein, it is my
opinion that, as of the date hereof,
(1) The Indenture has been duly authorized by all necessary corporate
action of each of the Guarantors, has been duly executed and delivered by
each of the Guarantors, and is a legally valid and binding obligation of
each of the Guarantors, enforceable against the Guarantors in accordance
with its terms.
(2) The notation of Guarantee of each of the Guarantors to be endorsed
on the Exchange Notes to be exchanged for the Private Notes pursuant to the
Exchange Offer has been duly authorized by all necessary corporate action
of each of the Guarantors and, when executed and delivered in accordance
with the terms of the Indenture (assuming the due execution, issue and
authentication of the Exchange Notes in accordance with the terms of the
Indenture and delivery and payment therefor in the manner contemplated by
the Registration Statement) will be the legally valid and binding
obligations of the Guarantors, enforceable against the Guarantors in
accordance with their terms.
The opinion rendered in paragraphs 1 and 2 above relating to the
enforceability of the Indenture and the Guarantees are subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors; (ii) the
effect of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law (including the possible unavailability of
specific performance or injunctive relief), concepts of materiality,
reasonableness, good faith and fair dealing, and the discretion of the court
before which any proceeding therefor may be brought; and (iii) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy.
To the extent the obligations of the Guarantors under the Indenture and the
Exchange Notes may be dependent upon such matters, I assume for purposes of this
opinion that the Indenture constitutes a legally valid and binding agreement of
the Trustee, enforceable against the Trustee in accordance with its terms. I
consent to your filing this opinion as an exhibit to the Registration Statement
and to the reference to my name contained under the heading "Validity of the New
Notes."
Very truly yours,
R. Jeffrey Bixler
Vice President and General Counsel
SCHEDULE 1
GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(fka Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
COLEWOOD LIMITED PARTNERSHIP
HCR HOSPITAL, LLC
ANCILLARY SERVICES, LLC
BOOTH LIMITED PARTNERSHIP
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
HCR MANORCARE MESQUITE, L.P.
EX-10.1
7
c78303exv10w1.txt
PURCHASE AGREEMENT, DATED APRIL 10, 2003
EXHIBIT 10.1
$200,000,000
MANOR CARE, INC.
6.25% Senior Notes due 2013
Purchase Agreement
April 10, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Manor Care, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell (the "Offering") $200,000,000 aggregate principal amount of its 6.25%
Senior Notes due 2013 (the "Securities"). The Securities will be issued pursuant
to an Indenture to be dated as of April 15, 2003 (the "Indenture") between the
Company, each of the subsidiaries of the Company listed on Schedule 1 hereto
(each a "Guarantor" and together, the "Guarantors") and National City Bank, as
trustee (the "Trustee"). The Securities will be guaranteed by guarantees (the
"Guarantees", and each a "Guarantee") of each of the Guarantors. The Company
hereby confirms its agreement with J.P. Morgan Securities Inc. ("JPMorgan"),
Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Warburg LLC, Bank of
America Securities LLC, BNY Capital Markets, Inc., NatCity Investments, Inc. and
SunTrust Capital Markets, Inc. (together with JPMorgan, the "Initial
Purchasers") concerning the purchase of the Securities from the Company by the
several Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon an exemption therefrom. The Company has prepared a
preliminary offering memorandum dated April 9, 2003 (the "Preliminary Offering
Memorandum") and will prepare an offering memorandum dated the date hereof (the
"Offering
Memorandum") setting forth information concerning the Company and the
Securities. Copies of the Preliminary Offering Memorandum have been, and copies
of the Offering Memorandum will be, delivered by the Company to the Initial
Purchasers pursuant to the terms of this Agreement. Any references herein to the
Preliminary Offering Memorandum and the Offering Memorandum shall be deemed to
include all amendments and supplements thereto, unless otherwise noted. The
Company hereby confirms that it has authorized the use of the Preliminary
Offering Memorandum and the Offering Memorandum in connection with the offering
and resale of the Securities by the Initial Purchasers in accordance with
Section 2.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of an Exchange
and Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Company
will agree to file with the Securities and Exchange Commission (the
"Commission") a registration statement under the Securities Act (the "Exchange
Offer Registration Statement") registering an issue of senior notes of the
Company and related guarantees of each of Guarantors (the "Exchange Securities")
which are identical in all material respects to the Securities (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions) and the Guarantees and under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement").
Concurrently with the consummation of the Offering, or shortly thereafter
the Company intends to (i) enter into a revolving credit facility with Bank of
America, N.A., as administrative agent, JPMorgan Chase Bank, as syndication
agent, Banc of America Securities LLC, as sole lead arranger and sole book
manager, the lenders named therein and the subsidiary guarantors named therein
for an aggregate borrowing of up to $200,000,000 (the "New Credit Facility"),
and (ii) issue and sell $90,000,000 aggregate principal amount of its
Convertible Senior Notes due 2023 (the "Convertible Notes"). The Convertible
Notes will be issued pursuant to an indenture to be dated as of April 15, 2003
(the "Convertible Notes Indenture") among the Company, the subsidiary guarantors
named therein and the Trustee. Assuming these transactions are consummated
concurrently, the proceeds from the sale of the Securities, together with
borrowings under the New Credit Facility and proceeds of the sale of the
Convertible Notes, will be used (i) to repay outstanding indebtedness of the
Company under its existing credit facility, (ii) purchase shares of the
Company's common stock (iii) to pay related fees and expenses and (iv) for
general corporate purposes, including additional repurchases of shares of the
Company's common stock.
Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company and each of
the Guarantors. The Company and the Guarantors jointly and severally represent
and warrant to, and agree with, the several Initial Purchasers on and as of the
date hereof and the Closing Date (as defined in Section 3) that:
2
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date the
Offering Memorandum will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company and each of the Guarantors make no representation or warranty as to
information contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum in reliance upon and in conformity
with written information relating to the Initial Purchasers furnished to
the Company or the Guarantors by or on behalf of any Initial Purchaser
specifically for use therein as specified in Section 16 hereof (the
"Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 2 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or, until such time as the
Exchange Securities are issued pursuant to an effective registration
statement, to qualify the Indenture under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
(d) The Company and each of its subsidiaries have been duly
incorporated or formed, as the case may be, and are validly existing
corporations or limited liability companies, as the case may be, in good
standing under the laws of their respective jurisdictions of incorporation
or formation as the case may be, are duly qualified to do business and are
in good standing as foreign corporations or foreign limited liability
companies, as the case may be, in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure
to so qualify or have such power or authority would not, singularly or in
the aggregate, reasonably be expected to result in a material adverse
effect on the condition (financial or otherwise), results of operations or
business or prospects of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect"). Schedule 2 sets forth all of the direct and
indirect subsidiaries of the Company.
3
(e) The Company has an authorized capitalization as set forth in the
Offering Memorandum under the heading "Capitalization"; all of the
outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable. Except
as noted on Schedule 2, all the outstanding shares of capital stock or
membership interests, as the case may be, of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free
and clear of any lien, charge, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third party.
(f) The Company and each of the Guarantors has full right and
authority to execute and deliver this Agreement, the Indenture (including
the Guarantees set forth therein), the Registration Rights Agreement, the
Securities (in the case of the Company only), the Exchange Securities (in
the case of the Company only) and the related guarantees (collectively, the
"Transaction Documents") and to perform their respective obligations
hereunder and thereunder; and, as of the Closing Date, all corporate or
limited liability company action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby
will have been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors and constitutes a valid and legally
binding agreement of the Company and each of the Guarantors, except as
rights to indemnification and contribution may be limited by public policy
considerations or applicable law.
(h) The Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the
Guarantors enforceable against the Company and each of the Guarantors in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(i) The Indenture has been duly authorized by the Company and each of
the Guarantors and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and each of the Guarantors enforceable
against the Company and each of the Guarantors in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
by general equitable principles
4
(whether considered in a proceeding in equity or at law). On the Closing
Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder.
(j) The Securities have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided in the
Indenture (assuming the Indenture is the valid and legally binding
obligation of the Trustee and due authentication of the Securities by the
Trustee) and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations
of the Company, as issuer, and each of the Guarantors, as guarantors,
entitled to the benefits of the Indenture and enforceable against the
Company, as issuer, and each of the Guarantors, as guarantors, in
accordance with their terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(k) Each of the Guarantors that, as of the date of the Guarantees, is
a guarantor of the $150,000,000 of 7 1/2% Senior Notes due 2006 issued by
Manor Care of America, Inc. and the $200,000,000 of 8% Senior Notes due
2008 issued by Manor Care, Inc. is also a Guarantor of the Securities.
Schedule 3 attached hereto sets forth all the Significant Subsidiaries of
the Company (as within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission) and each such Significant Subsidiary is a
Guarantor of the Securities. The Guarantees have been duly authorized by
each of the Guarantors and, when the Securities have been duly executed,
authenticated, issued and delivered as provided in the Indenture and paid
for as provided herein (assuming due authorization, execution and delivery
of the Indenture by the Trustee and due authentication of the Securities by
the Trustee), will constitute valid and legally binding obligations of each
of the Guarantors, enforceable against the Guarantors in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and to general equitable principles (whether considered in
a proceeding in equity or at law).
(l) The Exchange Securities have been duly authorized by the Company
and the related guarantees have been duly authorized by each of the
Guarantors and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and the Registration Rights Agreement (assuming
the Indenture is the valid and legally binding obligation of the Trustee)
will constitute a valid and legally binding obligation of the Company, as
issuer, and each of the Guarantors, as guarantors, enforceable against the
Company, as issuer, and each of the Guarantors, as guarantors, in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar
5
laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(m) Each of the Indenture and the Registration Rights Agreement
conforms in all material respects to the description thereof contained in
the Offering Memorandum.
(n) The execution, delivery and performance by the Company and each of
the Guarantors of each of the Transaction Documents to which it is a party,
the issuance, authentication, sale and delivery of the Securities and
compliance by the Company and each of the Guarantors with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
any material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws (or any other comparable
organizational documents) of the Company or any of its subsidiaries or any
statute or any judgment, order, decree, rule or regulation of any court or
arbitrator or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets;
and no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental agency or
body under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company and
each of the Guarantors of each of the Transaction Documents to which each
is a party, the issuance, authentication, sale and delivery of the
Securities, the issuance of the Guarantees, the issuance, authentication
and delivery of the Exchange Securities and the related guarantees and
compliance by the Company and each of the Guarantors with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations, filings,
registrations or qualifications which shall have been obtained or made
prior to the Closing Date and as may be required to be obtained or made
under the Securities Act and applicable state securities laws as provided
in the Registration Rights Agreement.
(o) Ernst & Young LLP are independent certified public accountants
with respect to the Company and its subsidiaries (i) as required by the
Securities Act and the rules and regulations of the Commission thereunder
and (ii) within the meaning of Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants ("AICPA") and its
interpretations and rulings thereunder. The historical financial statements
(including the related notes) contained in the Offering Memorandum comply
as to form in all material
6
respects with the requirements applicable to a registration statement on
Form S-1 under the Securities Act (except that certain supporting schedules
are omitted); such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods covered thereby and fairly present the financial
position of the entities purported to be covered thereby at the respective
dates indicated and the results of their operations and their cash flows
for the respective periods indicated; and the financial information
contained in the Offering Memorandum under the headings "Offering
Memorandum Summary--Summary Consolidated Financial Data", "Capitalization
of the Company", "Selected Historical Consolidated Financial Data", and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" are derived from the accounting records of the Company and its
subsidiaries and fairly present the information purported to be shown
thereby. The as adjusted financial information contained in the Offering
Memorandum has been prepared on a basis consistent with the historical
financial statements contained in the Offering Memorandum (except for the
adjustments specified therein). The other historical financial and
statistical information and data included in the Offering Memorandum are,
in all material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Company.
(p) Except as otherwise disclosed in the Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property or assets of
the Company or any of its subsidiaries is the subject which, singularly or
in the aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect, and to the best knowledge of the Company, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(q) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Securities or the issuance of the
Guarantees or suspends the sale of the Securities in any jurisdiction; no
injunction, restraining order or order of any nature by any federal or
state court of competent jurisdiction has been issued with respect to the
Company or any of its subsidiaries which would prevent or suspend the
issuance or sale of the Securities or the issuance of the Guarantees or the
use of the Preliminary Offering Memorandum or the Offering Memorandum in
any jurisdiction; no action, suit or proceeding is pending against or, to
the best knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries before any court or arbitrator or any
governmental agency, body or official, domestic or foreign, which could
reasonably be expected to interfere with or adversely affect the issuance
of the Securities or the issuance of the Guarantees or in any manner draw
into question the validity or enforceability of any of the Transaction
Documents or any action taken or to be taken pursuant thereto; and the
Company has complied with any
7
and all requests by any securities authority in any jurisdiction for
additional information to be included in the Preliminary Offering
Memorandum and the Offering Memorandum.
(r) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws (or other comparable organizational
documents), (ii) in default, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject, which, singularly or in the
aggregate, could reasonably be expected to have a Material Adverse Effect,
or (iii) in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject which,
singularly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(s) The Company and each of its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have made
all declarations and filings with, the appropriate federal, state or
foreign regulatory agencies or bodies which are necessary for the ownership
of their respective properties or the conduct of their respective
businesses as described in the Offering Memorandum, except where the
failure to possess or make the same would not, singularly or in the
aggregate, have a Material Adverse Effect, and neither the Company nor any
of its subsidiaries has received notification of any revocation or
modification of any such license, certificate, authorization or permit,
which, singularly or in the aggregate, could reasonably be expected to have
a Material Adverse Effect, or has any reason to believe that any such
license, certificate, authorization or permit will not be renewed in the
ordinary course.
(t) The Company and each of its subsidiaries have filed all material
federal, state, local and foreign income and franchise tax returns required
to be filed through the date hereof and have paid all taxes due and owing
thereon, other than those being contested in good faith and for which
adequate reserves have been provided. No tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor does
the Company or any of its subsidiaries have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have) a Material Adverse
Effect, except those deficiencies for which adequate reserves have been
established.
(u) Neither the Company nor any of its subsidiaries is an "investment
company" or a company "controlled by" an investment company within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder.
8
(v) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(w) The Company and each of its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, as are
consistent with industry practice to protect the Company and its
subsidiaries and their respective businesses. Neither the Company nor any
of its subsidiaries has received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance.
(x) The Company and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) presently employed by them in
connection with the respective businesses now operated by them; and the use
of such rights in connection with their respective businesses will not
conflict in any material respect with, and the Company and its subsidiaries
have not received any notice of any claim of conflict with, any such rights
of others, except such conflicts which, singularly or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(y) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property which are material to the business of
the Company and its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except such as
do not materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries or could not reasonably
be expected to have a Material Adverse Effect, except with respect to
secured debt described in the Offering Memorandum.
(z) Except for those that could not reasonably be expected to have a
Material Adverse Effect, no labor disturbance by or dispute with the
employees of the Company or any of its subsidiaries exists or, to the best
knowledge of the Company, is contemplated or threatened.
9
(aa) Except to the extent such events could not reasonably be expected
to have a Material Adverse Effect, no "prohibited transaction" (as defined
in Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended
from time to time (the "Code")) or accumulated funding deficiency" (as
defined in Section 302 of ERISA) or any of the events set forth in Section
4043(b) of ERISA (other than events with respect to which the 30-day notice
requirement under Section 4043 of ERISA has been waived) has occurred with
respect to any employee benefit plan of the Company or any of its
subsidiaries; each such employee benefit plan is in compliance with
applicable law, including ERISA and the Code; the Company and each of its
subsidiaries have not incurred and do not expect to incur liability under
Title IV of ERISA with respect to the termination of, or withdrawal from,
any pension plan for which the Company or any of its subsidiaries would
have any liability; and each such pension plan that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which could cause the
loss of such qualification.
(bb) Except as described in the Offering Memorandum, there has been no
storage, generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other wastes
or other hazardous substances by, due to or caused by the Company or any of
its subsidiaries (or, to the best knowledge of the Company, any other
entity (including any predecessor) for whose acts or omissions the Company
or any of its subsidiaries is or could reasonably be expected to be liable)
upon any of the property now or previously owned or leased by the Company
or any of its subsidiaries, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree or
permit or which would, under any statute or any ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit, give
rise to any liability, except for any violation or liability that could not
reasonably be expected to have, singularly or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; and there has
been no disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to which
the Company or any of its subsidiaries has any knowledge, except for any
such disposal, discharge, emission or other release of any kind which could
not reasonably be expected to have, singularly or in the aggregate with all
such discharges and other releases, a Material Adverse Effect.
(cc) On and immediately after the Closing Date, the Company and each
of the Guarantors (after giving effect to the issuance of the Securities
and to the other transactions related thereto as described in the Offering
Memorandum) will be Solvent. As used in this paragraph, the term "Solvent"
means, with respect to a particular date, that on such date the present
fair market value (or present fair
10
saleable value) of the assets of the Company or such Guarantor, as the case
may be, is not less than the total amount required to pay the probable
liabilities of the Company or such Guarantor on its total existing debts
and liabilities (including contingent liabilities) as they become absolute
and matured, the Company or such Guarantor is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and
commitments as they mature and become due in the normal course of business,
assuming the sale of the Securities as contemplated by this Agreement and
the Offering Memorandum, the Company or such Guarantor is not incurring
debts or liabilities beyond its ability to pay as such debts and
liabilities mature and the Company or such Guarantor is not engaged in any
business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which the Company or such Guarantor is engaged. In computing
the amount of such contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount that, in the light of all
the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
(dd) Except as described in the Offering Memorandum, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in the Company
or any of its subsidiaries.
(ee) Neither the Company nor any of its subsidiaries or agents has
taken, and none of them will take, any action that might cause this
Agreement or the issuance and sale of the Securities or the issuance of the
Guarantees to violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
(ff) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give rise
to a valid claim against the Company or the Initial Purchasers for a
brokerage commission, finder's fee or like payment in connection with the
offering and sale of the Securities.
(gg) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(hh) None of the Company, any of its affiliates or any person acting
on its or their behalf has engaged or will engage in any directed selling
efforts (as such term is defined in Regulation S under the Securities Act
("Regulation S")), and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S to the extent
applicable.
11
(ii) Exclusive of the Initial Purchasers, neither the Company nor any
of its affiliates has, directly or through any agent, sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as such term is defined in the Securities Act), which is or will
be integrated with the sale of the Securities in a manner that would
require registration of the Securities under the Securities Act.
(jj) None of the Company or any of its affiliates or any other person
acting on its or their behalf has engaged, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(kk) Neither the Company nor any of its affiliates has taken and will
not take, directly or indirectly, any action prohibited by Regulation M
under the Exchange Act in connection with the offering of the Securities.
(ll) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(mm) Since the date as of which information is given in the Offering
Memorandum (exclusive of amendments or supplements after the date hereof),
except as otherwise stated therein, (i) there has been no material adverse
change or any development involving a prospective material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, management or business prospects of the Company, whether or not
arising in the ordinary course of business, (ii) none of the Company or any
of its subsidiaries has incurred any material liability or obligation,
direct or contingent, other than in the ordinary course of business, (iii)
none of the Company or any of its subsidiaries has entered into any
material transaction other than in the ordinary course of business, (iv)
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, paid or made by the Company or any of its subsidiaries on
any class of its capital stock, or any redemption in respect thereof and
(v) neither the Company nor any of its subsidiaries has sustained any
material loss or interference with its business from fire, explosion, flood
or other calamity, in each case not covered by insurance, or from any labor
disturbance or dispute, except in each case as otherwise disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum.
(nn) No Guarantor is currently prohibited, directly or indirectly,
under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other
distribution on such Guarantor's capital stock, from repaying to the
Company any loans or advances to such Guarantor from the Company or from
transferring any of such
12
Guarantor's properties or assets to the Company or any other subsidiary of
the Company.
(oo) Nothing has come to the attention of the Company that has caused
the Company to believe that the statistical and market-related data
included in the Preliminary Offering Memorandum and the Offering Memorandum
is not based on or derived from sources that are reliable and accurate in
all material respects.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount of Securities set forth opposite the name of such
Initial Purchaser on Schedule 4 hereto at a purchase price equal to 98.436% of
the principal amount thereof. The Company shall not be obligated to deliver any
of the Securities except upon payment for all of the Securities to be purchased
as provided herein.
(b) The Initial Purchasers have advised the Company that they propose to
offer the Securities for resale upon the terms and subject to the conditions set
forth herein and in the Offering Memorandum. Each Initial Purchaser, severally
and not jointly, represents, warrants to and agrees with the Company that (i) it
is purchasing the Securities pursuant to an exemption from registration under
the Securities Act, (ii) it has not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, the Securities by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D under the Securities Act ("Regulation D") and (iii)
it has solicited and will solicit offers for the Securities only from, and has
offered or sold and will offer, sell or deliver the Securities, as part of their
initial offering, only (A) within the United States to persons whom it
reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule
144A"), or if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to it that each such account is a Qualified Institutional Buyer to
whom notice has been given that such sale or delivery is being made in reliance
on Rule 144A and (B) outside the United States to persons other than U.S.
persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on
Regulation S, each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) such Initial Purchaser is a Qualified Institutional Buyer, with
such knowledge and experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an investment in the
Securities.
13
(ii) the Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except pursuant to an exemption from,
or in transactions not subject to, the registration requirements of the
Securities Act.
(iii) such Initial Purchaser has offered and sold the Securities, and
will offer and sell the Securities, (A) as part of its distribution at any
time and (B) otherwise until 40 days after the later of the commencement of
the offering of the Securities and the Closing Date, only in accordance
with Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act.
(iv) none of such Initial Purchaser or any of its affiliates or any
other person acting on its or their behalf has engaged or will engage in
any directed selling efforts (as such term is defined in Regulation S) with
respect to the Securities or the Guarantees, and all such persons have
complied and will comply with the offering restrictions requirement of
Regulation S.
(v) at or prior to the confirmation of sale of any Securities sold in
reliance on Regulation S, it will have sent to each distributor, dealer or
other person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered or sold within the United States or to, or
for the account or benefit of U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering of the Securities
and the date of original issuance of the Securities, except in
accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms used
above have the meanings given to them by Regulation S."
(vi) it has not and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the Securities,
except with its affiliates or with the prior written consent of the
Company.
Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents, warrants
and agrees that (i) it has not offered or sold and prior to the date six months
after the Closing Date will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the United Kingdom
14
Public Offers of Securities Regulations 1995 (as amended); (ii) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the United Kingdom Financial Services and
Markets Act 2000 (the "FSMA")) received by it in connection with the issue or
sale of any Securities in circumstances in which Section 21(1) of the FSMA does
not apply to the Company or the Guarantors; and (iii) it has complied and will
comply with all applicable provisions of the FSMA with respect to anything done
by it in relation to the Securities in, from or otherwise involving the United
Kingdom.
(e) Each Initial Purchaser, severally and not jointly, agrees that, prior
to or simultaneously with the confirmation of sale by such Initial Purchaser to
any purchaser of any of the Securities purchased by such Initial Purchaser from
the Company pursuant hereto, such Initial Purchaser shall furnish to that
purchaser a copy of the Offering Memorandum (and any amendment or supplement
thereto that the Company shall have furnished to such Initial Purchaser prior to
the date of such confirmation of sale where required by applicable law). In
addition to the foregoing, each Initial Purchaser acknowledges and agrees that
the Company and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 5(d), (e) and (g), counsel for the Company and
for the Initial Purchasers, respectively, may rely upon the accuracy of the
representations and warranties of the Initial Purchasers and their compliance
with their agreements contained in this Section 2, and each Initial Purchaser
hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers may
sell Securities to any affiliate of an Initial Purchaser and that any such
affiliate may sell Securities purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and payment
for the Securities shall be made at the offices of Simpson Thacher & Bartlett,
New York, New York, or at such other place as shall be agreed upon by the
Initial Purchasers and the Company, at 10:00 A.M., New York City time, on April
15, 2003, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Initial Purchasers and the Company
(such date and time of payment and delivery being referred to herein as the
"Closing Date").
(b) On the Closing Date, payment of the purchase price for the Securities
shall be made to the Company by wire or book-entry transfer of same-day funds to
such account or accounts as the Company shall specify prior to the Closing Date
or by such other means as the parties hereto shall agree prior to the Closing
Date against delivery to the Initial Purchasers of the certificates evidencing
the Securities. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of the Initial Purchasers hereunder. Upon delivery, the Securities shall be in
global form, registered in such names and in such denominations as JPMorgan on
behalf of the Initial Purchasers shall have requested in writing not less than
two full business days prior to the Closing Date. The Company agrees to make one
or more global certificates evidencing the Securities available for
15
inspection by JPMorgan on behalf of the Initial Purchasers in New York, New York
at least 24 hours prior to the Closing Date.
4. Further Agreements of the Company and each of the Guarantors. Each of
the Company and each of the Guarantors agrees with each of the several Initial
Purchasers:
(a) during the period referred to in Section 4(d), to advise the
Initial Purchasers promptly and, if requested, confirm such advice in
writing, of the happening of any event which makes any statement of a
material fact made in the Offering Memorandum untrue or which requires the
making of any additions to or changes in the Offering Memorandum (as
amended or supplemented from time to time) in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; to advise the Initial Purchasers promptly of any order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the initiation
or threatening of any proceeding for any such purpose; and to use its
reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum or suspending any such qualification and, if any
such suspension is issued, to obtain the lifting thereof at the earliest
possible time;
(b) to furnish promptly to each of the Initial Purchasers and counsel
for the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers and
counsel for the Initial Purchasers and not to effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by
notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchasers or counsel for the Company, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
16
(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
to furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act
(the foregoing agreement being for the benefit of the holders from time to
time of the Securities and prospective purchasers of the Securities
designated by such holders);
(f) for so long as the Securities are outstanding, upon the request of
an Initial Purchaser, to furnish to the Initial Purchasers copies of any
annual reports, quarterly reports and current reports filed by the Company
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar
forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to the Trustee
or to the holders of the Securities pursuant to the Indenture or the
Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may designate and to continue such qualifications in
effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial Purchasers
may reasonably request; provided that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations or limited
liability companies in any jurisdiction in which they are not so qualified
or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market and for the Securities to
be eligible for clearance and settlement through The Depository Trust
Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require
registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, not to, and to cause its affiliates not to, and not to authorize or
knowingly permit any person acting on their behalf to, solicit any offer to
buy or offer to sell the
17
Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act;
and not to offer, sell, contract to sell or otherwise dispose of, directly
or indirectly, any securities under circumstances where such offer, sale,
contract or disposition would cause the exemption afforded by Section 4(2)
of the Securities Act to cease to be applicable to the offering and sale of
the Securities as contemplated by this Agreement and the Offering
Memorandum;
(k) for a period of 90 days from the date of the Offering Memorandum,
not to offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or announce
any offer, sale, contract for sale of or other disposition of any debt
securities issued or guaranteed by the Company or any of its subsidiaries
(other than the Securities or the Exchange Notes) without the prior written
consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchasers,
not to, and not permit any of its affiliates (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities that have been
reacquired by them, except for Securities purchased by the Company or any
of its affiliates and resold in a transaction registered under the
Securities Act;
(m) in connection with the offering of the Securities, until JPMorgan
on behalf of the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act)
not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Securities, or attempt to induce any person
to purchase any Securities; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent active trading in or of raising the price of the
Securities;
(n) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(o) to furnish to each of the Initial Purchasers on the date hereof a
copy of the independent accountants' report included in the Offering
Memorandum signed by the accountants rendering such report;
(p) to do and perform all things required to be done and performed by
it under this Agreement that are within its reasonable control prior to or
after the Closing Date, and to use its reasonable best efforts to satisfy
all conditions precedent on its part to the delivery of the Securities;
18
(q) to not take any action prior to the execution and delivery of the
Indenture which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would
require the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with the
past practices of the Company and of which the Initial Purchasers are
notified), without the prior written consent of the Initial Purchasers,
unless in the judgment of the Company and its counsel, and after
notification to the Initial Purchasers, such press release or communication
is required by law; and
(t) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds".
(u) Neither the Company nor any of the Guarantors will take, directly
or indirectly, any action designed to or that could reasonably be expected
to cause or result in any stabilization or manipulation of the price of the
Securities.
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company and the Guarantors contained
herein, to the accuracy of the statements of the Company, the Guarantors and
each of their respective officers made in any certificates delivered pursuant
hereto, to the performance by the Company and the Guarantors of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchasers
may agree; and no stop order suspending the sale of the Securities in any
jurisdiction shall have been issued and no proceedings for the purpose
shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and disclosed
to the Company on or prior to the Closing Date that the Offering Memorandum
or any amendment or supplement thereto contains an untrue statement of a
fact which, in the opinion of counsel for the Initial Purchasers, is
material or omits to
19
state any fact which, in the opinion of such counsel is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate or limited liability company proceedings and other
legal matters incident to the authorization, form and validity of each of
the Transaction Documents and the Offering Memorandum, and all other legal
matters relating to the Transaction Documents and the transactions
contemplated thereby, shall be satisfactory in all material respects to the
Initial Purchasers, and the Company and each of the Guarantors shall have
furnished to the Initial Purchasers all documents and information that they
or their counsel may reasonably request to enable them to pass upon such
matters.
(d) Latham & Watkins Illinois LLC shall have furnished to the Initial
Purchasers their written opinion, as special counsel to the Company and
certain of the Guarantors, addressed to the Initial Purchasers and dated
the Closing Date, in form and substance reasonably satisfactory to the
Initial Purchasers, substantially in the form set forth in Annex B-1
hereto.
(e) R. Jeffrey Bixler, General Counsel of the Company, shall have
furnished to the Initial Purchasers his written opinion, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially in the
form set forth in Annex B-2 hereto.
(f) Reed Smith LLP, special regulatory counsel for the Company, shall
have furnished to the Initial Purchasers their written opinion, addressed
to the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially in the
form set forth in Annex B-3 hereto.
(g) The Initial Purchasers shall have received from Simpson Thacher &
Bartlett, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial
Purchasers may reasonably require, and the Company shall have furnished to
such counsel such documents and information as they request for the purpose
of enabling them to pass upon such matters.
(h) Epstein Becker & Green, P.C., special regulatory counsel for the
Initial Purchasers, shall have furnished to the Initial Purchasers their
written opinion, addressed to the Initial Purchasers and dated the Closing
Date, in form and substance reasonably satisfactory to the Initial
Purchasers.
(i) The Company shall have furnished to the Initial Purchasers a
letter (the "Initial Letter") of Ernst & Young LLP, addressed to the
Initial Purchasers and dated the date hereof, in form and substance
satisfactory to the Initial Purchasers.
20
(j) The Company shall have furnished to the Initial Purchasers a
letter (the "Bring-Down Letter") of Ernst & Young LLP, addressed to the
Initial Purchasers and dated the Closing Date (A) confirming that they are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the AICPA and its interpretations and rulings thereunder, (B)
stating, as of the date of the Bring-Down Letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Offering Memorandum,
as of a date not more than three business days prior to the date of the
Bring-Down Letter), that the conclusions and findings of such accountants
with respect to the financial information and other matters covered by the
Initial Letter are accurate and (C) confirming in all material respects the
conclusions and findings set forth in the Initial Letter.
(k) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its chief executive officer or its
chief financial officer stating that (A) such officers have carefully
examined the Offering Memorandum, (B) in their opinion, the Offering
Memorandum, as of its date, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
since the date of the Offering Memorandum, no event has occurred which
should have been set forth in a supplement or amendment to the Offering
Memorandum so that the Offering Memorandum (as so amended or supplemented)
would not include any untrue statement of a material fact and would not
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (C) as of the Closing Date,
the representations and warranties of the Company and the each of the
Guarantors, as applicable, in this Agreement are true and correct in all
material respects, the Company and the each of the Guarantors, as
applicable, have complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder on or prior to the
Closing Date, and subsequent to the date of the most recent financial
statements contained in the Offering Memorandum (exclusive of amendments or
supplements to the Offering Memorandum after the date hereof), there has
been no material adverse change in the financial position or results of
operation of the Company or any of its subsidiaries, or any change, or any
development including a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects of
the Company and its subsidiaries taken as a whole, except as set forth in
the Offering Memorandum (exclusive of amendments or supplements after the
date hereof).
(l) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement that shall have been executed and delivered
by a duly authorized officer or agent of the Company and of each of the
Guarantors.
21
(m) The Indenture shall have been duly executed and delivered by the
Company, each of the Guarantors and the Trustee, and the Securities shall
have been duly executed and delivered by the Company and duly authenticated
by the Trustee.
(n) The Securities shall have been approved by the NASD for trading in
the PORTAL Market and shall be eligible for clearance and settlement
through DTC.
(o) If any event shall have occurred that requires the Company under
Section 4(d) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(p) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of
any rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of
the Securities contemplated hereby.
(q) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any change in the capital stock or long-term debt or any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, the effect
of which, in any such case described above, is, in the judgment of the
Initial Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the
terms and in the manner contemplated by this Agreement and the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(r) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Securities or the issuance of the Guarantees; and no
injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Securities or
the issuance of the Guarantees.
(s) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Securities or
any
22
other debt securities or preferred stock issued or guaranteed by the
Company or any of the Guarantors by any "nationally recognized statistical
rating organization", as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, or has changed its outlook with respect to, its rating of the
Securities or of any other debt securities or preferred stock issued or
guaranteed by the Company or any of the Guarantors (other than an
announcement with positive implications of a possible upgrading).
(t) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading generally shall
have been suspended or materially limited on the New York Stock Exchange or
the over-the-counter market; (ii) trading of any securities issued or
guaranteed by the Company or any of the Guarantors shall have been
suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities or material disruption
of securities clearance or settlement systems shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of JPMorgan, is material and adverse and
makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Securities on the terms and in the manner contemplated by
this Agreement and the Offering Memorandum.
(u) JPMorgan shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and its
Significant Subsidiaries in their respective jurisdictions of organization
and their good standing in the other jurisdictions set forth on Schedule 3
hereto, in each case in writing or any standard form of telecommunication,
from the appropriate governmental authorities of such jurisdictions.
(v) On or prior to the Closing Date, the Company and the Guarantors
shall have furnished to JPMorgan such further certificates and documents as
JPMorgan may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to Simpson Thacher & Bartlett.
6. Termination. The obligations of the Initial Purchasers hereunder may be
terminated by the Initial Purchasers, in their absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities if, prior to that time, any of the events described in Section 5(p),
(q), (r), (s) or (t) shall have occurred and be continuing.
23
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any Initial
Purchaser defaults in the performance of its obligations under this Agreement,
the non-defaulting Initial Purchasers may make arrangements for the purchase of
the Securities which such defaulting Initial Purchaser agreed but failed to
purchase by other persons satisfactory to the Company and the non-defaulting
Initial Purchasers, but if no such arrangements are made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
the non-defaulting Initial Purchasers, the Company, or the Guarantors, except
that the Company and the Guarantors will continue to be liable for the payment
of expenses to the extent set forth in Sections 8 and 12 and except that the
provisions of Sections 9 and 10 shall not terminate and shall remain in effect.
As used in this Agreement, the term "Initial Purchasers" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule 4 hereto that, pursuant to this Section 7, purchases
Securities which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial Purchaser
of any liability it may have to the Company, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons are obligated or agree to purchase the Securities of a defaulting
Initial Purchaser, any of the non-defaulting Initial Purchasers or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Initial Purchasers may be necessary in the Offering Memorandum or in any
other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Offering Memorandum that effects any such
changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this Agreement
shall have been terminated due to the failure to comply with any of subsection
of Section 5 (other than due to the events described in Section 5(p), (r) or (t)
(other than clause (ii) of Section 5(t)), in which case each party will be
responsible for its own expenses) or pursuant to Section 6, (b) the Company
shall fail to tender the Securities for delivery to the Initial Purchasers for
any reason or (c) the Initial Purchasers shall decline to purchase the
Securities for any reason permitted under this Agreement, the Company and the
each of the Guarantors shall reimburse the Initial Purchasers for such
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
as shall have been reasonably incurred by the Initial Purchasers in connection
with this Agreement and the proposed purchase and resale of the Securities. If
this Agreement is terminated pursuant to Section 7 by reason of the default of
one or more of the Initial Purchasers, neither the Company nor the Guarantors
shall be obligated to reimburse any defaulting Initial Purchaser on account of
such expenses.
9. Indemnification. (a) The Company and each of the Guarantors shall
jointly and severally indemnify and hold harmless each Initial Purchaser, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section
24
9(a) and Section 10 as an Initial Purchaser), from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of the Securities), to which that Initial
Purchaser may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Offering Memorandum or in any amendment or supplement
thereto or in any information provided by the Company or any Guarantor pursuant
to Section 4(e) or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and shall reimburse each Initial Purchaser promptly upon
demand for any legal or other expenses reasonably incurred by that Initial
Purchaser in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and each of the Guarantors shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with any Initial Purchasers' Information; and provided,
further, that with respect to any such untrue statement in or omission from the
Preliminary Offering Memorandum, the indemnity agreement contained in this
Section 9(a) shall not inure to the benefit of any such Initial Purchaser to the
extent that the sale to the person asserting any such loss, claim, damage,
liability or action was an initial resale by such Initial Purchaser and any such
loss, claim, damage, liability or action of or with respect to such Initial
Purchaser results from the fact that both (A) to the extent required by
applicable law, a copy of the Offering Memorandum was not sent or given to such
person at or prior to the written confirmation of the sale of such Securities to
such person and (B) the untrue statement in or omission from the Preliminary
Offering Memorandum was corrected in the Offering Memorandum unless, in either
case, such failure to deliver the Offering Memorandum was a result of
non-compliance by the Company with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall indemnify and
hold harmless the Company, each Guarantor and their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 9(b) and Section 10
as the Company), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering
25
Memorandum or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any Initial
Purchasers' Information provided by such Initial Purchaser, and shall reimburse
the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 9(a) or 9(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 9. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
26
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (x) includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceedings and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
The obligations of the Company, each of the Guarantors and the Initial
Purchasers in this Section 9 and in Section 10 are in addition to any other
liability that the Company, each of the Guarantors or the Initial Purchasers, as
the case may be, may otherwise have, including in respect of any breaches of
representations, warranties and agreements made herein by any such party.
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and each of the Guarantors on the one hand and
the Initial Purchasers on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and each of the Guarantors on the one hand and the Initial Purchasers on
the other with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the each of the Guarantors on the one hand and the Initial
Purchasers on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by or on behalf of the Company and each of the Guarantors, on the one hand, and
the total discounts and commissions received by the Initial Purchasers with
respect to the Securities purchased under this Agreement, on the other, bear to
the total gross
27
proceeds from the sale of the Securities under this Agreement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to the Company and each of the
Guarantors or information supplied by the Company and each of the Guarantors on
the one hand or to any Initial Purchasers' Information on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omissions. The
Company, each of the Guarantors and the Initial Purchasers agree that it would
not be just and equitable if contributions pursuant to this Section 10 were to
be determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 10 shall be deemed to include, for purposes of this Section 10, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 10, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discounts and commissions received by such Initial Purchaser
with respect to the Securities purchased by it under this Agreement exceeds the
amount of any damages which such Initial Purchaser has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute as provided
in this Section 10 are several in proportion to their respective purchase
obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
each of the Guarantors and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Sections 9 and 10 with respect to officers, directors,
employees, representatives, agents and controlling persons of the Company and
each of the Guarantors and affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Initial Purchasers and in
Section 4(e) with respect to holders and prospective purchasers of the
Securities. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Section 11, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
12. Expenses. The Company and each of the Guarantors agrees with the
Initial Purchasers to pay (a) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendments or supplements
28
thereto; (c) the costs of reproducing and distributing each of the Transaction
Documents; (d) the costs incident to the preparation, printing and delivery of
the certificates evidencing the Securities, including stamp duties and transfer
taxes, if any, payable upon issuance of the Securities; (e) the fees and
expenses of the Company's counsel and independent accountants; (f) the fees and
expenses of qualifying the Securities under the securities laws of the several
jurisdictions as provided in Section 4(g) and of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of counsel
for the Initial Purchasers); (g) any fees charged by rating agencies for rating
the Securities; (h) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (i) all
expenses and application fees incurred in connection with the application for
the inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (j) all other costs and expenses
incident to the performance of the obligations of the Company and the Guarantors
under this Agreement which are not otherwise specifically provided for in this
Section 12; provided, however, that except as provided in this Section 12 and
Section 8, the Initial Purchasers shall pay their own costs and expenses,
including the fees and disbursements of their counsel and any advertising
expenses (other than with respect to any roadshow presentation) connected with
any offers they may make.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, each of the
Guarantors and the Initial Purchasers contained in this Agreement or made by or
on behalf of the Company, each of the Guarantors or the Initial Purchasers
pursuant to this Agreement or any certificate delivered pursuant hereto shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any of them or any of
their respective affiliates, officers, directors, employees, representatives,
agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail or
telecopy transmission to J.P. Morgan Securities Inc., 270 Park Avenue, New
York, New York 10017, Attention: Steven A. Tulip, Managing Director
(telecopier no.: (212) 270-1063); or
(b) if to the Company or the Guarantors, shall be delivered or sent by
mail or telecopy transmission to the address of the Company set forth in
the Offering Memorandum, Attention: Douglas Haag (telecopier no.: (419)
252-5571), with copies to General Counsel (telecopier no.: (419) 252-5599)
and Mike Levin, Latham & Watkins Illinois LLC (telecopier no.: (312)
993-9767).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request,
29
consent, notice or agreement given or made on behalf of the Initial Purchasers
by JPMorgan.
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
16. Initial Purchasers' Information. The parties hereto acknowledge and
agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum: the statements concerning the
Initial Purchasers contained in the third paragraph, the fifth and sixth
sentences of the eighth paragraph, the tenth paragraph, and the third, fourth,
fifth, seventh and ninth sentences of the eleventh paragraph under the heading
"Plan of Distribution".
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed agreement, counterparts
shall each be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
21. Authority of JPMorgan. Any action by the Initial Purchasers
hereunder may be taken by J.P. Morgan Securities Inc. on behalf of the Initial
Purchasers, and any such action taken by J.P. Morgan Securities Inc. shall be
binding upon the Initial Purchasers.
30
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
MANOR CARE, INC.
By: /s/ R. Jeffrey Bixler
------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, Secretary and
General Counsel
31
SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING CORPORATION
AMERICANA HEALTHCARE CENTER OF PALOS
TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION OF GEORGIA
AMERICANA HEALTHCARE CORPORATION OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES, INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES, INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
32
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE, INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF FLORIDA,
INC.
HCR PHYSICIAN MANAGEMENT SERVICES, INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT CORPORATION OF
AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(fka Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES, INC.
33
HEARTLAND REHABILITATION SERVICES OF
FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES, INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE, RPT
PHYSICAL THERAPY PROFESSIONAL ASSOCIATES,
INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
34
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, INC
MANOR CARE OF NORTH OLMSTEAD, INC.
MANOR CARE OF PINEHURST, INC.
35
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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF NORTHHAMPTON
COUNTY, INC.
MANORCARE HEALTH SERVICES OF VIRGINIA, INC
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES, INC.
MILESTONE STAFFING SERVICES, INC.
36
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH THERAPY,
INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE, INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
37
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES, INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
By: /s/ R. Jeffrey Bixler
-----------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary of each of the above-
referenced corporations
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
38
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation,
its General Partner
By: /s/ R. Jeffrey Bixler
------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
39
HCR HOSPITAL, LLC
By: HCR Hospital Holding Company, Inc.,
its sole member
By: /s/ R. Jeffrey Bixler
------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
40
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Services, Inc.,
its sole member
By: /s/ R. Jeffrey Bixler
-------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
41
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation, its
General Partner
By: /s/ R. Jeffrey Bixler
-------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
42
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
43
By: Manor Care of America, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
44
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
By: Manor Care Health Services, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
45
HCR MANORCARE MESQUITE, L.P.
By: Mesquite Hospital, LLC, its
General Partner
By: /s/ R. Jeffrey Bixler
--------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone: 419-252-5500
46
Accepted: April 10, 2003
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
NATCITY INVESTMENTS, INC.
SUNTRUST CAPITAL MARKETS, INC.
By: J.P. MORGAN SECURITIES INC.
By /s/ Geoffrey Benson
________________________________
Authorized Signatory
47
SCHEDULE 1
GUARANTORS
SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(fka Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
COLEWOOD LIMITED PARTNERSHIP
HCR HOSPITAL, LLC
ANCILLARY SERVICES, LLC
BOOTH LIMITED PARTNERSHIP
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
HCR MANORCARE MESQUITE, L.P.
SCHEDULE 2
SUBSIDIARIES
MANOR CARE SUBSIDIARIES
HCRC INC. * Guarantor
HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA * Guarantor
HCR REHABILITATION CORP. * Guarantor
HEARTLAND REHABILITATION SERVICES, INC. * Guarantor
MANOR CARE OF AMERICA, INC * Guarantor
MANORCARE HEALTH SERVICES, INC. * Guarantor
AMERICAN HOSPITAL BUILDING CORPORATION Guarantor
AMERICANA HEALTHCARE CENTER OF PALOS TOWNSHIP, INC. Guarantor
AMERICANA HEALTHCARE CORPORATION OF GEORGIA Guarantor
AMERICANA HEALTHCARE CORPORATION OF NAPLES Guarantor
ANCILLARY SERVICES MANAGEMENT, INC. Guarantor
ANCILLARY SERVICES, LLC Guarantor
ANNANDALE ARDEN, LLC Guarantor
BAILY NURSING HOME, INC. Guarantor
BAINBRIDGE ARDEN, LLC Guarantor
BATH ARDEN, LLC Guarantor
BINGHAM FARMS ARDEN, LLC Guarantor
BIRCHWOOD MANOR, INC. Guarantor
BLUE RIDGE REHABILITATION SERVICES, INC. Guarantor
BOOTH LIMITED PARTNERSHIP Guarantor
CANTERBURY VILLAGE, INC. Guarantor
CHARLES MANOR, INC. Guarantor
CHESAPEAKE MANOR, INC. Guarantor
CLAIRE BRIDGE OF ANDERSON, LLC Guarantor
CLAIRE BRIDGE OF AUSTIN, LLC Guarantor
CLAIRE BRIDGE OF KENWOOD, LLC Guarantor
CLAIRE BRIDGE OF SAN ANTONIO, LLC Guarantor
CLAIRE BRIDGE OF SUSQUEHANNA, LLC Guarantor
CLAIRE BRIDGE OF WARMINSTER, LLC Guarantor
COLEWOOD LIMITED PARTNERSHIP Guarantor
COLONIE ARDEN, LLC Guarantor
CRESTVIEW HILLS, LLC Guarantor
DEKALB HEALTHCARE CORPORATION Guarantor
DEVON MANOR CORPORATION Guarantor
DISTCO, INC. Guarantor
DIVERSIFIED REHABILITATION SERVICES, INC. Guarantor
DONAHOE MANOR, INC. Guarantor
EAST MICHIGAN CARE CORPORATION Guarantor
EXECUTIVE ADVERTISING, INC. Guarantor
EYE-Q NETWORK, INC. Guarantor
FIRST LOUISVILLE ARDEN, LLC Guarantor
FOUR SEASONS NURSING CENTERS, INC. Guarantor
FRESNO ARDEN, LLC Guarantor
GENEVA ARDEN LLC Guarantor
GEORGIAN BLOOMFIELD, INC. Guarantor
GREENVIEW MANOR, INC. Guarantor
HANOVER ARDEN, LLC Guarantor
HCR HOME HEALTH CARE AND HOSPICE, INC. Guarantor
HCR HOSPITAL HOLDING COMPANY, INC. Guarantor
HCR HOSPITAL, LLC Guarantor
Asterisk indicates a "Significant Subsidiary"
MANOR CARE SUBSIDIARIES
HCR INFORMATION CORPORATION Guarantor
HCR MANORCARE MEDICAL SERVICES OF FLORIDA, INC. Guarantor
HCR MANORCARE MESQUITE, L.P. Guarantor
HCR PHYSICIAN MANAGEMENT SERVICES, INC. Guarantor
HCRA OF TEXAS, INC. Guarantor
HEARTLAND CAREPARTNERS, INC. Guarantor
HEARTLAND EMPLOYMENT SERVICES, INC. Guarantor
HEARTLAND HOME CARE, INC. Guarantor
HEARTLAND HOME HEALTH CARE SERVICES, INC. Guarantor
HEARTLAND HOSPICE SERVICES, INC. Guarantor
HEARTLAND INFORMATION SERVICES, INC. (fka Heartland Medical Information Services, Inc.) Guarantor
HEARTLAND MANAGEMENT SERVICES, INC. Guarantor
HEARTLAND REHABILITATION SERVICES OF FLORIDA, INC. Guarantor
HEARTLAND SERVICES CORP. Guarantor
HERBERT LASKIN, RPT - JOHN MCKENZIE, RPT PHYSICAL THERAPY PROFESSIONAL ASSOCIATES, INC. Guarantor
HGCC OF ALLENTOWN, INC. Guarantor
IN HOME HEALTH, INC. Guarantor
INDUSTRIAL WASTES, INC. Guarantor
IONIA MANOR, INC. Guarantor
JACKSONVILLE HEALTHCARE CORPORATION Guarantor
JEFFERSON ARDEN, LLC Guarantor
KENSINGTON MANOR, INC. Guarantor
KENWOOD ARDEN, LLC Guarantor
KNOLLVIEW MANOR, INC. Guarantor
LEADER NURSING AND REHABILITATION CENTER OF BETHEL PARK, INC. Guarantor
LEADER NURSING AND REHABILITATION CENTER OF GLOUCESTER, INC. Guarantor
LEADER NURSING AND REHABILITATION CENTER OF SCOTT TOWNSHIP, INC. Guarantor
LEADER NURSING AND REHABILITATION CENTER OF VIRGINIA INC. Guarantor
LINCOLN HEALTH CARE, INC. Guarantor
LIVONIA ARDEN, LLC Guarantor
MANOR CARE AVIATION, INC. Guarantor
MANOR CARE OF AKRON, INC. Guarantor
MANOR CARE OF ARIZONA, INC. Guarantor
MANOR CARE OF ARLINGTON, INC. Guarantor
MANOR CARE OF BOCA RATON, INC. Guarantor
MANOR CARE OF BOYNTON BEACH, INC. Guarantor
MANOR CARE OF CANTON, INC. Guarantor
MANOR CARE OF CENTREVILLE, INC Guarantor
MANOR CARE OF CHARLESTON, INC. Guarantor
MANOR CARE OF CINCINNATI, INC. Guarantor
MANOR CARE OF COLUMBIA, INC. Guarantor
MANOR CARE OF DARIEN, INC. Guarantor
MANOR CARE OF DELAWARE COUNTY, INC. Guarantor
MANOR CARE OF DUNEDIN, INC. Guarantor
MANOR CARE OF FLORIDA, INC. Guarantor
MANOR CARE OF HINSDALE, INC. Guarantor
MANOR CARE OF KANSAS, INC. Guarantor
MANOR CARE OF KINGSTON COURT, INC. Guarantor
MANOR CARE OF LARGO, INC. Guarantor
MANOR CARE OF LEXINGTON, INC. Guarantor
Asterisk indicates a "Significant Subsidiary"
MANOR CARE SUBSIDIARIES
MANOR CARE OF MEADOW PARK, INC. Guarantor
MANOR CARE OF MIAMISBURG, INC Guarantor
MANOR CARE OF NORTH OLMSTEAD, INC. Guarantor
MANOR CARE OF PINEHURST, INC. Guarantor
MANOR CARE OF PLANTATION, INC. Guarantor
MANOR CARE OF ROLLING MEADOWS, INC. Guarantor
MANOR CARE OF ROSSVILLE, INC. Guarantor
MANOR CARE OF SARASOTA, INC. Guarantor
MANOR CARE OF WILLOUGHBY, INC. Guarantor
MANOR CARE OF WILMINGTON, INC. Guarantor
MANOR CARE OF YORK (NORTH), INC. Guarantor
MANOR CARE OF YORK (SOUTH), INC. Guarantor
MANOR CARE PROPERTIES, INC. Guarantor
MANORCARE HEALTH SERVICES OF BOYNTON BEACH, INC. Guarantor
MANORCARE HEALTH SERVICES OF VIRGINIA, INC. Guarantor
MANORCARE HEALTH SERVICES OF NORTHHAMPTON COUNTY, INC. Guarantor
MARINA VIEW MANOR, INC. Guarantor
MEDI-SPEECH SERVICE, INC. Guarantor
MEMPHIS ARDEN, LLC Guarantor
MESQUITE HOSPITAL, LLC Guarantor
MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC. Guarantor
MILESTONE HEALTH SYSTEMS, INC. Guarantor
MILESTONE HEALTHCARE, INC. Guarantor
MILESTONE REHABILITATION SERVICES, INC. Guarantor
MILESTONE STAFFING SERVICES, INC. Guarantor
MILESTONE THERAPY SERVICES, INC. Guarantor
MNR FINANCE CORP. Guarantor
MRC REHABILITATION, INC. Guarantor
NAPA ARDEN, LLC Guarantor
NEW MANORCARE HEALTH SERVICES, INC. Guarantor
PEAK REHABILITATION, INC. Guarantor
PERRYSBURG PHYSICAL THERAPY, INC Guarantor
PHYSICAL, OCCUPATIONAL, AND SPEECH THERAPY, INC. Guarantor
PNEUMATIC CONCRETE, INC. Guarantor
PORTFOLIO ONE, INC. Guarantor
REHABILITATION ADMINISTRATION CORPORATION Guarantor
REHABILITATION ASSOCIATES, INC. Guarantor
REHABILITATION SERVICES OF ROANOKE, INC. Guarantor
REINBOLT & BURKAM, INC. Guarantor
RICHARDS HEALTHCARE, INC. Guarantor
RIDGEVIEW MANOR, INC. Guarantor
ROANOKE ARDEN, LLC Guarantor
ROLAND PARK NURSING CENTER, INC. Guarantor
RVA MANAGEMENT SERVICES, INC. Guarantor
SAN ANTONIO ARDEN, LLC Guarantor
SILVER SPRING - WHEATON NURSING HOME, INC. Guarantor
SILVER SPRING ARDEN, LLC Guarantor
SPRINGHILL MANOR, INC. Guarantor
STEWALL CORPORATION Guarantor
STRATFORD MANOR, INC. Guarantor
Asterisk indicates a "Significant Subsidiary"
MANOR CARE SUBSIDIARIES
STUTEX CORP. Guarantor
SUN VALLEY MANOR, INC. Guarantor
SUSQUEHANNA ARDEN LLC Guarantor
TAMPA ARDEN, LLC Guarantor
THE NIGHTINGALE NURSING HOME, INC. Guarantor
THERAPY ASSOCIATES, INC. Guarantor
THERASPORT PHYSICAL THERAPY, INC. Guarantor
THREE RIVERS MANOR, INC. Guarantor
TOTALCARE CLINICAL LABORATORIES, INC. Guarantor
TUSCAWILLA ARDEN, LLC Guarantor
WALL ARDEN, LLC Guarantor
WARMINSTER ARDEN LLC Guarantor
WASHTENAW HILLS MANOR, INC. Guarantor
WHITEHALL MANOR, INC. Guarantor
WILLIAMSVILLE ARDEN, LLC Guarantor
DECA LIMITED PARTNERSHIP (not 100% owned)
EISELE & COMPANY, INC. (dormant)
HEARTLAND PROVIDER THERAPY NETWORK, INC. (dormant)
ELMHURST LIMITED PARTNERSHIP (dormant and not 100% owned)
HCR MANOR CARE MESQUITE LP (dormant)
HEART LAND ASIA (MAURITIUS) LIMITED (Foreign)
HEARTLAND BANGALORE TRANSCRIPTION AND SERVICES PRIVATE LIMITED (Foreign)
HEARTLAND DELHI TRANSCRIPTION AND SERVICES PRIVATE LIMITED (Foreign)
HEARTLAND INFORMATION AND CONSULTANCY SERVICES PRIVATE LIMITED (Foreign)
MANORCARE HEALTH SERVICES OF OKLAHOMA, INC. (dormant)
MANORCARE HEALTH SERVICES OF DELAWARE COUNTY, INC. (dormant)
MANOR CARE SUPPLY COMPANY (dormant)
MANORCARE HEALTH SERVICES OF WASHINGTON, INC. (dormant)
MID-ATLANTIC POST ACUTE NETWORK, INC. (dormant and not 100% owned)
NUVISTA REFRACTIVE SURGERY AND LASER CENTERS, INC. (dormant and not 100% owned)
PLM, INC. (not 100% owned)
PLM LIMITED PARTHERSHIP (not 100% owned)
VISION MANAGEMENT SERVICES, INC. (not 100% owned)
WINTER PARK NURSING CENTER, INC (not 100% owned)
Asterisk indicates a "Significant Subsidiary"
SCHEDULE 3
SIGNIFICANT SUBSIDIARIES
HCRC Inc.
Manor Care of America, Inc.
ManorCare Health Services, Inc.
Health Care and Retirement Corporation of America
HCR Rehabilitation Corp.
Heartland Rehabilitation Services, Inc.
JURISDICTIONS
Texas
Ohio
Michigan
Florida
Pennsylvania
Illinois
SCHEDULE 4
INITIAL PURCHASERS
Initial Purchaser Principal Amount
- ----------------- ----------------
J.P. Morgan Securities Inc. $ 48,000,000
Merrill Lynch, Pierce, Fenner & Smith $ 48,000,000
Incorporated
UBS Warburg LLC $ 48,000,000
Banc of America Securities LLC $ 32,000,000
BNY Capital Markets, Inc. $ 8,000,000
NatCity Investments, Inc. $ 8,000,000
SunTrust Capital Markets, Inc $ 8,000,000
------------
Total $200,000,000
ANNEX A
[Form of Exchange and Registration Rights Agreement]
ANNEX A
MANOR CARE, INC.
$200,000,000
6.25% Senior Notes due 2013
REGISTRATION RIGHTS AGREEMENT
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Manor Care, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to J.P. Morgan Securities Inc. ("JPMorgan") Merrill Lynch,
Pierce, Fenner & Smith Incorporated, UBS Warburg LLC, Banc of America Securities
LLC, BNY Capital Markets, Inc., NatCity Investments, Inc., and SunTrust Capital
Markets, Inc. (together with JPMorgan, the "Initial Purchasers"), upon the terms
and subject to the conditions set forth in a purchase agreement dated April 10,
2003 (the "Purchase Agreement"), $200,000,000 aggregate principal amount of its
6.25% Senior Notes due 2013 (the "Securities") to be jointly and severally
guaranteed (the "Guarantees") by the subsidiaries of the Company listed on
Schedule 1 and signatories hereto (collectively, the "Guarantors"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company and the Guarantors agree with the Initial
Purchasers, for the benefit of the holders (including the Initial Purchasers) of
the Securities and the Exchange Securities (as defined herein) (collectively,
the "Holders"), as follows:
1. Registered Exchange Offer. Unless the Registered Exchange Offer (as
defined herein) shall not be permitted by applicable federal law, the Company
shall (i) use reasonable best efforts to prepare and, not later than 90 days
following the date of original issuance of the Securities (the "Issue Date"),
file with the Commission a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer to
the Holders of the Securities and the Guarantees (the "Registered Exchange
Offer") to issue and deliver to such Holders, in exchange for the Securities and
the Guarantees, a like aggregate principal amount of debt securities of the
Company and guarantees thereof by the Guarantors (the "Exchange Securities")
that are identical in all material respects to the Securities, except for the
transfer restrictions relating to the Securities, (ii) use its commercially
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 150 days after the Issue Date
and the Registered Exchange Offer to be consummated no later than 180 days after
the Issue Date and (iii) keep the Exchange Offer Registration Statement
effective for not less than 20 business days (or longer, if required by
applicable law) after the date on which notice of the Registered Exchange Offer
is mailed to the Holders (such period being called the "Exchange Offer
Registration Period"). The Exchange Securities will be issued under the
Indenture or an indenture (the "Exchange Securities Indenture") between the
Company, the Guarantors and the Trustee or such other bank or trust company that
is reasonably satisfactory to the Initial Purchasers, as trustee (the "Exchange
Securities Trustee"), such indenture to be identical in all material respects to
the Indenture, except for the transfer restrictions relating to the Securities
(as described above).
As soon as practicable after the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder (a) is not an affiliate of the Company or an
Exchanging Dealer (as defined herein) not complying with the requirements of the
next sentence, (b) is not an Initial Purchaser holding Securities that have, or
that are reasonably likely to have, the status of an unsold allotment in an
initial distribution, (c) acquires the Exchange Securities in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any person to participate in the distribution of the Exchange Securities)
and to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Company, the Guarantors, the Initial Purchasers and each Exchanging
Dealer acknowledge that, pursuant to current interpretations by the Commission's
staff of Section 5 of the Securities Act, each Holder that is a broker-dealer
electing to exchange Securities, acquired for its own account as a result of
market-making activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), is required to deliver a prospectus containing
substantially the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer.
- 2 -
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior to
the close of business, New York City time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder, Exchange Securities
equal in principal amount to the Securities of such Holder so accepted for
exchange.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
- 3 -
The Indenture or the Exchange Securities Indenture, as the case may be,
shall provide that the Securities and the Exchange Securities shall vote and
consent together on all matters as one class and that none of the Securities or
the Exchange Securities will have the right to vote or consent as a separate
class on any matter.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Securities surrendered in exchange therefor or, if no interest
has been paid on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an affiliate of the Company or,
if it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) for any other reason the Registered Exchange Offer is not
consummated within 180 days after the Issue Date, or (iii) any Initial Purchaser
so requests with respect to Securities or (iv) any applicable law or
interpretations do not permit any Holder to participate in the Registered
Exchange Offer, or (v) any Holder that participates in the Registered Exchange
Offer does not receive freely transferable Exchange Securities in exchange for
tendered Securities, or (vi) the Company so elects, then the following
provisions shall apply:
- 4 -
(a) The Company and the Guarantors shall use their reasonable best
efforts to file as promptly as practicable (but in no event more than 20
business days after so required or requested pursuant to this Section 2) with
the Commission (the "Shelf Filing Date"), and thereafter shall use their
commercially reasonable efforts to cause to be declared effective, a shelf
registration statement on an appropriate form under the Securities Act relating
to the offer and sale of the Transfer Restricted Securities (as defined below)
by the Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "Shelf
Registration Statement" and, together with any Exchange Offer Registration
Statement, a "Registration Statement").
(b) The Company and the Guarantors shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the prospectus forming part thereof to be used by Holders of Transfer
Restricted Securities for a period ending on the earlier of (i) two years from
the Issue Date or such shorter period that will terminate when all the Transfer
Restricted Securities covered by the Shelf Registration Statement have been sold
pursuant thereto and (ii) the date on which the Securities become eligible for
resale without volume restrictions pursuant to Rule 144 under the Securities Act
(in any such case, such period being called the "Shelf Registration Period").
The Company and the Guarantors shall be deemed not to have used their reasonable
best efforts to keep the Shelf Registration Statement effective during the
requisite period if they voluntarily take any action that would result in
Holders of Transfer Restricted Securities covered thereby not being able to
offer and sell such Transfer Restricted Securities during that period, unless
such action is required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Company by or on behalf of any Holder specifically for use therein (the
"Holders' Information")) does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such prospectus (in
either case, other than with respect to Holders' Information), does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) In the absence of the events described in clauses (i) through (vi)
of the first paragraph of this Section 2, the Company and the Guarantors shall
not be
- 5 -
permitted to discharge its obligations hereunder by means of the filing of a
Shelf Registration Statement.
3. Additional Interest. (a) The parties hereto agree that the Holders
of Transfer Restricted Securities will suffer damages if the Company and the
Guarantors fail to fulfill their obligations under Section 1 or Section 2, as
applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to 90 days after the Issue Date or the
Shelf Registration Statement is not filed with the Commission on or before the
Shelf Filing Date, (ii) the Exchange Offer Registration Statement is not
declared effective within 150 days after the Issue Date or the Shelf
Registration Statement is not declared effective within 90 days of the Shelf
Filing Date, (iii) the Registered Exchange Offer is not consummated on or prior
to 180 days after the Issue Date, or (iv) the Shelf Registration Statement is
filed and declared effective within 90 days after the Shelf Filing Date but
shall thereafter cease to be effective (at any time that the Company and the
Guarantors are obligated to maintain the effectiveness thereof) without being
succeeded within 30 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company and the Guarantors will be jointly and
severally obligated to pay additional interest to each Holder of Transfer
Restricted Securities, during the period of one or more such Registration
Defaults, in an amount equal to $0.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder until (i) the applicable
Registration Statement is filed, (ii) the Exchange Offer Registration Statement
is declared effective and the Registered Exchange Offer is consummated, (iii)
the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be, which rate
will be increased by an additional $ 0.05 per week per $1,000 principal amount
of Transfer Restricted Securities for each 90-day period that any additional
interest described in this Section 3 continues to accrue; provided that the rate
for additional interest will not exceed $0.15 per week per $1,000 principal
amount of Transfer Restricted Securities. All accrued additional interest will
be paid to each Holder in the same manner as interest payments on the Transfer
Restricted Securities on semi-annual payment dates that correspond to interest
payment dates for the Transfer Restricted Securities. Additional interest only
accrues during a Registration Default. Following the cure of all Registration
Defaults, the accrual of additional interest will cease. As used herein, the
term "Transfer Restricted Securities" means each Security, until the earliest to
occur of: (i) the date on which such Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) the date
on which such Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iii) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act. Notwithstanding anything to the contrary in this Section 3(a),
neither the Company nor the Guarantors shall be required to pay additional
interest to a Holder of Transfer Restricted Securities if such Holder failed to
comply with its obligations to make the
- 6 -
representations set forth in the second to last paragraph of Section 1 or failed
to provide the information required to be provided by it, if any, pursuant to
Section 4(n).
(b) The Company shall notify the Trustee and the Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company and the Guarantors shall pay the additional interest due on the
Transfer Restricted Securities by depositing with the Paying Agent (which may
not be the Company for these purposes), in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time, on the next interest payment
date specified by the Indenture and the Securities, sums sufficient to pay the
additional interest then due. The additional interest due shall be payable on
each interest payment date specified by the Indenture and the Securities to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay additional interest shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the additional interest provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as any Initial
Purchaser may reasonably propose within five business days after the delivery of
such document to such Initial Purchaser; (ii) include the information set forth
in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of the prospectus forming a part
of the Exchange Offer Registration Statement, and include the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and (iii) if requested by any Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Company shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such person,
confirm such advice in writing (which advice pursuant to clauses (ii)-(v) hereof
shall be
- 7 -
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities or the Exchange
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) The Company and the Guarantors will make every reasonable effort to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of such prospectus
or any amendment or supplement thereto by each of the selling Holders of
Transfer Restricted Securities in connection with the offer and sale of the
Transfer Restricted Securities covered by such prospectus or any amendment or
supplement thereto.
- 8 -
(f) The Company will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) The Company will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to each Initial
Purchaser, each Exchanging Dealer and such other persons that are required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus included in the Exchange Offer Registration
Statement or the Shelf Registration Statement and any amendment or supplement
thereto as such Initial Purchaser, Exchanging Dealer or other persons may
reasonably request; and the Company and the Guarantors consent to the use of
such prospectus or any amendment or supplement thereto by any such Initial
Purchaser, Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company and the Guarantors will use their reasonable best efforts to register or
qualify, or cooperate with the Holders of Securities or Exchange Securities
included therein and their respective counsel in connection with the
registration or qualification of, such Securities or Exchange Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
any such Holder reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Securities or Exchange Securities covered by such Registration Statement;
provided that the Company and the Guarantors will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(i) The Company and the Guarantors will cooperate with the Holders of
Securities or Exchange Securities to facilitate the timely preparation and
delivery of certificates representing Securities or Exchange Securities to be
sold pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as the Holders thereof may
request in writing at least two business days prior to sales of Securities or
Exchange Securities pursuant to such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Company and the Guarantors are required to
maintain an effective Registration Statement, the Company will promptly prepare
and file with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Securities or
Exchange Securities from a Holder, the
- 9 -
prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or the
Exchange Securities, as the case may be, and provide the applicable trustee with
the Securities or the Exchange Securities, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company and the Guarantors will comply with all applicable
rules and regulations of the Commission and will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earning statement satisfying the provisions
of Section 11(a) of the Securities Act covering a twelve month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act); provided that in no event shall
such earning statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statement shall cover such
12-month period.
(m) The Company and the Guarantors will cause the Indenture or the
Exchange Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act as required by applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Company may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (v) (a "Suspension
Notice"), such Holder will discontinue disposition of such Transfer Restricted
Securities until such Holder's receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(j) or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated prospectuses or (ii) deliver to the Company (at the Company's
expense)
- 10 -
all copies, other than permanent file copies, then in such Holder's possession
of the prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of the Suspension Notice. If the Company shall give any
notice under Section 4(b)(ii) through (v) during the period that the Company is
required to maintain an effective Registration Statement (the "Effectiveness
Period"), such Effectiveness Period shall be extended by the number of days
during such period from and including the date of the giving of such notice to
and including the date when each seller of Transfer Restricted Securities
covered by such Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus contemplated by Section 4(j) (if an amended
or supplemental prospectus is required) or (y) the Advice (if no amended or
supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company and the
Guarantors shall enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Securities
and Exchange Securities being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of Securities or
Exchange Securities pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Securities and Exchange Securities being sold and any
underwriter participating in any disposition of Securities or Exchange
Securities pursuant to such Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) use its reasonable best efforts to have its
officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative, Special Counsel or any
such underwriter (an "Inspector") in connection with such Shelf Registration
Statement.
(r) In the case of a Shelf Registration Statement, the Company shall,
if requested by Holders of a majority in aggregate principal amount of the
Securities and Exchange Securities being sold, their Special Counsel or the
managing underwriters (if any) in connection with such Shelf Registration
Statement, use its reasonable best efforts to cause (i) its counsel to deliver
an opinion relating to the Shelf Registration Statement and the Securities or
Exchange Securities, as applicable, in customary form, (ii) its officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Securities and
Exchange Securities being sold, their Special Counsel or the managing
underwriters (if any) and (iii) its independent public accountants to provide a
comfort letter or letters in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
- 11 -
5. Registration Expenses. The Company and the Guarantors will bear all
expenses incurred in connection with the performance of its obligations under
Sections 1, 2, 3 and 4 and the Company will reimburse the Initial Purchasers and
the Holders for the reasonable fees and disbursements of one firm of attorneys
(in addition to any local counsel) chosen by the Holders of a majority in
aggregate principal amount of the Securities and the Exchange Securities to be
sold pursuant to each Registration Statement (the "Special Counsel") acting for
the Initial Purchasers or Holders in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration Statement
or in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company and each of the Guarantors shall jointly and severally
indemnify and hold harmless each Holder (including, without limitation, any such
Initial Purchaser or Exchanging Dealer), its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 6 and
Section 7 as a Holder) from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, without
limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Securities or Exchange Securities), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and shall
reimburse each Holder promptly upon demand for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Guarantors
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Holders' Information; and
provided, further, that with respect to any such untrue statement in or omission
from any related preliminary prospectus, the indemnity agreement contained in
this Section 6(a) shall not inure to the benefit of any Holder from whom the
person asserting any such loss, claim, damage, liability or action received
Securities or Exchange Securities to the extent that such loss, claim, damage,
liability or action of or with respect to such Holder results from the fact that
both (A) a copy of the final prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Securities or Exchange
Securities to such person and (B) the untrue statement in or omission from
- 12 -
the related preliminary prospectus was corrected in the final prospectus unless,
in either case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Company, each Guarantor and their respective
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls the Company or any Guarantor
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6(b) and Section 7 as the Company),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any
Holders' Information furnished to the Company by such Holder, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that no such Holder shall be liable for any indemnity claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Securities or Exchange Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 6(a) or 6(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 6 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its
- 13 -
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than the reasonable costs of investigation;
provided, however, that an indemnified party shall have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based upon advice of counsel
to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory to
the indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment or if the
indemnifying party has not paid the expenses and fees for which it is liable 20
days after notice by the indemnified party of request for reimbursement. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement or admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such
- 14 -
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and the Guarantors from the offering and sale of the Securities, on
the one hand, and a Holder with respect to the sale by such Holder of Securities
or Exchange Securities, on the other, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and each of the Guarantors on
the one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company and each of the Guarantors on the one
hand and a Holder on the other with respect to such offering and such sale shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities (before deducting expenses) received by or on behalf
of the Company and each of the Guarantors, on the one hand, and the total
discounts and commissions received by such Holder with respect to the Securities
or Exchange Securities, on the other, bear to the total gross proceeds from the
sale of Securities or Exchange Securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Company and each of the Guarantors or information
supplied by the Company and each of the Guarantors on the one hand or to any
Holders' Information supplied by such Holder on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 7 shall be deemed to include, for purposes of this Section
7, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Securities or Exchange Securities shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities or Exchange Securities sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A. So long as any Transfer Restricted Securities
remain outstanding, the Company shall use its reasonable best efforts to file
the reports required to be filed by it under Rule 144A(d)(4) under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file
- 15 -
such reports, it will, upon the written request of any Holder of Transfer
Restricted Securities, make publicly available other information so long as
necessary to permit sales of such Holder's securities pursuant to Rules 144 and
144A. The Company and the Guarantors covenant that they will take such further
action as any Holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rules 144 and 144A
(including, without limitation, the requirements of Rule 144A(d)(4)). Upon the
written request of any Holder of Transfer Restricted Securities, the Company and
the Guarantors shall deliver to such Holder a written statement as to whether it
has complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 8 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Securities
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of a majority in aggregate principal
amount of the Securities, the Exchange Securities and the Private Exchange
Securities, taken as a single class. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Exchange
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate principal amount of the Securities and the
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
- 16 -
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to the Initial Purchasers.
(2) if to an Initial Purchaser, initially at its address set forth in
the Purchase Agreement;
(3) if to the Company, initially at the address of the Company set
forth in the Purchase Agreement; and
(4) if to the Guarantors, initially at the address of the Guarantors
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
Company, the Guarantors and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
- 17 -
(h) Remedies. In the event of a breach by the Company or any of the
Guarantors or by any Holder of any of their respective obligations under this
Agreement, each Holder or the Company or any Guarantor, as the case may be, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages (other than the recovery of damages for a breach by the
Company or any Guarantor of their obligations under Sections 1 or 2 hereof for
which additional interest has been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The
Company, each Guarantor and each Holder agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agree that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. Each of the Company and each Guarantor
represents, warrants and agrees that (i) it has not entered into, shall not, on
or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii)
without limiting the generality of the foregoing, without the written consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, it shall not grant to any person the right to
request the Company to register any debt securities of the Company under the
Securities Act unless the rights so granted are not in conflict or inconsistent
with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor the
Guarantors nor any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity) shall have the right to include any
securities of the Company in any Shelf Registration or Registered Exchange Offer
other than Transfer Restricted Securities.
(k) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
- 18 -
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
MANOR CARE, INC.
By: /s/ R. Jeffrey Bixler
-------------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, Secretary and
General Counsel
- 19 -
SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
- 20 -
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(fka Heartland Medical Information Services)
- 21 -
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
- 22 -
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, INC
- 23 -
MANOR CARE OF NORTH OLMSTED, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
- 24 -
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
- 25 -
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
By: /s/ R. Jeffrey Bixler
----------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary of each of the
above-referenced corporations
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 26 -
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation, its
General Partner
By: /s/ R. Jeffrey Bixler
------------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 27 -
HCR HOSPITAL, LLC
By: HCR Hospital Holding Company, Inc., its
sole member
By: /s/ R. Jeffrey Bixler
--------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 28 -
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Services, Inc., its
sole member
By: /s/ R. Jeffrey Bixler
-------------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 29 -
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation, its
General Partner
By: /s/ R. Jeffrey Bixler
-------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 30 -
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
- 31 -
By: Manor Care of America, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 32 -
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
By: Manor Care Health Services, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
----------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 33 -
HCR MANORCARE MESQUITE, L.P.
By: Mesquite Hospital, LLC, its
General Partner
By: /s/ R. Jeffrey Bixler
---------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: 333 N. Summit St.
Toledo, Ohio 43604
Fax No.: 419-252-5599
Telephone:419-252-5500
- 34 -
Confirmed and accepted as of the date first above written:
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
NATCITY INVESTMENTS, INC.
SUNTRUST CAPITAL MARKETS, INC.
By: J.P. MORGAN SECURITIES INC.
By Geoffrey Benson
__________________________
Authorized Signatory
- 35 -
SCHEDULE I
GUARANTORS
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(f/k/a Heartland Medical Information Services)
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES,
INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, 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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
COLEWOOD LIMITED PARTNERSHIP
HCR HOSPITAL, LLC
ANCILLARY SERVICES, LLC
BOOTH LIMITED PARTNERSHIP
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
HCR MANORCARE MESQUITE, L.P.
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until ______, 2013, all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
ANNEX B-1
[Form of Opinion of Latham & Watkins]
Annex B-1
(LATHAM & WATKINS LETTERHEAD)
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Re: $200,000,000 6.25% Senior Notes due 2013
of Manor Care, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Manor Care, Inc., a Delaware
corporation (the "COMPANY"), in connection with the sale to you (the "INITIAL
PURCHASERS") on the date hereof by the Company of $200,000,000 in aggregate
principal amount of the Company's 6.25% Senior Notes due 2013 (the "SECURITIES")
and the guarantee of the Securities pursuant to the Indenture (as defined below)
(the "GUARANTEES") by each of the subsidiaries of the Company set forth on
Exhibit A hereto (the "GUARANTORS"), pursuant to a Purchase Agreement, dated
April 10, 2003 (the "PURCHASE AGREEMENT"), among you, the Company and the
Guarantors. The Securities and the Guarantees are being issued pursuant to an
Indenture, dated as of the date hereof (the "INDENTURE"), among the Company, the
Guarantors and National City Bank, as trustee (the "TRUSTEE"). The Purchase
Agreement, the Indenture (including the Guarantees set forth therein), the
Securities and the Exchange and Registration Rights Agreement, dated as of April
15, 2003, among you, the Company and the Guarantors (the "REGISTRATION RIGHTS
AGREEMENT") are sometimes referred to herein collectively as the "OFFERING
DOCUMENTS". This letter is being furnished to you pursuant to Section 5(d) of
the Purchase Agreement.
As such counsel, we have examined such matters of fact and questions of
law as we have considered appropriate for purposes of this letter. We have
examined, among other things, the following:
(a) The Purchase Agreement;
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 2
(LATHAM & WATKINS LOGO)
(b) The Indenture (including the Guarantees set forth therein);
(c) The offering memorandum prepared by the Company, dated April 10,
2003 (the "OFFERING MEMORANDUM");
(d) The Registration Rights Agreement; and
(e) The Securities.
As to facts material to the opinions, statements and assumptions expressed
herein, we have, with your consent, relied upon oral or written statements and
representations of officers and other representatives of the Company and others,
including the representations and warranties of the Company and each of the
Guarantors in the Purchase Agreement. We have not independently verified such
factual matters.
We are opining herein as to the effect on the subject transaction only of
the federal laws of the United States, the internal laws of the State of New
York and, in numbered paragraphs 1, 3, 5 and 7 of this letter, the Delaware
General Corporation Law, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agencies within any state. Various
issues concerning certain laws and regulations applicable to the Company are
addressed in the opinions or statements of belief of R. Jeffrey Bixler and Reed
Smith LLP of even date herewith, which have separately been provided to you, and
we express no opinion or belief with respect to those matters.
The opinions expressed herein apply only to the Company and the following
subsidiaries of the Company: (i) HCRC Inc., a Delaware corporation, Manor Care
of America, Inc., a Delaware corporation, and ManorCare Health Services, Inc., a
Delaware corporation (together, the "DELAWARE SIGNIFICANT SUBSIDIARIES"); and
(ii) Health Care and Retirement Corporation of America, an Ohio corporation,
Heartland Rehabilitation Services, Inc., an Ohio corporation, and HCR
Rehabilitation Corp., an Ohio corporation (together, the "OHIO SIGNIFICANT
SUBSIDIARIES"). The Ohio Significant Subsidiaries and the Delaware Significant
Subsidiaries are referred to herein, together, as the "SIGNIFICANT
SUBSIDIARIES".
Subject to the foregoing and the other matters set forth herein, it is our
opinion that, as of the date hereof:
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 3
(LATHAM & WATKINS LOGO)
1. The Indenture, including the Guarantees set forth therein, has
been duly authorized, executed and delivered by the Company and each of
the Delaware Significant Subsidiaries.
2. The Indenture, including the Guarantees set forth therein,
constitutes a legally valid and binding agreement of the Company and each
of the Significant Subsidiaries, enforceable against the Company and each
of the Significant Subsidiaries in accordance with its terms. The
Indenture conforms in all material respects to the description thereof
contained in the Offering Memorandum. The statements in the Offering
Memorandum under the caption "Description of notes", insofar as they
purport to describe or summarize certain provisions of the Indenture, are
accurate summaries or descriptions in all material respects.
3. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and each of the Delaware Significant
Subsidiaries.
4. The Registration Rights Agreement constitutes a legally valid
and binding agreement of the Company and each of the Significant
Subsidiaries, enforceable against the Company and each of the Significant
Subsidiaries in accordance with its terms. The Registration Rights
Agreement conforms in all material respects to the description thereof
contained in the Offering Memorandum. The statements in the Offering
Memorandum under the caption "Description of notes" and "Registration
rights", insofar as they purport to describe or summarize certain
provisions of the Registration Rights Agreement, are accurate summaries or
descriptions in all material respects.
5. The Securities have been duly authorized by all necessary
corporate action of the Company.
6. Upon payment as provided for in the Purchase Agreement, the
Securities, when executed, issued and authenticated in accordance with the
terms of the Indenture and delivered to you, will be legally valid and
binding obligations of the Company, enforceable in accordance with their
terms, and the Guarantees as set forth in the Indenture will be the
legally valid and binding obligation of each of the Significant
Subsidiaries, enforceable in accordance with their terms. The Securities
conform in all material respects to the description thereof contained in
the Offering Memorandum. The statements in the Offering Memorandum under
the caption "Description of notes", insofar as they purport to describe or
summarize certain provisions of the Securities, are accurate summaries or
descriptions in all material respects.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 4
(LATHAM & WATKINS LOGO)
7. The securities to be issued pursuant to the Registration
Rights Agreement (the "EXCHANGE SECURITIES") have been duly authorized by
all necessary corporate action of the Company.
8. Upon payment as provided for in the Indenture and the
Registration Rights Agreement, the Exchange Securities, when executed,
issued, authenticated and delivered, will be legally valid and binding
obligations of the Company, enforceable in accordance with their terms,
and the Guarantees as set forth in the Indenture will be the legally valid
and binding obligation of each of the Significant Subsidiaries,
enforceable in accordance with their terms. The Exchange Securities
conform in all material respects to the description thereof contained in
the Offering Memorandum. The statements in the Offering Memorandum under
the caption "Description of notes", insofar as they purport to describe or
summarize certain provisions of the Exchange Securities, are accurate
summaries or descriptions in all material respects.
9. Assuming the accuracy of the representations, warranties and
agreements of the Company and each of the Guarantors and of the Initial
Purchasers contained in the Purchase Agreement, no registration of the
Securities under the Securities Act of 1933, and no qualification of the
Indenture under the Trust Indenture Act, is required for the purchase of
the Securities, together with the related Guarantees, by you or the
initial resale of the Securities, and the related Guarantees, by you to
Qualified Institutional Buyers or to purchasers in compliance with
Regulation S, in each case in the manner contemplated by the Purchase
Agreement and the Offering Memorandum. We express no opinion, however, as
to when or under what circumstances any Securities initially sold by you
may be reoffered or resold.
The opinions rendered in paragraphs 2, 4, 6 and 8 relating to the
enforceability of the Indenture (including the Guarantees set forth therein),
the Registration Rights Agreement, the Securities and the Exchange Securities,
respectively, are subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
preference, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors; (ii) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at law (including
the possible unavailability of specific performance or injunctive relief),
concepts of materiality, reasonableness, good faith and fair dealing, and the
discretion of the court before which any proceeding therefor may be brought; and
(iii) exclusively with respect to paragraph 4, the unenforceability under
certain circumstances under law or court decisions of provisions providing for
the indemnification of or contribution to a party with respect to a liability
where such indemnification or contribution is contrary to public policy.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 5
(LATHAM & WATKINS LOGO)
With respect to the opinions rendered in paragraphs 2, 4, 6 and 8, we have
assumed the power of, and the due authorization, execution and delivery of the
Indenture (including the Guarantees set forth therein), the Registration Rights
Agreement, the Securities and the Exchange Securities, respectively, by, the
Ohio Significant Subsidiaries.
We have not been requested to express and, with your knowledge and
consent, do not render any opinion as to the applicability to the obligations of
(i) the Company under the Indenture and the Securities or (ii) the Significant
Subsidiaries under the Indenture (including the Guarantees set forth therein) of
Section 548 of the United States Bankruptcy Code or applicable state law
(including, without limitation, Article 10 of the New York Debtor and Creditor
Law) relating to fraudulent transfers and obligations.
With your consent, we have assumed for purposes of this opinion that (i)
each of the Initial Purchasers and the Trustee (a) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; (b) has the requisite power and authority to execute and deliver
and to perform its obligations under each of the Offering Documents to which it
is a party; and (c) has duly authorized, executed and delivered each such
Offering Document; (ii) with respect to each of the parties to the Offering
Documents other than the Company and the Delaware Significant Subsidiaries, each
Offering Document to which it is a party constitutes its legally valid and
binding agreement, enforceable against it in accordance with its terms; and
(iii) the Trustee is in compliance, generally and with respect to acting as
Trustee under the Indenture, with all applicable laws and regulations.
This opinion is delivered only to you in your capacity as Initial
Purchasers under the Purchase Agreement and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, assigned to, quoted to, or
relied upon by any other person, firm or corporation for any purpose (including
any person, firm or corporation that acquires Securities from you) without our
prior written consent, which may be granted or withheld in our sole discretion.
Very truly yours,
(LATHAM & WATKINS LETTERHEAD)
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Re: $200,000,000 6.25% Senior Notes due 2013
of Manor Care, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Manor Care, Inc., a Delaware
corporation (the "COMPANY"), in connection with the sale to you (the "INITIAL
PURCHASERS") on the date hereof by the Company of $200,000,000 in aggregate
principal amount of the Company's 6.25% Senior Notes due 2013 (the "SECURITIES")
and the guarantee of the Securities pursuant to the Indenture (as defined below)
(the "GUARANTEES") by each of the subsidiaries of the Company set forth on
Exhibit A hereto (the "GUARANTORS"), pursuant to a Purchase Agreement, dated
April 10, 2003 (the "PURCHASE AGREEMENT"), among you, the Company and the
Guarantors. The Securities and the Guarantees are being issued pursuant to an
Indenture, dated as of the date hereof (the "INDENTURE"), among the Company, the
Guarantors and National City Bank, as trustee. The Purchase Agreement, the
Indenture (including the Guarantees set forth therein), the Securities and the
Exchange and Registration Rights Agreement, dated as of April 15, 2003, among
you, the Company and the Guarantors are sometimes referred to herein
collectively as the "OFFERING DOCUMENTS." The term "OFFERING MEMORANDUM" refers
to the offering memorandum prepared by the Company, dated April 10, 2003. This
letter is being furnished to you pursuant to Section 5(d) of the Purchase
Agreement.
The primary purpose of our professional engagement was not to establish or
confirm factual matters or financial or quantitative information, and many
determinations involved in the preparation of
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 2
the Offering Memorandum and Offering Documents are of a wholly or partially
non-legal character or related to legal matters outside the scope of our opinion
to you of even date herewith (the "OPINION"). Therefore, we are not passing upon
and do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Offering Memorandum, (except to the extent
expressly set forth in the numbered paragraphs 2, 4, 6 and 8 of the Opinion and
in our opinion regarding tax matters to you of even date), and have not made an
independent check or verification thereof (except as aforesaid). However, in the
course of acting as counsel to the Company in connection with the preparation by
the Company of the Offering Memorandum, we reviewed the Offering Memorandum and
participated in conferences and telephone conversations with officers and other
representatives of the Company, the independent public accountants for the
Company, your representatives and your counsel, during which conferences and
conversations the contents of the Offering Memorandum and related matters were
discussed. We also reviewed certain corporate records and documents, letters
from counsel and accountants, and oral and written statements of officers and
other representatives of the Company and others as to the existence and
consequence of certain factual and other matters. We considered the foregoing in
light of our understanding of applicable U.S. federal securities laws and our
experience gained through practice thereunder.
Based on our participation and review as described above, we advise you
that during the course of our services in connection with our representation of
the Company no facts came to our attention that caused us to believe that the
Offering Memorandum, as of its date or as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that we express no belief with respect to (i) the financial statements,
schedules, or other financial data included in, or omitted from, the Offering
Memorandum, (ii) Health Care Laws (as defined in the opinion of Reed Smith LLP
of even date herewith) and the legal matters, documents and proceedings relating
to such Health Care Laws and (iii) statutes, ordinances, administrative
decisions, rules or regulations of counties, towns, municipalities or special
political subdivisions relating to long-term care facilities (including nursing
facilities, skilled nursing facilities and assisted living facilities), home
health agencies, hospices and acute care hospitals.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 3
This opinion is delivered only to you in your capacity as Initial
Purchasers under the Purchase Agreement and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, assigned to, quoted to, or
relied upon by any other person, firm or corporation for any purpose (including
any person, firm or corporation that acquires Securities from you) without our
prior written consent, which may be granted or withheld in our sole discretion.
Very truly yours,
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
The Bank of New York
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue, 4th Floor
New York, New York 10017
Re: $200,000,000 6.25% Senior Notes Due 2013
of Manor Care, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Manor Care, Inc., a Delaware
corporation (the "COMPANY"), in connection with the sale to you on the date
hereof by the Company of $200,000,000 in aggregate principal amount of the
Company's 6.25% Senior Notes Due 2013 (the "SECURITIES") and the guarantee of
the Securities pursuant to the Indenture (the "GUARANTEES") by each of the
subsidiaries of the Company set forth on Exhibit A hereto (the "GUARANTORS"),
pursuant to a Purchase Agreement, dated April 10, 2003 (the "PURCHASE
AGREEMENT"), among you, the Company and the Guarantors. The Securities and the
Guarantees are being issued pursuant to an Indenture, dated the date hereof,
among the Company, the Guarantors and National City Bank, as trustee. In
connection with the sale of the Securities, the Company has prepared an offering
memorandum, dated April 10, 2003 (the "OFFERING MEMORANDUM"). The facts as we
understand them, and upon which with your permission we rely in rendering the
opinion herein, are set forth in the Offering Memorandum. This letter is being
furnished to you pursuant to Section 5(d) of the Purchase Agreement.
We are opining as to the effect on the subject transaction only of the
federal income tax laws of the United States, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of other federal
laws, the laws of any state or any other jurisdiction or as to any other matters
of municipal law or the laws of any local agencies within any state. Our opinion
is not binding upon the Internal Revenue Service or the courts. Furthermore, no
assurance can be given that future legislation, judicial or administrative
changes, on either a prospective or retroactive basis, would not adversely
affect the accuracy of the conclusions stated in the following paragraph.
JP Morgan Securities, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
APRIL __, 2003
PAGE 2
Based on the facts and assumptions and subject to the limitations set
forth in the Offering Memorandum, the statements under the caption "Certain
United States federal income tax considerations" in the Offering Memorandum,
insofar as they purport to constitute summaries of matters of United States
federal income tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters described therein in all
material respects.
No opinion is expressed as to any matter not discussed herein.
This opinion is rendered to you as of the date of this letter, and we
undertake no obligation to update this opinion subsequent to the date hereof.
This opinion is based on various statutory provisions, regulations promulgated
thereunder and interpretations thereof by the Internal Revenue Service and the
courts having jurisdiction over such matters, all of which are subject to change
either prospectively or retroactively. Also, any variation or difference in the
facts from those set forth in the Offering Memorandum may affect the conclusions
stated herein.
This opinion is rendered only to you, and is for your use in connection
with the transaction described herein upon the understanding that we are not
hereby assuming professional responsibility to any other person whatsoever. This
opinion is not intended for the express or implied benefit of any third party
and is not to be used or relied upon by any other person or for any other
purpose without our prior written approval in each instance.
Very truly yours,
ANNEX B-2
[Form of Opinion of R. Jeffrey Bixler]
Annex B-2
(MANOR CARE, INC. LETTERHEAD)
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Re: $200,000,000 6.25% Senior Notes due 2013
of Manor Care, Inc.
Ladies and Gentlemen:
I am Vice President and General Counsel of Manor Care, Inc. and
represented it in connection with the sale to you (the "INITIAL PURCHASERS") on
the date hereof by Manor Care, Inc., a Delaware corporation (the "COMPANY"), of
$200,000,000 in aggregate principal amount of the Company's 6.25% Senior Notes
due 2013 (the "SECURITIES") and the guarantee of the Securities pursuant to the
Indenture (as defined below) (the "GUARANTEES") by each of the subsidiaries of
the Company set forth on Exhibit A hereto (the "GUARANTORS"), pursuant to a
Purchase Agreement, dated April 10, 2003 (the "PURCHASE AGREEMENT"), among you,
the Company and the Guarantors. The Securities and the Guarantees are being
issued pursuant to an Indenture, dated as of the date hereof (the "INDENTURE"),
among the Company, the Guarantors and National City Bank, as trustee. The
Purchase Agreement, the Indenture (including the Guarantees set forth therein),
the Securities and the Exchange and Registration Rights Agreement, dated as of
April 15, 2003, among you, the Company and the Guarantors (the "REGISTRATION
RIGHTS AGREEMENT") are sometimes referred to herein collectively as the
"OFFERING DOCUMENTS." This letter is being furnished to you pursuant to Section
5(e) of the Purchase Agreement.
As such counsel, I have made such legal and factual examinations and
inquiries as I have deemed necessary or appropriate for purposes of this
opinion. In addition, I have obtained and relied upon certificates and
assurances from public officials as I have deemed necessary.
Various issues concerning certain laws and regulations applicable to the
Company are addressed in the opinions of Latham & Watkins Illinois LLC and Reed
Smith LLP of even date herewith, which have separately been provided to you, and
I express no opinion or belief with respect to those matters except as expressly
set forth herein.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Bank
APRIL 15, 2003
PAGE 2
Subject to the foregoing and the other matters set forth herein, it is my
opinion that, as of the date hereof:
1. Each of the Company and each of its subsidiaries has been duly
incorporated or formed, as the case may be, and is validly existing as a
corporation, limited liability company, partnership or limited partnership, as
the case may be, in good standing under the laws of its respective jurisdiction
or incorporation or formation as the case may be, is duly qualified to do
business and is in good standing as a foreign corporation, limited liability
company, partnership or limited partnership, as the case may be, in each
jurisdiction in which its ownership or lease of property or the conduct of its
respective businesses requires such qualification, and has all power and
authority necessary to own or hold its respective properties and to conduct the
businesses in which it is engaged (except where the failure to so qualify or
have such power or authority would not, singularly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), results of
operations or business or prospects of the Company and its subsidiaries taken as
a whole (a "MATERIAL ADVERSE EFFECT").
2. The Company has an authorized capitalization as set forth in the
offering memorandum prepared by the Company, dated April 10, 2003 (the "OFFERING
MEMORANDUM"), and all of the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; except as described on Schedule 2 of the Purchase Agreement, all
of the issued Shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and other than as set forth or contemplated in the Offering Memorandum, are
owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction upon voting or transfer or any other
claim of any third party.
3. The descriptions in the Offering Memorandum of statutes, legal and
governmental proceedings and contracts and other documents, except for the
matters addressed in the Reed Smith LLP opinion to which I am not opining, are
accurate in all material respects; and I do not have actual knowledge of any
current or pending legal or governmental actions, suits or proceedings which
would be required to be described in the Offering Memorandum if the Offering
Memorandum were a prospectus included in a registration statement on Form S-1
which are not described as so required.
4. The Company and each of the Guarantors has full corporate,
partnership or limited liability company power to execute and deliver each of
the Offering Documents and to perform their respective obligations thereunder,
and all corporate, partnership or limited liability company action required to
be taken for the due and proper authorization, execution and delivery of each of
the Offering
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Bank
APRIL 15, 2003
PAGE 3
Documents and the consummation of the transactions contemplated thereby by the
Company and each of the Guarantors have been duly and validly taken.
5. The Purchase Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
6. The execution, delivery and performance by the Company and each of
the Guarantors of each of the Offering Documents, the issuance, authentication,
sale and delivery of the Securities, the issuance of the Guarantees and
compliance by the Company and each of the Guarantors with the terms thereof and
the consummation of the transactions contemplated by the Offering Documents will
not:
(i) result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject;
(ii) result in any violation of the provisions of the charter or by-laws
(or other comparable organizational documents) of the Company or any
of its subsidiaries;
(iii) result in the violation of any statute or any judgment, order,
decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties or assets; or
(iv) require the consent, approval, authorization or order of, or filing
or registration with, any such court or arbitrator or governmental
agency or body under any such statute, judgment, order, decree, rule
or regulation for the execution, delivery and performance by the
Company and each of the Guarantors of each of the Offering
Documents, the issuance, authentication, sale and delivery of the
Securities, the issuance of the Guarantees and compliance by the
Company and each of the Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Offering
Documents, except for such consents, approvals, authorizations,
filings, registrations or qualifications (a) which have been
obtained or made prior to the Closing Date and (b) as may be
required to be obtained or made under the Securities Act and
applicable state securities laws as provided in the Registration
Rights Agreement.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Bank
APRIL 15, 2003
PAGE 4
7. Except as otherwise disclosed in the Offering Memorandum, to the
best of my knowledge, there are no pending actions or suits or judicial,
arbitral, rule-making, administrative or other proceedings to which the Company
or any of the Guarantors is a party or of which any property or assets of the
Company or any of the Guarantors is the subject which (i) singularly or in the
aggregate, if determined adversely to the Company or any of the Guarantors,
could reasonably be expected to have a Material Adverse Effect or (ii) questions
the validity or enforceability of any of the Offering Documents or any action
taken or to be taken thereto; and, except as otherwise disclosed in the Offering
Memorandum, to the best of my knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
8. Neither the Company nor any of the Guarantors is (i) in violation of
its charter or by-laws (or other comparable organizational documents), (ii) in
default, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to which it
is a party or by which it is bound or to which any of its property or assets is
subject, which, singularly or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, or (iii) in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or
assets may be subject which, singularly or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
This opinion is delivered only to you in your capacity as Initial
Purchasers under the Purchase Agreement and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, assigned to, quoted to, or
relied upon by any other person, firm or corporation for any purpose (including
any person, firm or corporation that acquires Convertible Notes from you)
without my prior written consent, which may be granted or withheld in my sole
discretion.
Very truly yours,
(MANOR CARE, INC. LETTERHEAD)
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Re: $200,000,000 6.25% Senior Notes due 2013
of Manor Care, Inc.
Ladies and Gentlemen:
I am Vice President and General Counsel of Manor Care, Inc. and
represented it in connection with the sale to you (the "INITIAL PURCHASERS") on
the date hereof by Manor Care, Inc., a Delaware corporation (the "COMPANY"), of
$200,000,000 in aggregate principal amount of the Company's 6.25% Senior Notes
due 2013 (the "SECURITIES") and the guarantee of the Securities pursuant to the
Indenture (as defined below) (the "GUARANTEES") by each of the subsidiaries of
the Company set forth on Exhibit A hereto (the "GUARANTORS"), pursuant to a
Purchase Agreement, dated April 10, 2003 (the "PURCHASE AGREEMENT"), among you,
the Company and the Guarantors. The Securities and the Guarantees are being
issued pursuant to an Indenture, dated as of the date hereof (the "INDENTURE"),
among the Company, the Guarantors and National City Bank, as trustee. The
Purchase Agreement, the Indenture (including the Guarantees set forth therein),
the Securities and the Exchange and Registration Rights Agreement, dated as of
April 15, 2003, among you, the Company and the Guarantors, are sometimes
referred to herein collectively as the "OFFERING DOCUMENTS". The term "OFFERING
MEMORANDUM" refers to the offering memorandum prepared by the Company, dated
April 10, 2003. This letter is being furnished to you pursuant to Section 5(e)
of the Purchase Agreement.
The primary purpose of my representation of the Company in connection with
the preparation by the Company of the Offering Memorandum was not to establish
or confirm factual matters or financial or quantitative information, and many
determinations involved in the preparation of the Offering Memorandum and
Offering Documents are of a wholly or partially non-legal character or related
to legal matters outside the scope of my opinion to you of even date herewith.
Therefore, I am not passing upon
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
APRIL 2003
PAGE 2
and do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Offering Memorandum, and have not made an
independent check or verification thereof. However, in the course of my
representation of the Company in connection with the preparation by the Company
of the Offering Memorandum, I reviewed the Offering Memorandum and participated
in conferences and telephone conversations with officers and other
representatives of the Company, the independent public accountants for the
Company, your representatives and your counsel, during which conferences and
conversations the contents of the Offering Memorandum and related matters were
discussed. I also reviewed certain corporate records and documents, letters from
counsel and accountants, and oral and written statements of officers and other
representatives of the Company and others as to the existence and consequence of
certain factual and other matters.
Based on my participation and review as described above, I advise you that
during the course of my representation of the Company no facts came to my
attention that caused me to believe that the Offering Memorandum, as of its date
or as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that I express no belief with respect
to (i) the financial statements, schedules, or other financial data included or
incorporated by reference in, or omitted from, the Offering Memorandum and (ii)
Health Care Laws (as defined in the opinion of Reed Smith LLP of even date
herewith) and the legal matters, documents and proceedings relating to such
Health Care Laws but do express a belief with respect to statutes, ordinances,
administrative decisions, rules or regulations of counties, towns,
municipalities or special political subdivisions relating to long-term care
facilities (including nursing facilities, skilled nursing facilities and
assisted living facilities), home health agencies, hospices and acute care
hospitals.
This opinion is delivered only to you in your capacity as Initial
Purchasers under the Purchase Agreement and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, assigned to, quoted to, or
relied upon by any other person, firm or corporation for any purpose (including
any person, firm or corporation that acquires Securities from you) without my
prior written consent, which may be granted or withheld in my sole discretion.
Very truly yours,
ANNEX B-3
[Form of Opinion of Reed Smith LLP]
Annex B-3
(Reed Smith LLP Letterhead)
April 15, 2003
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Re: $200,000,000 6.25% Senior Notes due 2013
of Manor Care, Inc.
Ladies and Gentlemen:
We have acted as special health care regulatory counsel to Manor Care,
Inc. in connection with the sale to you on the date hereof by Manor Care, Inc.,
a Delaware corporation (the "COMPANY"), of $200,000,000 in aggregate principal
amount of the Company's 6.25% Senior Notes due 2013 (the "SECURITIES") and the
guarantee of the Securities pursuant to the Indenture (as defined below) (the
"GUARANTEES") by the Guarantors, as defined in the Purchase Agreement (the
"GUARANTORS"), pursuant to a Purchase Agreement, dated April 10, 2003 (the
"PURCHASE AGREEMENT"), among you, the Company and the Guarantors. The Securities
and the Guarantees are being issued pursuant to an Indenture, dated as of the
date hereof (the "INDENTURE"), among the Company, the Guarantors and National
City Bank, as trustee. This opinion is being rendered to you pursuant to Section
5(f) of the Purchase Agreement. The Purchase Agreement, the Indenture (including
the Guarantees set forth therein), the Securities and the Registration Rights
Agreement (as defined in the Purchase Agreement) are sometimes referred to
herein collectively as the "OFFERING DOCUMENTS". Capitalized terms used herein
without definition have the meanings assigned to them in the Purchase Agreement.
For purposes of issuing this opinion letter, we have been requested to
review the offering memorandum, dated April 10, 2003 relating to the Securities
(the "Offering Memorandum") and specifically those sections of the Offering
Memorandum describing Health Care Laws. For purposes of this opinion letter,
"HEALTH CARE LAWS" means statutes, judicial rulings and decrees, and
administrative or governmental regulations regulating long-term care facilities
(including nursing facilities, skilled nursing facilities and assisted living
facilities), home health agencies, hospices and acute care hospitals of the
United States and of the states in which the Company and its subsidiaries
operate, including, but not limited to, the Health Insurance Portability and
Accountability Act of 1996; Titles XVIII and XIX of the Social Security Act, 42
U.S.C. Section 1395 et seq. and Section 1396 et seq., the federal anti-kickback
statute, 42 U.S.C. Section 1320a-7b(b); the civil monetary penalties law, 42
U.S.C. Section 1320a-7a; the False Claims Act, 31 U.S.C.. Sections
3729-3733; the physician self-referral law, 42 U.S.C. Section 1395nn, and state
licensure and other state laws, but specifically excluding statutes, ordinances,
administrative decisions, rules or regulations of
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 2
counties, towns, municipalities or special political subdivisions to the extent
that they deal with any of the foregoing. Further, we have not examined or
otherwise considered, and this opinion letter does not address, any other laws
or questions of law, statutes, ordinances, rules or regulations other than the
Health Care Laws.
We have made such legal and factual examinations and inquiries as we have
deemed necessary or appropriate for purposes of this opinion. In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to authentic
original documents of all documents submitted to us as copies. As to facts
material to the opinions, statements and assumptions expressed herein, we have,
with your consent, relied upon oral or written statements and representations of
officers and other representatives of the Company, the Guarantors and others. In
addition, we have obtained and relied upon such certificates and assurances from
public officials as we have deemed necessary.
Based upon, subject to and limited by the foregoing and the exceptions and
limitations set forth below, it is our opinion that, as of the date hereof, the
descriptions in the Offering Memorandum of statutes and amendments or proposed
amendments thereto, proposed legislation, legal and governmental proceedings and
contracts and other documents, insofar as such descriptions constitute summaries
of the Health Care Laws and the legal matters, documents and proceedings
relating to such Health Care Laws, are accurate in all material respects.
Furthermore, we do not have actual knowledge of any current or pending legal or
governmental actions, suits or proceedings arising under or pursuant to a Health
Care Law, to which the Company or any subsidiary is a party, which would be
required to be described in the Offering Memorandum if the Offering Memorandum
were a prospectus included in a registration statement on Form S-1 which are not
described as so required.
The primary purpose of our professional engagement was not to establish or
confirm factual matters or financial or quantitative information, and many
determinations involved in the preparation of the Offering Memorandum and
Offering Documents are of a wholly or partially non-legal character or related
to legal matters outside the scope of our opinion. Therefore, we are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum (except to the
extent expressly set forth in the immediately preceding paragraph), and have not
made an independent check or verification thereof (except as stated above).
However, in the course of acting as special health care regulatory counsel to
the Company in connection with the preparation by the Company of the Offering
Memorandum, we reviewed the Offering Memorandum and participated in conferences
and telephone conversations with officers and other representatives of the
Company, the independent public accountants for the Company, your
representatives and your counsel, during which conferences and conversations the
contents of the Offering Memorandum and related matters were discussed. We also
reviewed certain corporate records and documents, and oral and written
statements of officers and other representatives of the Company and others as to
the existence and consequence of certain factual and other matters. We
considered the foregoing in light of our understanding of applicable Health Care
Laws and our experience gained through practice thereunder.
Based upon our participation and review as described above, we advise you
that during the course of our services in connection with this matter no facts
came to our attention that caused us to
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
Banc of America Securities LLC
BNY Capital Markets, Inc.
NatCity Investments, Inc.
SunTrust Capital Markets, Inc.
APRIL 15, 2003
PAGE 3
believe that the Offering Memorandum, as of its date or as of the date hereof,
with respect to Health Care Laws and the legal matters, documents and
proceedings relating to such Health Care Laws, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein with respect to Health Care Laws, in
the light of the circumstances under which they were made, not misleading (it
being understand that we express no belief with respect to the financial
statements or other financial data included in, or omitted from, the Offering
Memorandum).
The foregoing opinions are subject to the following additional
assumptions, exceptions, limitations and qualifications: We are members of the
Bar of the District of Columbia and do not hold ourselves out as experts on the
general laws of any other state. We do, however, as a practice area of
specialization, provide legal representation to companies such as and including
the Company with respect to the laws and regulations of states which directly or
indirectly impact upon the provision of health care services. Therefore, this
opinion does not relate to the laws of any other state other than the District
of Columbia except certain state and federal regulatory laws that are
specifically relevant to the rendering of this opinion and which specifically
apply to the nature and scope of the Company's business. Any opinion herein as
to the laws of other states is based solely on the latest compilations of the
relevant statutes and case law of other states available to us through online
services and compilations.
The opinions in this letter are limited to the matters set forth herein,
no opinion may be inferred or implied beyond the opinions expressly stated in
this letter, and our opinions must be read in conjunction with the assumptions,
limitations, exceptions and qualifications set forth in this letter. We assume
no obligation to update this opinion letter to advise you of any change in facts
or laws subsequent to the date hereof.
This opinion and statements of belief are rendered only to you and are
solely for your benefit in connection with the transactions covered hereby. This
opinion and statements of belief may not be relied upon by you for any other
purpose, or furnished to, quoted to, or relied upon by any other person, firm or
corporation for any purpose, without our prior written consent.
Very truly yours,
REED SMITH LLP
EX-12.1
8
c78303exv12w1.txt
STATEMENT RE: COMPUTATION OF RATIOS
Exhibit 12.1
Manor Care, Inc.
Computation of Ratio of Earnings to Fixed Charges
(In thousands, except ratios)
3 MONTHS ENDED MARCH 31, YEARS ENDED DECEMBER 31,
------------------------ -------------------------------------------------------
2003 2002 2002 2001 2000 1999 1998
---- ---- ---- ---- ---- ---- ----
EARNINGS AVAILABLE TO COVER FIXED
CHARGES:
Income (loss) from continuing $50,206 $54,418 $212,684 $129,992 $61,669 $(102,396) $(24,565)
operations before income taxes and
minority interests............
Less:
Equity in earnings of affiliates, (1,541) (736) (4,761) (4,543) (2,016) (2,276) (5,376)
excluding affiliate with
guaranteed debt...............
Add:
Dividends received from equity
affiliate...... 1,971 2,182 3,026 11,574 6,000 -- --
Fixed charges deducted from
earnings (see below)............. 11,968 12,454 51,173 64,751 75,511 67,838 62,613
------ ------ ------ ------ ------- ------ ------
Earnings available to cover fixed
charges............................... $62,604 $68,318 $262,122 $201,774 $141,164 $(36,834) $32,672
======= ======= ======== ======== ======== ======== =======
FIXED CHARGES:
Interest expense, including amounts
in operating expense............... $ 9,463 $9,949 $41,395 $55,458 $66,460 $60,646 $55,340
Interest within rent expense......... 2,505 2,505 9,778 9,293 9,051 7,192 7,273
------ ------ ------ ------ ------- ------ ------
Fixed charges deducted from 11,968 12,454 51,173 64,751 75,511 67,838 62,613
earnings..........................
Interest expense on guaranteed debt -- -- -- 2,272 4,309 922 --
of affiliate.....................
Interest capitalized................... 182 287 721 1,933 4,457 3,235 8,623
------ ------ ------ ------ ------- ------ ------
Fixed charges........................ $12,150 $12,741 $51,894 $68,956 $84,277 $71,995 $71,236
======= ======= ======= ======= ======= ======= =======
RATIO OF EARNINGS TO FIXED
CHARGES (1).......................... 5.2x 5.4x 5.1x 2.9x 1.7x -- --
======= ======= ======= ======= =======
(1)We do not show a ratio for 1998 and 1999 because earnings were insufficient
to cover fixed charges by $38.6 million in 1998 and $108.8 million in 1999.
EX-23.1
9
c78303exv23w1.txt
CONSENT OF ERNST & YOUNG LLP
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-4 and related Prospectus of Manor Care, Inc.
for the registration of $200,000,000 of 6.25% Senior Notes due May 1, 2013 and
to the incorporation by reference therein of our report dated January 23, 2003,
with respect to the consolidated financial statements and schedule of Manor
Care, Inc. included in its Annual Report (Form 10-K) for the year ended December
31, 2002, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Toledo, Ohio
July 25, 2003
EX-24.1
10
c78303exv24w1.txt
POWER OF ATTORNEY OF THE COMPANY
EXHIBIT 24.1
MANOR CARE, INC.
Power of Attorney
of Director and/or Officer
Each of the undersigned directors and/or officers of Manor Care, Inc. does
hereby make, constitute, and appoint R. Jeffrey Bixler and Geoffrey G. Meyers,
each of the undersigned's true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for each of the undersigned and
in each undersigned's name, place, and stead in any and all capacities, to sign
and affix each of the undersigned's name as such director and/or officer of
Manor Care, Inc. to a Registration Statement or Registration Statements, on Form
S-4 or other applicable form, and any or all amendments, including post-
effective amendments, thereto, and all registration statements for the same
offering that are to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), to be filed by Manor Care, Inc.
with the Securities and Exchange Commission, Washington, D.C. in connection with
the registration under the Act of securities proposed to be exchanged for
securities issued privately by Manor Care, Inc. and guaranteed by certain
guarantors, and file the same, with all exhibits thereto and other supporting
documents pertaining to the registration of the securities covered thereby, with
said Commission, granting unto said attorneys-in-fact and agents, and each or
any of them, full power and authority to do and perform each and every act and
thing requisite and necessary or incidental to the performance and execution of
the powers herein expressly granted, to be done in and about the premises, as
fully to all intents and purposes as each of the undersigned might or could do
in person, hereby ratifying and confirming that each of said attorneys-in-fact
and agents, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this power of
attorney this 24th day of July, 2003.
/s/ Virgis W. Colbert
----------------------------------
Virgis W. Colbert
/s/ Joseph F. Damico
----------------------------------
Joseph F. Damico
/s/ Joseph H. Lemieux
----------------------------------
Joseph H. Lemieux
/s/ William H. Longfield
----------------------------------
William H. Longfield
/s/ Frederic V. Malek
----------------------------------
Frederic V. Malek
/s/ Geoffrey G. Meyers
----------------------------------
Geoffrey G. Meyers
/s/ Spencer C. Moler
----------------------------------
Spencer C. Moler
/s/ Paul A. Ormond
----------------------------------
Paul A. Ormond
/s/ John T. Schwieters
----------------------------------
John T. Schwieters
/s/ Robert G. Siefers
----------------------------------
Robert G. Siefers
/s/ M. Keith Weikel
----------------------------------
M. Keith Weikel
/s/ Gail R. Wilensky
----------------------------------
Gail R. Wilensky
/s/ Thomas L. Young
----------------------------------
Thomas L. Young
EX-24.2
11
c78303exv24w2.txt
POWER OF ATTORNEY OF THE GUARANTORS
EXHIBIT 24.2
CERTAIN GUARANTORS
Power of Attorney
of Director and/or Officer
Each of the undersigned directors and/or officers of the guarantors
attached hereto as Exhibit A (the "Guarantors") does hereby make, constitute,
and appoint R. Jeffrey Bixler and Geoffrey G. Meyers, each of the undersigned's
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for each undersigned and in each undersigned's name, place,
and stead, to sign and affix each undersigned's name as such director and/or
officer of said Guarantors to a Registration Statement or Registration
Statements, on Form S-4 or other applicable form, and any or all amendments,
including post-effective amendments, thereto, and all registration statements
for the same offering that are to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), to be filed by
said Guarantors with the Securities and Exchange Commission, Washington, D.C. in
connection with the registration under the Act of securities proposed to be
exchanged for securities issued privately by Manor Care, Inc. and guaranteed by
said Guarantors, and file the same, with all exhibits thereto and other
supporting documents pertaining to the registration of the securities covered
thereby, with said Commission, granting unto said attorneys-in-fact and agents,
and each or any of them, full power and authority to do and perform each and
every act and thing requisite and necessary or incidental to the performance and
execution of the powers herein expressly granted, to be done in and about the
premises, as fully to all intents and purposes as each of the undersigned might
or could do in person, hereby ratifying and confirming that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this power of
attorney this 24th day of July, 2003.
/s/ R. Jeffrey Bixler
-------------------------------
R. Jeffrey Bixler
/s/ Geoffrey G. Meyers
-------------------------------
Geoffrey G. Meyers
/s/ Spencer C. Moler
-------------------------------
Spencer C. Moler
/s/ Paul A. Ormond
-------------------------------
Paul A. Ormond
EXHIBIT A
Guarantors
AMERICAN HOSPITAL BUILDING
CORPORATION
AMERICANA HEALTHCARE CENTER OF
PALOS TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION
OF GEORGIA
AMERICANA HEALTHCARE CORPORATION
OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES,
INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES,
INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES,
INC.
HCRA OF TEXAS, INC.
HEARTLAND CAREPARTNERS, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE
SERVICES, INC.
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND MANAGEMENT SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES
OF FLORIDA, INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE,
RPT PHYSICAL THERAPY PROFESSIONAL
ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE
CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
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.
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
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 CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, 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 MIAMISBURG, INC
MANOR CARE OF NORTH OLMSTED, 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 CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANORCARE HEALTH SERVICES OF
BOYNTON BEACH, INC.
MANORCARE HEALTH SERVICES OF
NORTHHAMPTON COUNTY, INC.
MANORCARE HEALTH SERVICES OF
VIRGINIA, INC.
MARINA VIEW MANOR, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY
ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES,
INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
NEW MANORCARE HEALTH SERVICES, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL OCCUPATIONAL AND SPEECH
THERAPY, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION
CORPORATION
REHABILITATION ASSOCIATES, INC.
REHABILITATION SERVICES OF ROANOKE,
INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING
HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES,
INC.
WASHTENAW HILLS MANOR, INC.
WHITEHALL MANOR, INC.
COLEWOOD LIMITED PARTNERSHIP
HCR HOSPITAL, LLC
BOOTH LIMITED PARTNERSHIP
CERTAIN GUARANTORS
Power of Attorney
of Director and/or Officer
Each of the undersigned directors and/or officers of the guarantors
attached hereto as Exhibit A (the "GUARANTORS") does hereby make, constitute,
and appoint R. Jeffrey Bixler and Geoffrey G. Meyers, each of the undersigned's
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for each undersigned and in each undersigned's name, place,
and stead, to sign and affix each undersigned's name as such director and/or
officer of said Guarantor to a Registration Statement or Registration
Statements, on Form S-4 or other applicable form, and any or all amendments,
including post-effective amendments, thereto, and all registration statements
for the same offering that are to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), to be filed by
said Guarantor with the Securities and Exchange Commission, Washington, D.C. in
connection with the registration under the Act of securities proposed to be
exchanged for securities issued privately by Manor Care, Inc. and guaranteed by
said Guarantor, and file the same, with all exhibits thereto and other
supporting documents pertaining to the registration of the securities covered
thereby, with said Commission, granting unto said attorneys-in-fact and agents,
and each or any of them, full power and authority to do and perform each and
every act and thing requisite and necessary or incidental to the performance and
execution of the powers herein expressly granted, to be done in and about the
premises, as fully to all intents and purposes as each of the undersigned might
or could do in person, hereby ratifying and confirming that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 24th day of July, 2003.
/s/ Geoffrey G. Meyers
-------------------------------------
Geoffrey G. Meyers
/s/ Spencer C. Moler
-------------------------------------
Spencer C. Moler
/s/ Paul A. Ormond
-------------------------------------
Paul A. Ormond
/s/ M. Keith Weikel
-------------------------------------
M. Keith Weikel
EXHIBIT A
Guarantors
HCR HOME HEALTH CARE AND HOSPICE,
INC.
HCR INFORMATION CORPORATION
HCR REHABILITATION CORP.
HCRC INC.
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND INFORMATION SERVICES, INC.
(f/k/a Heartland Medical Information Services, Inc.)
HEARTLAND REHABILITATION SERVICES,
INC.
IN HOME HEALTH, INC.
MANOR CARE OF AMERICA, INC
MANORCARE HEALTH SERVICES, INC.
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KENWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WILLIAMS VILLE ARDEN, LLC
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
FRESNO ARDEN, LLC
MESQUITE HOSPITAL, LLC
TUSCAWILLA ARDEN, LLC
ANCILLARY SERVICES, LLC
HCR MANORCARE MESQUITE, L.P.
EX-25.1
12
c78303exv25w1.txt
STATEMENT OF ELIGIBILITY OF TRUSTEE
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee pursuant to
section 305(b) (2)
NATIONAL CITY BANK
(Exact name of Trustee as specified in its charter)
34-0420310
(I.R.S. Employer Identification No.)
1900 East Ninth Street
Cleveland, Ohio 44114
(Address of principal executive (zip code)
offices)
David L. Zoeller
Senior Vice President and General Counsel
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114
(216) 575-9313
(Name, address and telephone number of agent for service)
----------
MANOR CARE, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 34-1687107
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 N. Summit Street
Toledo, Ohio 43604-2617
(Address of principal executive offices) (Zip Code)
6.25% Senior Notes due 2013
(Title of the Indenture securities)
TABLE OF ADDITIONAL CO-REGISTRANTS
(PRIMARY
(STATE OR OTHER STANDARD
JURISDICTION OF INDUSTRIAL
(EXACT NAME OF THE CO-REGISTRANT AS SPECIFIED IN INCORPORATION OR (I.R.S. EMPLOYER CLASSIFICATION
ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) CODE NUMBER)
- --------------------------------------------------- ---------------- ------------------- ---------------
AMERICAN HOSPITAL BUILDING CORPORATION Delaware 52-0985621 8051
AMERICANA HEALTHCARE CENTER OF PALOS TOWNSHIP, Illinois 53-1352950 8051
INC.
AMERICANA HEALTHCARE CORPORATION OF GEORGIA Georgia 37-1087694 8051
AMERICANA HEALTHCARE CORPORATION OF NAPLES Florida 37-1087695 8051
ANCILLARY SERVICES MANAGEMENT, INC. Ohio 34-163874 5999
ANCILLARY SERVICES, LLC Delaware 52-2166500 8049
ANNANDALE ARDEN, LLC Delaware 52-2111069 8059
BAILY NURSING HOME, INC. Pennsylvania 23-1674218 8051
BAINBRIDGE ARDEN, LLC Delaware 52-2098028 N/A
BATH ARDEN, LLC Delaware 52-2099206 N/A
BINGHAM FARMS ARDEN, LLC Delaware 52-2106495 N/A
BIRCHWOOD MANOR, INC. Michigan 38-1719951 8051
BLUE RIDGE REHABILITATION SERVICES, INC. Virginia 54-1508699 8049
BOOTH LIMITED PARTNERSHIP Florida 37-1080797 8059
CANTERBURY VILLAGE, INC. Michigan 38-2032536 8051
CHARLES MANOR, INC. Maryland 52-0902287 8051
CHESAPEAKE MANOR, INC. Maryland 52-0902288 8051
CLAIRE BRIDGE OF ANDERSON, LLC Delaware 39-1973297 8059
CLAIRE BRIDGE OF AUSTIN, LLC Delaware 39-1973318 8059
CLAIRE BRIDGE OF KENWOOD, LLC Delaware 39-1973322 8059
CLAIRE BRIDGE OF SAN ANTONIO, LLC Delaware 39-1973324 N/A
CLAIRE BRIDGE OF SUSQUEHANNA, LLC Delaware 39-1973366 8059
CLAIRE BRIDGE OF WARMINSTER, LLC Delaware 39-1973327 8059
COLEWOOD LIMITED PARTNERSHIP Maryland 52-1335634 8059
COLONIE ARDEN, LLC Delaware 52-2130894 6531
CRESTVIEW HILLS ARDEN, LLC Delaware 52-2092155 6531
DEKALB HEALTHCARE CORPORATION Delaware 37-1019112 8051
(PRIMARY
(STATE OR OTHER STANDARD
JURISDICTION OF INDUSTRIAL
(EXACT NAME OF THE CO-REGISTRANT AS SPECIFIED IN INCORPORATION OR (I.R.S. EMPLOYER CLASSIFICATION
ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) CODE NUMBER)
- --------------------------------------------------- ---------------- ------------------- ---------------
DEVON MANOR CORPORATION Pennsylvania 23-2093337 8051
DISTCO, INC. Maryland 52-0853907 6977
DIVERSIFIED REHABILITATION SERVICES, INC. Michigan 38-2690352 8049
DONAHOE MANOR, INC. Pennsylvania 25-1147049 8051
EAST MICHIGAN CARE CORPORATION Michigan 38-1747681 8051
EXECUTIVE ADVERTISING, INC. Maryland 52-0912751 8051
EYE-Q NETWORK, INC. Ohio 34-1760305 8011
FIRST LOUISVILLE ARDEN, LLC Delaware 52-2092159 8059
FOUR SEASONS NURSING CENTERS, INC. Delaware 73-0783484 8051
FRESNO ARDEN, LLC Delaware 52-2098630 6531
GENEVA ARDEN, LLC Delaware 52-2124930 N/A
GEORGIAN BLOOMFIELD, INC. Michigan 38-1982410 8051
GREENVIEW MANOR, INC. Michigan 38-6062040 8051
HANOVER ARDEN, LLC Delaware 52-2098633 8059
HCR HOME HEALTH CARE AND HOSPICE, INC. Ohio 34-1787978 6719
HCR HOSPITAL HOLDING COMPANY, INC. Nevada 92-2038485 6719
HCR HOSPITAL, LLC Nevada 91-2039256 8062
HCR INFORMATION CORPORATION Ohio 31-1494764 7338
HCR MANORCARE MEDICAL SERVICES OF FLORIDA, INC. Florida 65-0666550 8011
HCR MANORCARE MESQUITE, L.P. Delaware 52-2229490 8062
HCR PHYSICIAN MANAGEMENT SERVICES, INC. Florida 58-2242001 8011
HCR REHABILITATION CORP. Ohio 34-1720345 6719
HCRA OF TEXAS, INC. Texas 74-2788668 8051
HCRC INC. Delaware 22-2784172 6719
HEALTH CARE AND RETIREMENT CORPORATION OF Ohio 34-4402510 8051
AMERICA
HEARTLAND CAREPARTNERS, INC. Ohio 34-1838217 N/A
HEARTLAND EMPLOYMENT SERVICES, INC. Ohio 34-1903270 7363
HEARTLAND HOME CARE, INC. Ohio 34-1787895 8082
(PRIMARY
(STATE OR OTHER STANDARD
JURISDICTION OF INDUSTRIAL
(EXACT NAME OF THE CO-REGISTRANT AS SPECIFIED IN INCORPORATION OR (I.R.S. EMPLOYER CLASSIFICATION
ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) CODE NUMBER)
- --------------------------------------------------- ---------------- ------------------- ---------------
HEARTLAND HOME HEALTH CARE SERVICES, INC. Ohio 34-1787967 8082
HEARTLAND HOSPICE SERVICES, INC. Ohio 34-1788398 8082
HEARTLAND INFORMATION SERVICES, INC. (fka Ohio 31-1488831 7338
Heartland Medical Information Services, Inc.)
HEARTLAND MANAGEMENT SERVICES, INC. Ohio 34-1808700 8049
HEARTLAND REHABILITATION SERVICES OF FLORIDA, INC. Florida 59-2504386 8049
HEARTLAND REHABILITATION SERVICES, INC. Ohio 34-1280619 8049
HEARTLAND SERVICES CORP. Ohio 34-1760503 5912
HERBERT LASKIN, RPT - JOHN MCKENZIE, RPT PHYSICAL New Jersey 22-2137595 8049
THERAPY PROFESSIONAL ASSOCIATES, INC.
HGCC OF ALLENTOWN, INC. Tennessee 23-2244532 8051
IN HOME HEALTH, INC. Minnesota 41-1458213 8082
INDUSTRIAL WASTES, INC. Pennsylvania 25-1264509 4953
IONIA MANOR, INC. Michigan 38-1749970 8051
JACKSONVILLE HEALTHCARE CORPORATION Delaware 37-1069936 8051
JEFFERSON ARDEN, LLC Delaware 52-2111068 N/A
KENSINGTON MANOR, INC. Florida 59-1289690 8051
KENWOOD ARDEN, LLC Delaware 52-2116657 N/A
KNOLLVIEW MANOR, INC. Michigan 38-1724149 8051
LEADER NURSING AND REHABILITATION CENTER OF Delaware 52-1462046 8051
BETHEL PARK, INC.
LEADER NURSING AND REHABILITATION CENTER OF Maryland 52-1352949 8051
GLOUCESTER, INC.
LEADER NURSING AND REHABILITATION CENTER OF SCOTT Delaware 52-1462056 8051
TOWNSHIP, INC.
LEADER NURSING AND REHABILITATION CENTER OF Virginia 52-1363206 8051
VIRGINIA INC.
LINCOLN HEALTH CARE, INC. Ohio 34-1352822 8051
LIVONIA ARDEN, LLC Delaware 52-2104704 N/A
MANOR CARE AVIATION, INC. Delaware 52-1462072 4522
MANOR CARE OF AKRON, INC. Ohio 52-0970447 8051
MANOR CARE OF AMERICA, INC Delaware 52-1200376 6519
MANOR CARE OF ARIZONA, INC. Delaware 52-1751861 8051
MANOR CARE OF ARLINGTON, INC. Virginia 52-1067426 8051
(PRIMARY
(STATE OR OTHER STANDARD
JURISDICTION OF INDUSTRIAL
(EXACT NAME OF THE CO-REGISTRANT AS SPECIFIED IN INCORPORATION OR (I.R.S. EMPLOYER CLASSIFICATION
ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) CODE NUMBER)
- --------------------------------------------------- ---------------- ------------------- ---------------
MANOR CARE OF BOCA RATON, INC. Florida 52-1297340 8051
MANOR CARE OF BOYNTON BEACH, INC. Florida 52-1288882 8051
MANOR CARE OF CANTON, INC. Ohio 52-1019576 8051
MANOR CARE OF CENTERVILLE, INC Delaware 52-1933544 8051
MANOR CARE OF CHARLESTON, INC. South Carolina 52-1187059 8051
MANOR CARE OF CINCINNATI, INC. Ohio 52-0943592 8051
MANOR CARE OF COLUMBIA, INC. South Carolina 52-0940578 8051
MANOR CARE OF DARIEN, INC. Connecticut 52-1934884 8051
MANOR CARE OF DELAWARE COUNTY, INC. Delaware 52-1916053 8051
MANOR CARE OF DUNEDIN, INC. Florida 52-1252397 8051
MANOR CARE OF FLORIDA, INC. Florida 52-1479084 8051
MANOR CARE OF HINSDALE, INC. Illinois 52-0970446 8051
MANOR CARE OF KANSAS, INC. Delaware 52-1462071 8051
MANOR CARE OF KINGSTON COURT, INC. Pennsylvania 52-1314648 8051
MANOR CARE OF LARGO, INC. Maryland 52-1065213 8051
MANOR CARE OF LEXINGTON, INC. South Carolina 52-1048770 8051
MANOR CARE OF MEADOW PARK, INC. Washington 52-1339998 8051
MANOR CARE OF MIAMISBURG, INC Delaware 52-1708219 8051
MANOR CARE OF NORTH OLMSTED, INC. Ohio 52-0970448 8051
MANOR CARE OF PINEHURST, INC. North Carolina 52-1069744 8051
MANOR CARE OF PLANTATION, INC. Florida 52-1383874 8051
MANOR CARE OF ROLLING MEADOWS, INC. Illinois 52-1077856 8051
MANOR CARE OF ROSSVILLE, INC. Maryland 52-1077857 8051
MANOR CARE OF SARASOTA, INC. Florida 52-1252364 8051
MANOR CARE OF WILLOUGHBY, INC. Ohio 52-0970449 8051
MANOR CARE OF WILMINGTON, INC. Delaware 52-1252362 8051
MANOR CARE OF YORK (NORTH), INC. Pennsylvania 52-1314645 8051
MANOR CARE OF YORK (SOUTH), INC. Pennsylvania 52-1314644 8051
(PRIMARY
(STATE OR OTHER STANDARD
JURISDICTION OF INDUSTRIAL
(EXACT NAME OF THE CO-REGISTRANT AS SPECIFIED IN INCORPORATION OR (I.R.S. EMPLOYER CLASSIFICATION
ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) CODE NUMBER)
- --------------------------------------------------- ---------------- ------------------- ---------------
MANOR CARE PROPERTIES, INC. Delaware 52-2061834 8051
MANORCARE HEALTH SERVICES OF BOYNTON BEACH, INC. Delaware 52-2055100 8051
MANORCARE HEALTH SERVICES OF NORTHHAMPTON COUNTY, Pennsylvania 52-2004471 8051
INC.
MANORCARE HEALTH SERVICES OF VIRGINIA, INC. Delaware 52-2002773 8051
MANORCARE HEALTH SERVICES, INC. Delaware 52-0886946 8051
MARINA VIEW MANOR, INC. Wisconsin 39-1164707 8051
MEDI-SPEECH SERVICE, INC. Michigan 38-2343280 8049
MEMPHIS ARDEN, LLC Delaware 52-2098029 N/A
MESQUITE HOSPITAL, LLC Delaware 52-2229486 8062
MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC. New Jersey 22-2575292 8049
MILESTONE HEALTH SYSTEMS, INC. Texas 75-2245197 8062
MILESTONE HEALTHCARE, INC. Delaware 75-2592398 8062
MILESTONE REHABILITATION SERVICES, INC. Texas 75-2190857 5049
MILESTONE STAFFING SERVICES, INC. Texas 74-2963093 7363
MILESTONE THERAPY SERVICES, INC. Texas 75-2406307 5049
MNR FINANCE CORP. Delaware 51-0348281 6159
MRC REHABILITATION, INC. Florida 59-3357644 8049
NAPA ARDEN, LLC Delaware 52-2108866 N/A
NEW MANORCARE HEALTH SERVICES, INC. Delaware 52-2053999 8051
PEAK REHABILITATION, INC. Delaware 52-1833202 8049
PERRYSBURG PHYSICAL THERAPY, INC Ohio 34-1363071 8049
PHYSICAL, OCCUPATIONAL, AND SPEECH THERAPY, INC. Florida 59-3377552 8049
PNEUMATIC CONCRETE, INC. Tennessee 62-0716951 1542
PORTFOLIO ONE, INC. New Jersey 22-1604502 4953
REHABILITATION ADMINISTRATION CORPORATION Kentucky 61-1295825 8049
REHABILITATION ASSOCIATES, INC. New Jersey 22-3290567 8049
REHABILITATION SERVICES OF ROANOKE, INC. Virginia 54-0993013 8049
REINBOLT & BURKAM, INC. Ohio 34-1479648 8049
(PRIMARY
(STATE OR OTHER STANDARD
JURISDICTION OF INDUSTRIAL
(EXACT NAME OF THE CO-REGISTRANT AS SPECIFIED IN INCORPORATION OR (I.R.S. EMPLOYER CLASSIFICATION
ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) CODE NUMBER)
- --------------------------------------------------- ---------------- ------------------- ---------------
RICHARDS HEALTHCARE, INC. Texas 76-0339241 8049
RIDGEVIEW MANOR, INC. Michigan 38-1734212 8051
ROANOKE ARDEN, LLC Delaware 52-2104706 N/A
ROLAND PARK NURSING CENTER, INC. Maryland 52-1890169 8051
RVA MANAGEMENT SERVICES, INC. Ohio 34-1791517 8011
SAN ANTONIO ARDEN, LLC Delaware 52-2106496 8059
SILVER SPRING - WHEATON NURSING HOME, INC. Maryland 53-0245649 8051
SILVER SPRING ARDEN, LLC Delaware 52-2107728 6531
SPRINGHILL MANOR, INC. Michigan 38-1890497 8051
STEWALL CORPORATION Maryland 52-0798475 8051
STRATFORD MANOR, INC. Virginia 52-0902020 8051
STUTEX CORP. Texas 52-0884091 8051
SUN VALLEY MANOR, INC. Michigan 38-1798425 8051
SUSQUEHANNA ARDEN LLC Delaware 52-2124933 N/A
TAMPA ARDEN, LLC Delaware 52-2113270 N/A
THE NIGHTINGALE NURSING HOME, INC. Pennsylvania 23-1719762 8051
THERAPY ASSOCIATES, INC. Virginia 54-1234646 8051
THERASPORT PHYSICAL THERAPY, INC. Michigan 38-3324355 8049
THREE RIVERS MANOR, INC. Michigan 38-2479940 8051
TOTALCARE CLINICAL LABORATORIES, INC. Delaware 52-1740933 8071
TUSCAWILLA ARDEN, LLC Delaware 52-2092162 N/A
WALL ARDEN, LLC Delaware 52-2098990 6531
WARMINSTER ARDEN LLC Delaware 52-2124931 N/A
WASHTENAW HILLS MANOR, INC. Michigan 38-2686882 8051
WHITEHALL MANOR, INC. Michigan 38-2189772 8051
WILLIAMS VILLE ARDEN, LLC Delaware 52-2107735 6531
GENERAL
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C. The Federal
Reserve Bank of Cleveland, Cleveland, Ohio Federal Deposit
Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
National City Bank is authorized to exercise corporate trust
powers.
2. Affiliations with obligor. If the obligor is an affiliate of the trustee,
describe such affiliation.
NONE
16. List of exhibits
(1) A copy of the Articles of Association of the Trustee.
Incorporated herein by reference is Charter No. 786 Merger No.
1043 the Articles of Association of National City Bank, which Articles of
Association were included as a part of Exhibit 1 to Form T-1 filing made
by said National City Bank with the Securities and Exchange Commission in
November 1973 (File No. 2-49786).
Incorporated herein by reference is an amendment to the Articles
of Association of National City Bank, which amendment was included
as a part of Exhibit 1 to Form T-1 filing made by said National
City Bank with the Securities and Exchange Commission in April
1996 (File No. 333-02761)
(2) A copy of the certificate of authority of the Trustee to commence
business:
(a) a copy of the certificate of NCB National Bank to commence
business.
Incorporated herein by reference is a true and correct copy of the
certificate issued by the Comptroller of the Currency under date
of April 26, 1973, whereby NCB National Bank was authorized to
commence the business of banking as a National banking
Association, which true copy of said Certificate was included as
Exhibit 2(a) to Form T-1 filing made by said National City Bank
with the Securities and Exchange Commission in November 1973 (File
2-49786)
(b) a copy of the approval of the merger of The National City Bank
of Cleveland into NCB National Bank under the charter of NCB
National Bank and under the title "National City Bank."
Incorporated herein by reference is a true and correct copy of the
certificate issued by the Comptroller of the Currency under date
of April 27, 1973, whereby the National City Bank of Cleveland was
merged into NCB National Bank, which true copy of said certificate
was included as Exhibit 2(b) to Form T-1 filing made by said
National City Bank with the Securities and Exchange Commission in
November 1973 (File 2-49786).
(3) A copy of the authorization of the Trustee to exercise corporate
trust powers.
Incorporated herein by reference is a true and correct copy of the
certificate dated April 13, 1973 issued by the Comptroller of the
Currency whereby said National City Bank has been granted the
right to exercise certain trust powers, which true copy of said
certificate was included as Exhibit 3 to Form T-1 filing made by
said National City Bank with the Securities and Exchange
Commission in November 1973 (File 2-49786).
(4) A copy of existing By-Laws of the Trustee.
Incorporated herein by reference is a true and correct copy of the
National City Bank By-Laws as amended through January 1, 1993.
This true copy of said By-Laws was included as Exhibit 4 to Form
T-1 filing made by National City Bank with the Securities and
Exchange Commission in March, 1995 (File 22-26594).
(5) Not applicable.
(6) Consent of the United States Institutional Trustee required by
Section 321(b) of the Act.
Attached hereto as Exhibit 6 is the Consent of the Trustee in
accordance with Section 321 (b) of the Trust Indenture Act of 1939
as amended.
(7) A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority.
Attached hereto as Exhibit 7 is the latest report of condition of
National City Bank.
(8) Not applicable.
(9) Not applicable.
NOTES
IN ANSWERING ANY ITEM OF THIS STATEMENT OF ELIGIBILITY AND QUALIFICATION
WHICH RELATES TO MATTERS PECULIARLY WITH THE KNOWLEDGE OF THE OBLIGOR OR ANY
UNDERWRITER FOR THE OBLIGOR OR ANY UNDERWRITER FOR THE OBLIGOR, THE TRUSTEE HAS
RELIED UPON THE INFORMATION FURNISHED TO IT BY THE OBLIGOR AND THE UNDERWRITERS,
AND THE TRUSTEE DISCLAIMS RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION.
THE ANSWER FURNISHED TO ITEM 2. OF THIS STATEMENT WILL BE AMENDED, IF
NECESSARY, TO REFLECT ANY FACTS WHICH DIFFER FROM THOSE STATED AND WHICH WOULD
HAVE BEEN REQUIRED TO BE STATED IF KNOWN AT THE DATE HEREOF.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, National City Bank, a national banking association organized and
existing under the laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Cleveland, and State of Ohio, on
the 13th day of May, 2003.
NATIONAL CITY BANK
By: /s/ James E. Schultz
--------------------------
James E. Schultz
Vice President
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, and to the extent required thereby to enable it to act as an indenture
trustee, National City Bank hereby consents as of the date hereof that reports
of examinations of it by the Treasury Department, the Comptroller of the
Currency, the Board of Governors of the Federal Reserve Banks, the Federal
Deposit Insurance Corporation or of any other Federal or State authority having
the right to examine National City Bank, may be furnished by similar authorities
to the Securities and Exchange Commission upon request thereon.
NATIONAL CITY BANK
By /s/ James E. Schultz
--------------------------
James E. Schultz
Vice President
REPORT OF CONDITION
NATIONAL CITY BANK
(Including Domestic and Foreign Subsidiaries)
In the State of Ohio, at the close of business on March 31, 2003
ASSETS
------
(In Thousands)
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ......................................... $ 1,812,822
Interest-bearing balances .................................................................. 850
Securities:
Held-to-maturity securities ................................................................ 0
Available-for-sale securities .............................................................. 3,201,047
Federal funds sold and securities purchased under agreements to resell .......................... 410,825
Federal funds sold in domestic offices
Securities purchased under agreements to resell .................................. 299,190
Loans and lease financing receivables:
Loans and leases held for sale ............................................................. 14,940
Loans and leases, net of unearned income ............................ $34,807,835
Less: Allowance for loan and lease losses .......................... 562,179
Loans and leases, net of unearned income and allowance .................................... 34,245,656
Assets held in trading accounts ................................................................. 308,593
Premises and fixed assets (including capitalized leases) ........................................ 415,909
Other real estate owned ......................................................................... 7,863
Investments in unconsolidated subsidiaries and associated companies ............................. 0
Customers' liability to this bank on acceptances outstanding .................................... 22,398
Intangible assets ............................................................................... 106,363
Other assets .................................................................................... 2,961,599
-----------
TOTAL ASSETS .................................................................................. $43,808,055
===========
LIABILITIES
-----------
Deposits:
In domestic offices ........................................................................ $22,350,796
Non-interest bearing .......................................... $ 4,688,998
Interest-bearing .............................................. 17,661,798
In foreign offices, Edge and Agreement subsidiaries, and IBFs .............................. 1,076,854
Interest-bearing .............................................. 1,076,854
Federal funds purchased and securities sold under agreements to repurchase:
Federal funds purchased in domestic offices ................................................. 4,841,198
Securities sold under agreements to repurchase .............................................. 1,292,747
Demand notes issued to the U.S. Treasury ........................................................ 0
Trading Liabilities ............................................................................. 10,056
Other borrowed money ............................................................................ 7,578,639
Bank's liability on acceptances executed and outstanding ........................................ 22,398
Subordinated notes and debentures ............................................................... 1,357,159
Other liabilities ............................................................................... 2,267,106
-----------
TOTAL LIABILITIES .......................................................................... 40,796,953
-----------
EQUITY CAPITAL
--------------
Common Stock .................................................................................... 7,311
Surplus ......................................................................................... 588,618
Retained Earnings ............................................................................... 2,442,029
Accumulated other comprehensive income .......................................................... (26,856)
-----------
TOTAL EQUITY CAPITAL ....................................................................... 3,011,102
-----------
TOTAL LIABILITIES AND EQUITY CAPITAL ....................................................... $43,808,055
===========
EX-99.1
13
c78303exv99w1.txt
FORM OF TRANSMITTAL LETTER
EXHIBIT 99.1
LETTER OF TRANSMITTAL
MANOR CARE, INC.
OFFER TO EXCHANGE ITS
$200,000,000 6.25% SENIOR NOTES DUE 2013 FOR ANY AND ALL
UNREGISTERED 6.25% SENIOR NOTES DUE 2013
Pursuant to the Prospectus dated , 2003
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2003, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME
TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO
THE EXPIRATION DATE.
THE EXCHANGE AGENT IS:
NATIONAL CITY BANK
DELIVER TO:
BY MAIL: BY HAND OR OVERNIGHT DELIVERY: NEW YORK DROP:
National City Bank National City Bank The Depository Trust Company
P.O. Box 92301 Corporate Trust Operations Transfer Agent Drop Service
Cleveland, Ohio 44193-0900 3rd Floor -- North Annex 55 Water Street
4100 West 150th Street Jeanette Park Entrance
Cleveland, Ohio 44135-1385 New York, NY 10041
BY FACSIMILE:
(216) 222-9326
CONFIRM BY TELEPHONE:
(216) 222-9352
Attn: James Schultz
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN THE ONE LISTED ABOVE WILL
NOT CONSTITUTE VALID DELIVERY TO THE EXCHANGE AGENT.
The instructions set forth in this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed. The undersigned
acknowledges that he or she has received and reviewed the prospectus (the
"Prospectus") dated , 2003, of Manor Care, Inc., a Delaware
corporation (the "Company"), and this Letter of Transmittal (the "Letter of
Transmittal"), which together constitute the Company's offer (the "Exchange
Offer") to exchange $200,000,000 principal amount of its 6.25% Senior Notes due
2013 (the "Exchange Notes") that have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for $200,000,000 principal amount of
its outstanding 6.25% Senior Notes due 2013 (the "Private Notes"). Recipients of
the Prospectus should read the requirements described in the Prospectus with
respect to eligibility to participate in the Exchange Offer. Capitalized terms
used but not defined herein have the meaning given to them in the Prospectus.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE CHECKING ANY BOX
BELOW.
This Letter of Transmittal is to be used by a holder of Private Notes (i)
if certificates representing tendered Private Notes are to be forwarded
herewith, (ii) if a tender is made pursuant to the guaranteed delivery
procedures in the section of the Prospectus entitled "The Exchange
Offer -- Procedures for Tendering."
Holders that are tendering by book-entry transfer to the Exchange Agent's
account at DTC can execute the tender through DTC's Automated Tender Offer
Program for which the Exchange Offer will be eligible. DTC participants that are
accepting the Exchange Offer must transmit their acceptance to DTC which will
verify the acceptance and execute a book-entry delivery to the Exchange Agent's
account at DTC. DTC will then send an agent's message forming part of a
book-entry transfer in which the participant agrees to be bound by the terms of
the Letter of Transmittal (an "Agent's Message") to the Exchange Agent for its
acceptance. Transmission of the Agent's Message by DTC will satisfy the terms of
the Exchange Offer as to execution and delivery of a Letter of Transmittal by
the participant identified in the Agent's Message.
In order to properly complete this Letter of Transmittal, a holder of
Private Notes must (i) complete the box entitled, "Description of Private Notes
Tendered," (ii) if appropriate, check and complete the boxes relating to
book-entry transfer, guaranteed delivery, Special Issuance Instructions and
Special Delivery Instructions, (iii) sign the Letter of Transmittal by
completing the box entitled "Sign Here" and (iv) complete the Substitute Form
W-9. Each holder of Private Notes should carefully read the detailed
instructions below prior to completing the Letter of Transmittal.
Holders of Private Notes who desire to tender their Private Notes for
exchange and whose Private Notes are not immediately available or who cannot
deliver their Private Notes, this Letter of Transmittal and all other documents
required hereby to the Exchange Agent or complete the procedures for book-entry
transfer on or prior to the Expiration Date, must tender the Private Notes
pursuant to the guaranteed delivery procedures set forth in the section of
Prospectus entitled "The Exchange Offer -- Procedures for Tendering." See
Instruction 2. Delivery of documents to DTC does not constitute delivery to the
Exchange Agent. In order to ensure participation in the Exchange Offer, Private
Notes must be properly tendered prior to the Expiration Date.
Holders of Private Notes who wish to tender their Private Notes for
exchange must complete columns (1) through (3) in box below entitled
"Description of Private Notes Tendered," and sign the box below entitled "Sign
Here." If only those columns are completed, such holder of Private Notes will
have tendered for exchange all Private Notes listed in column (3) below. If the
holder of Private Notes wishes to tender for exchange less than all of such
Private Notes, column (4) must be completed in full. In such case, such holder
of Private Notes should refer to Instruction 5.
The Exchange Offer may be extended, terminated or amended, as provided in
the Prospectus. During any such extension of the Exchange Offer, all Private
Notes previously tendered and not withdrawn pursuant to the Exchange Offer will
remain subject to such Exchange Offer. The Exchange Offer is scheduled to expire
at 5:00 p.m., New York City time, on , 2003, unless extended by the
Company.
The undersigned hereby tenders for exchange the Private Notes described in
the box entitled "Description of Private Notes Tendered" below pursuant to the
terms and conditions described in the Prospectus and this Letter of Transmittal.
- ------------------------------------------------------------------------------------------------------------
DESCRIPTION OF PRIVATE NOTES TENDERED
- ------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4)
- ------------------------------------------------------------------------------------------------------------
AGGREGATE
NAME(S) AND ADDRESS(ES) OF PRINCIPAL AMOUNT PRINCIPAL AMOUNT
REGISTERED HOLDER(S) CERTIFICATE REPRESENTED BY TENDERED FOR
(PLEASE FILL IN, IF BLANK) NUMBER(S) CERTIFICATE(S)(A) EXCHANGE(B)
- ------------------------------------------------------------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
Total Principal
Amount Tendered
- ------------------------------------------------------------------------------------------------------------
(A) Unless otherwise indicated in this column, any tendering holder will be deemed to have tendered the
entire principal amount represented by the Private Notes indicated in the column labeled "Aggregate
Principal Amount Represented by Certificate(s)." See Instruction 5.
(B) The minimum permitted tender is $1,000 in principal amount of Private Notes. All other tenders must be
integral multiples of $1,000.
- ------------------------------------------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED PRIVATE NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING (FOR USE BY
ELIGIBLE INSTITUTIONS ONLY):
Name(s) of Registered Holder(s) ------------------------------------------------
Window Ticket Number (if any) --------------------------------------------------
Date of Execution of Notice of Guaranteed
Delivery ------------------------------------------------
Name of Institution which guaranteed
delivery ------------------------------------------------------
Only registered holders are entitled to tender their Private Notes for
exchange in the Exchange Offer. Any financial institution that is a participant
in DTC's system and whose name appears on a security position listing as the
record owner of the Private Notes and who wishes to make book-entry delivery of
Private Notes as described above must complete and execute a participant's
letter (which will be distributed to participants by DTC) instructing DTC's
nominee to tender such Private Notes for exchange. Persons who are beneficial
owners of Private Notes but are not registered holders and who seek to tender
Private Notes should (i) contact the registered holder of such Private Notes and
instruct such registered holder to tender on his or her behalf, (ii) obtain and
include with this Letter of Transmittal, Private Notes properly endorsed for
transfer by the registered holder or accompanied by a properly completed bond
power from the registered holder, with signatures on the endorsement or bond
power guaranteed by a firm that is a member of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc., a
commercial bank or trading company having an office in the United States or
certain other eligible guarantors (each, an "Eligible Institution"), or (iii)
effect a record transfer of such Private Notes from the registered holder to
such beneficial owner and comply with the requirements applicable to registered
holders for tendering Private Notes prior to the Expiration Date. See "The
Exchange Offer -- Procedures for Tendering."
SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company for exchange the Private Notes
indicated above. Subject to, and effective upon, acceptance for purchase of the
Private Notes tendered herewith, the undersigned hereby sells, assigns,
transfers and exchanges to the Company all right, title and interest in and to
all such Private Notes tendered for exchange hereby. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent as the true and lawful
agent and attorney-in-fact of the undersigned (with full knowledge that the
Exchange Agent also acts as agent of the Company) with respect to such Private
Notes, with full power of substitution and resubstitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest) to
(a) deliver certificates representing such Private Notes, or transfer ownership
of such Private Notes on the account books maintained by DTC, together, in each
such case, with all accompanying evidences of transfer and authenticity to the
Company, (b) present and deliver such Private Notes for transfer on the books of
the Company, and (c) receive all benefits or otherwise exercise all rights and
incidents of beneficial ownership of such Private Notes, all in accordance with
the terms of the Exchange Offer.
The undersigned represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Private Notes and to
acquire Exchange Notes issuable upon the exchange of such tendered Private
Notes, and that, when the same are accepted for exchange, the Company will
acquire good and unencumbered title to the tendered Private Notes, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed by the Exchange Agent or the
Company to be necessary or desirable to complete the exchange, assignment and
transfer of tendered Private Notes or transfer ownership of such Private Notes
on the account books maintained by the book-entry transfer facility. The
undersigned further agrees that acceptance of any and all validly tendered
Private Notes by the Company and the issuance of Exchange Notes in exchange
therefor shall constitute performance in full by the Company of its obligations
under the Registration Rights Agreement.
By tendering, each holder of Private Notes represents that the Exchange
Notes acquired in the exchange will be obtained in the ordinary course of such
holder's business, that such holder has no arrangement with any person to
participate in the distribution of such Exchange Notes, that such holder is not
an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act and that such holder is not engaged in, and does not intend to
engage in, a distribution of the Exchange Notes. Any holder of Private Notes who
is an affiliate of the Company or who tenders Private Notes in the Exchange
Offer for the purpose of participating in a distribution of the Exchange Notes
cannot rely on the position of the staff of the Securities and Exchange
Commission (the "Commission") enunciated in its series of interpretive
"no-action" letters with respect to exchange offers and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction.
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer holding Private Notes that
were acquired for its own account as a result of market-making activities or
other trading activities, it acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
Exchange Notes received in respect of such Private Notes pursuant to the
Exchange Offer, however, by so acknowledging and by delivering a prospectus in
connection with the exchange of Private Notes, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
All authority conferred or agreed to be conferred pursuant to this Letter
of Transmittal and every obligation of the undersigned hereunder shall be
binding upon the successors, assigns, heirs, executors, administrators, trustees
in bankruptcy, and personal and legal representatives of the undersigned and
shall not be affected by, and shall survive, the death or incapacity of the
undersigned. Private Notes properly tendered may be withdrawn at any time prior
to the Expiration Date in accordance with the terms of this Letter of
Transmittal.
The Exchange Offer is subject to certain conditions, each of which may be
waived or modified by the Company, in whole or in part, at any time and from
time to time, as described in the Prospectus under the caption "The Exchange
Offer -- Conditions of the Exchange Offer." The undersigned recognizes that as a
result of such conditions the Company may not be required to accept for
exchange, or to issue Exchange Notes in exchange for, any of the Private Notes
properly tendered hereby. In such event, the tendered Private Notes not accepted
for exchange will be returned to the undersigned without cost to the undersigned
at the address shown below the undersigned's signature(s) unless otherwise
indicated under "Special Issuance Instructions" below.
Unless otherwise indicated under "Special Issuance Instructions" below,
please return any certificates representing Private Notes not tendered or not
accepted for exchange in the name(s) of the holder(s) appearing under
"Description of Private Notes Tendered." Similarly, unless otherwise indicated
under "Special Delivery Instructions," please mail any certificates representing
Private Notes not tendered or not accepted for exchange (and accompanying
document, as appropriate) to the address(es) of the holder(s) appearing under
"Description of Private Notes Tendered." In the event that both the "Special
Issuance Instructions" and the "Special Delivery Instructions" are completed,
please issue the certificates representing the Exchange Notes issued in exchange
for the Private Notes accepted for exchange in the name(s) of, and return any
Private Notes not tendered or not accepted for exchange to, the person or
persons so indicated. Unless otherwise indicated under "Special Issuance
Instructions," in the case of a book-entry delivery of Private Notes, please
credit the account maintained at DTC with any Private Notes not tendered or not
accepted for exchange. The undersigned recognizes that the Company does not have
any obligation pursuant to the Special Issuance Instructions, to transfer any
Private Notes from the name of the holder thereof if the Company does not accept
for exchange any of the Private Notes so tendered or if such transfer would not
be in compliance with any transfer restrictions applicable to such Private
Notes.
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8)
To be completed ONLY if (i) Exchange Notes issued for Private Notes,
certificates for Private Notes in a principal amount not exchanged for Exchange
Notes, or Private Notes (if any) not tendered for exchange are to be issued in
the name of someone other than the undersigned, or (ii) Private Notes tendered
by book-entry transfer which are not exchanged are to be returned by credit to
an account maintained at DTC other than the account indicated above.
Issue to:
Name: ------------------------------------------------------------------------
(PLEASE PRINT)
Address: -----------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
[ ] Credit Private Notes not exchanged and delivered by book-entry transfer to
the DTC account set forth below:
- --------------------------------------------------------------------------------
(ACCOUNT NUMBER)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8)
To be completed ONLY if the Exchange Notes issued for Private Notes,
certificates for Private Notes in a principal amount not exchanged for Exchange
Notes, or Private Notes (if any) not tendered for exchange are to be sent to
someone other than the undersigned or to the undersigned at an address other
than that shown above.
Mail to:
Name: ------------------------------------------------------------------------
(PLEASE PRINT)
Address: -----------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
SIGN HERE TO TENDER YOUR PRIVATE NOTES IN THE EXCHANGE OFFER
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature(s) of holder(s) of Private Notes
Dated:
- --------------------------------------------------------------------------------
(Must be signed by the registered holder(s) of Private Notes exactly as
name(s) appear(s) on certificate(s) representing the Private Notes or on a
security position listing or by person(s) authorized to become registered
holder(s) by certificates and documents transmitted herewith. If signature is by
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or other person acting in a fiduciary or representative capacity,
please provide the following information and see Instruction 6.)
Capacity (Full Title)
- --------------------------------------------------------------------------------
Name(s)
- --------------------------------------------------------------------------------
(Please type or Print)
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number
- ---------------------------------------------------------------------------
Tax Identification or Social Security No.
- ----------------------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(If required -- see Instructions 1 and 6)
Authorized Signature
- --------------------------------------------------------------------------------
Name
- --------------------------------------------------------------------------------
(Please Type or Print)
Title
- --------------------------------------------------------------------------------
Name of Firm
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number
- ---------------------------------------------------------------------------
Dated:
- --------------------------------------------------------------------------------
IMPORTANT: COMPLETE AND SIGN THE SUBSTITUTE FORM W-9 IN THIS LETTER OF
TRANSMITTAL
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Signatures on this Letter of Transmittal need
not be guaranteed if the Private Notes tendered hereby are tendered (a) by the
registered holder(s) of Private Notes thereof, unless such holder has completed
either the box entitled "Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" above, or (b) or the account of a firm that is a
member of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
having an office in the United States (each, an "Eligible Institution"). In all
other cases, all signatures on this Letter of Transmittal must be guaranteed by
in Eligible Institution. Persons who are beneficial owners of Private Notes but
are not the registered holder(s) and who seek to tender Private Notes for
exchange should (i) contact the registered holder(s) of such Private Notes and
instruct such registered holder(s) to tender on such beneficial owner's behalf,
(ii) obtain and include with this Letter of Transmittal, Private Notes properly
endorsed for transfer by the registered holder(s) or accompanied by a properly
completed bond power from the registered holder(s) with signatures on the
endorsement or bond power guaranteed by an Eligible Institution, or (iii) effect
a record transfer of such Private Notes from the registered holder(s) to such
beneficial owner and comply with the requirements applicable to registered
holder(s) for tendering Private Notes for exchange prior to the Expiration Date.
See Instruction 6.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR PRIVATE
NOTES OR BOOK-ENTRY CONFIRMATIONS; GUARANTEED DELIVERY PROCEDURES. This Letter
of Transmittal is to be completed by registered holder(s) if certificates
representing Private Notes are to be forwarded herewith. All physically
delivered Private Notes, as well as a properly completed and duly executed
Letter of Transmittal (or manually signed facsimile thereof) and any other
required documents, must be received by the Exchange Agent at its address set
forth herein prior to the Expiration Date or the tendering holder must comply
with the guaranteed delivery procedures set forth below. Delivery of the
documents to DTC does not constitute delivery to the Exchange Agent.
The method of delivery of this Letter of Transmittal, Private Notes and all
other required documents to the Exchange Agent is at the election and risk of
the holder thereof. If such delivery is by mail, it is suggested that holders
use properly insured registered mail, return receipt requested, and that the
mailing be sufficiently in advance of the Expiration Date, to permit delivery to
the Exchange Agent prior to such date. Except as otherwise provided below, the
delivery will be deemed made when actually received or confirmed by the Exchange
Agent. This Letter of Transmittal and Private Notes tendered for exchange should
be sent only to the Exchange Agent, not to the Company.
A holder who desires to tender Private Notes for exchange and who cannot
comply with the procedures set forth herein for tender on a timely basis or
whose Private Notes are not immediately available must comply with the
guaranteed delivery procedures described below.
If holders desire to tender Private Notes for exchange pursuant to the
Exchange Offer and (i) certificates representing such Private Notes are not lost
but are not immediately available, (ii) time will not permit this Letter of
Transmittal, certificates representing Private Notes or other required documents
to reach the Exchange Agent prior to the Expiration Date, or (iii) the
procedures for book-entry transfer cannot be completed prior to the Expiration
Date, such holder may effect a tender of Private Notes for exchange in
accordance with the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer -- Procedures for Tendering."
Pursuant to the guaranteed delivery procedures:
(a) such tender must be made by or through an Eligible Institution
(defined as an institution that is a recognized member in good standing of
a Medallion Signature Guarantee Program recognized by the Exchange Agent,
i.e., the Securities Transfer Agent's Medallion Program, the Stock
Exchange's Medallion Program and the New York Stock Exchange's Medallion
Signature Program);
(b) prior to the Expiration Date, the Exchange Agent must have
received from such Eligible Institution, at one of the addresses of the
Exchange Agent set forth herein, a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile, mail or hand delivery)
substantially in the form
provided by the Company setting forth the name(s) and address(es) of the
registered holder(s) of such Private Notes, the certificate number(s) and
the principal amount of Private Notes being tendered for exchange and
stating that the tender is being made thereby and guaranteeing that, within
three (3) New York Stock Exchange trading days after the Expiration Date, a
properly completed and duly executed Letter of Transmittal, or a facsimile
thereof, together with certificates representing the Private Notes (or
confirmation of book-entry transfer of such Private Notes into the Exchange
Agent's account with DTC and an Agent's Message) and any other documents
required by this Letter of Transmittal and the instructions hereto, will be
deposited by such Eligible Institution with the Exchange Agent; and
(c) this Letter of Transmittal or a facsimile thereof, properly
completed together with duly executed certificates for all physically
delivered Private Notes in proper form for transfer (or confirmation of
book-entry transfer of such Private Notes into the Exchange Agent's account
with DTC as described above) and all other required documents must be
received by the Exchange Agent within three (3) New York Stock Exchange
trading days after the date of the Notice of Guaranteed Delivery.
All tendering holders, by execution of this Letter of Transmittal, waive
any right to receive any notice of the acceptance of their Private Notes for
exchange.
3. INADEQUATE SPACE. If the space provided in the box entitled
"Description of Private Notes Tendered" above is adequate, the certificate
numbers and principal amounts of Private Notes tendered should be listed on a
separate signed schedule affixed hereto.
4. WITHDRAWAL OF TENDERS. A tender of Private Notes may be withdrawn at
any time prior to the Expiration Date by delivery of written or facsimile
(receipt confirmed by telephone) notice of withdrawal to the Exchange Agent at
the address set forth on the cover of this Letter of Transmittal. To be
effective, a notice of withdrawal must (i) specify the name of the person having
tendered the Private Notes to be withdrawn (the "Depositor"), (ii) identify the
Private Notes to be withdrawn (including the certificate number or numbers and
principal amount of such Private Notes), (iii) specify the principal amount of
Private Notes to be withdrawn, (iv) include a statement that such holder is
withdrawing his election to have such Private Notes exchanged, (v) be signed by
the holder in the same manner as the original signature on the Letter of
Transmittal by which such Private Notes were tendered or as otherwise described
above (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the trustee under the Indenture
register the transfer of such Private Notes into the name of the person
withdrawing the tender and (vi) specify the name in which any such Private Notes
are to be registered, if different from that of the Depositor. The Exchange
Agent will return the properly withdrawn Private Notes promptly following
receipt of notice of withdrawal. If Private Notes have been tendered pursuant to
the procedure for book-entry transfer, any notice of withdrawal must specify the
name and number of the account at the book-entry transfer facility. All
questions as to the validity of notices of withdrawals, including, time of
receipt, will be determined by the Company and such determination will be final
and binding on all parties.
Any Private Notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the Exchange Offer. Any Private Notes
which have been tendered for exchange but which are not exchanged for any reason
will be returned to the holder thereof without cost to such holder (or, in the
case of Private Notes tendered by book-entry transfer into the Exchange Agent's
account at the book-entry transfer facility pursuant to the book-entry transfer
procedures described above, such Private Notes will be credited to an account
with such book-entry transfer facility specified by the holder) as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Private Notes may be retendered by following one of
the procedures described under the caption "The Exchange Offer -- Procedures for
Tendering" in the Prospectus at any time prior to the Expiration Date.
5. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS OF PRIVATE NOTES WHO TENDER
BY BOOK-ENTRY TRANSFER). Tenders of Private Notes will be accepted only in
integral multiples of $1,000 principal amount. If a tender for exchange is to be
made with respect to less than the entire principal amount of any Private Notes,
fill in the principal amount of Private Notes which are tendered for exchange in
column (4) of the box entitled "Description of Private Notes Tendered," as more
fully described in the footnotes thereto. In the case of a partial tender for
exchange, a new certificate, in fully registered form, for the remainder of the
principal amount of the Private Notes, will be sent to the holders of Private
Notes unless otherwise indicated in the
boxes entitled "Special Issuance Instructions" or "Special Delivery
Instructions" above, as soon as practicable after the expiration or termination
of the Exchange Offer.
6. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the holder(s) of the
Private Notes tendered for exchange hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Private Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal. If any
tendered Private Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
copies of this Letter of Transmittal and any necessary or required documents as
there are names in which certificates are held.
If this Letter of Transmittal or any certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Company of its authority so to act must be submitted, unless waived by the
Company.
If this Letter of Transmittal is signed by the holder(s) of the Private
Notes listed and transmitted hereby, no endorsements of certificates or separate
bond powers are required unless certificates for Private Notes not tendered or
not accepted for exchange are to be issued or returned in the name of a person
other than for the holder(s) thereof. Signatures on such certificates must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Private Notes, the certificates representing such
Private Notes must be properly endorsed for transfer by the registered holder or
be accompanied by a properly completed bond power from the registered holder, in
either case signed by such registered holder(s) exactly as the name(s) of the
registered holder(s) the Private Notes appear(s) on the certificates. Signatures
on the endorsement or bond power must be guaranteed by an Eligible Institution
(unless signed by an Eligible Institution).
7. TRANSFER TAXES. Except as set forth in this Instruction 7, the Company
will pay or cause to be paid any transfer taxes applicable to the exchange of
Private Notes pursuant to the Exchange Offer. If, however, a transfer tax is
imposed for any reason other than the exchange of Private Notes pursuant to the
Exchange Offer, then the amount of any transfer taxes (whether imposed on the
registered holder(s) or any other persons) will be payable by the tendering
holder. If satisfactory evidence of the payment of such taxes or exemptions
therefrom is not submitted with this Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
8. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If the Exchange Notes are
to be issued or if any Private Notes not tendered or not accepted for exchange
are to be issued or sent to a person other than the person(s) signing this
Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed. Holders of
Private Notes tendering Private Notes by book-entry transfer may request that
Private Notes not accepted for exchange be credited to such account maintained
at DTC as such holder may designate.
9. IRREGULARITIES. All questions as to the forms of all documents and the
validity of (including time of receipt) and acceptance of the tenders and
withdrawals of Private Notes will be determined by the Company, in its sole
discretion, which determination shall be final and binding. Alternative,
conditional or contingent tenders will not be considered valid. The Company
reserves the absolute right to reject any or all tenders of Private Notes that
are not in proper form or the acceptance of which would, in the Company's
opinion, be unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Private Notes. The
Company's interpretations of the terms and conditions of the Exchange Offer
(including the instructions in this Letter of Transmittal) will be final and
binding. Any defect or irregularity in connection with tenders of Private Notes
must be cured within such time as the Company determines, unless waived by the
Company. Tenders of Private Notes shall not be deemed to have been made until
all defects or irregularities have been waived by the Company or cured. Neither
the Company, the Exchange Agent, nor any other person will be under any duty to
give notice of any defects or irregularities in tenders of Private Notes, or
will incur any liability to registered holders of Private Notes for failure to
give such notice.
10. WAIVER OF CONDITIONS. To the extent permitted by applicable law, the
Company reserves the right to waive any and all conditions to the Exchange Offer
as described under "The Exchange Offer -- Conditions of the Exchange Offer" in
the Prospectus, and accept for exchange any Private Notes tendered.
11. TAX IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Federal income tax
law generally requires that a holder of Private Notes whose tendered Private
Notes are accepted for exchange or such holder's assignee (in either case, the
"Payee"), provide the Exchange Agent (the "Payor") with such Payee's correct
Taxpayer Identification Number ("TIN"), which, in the case of a Payee who is an
individual, is such Payee's social security number. If the Payor is not provided
with the correct TIN and an adequate basis for an exemption, such Payee may be
subject to penalties imposed by the Internal Revenue Service and backup
withholding at the applicable rate of the gross proceeds received pursuant to
the Exchange Offer. If withholding results in an overpayment of taxes, a refund
may be obtained.
To prevent backup withholding, each Payee generally must provide such
Payee's correct TIN by completing the "Substitute Form W-9" set forth herein,
certifying that the TIN provided is correct (or that such Payee is awaiting a
TIN) and that (i) the Payee is exempt from backup withholding, (ii) the Payee
has not been notified by the Internal Revenue Service that such Payee is subject
to backup withholding as a result of a failure to report all interest or
dividends, or (iii) the Internal Revenue Service has notified the Payee that
such Payee is no longer subject to backup withholding.
If the Payee does not have a TIN, such Payee should consult the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 (the "W-9 Guidelines") for instructions on applying for a TIN, write
"Applied For" in the space for the TIN in Part 1 of the Substitute Form W-9, and
sign and date the Substitute Form W-9 and the Certificate of Awaiting Taxpayer
Identification Number set forth herein. If the Payee does not provide such
Payee's TIN to the Payor within 60 days, backup withholding may apply until such
Payee furnishes such Payee's TIN to the Payor. Note: Writing "Applied For" on
the form means that the Payee has already applied for a TIN or that such Payee
intends to apply for one in the near future.
If Private Notes are held in more than one name or are not in the name of
the beneficial owner, consult the W-9 Guidelines for information on which TIN to
report.
Exempt Payees (including, among others, all corporations and certain
non-U.S. holders) are not subject to these backup withholding and reporting
requirements. To prevent possible erroneous backup withholding, an exempt Payee
must enter its correct TIN in Part I of the Substitute Form W-9, write "Exempt"
in Part 2 of such form and sign and date the form. See the W-9 Guidelines for
additional instructions. In order for a non-U.S. holder to qualify as exempt,
such person must submit a completed Form W-8BEN, "Certificate of Foreign Status
of Beneficial Owner for United States Tax Withholding," signed under penalty of
perjury attesting to such exempt status. Such form may be obtained from the
Payor.
12. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES. Any holder of
Private Notes whose Private Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address or telephone number set forth
on the cover of this Letter of Transmittal for further instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
or for additional copies of the Prospectus, this Letter of Transmittal, the
Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 may be directed to the Exchange
Agent at its address set forth on the cover of this Letter of Transmittal.
IMPORTANT -- THIS LETTER OF TRANSMITTAL, TOGETHER WITH CERTIFICATES FOR
TENDERED PRIVATE NOTES AND ALL OTHER REQUIRED DOCUMENTS, WITH ANY REQUIRED
SIGNATURE GUARANTEES AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE
EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
PAYOR'S NAME: NATIONAL CITY BANK
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN
FORM W-9 THE BOX AT RIGHT AND CERTIFY BY TIN:
SIGNING AND DATING BELOW. ------------------------------------
(Social Security Number or
Employer Identification Number)
----------------------------------------------------------------------------
PART 2 -- FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING PLEASE WRITE "EXEMPT"
HERE
DEPARTMENT OF (SEE INSTRUCTIONS)
THE TREASURY -----------------------------------------------------------
INTERNAL REVENUE SERVICE PART 3 -- CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT: (1)
PAYOR'S REQUEST The number shown on this form is my correct TIN (or I am waiting for a
FOR TAXPAYER number to be issued to me), (2) I am not subject to backup withholding
IDENTIFICATION because: (a) I am exempt from backup withholding, or (b) I have not been
NUMBER ("TIN") notified by the Internal Revenue Service (the "IRS") that I am subject to
AND CERTIFICATION backup withholding as a result of a failure to report all interest or
dividends or (c) the IRS has notified me that I am no longer subject to
backup withholding, and (3) I am a U.S. person (including a U.S. resident
alien).
Signature Date
-------------------------------- ------------------------------------
Name
----------------------------------------------------------------------------
Address
----------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
You must cross out item (2) of Part 3 above if you have been notified by the IRS that you are
currently subject to backup withholding because of underreporting interest or dividends on your tax
return.
- ------------------------------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR" IN PART 1
OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and that I mailed or delivered an application to
receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administrative Office (or I intend to mail or
deliver an application in the near future). I understand that if I do not
provide a taxpayer identification number to the Payor within 60 days, the Payor
may be required to withhold at the applicable rate of all reportable payments
made to me thereafter until I provide a number.
Signature: Date: -----------------------------------------------
---------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
AT THE APPLICABLE RATE OF ANY REPORTABLE PAYMENTS. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
EX-99.2
14
c78303exv99w2.txt
FORM OF NOTICE OF GUARANTEED DELIVERY
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
WITH RESPECT TO TENDER OF
ANY AND ALL OUTSTANDING 6.25% SENIOR NOTES DUE 2013
IN EXCHANGE FOR
6.25% SENIOR NOTES DUE 2013
OF
MANOR CARE, INC.
Pursuant to the Prospectus dated , 2003
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2003, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME
TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR THE
EXPIRATION DATE.
THE EXCHANGE AGENT IS:
NATIONAL CITY BANK
DELIVER TO:
BY MAIL: BY HAND OR OVERNIGHT DELIVERY: NEW YORK DROP:
National City Bank National City Bank The Depository Trust Company
P.O. Box 92301 Corporate Trust Operations Transfer Agent Drop Service
Cleveland, Ohio 44193-0900 3(rd) Floor -- North Annex 55 Water Street
4100 West 150(th) Street Jeanette Park Entrance
Cleveland, Ohio 44135-1385 New York, NY 10041
BY FACSIMILE:
(216) 222-9326
CONFIRM BY TELEPHONE:
(216) 222-9352
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE
WILL NOT CONSTITUTE A VALID DELIVERY.
As set forth in the prospectus (the "Prospectus") dated ,
2003 of Manor Care, Inc. (the "Company") and in the accompanying Letter of
Transmittal and instructions thereto (the "Letter of Transmittal"), this form or
one substantially equivalent thereto must be used to accept the Company's offer
(the "Exchange Offer") to exchange new 6.25% Senior Notes due 2013 (the
"Exchange Notes") that have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for all of its outstanding 6.25% Senior Notes
due 2013 (the "Private Notes") if the Letter of Transmittal or any other
documents required thereby cannot be delivered to the Exchange Agent, or Private
Notes cannot be delivered or if the procedures for book-entry transfer cannot be
completed prior to the Expiration Date. This form may be delivered by an
Eligible Institution (as defined in the Prospectus) by mail or hand delivery or
transmitted via facsimile to the Exchange Agent as set forth above. Capitalized
terms used but not defined herein shall have the meaning given to them in the
Prospectus.
This form is not to be used to guarantee signatures. If a signature on the
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the Letter of Transmittal.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to the Company upon the terms and subject to
the conditions set forth in the Prospectus and the related Letter of
Transmittal, receipt of which is hereby acknowledged, the principal amount of
Private Notes specified below pursuant to the guaranteed delivery procedures set
forth in the section of the Prospectus entitled "The Exchange
Offer -- Guaranteed Delivery Procedures." By so tendering, the undersigned does
hereby make, at and as of the date hereof, the representations and warranties of
a tendering holder of Private Notes set forth in the Letter of Transmittal.
The undersigned understands that tenders of Private Notes may be withdrawn
if the Exchange Agent receives at one of its addresses specified on the cover of
this Notice of Guaranteed Delivery, prior to the Expiration Date, a facsimile
transmission or letter which specifies the name of the person who deposited the
Private Notes to be withdrawn and the aggregate principal amount of Private
Notes delivered for exchange, including the certificate number(s) (if any) of
the Private Notes, and which is signed in the same manner as the original
signature on the Letter of Transmittal by which the Private Notes were tendered,
including any signature guarantees, all in accordance with the procedures set
forth in the Prospectus.
All authority herein conferred or agreed to be conferred shall survive the
death, incapacity, or dissolution of the undersigned and every obligation of the
undersigned hereunder shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
The undersigned hereby tenders the Private Notes listed below:
PLEASE SIGN AND COMPLETE
- ------------------------------------------------------------------------------------------------------------------
CERTIFICATE NUMBERS OF PRIVATE NOTES
(IF AVAILABLE) PRINCIPAL AMOUNT OF PRIVATE NOTES TENDERED
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------ If Private Notes will be tendered
Signature(s) of registered holder(s) by book-entry transfer, check the trust
or Authorized Signatory company below:
- ------------------------------------------ [ ] The Depository Trust Company
Name(s) (Please Type or Print) Depository Account No.:
- ------------------------------------------ -------------------------
Title
- ------------------------------------------
- ------------------------------------------
- ------------------------------------------
Address
- ------------------------------------------
Area Code and Telephone No.
- ------------------------------------------
Date
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in a recognized Signature Guarantee
Medallion Program, guarantees deposit with the Exchange Agent of the Letter of
Transmittal (or facsimile thereof), together with the Private Notes tendered
hereby in proper form for transfer, or confirmation of the book-entry transfer
of such Private Notes into the Exchange Agent's account at The Depository Trust
Company, pursuant to the procedure for book-entry transfer set forth in the
Prospectus, and any other required documents, all by 5:00 p.m., New York City
time, on the third New York Stock Exchange trading day following the Expiration
Date (as defined in the Prospectus).
SIGN HERE
Name of Firm: ------------------------------------------------------------------
Authorized Signature: ----------------------------------------------------------
Name (please type or print): ---------------------------------------------------
Address: -----------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Area Code and Telephone
No.: ----------------------------------------------------
Date: --------------------------------------------------------------------------
DO NOT SEND CERTIFICATES FOR PRIVATE NOTES WITH THIS FORM. ACTUAL SURRENDER OF
CERTIFICATES FOR PRIVATE NOTES MUST BE MADE PURSUANT TO, AND BE ACCOMPANIED BY,
A COPY OF THE PREVIOUSLY EXECUTED LETTER OF TRANSMITTAL.
INSTRUCTIONS
1. DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY. A properly completed
and duly executed copy of this Notice of Guaranteed Delivery and any other
documents required by this Notice of Guaranteed Delivery must be received by the
Exchange Agent at one of its addresses set forth on the cover hereof prior to
the Expiration Date. The method of delivery of this Notice of Guaranteed
Delivery and all other required documents to the Exchange Agent is at the
election and risk of the holder but, except as otherwise provided below, the
delivery will be deemed made only when actually received by the Exchange Agent.
Instead of delivery by mail, it is recommended that holders use an overnight or
hand delivery service, properly insured. If such delivery is by mail, it is
recommended that the holder use properly insured, registered mail with return
receipt requested. For a full description of the guaranteed delivery procedures,
see the Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery
Procedures." In all cases, sufficient time should be allowed to assure timely
delivery. No Notice of Guaranteed Delivery should be sent to the Company.
2. SIGNATURE ON THIS NOTICE OF GUARANTEED DELIVERY; GUARANTEE OF
SIGNATURES. If this Notice of Guaranteed Delivery is signed by the holder(s)
referred to herein, then the signature must correspond with the name(s) as
written on the face of the Private Notes without alteration, enlargement or any
change whatsoever. If this Notice of Guaranteed Delivery is signed by a person
other than the holder(s) listed, this Notice of Guaranteed Delivery must be
accompanied by a properly completed bond power signed as the name of the
holder(s) appear(s) on the face of the Private Notes without alteration,
enlargement or any change whatsoever. If this Notice of Guaranteed Delivery is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and, unless waived by the
Company, evidence satisfactory to the Company of their authority so to act must
be submitted with this Notice of Guaranteed Delivery.
3. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the
Exchange Offer or the procedure for consenting and tendering as well as requests
for assistance or for additional copies of the Prospectus, the Letter of
Transmittal and this Notice of Guaranteed Delivery, may be directed to the
Exchange Agent at the address set forth on the cover hereof or to your broker,
dealer, commercial bank or trust company.
EX-99.3
15
c78303exv99w3.txt
FORM OF LETTER TO DTC PARTICIPANTS
EXHIBIT 99.3
LETTER TO DTC PARTICIPANTS REGARDING THE OFFER TO EXCHANGE
ANY AND ALL OUTSTANDING 6.25% SENIOR NOTES DUE 2013
FOR
6.25% SENIOR NOTES DUE 2013
OF
MANOR CARE, INC.
Pursuant to the Prospectus dated , 2003
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2003, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME
TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR THE
EXPIRATION DATE.
, 2003
To Securities Dealers, Commercial Banks
Trust Companies and Other Nominees:
Enclosed for you consideration is a Prospectus dated , 2003 (the
"Prospectus") and a Letter of Transmittal (the "Letter of Transmittal") that
together constitute the offer (the "Exchange Offer") by Manor Care, Inc., a
Delaware corporation (the "Company"), to exchange up to $200,000,000 in
principal amount of its 6.25% Senior Notes due 2013 (the "Exchange Notes"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for any and all outstanding 6.25% Senior Notes due 2013,
issued and sold in a transaction exempt from registration under the Securities
Act (the "Private Notes"), upon the terms and conditions set forth in the
Prospectus. The Prospectus and Letter of Transmittal more fully describe the
Exchange Offer. Capitalized terms used but not defined herein have the meanings
given to them in the Prospectus.
We are asking you to contact your clients for whom you hold Private Notes
registered in your name or in the name of your nominee. In addition, we ask you
to contact your clients who, to your knowledge, hold Private Notes registered in
their own name.
Enclosed are copies of the following documents:
1. The Prospectus;
2. The Letter of Transmittal for your use in connection with the
tender of Private Notes and for the information of your clients;
3. The Notice of Guaranteed Delivery to be used to accept the Exchange
Offer if the Private Notes and all other required documents cannot be
delivered to the Exchange Agent prior to the Expiration Date;
4. A form of letter that may be sent to your clients for whose
accounts you hold Private Notes registered in your name or the name of your
nominee, with space provided for obtaining the clients' instructions with
regard to the Exchange Offer; and
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
DTC participants will be able to execute tenders through the DTC Automated
Tender Offer Program.
PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 2003, UNLESS EXTENDED BY THE COMPANY. WE URGE YOU TO
CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
You will be reimbursed by the Company for customary mailing and handling
expenses incurred by you in forwarding any of the enclosed materials to your
clients.
Additional copies of the enclosed material may be obtained form the
Exchange Agent, at the address and telephone numbers set forth below.
Very truly yours,
NATIONAL CITY BANK
National City Bank
P.O. BOX 92301
CLEVELAND, OHIO 44193-0900
Facsimile: (216) 222-9326
Telephone: (216) 222-9352
---------------------
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM WITH RESPECT TO
THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS AND
THE LETTER OF TRANSMITTAL.
EX-99.4
16
c78303exv99w4.txt
FORM OF LETTER TO BENEFICIAL HOLDERS
EXHIBIT 99.4
LETTER TO BENEFICIAL HOLDERS REGARDING THE OFFER TO EXCHANGE
ANY AND ALL OUTSTANDING 6.25% SENIOR NOTES DUE 2013
FOR
6.25% SENIOR NOTES DUE 2013
OF
MANOR CARE, INC.
Pursuant to the Prospectus dated , 2003
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
2003, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME
TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR THE
EXPIRATION DATE.
, 2003
To Our Clients:
Enclosed for you consideration is a Prospectus dated , 2003 (the
"Prospectus") and a Letter of Transmittal (the "Letter of Transmittal") that
together constitute the offer (the "Exchange Offer") by Manor Care, Inc., a
Delaware corporation (the "Company"), to exchange up to $200,000,000 in
principal amount of its 6.25% Senior Notes due 2013 (the "Exchange Notes"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for any and all outstanding 6.25% Senior Notes due 2013,
issued and sold in a transaction exempt from registration under the Securities
Act (the "Private Notes"), upon the terms and conditions set forth in the
Prospectus. The Prospectus and Letter of Transmittal more fully describe the
Exchange Offer. Capitalized terms used but not defined herein have the meanings
given to them in the Prospectus.
These materials are being forwarded to you as the beneficial owner of
Private Notes carried by us for your account or benefit but not registered in
your name. A tender of any Private Notes may be made only by us as the
registered holder and pursuant to your instructions. Therefore, the Company
urges beneficial owners of Private Notes registered in the name of a broker,
dealer, commercial bank, trust company or other nominee to contact such
registered holder promptly if they wish to tender Private Notes in the Exchange
Offer.
Accordingly, we request instructions as to whether you wish us to tender
any or all of your Private Notes, pursuant to the terms and conditions set forth
in the Prospectus and Letter of Transmittal. We urge you to read carefully the
Prospectus and Letter of Transmittal before instructing us to tender your
Private Notes.
Your instructions to us should be forwarded as promptly as possible in
order to permit us to tender Private Notes on your behalf in accordance with the
provisions of the Exchange Offer. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 2003. Private Notes tendered pursuant to the
Exchange Offer may be withdrawn, subject to the procedures described in the
Prospectus, at any time prior to the Expiration Date.
If you wish to have us tender any or all of your Private Notes held by us
for your account or benefit, please so instruct us by completing, executing and
returning to us the instruction form that appears below. The accompanying Letter
of Transmittal is furnished to you for informational purposes only and may not
be used by you to tender Private Notes held by us and registered in our name for
your account or benefit.
INSTRUCTION TO REGISTERED HOLDER
FROM BENEFICIAL OWNER
OF 6.25% SENIOR NOTES DUE 2013
OF MANOR CARE, INC.
THE UNDERSIGNED ACKNOWLEDGE(S) RECEIPT OF YOUR LETTER AND THE ENCLOSED
MATERIALS REFERRED TO THEREIN RELATING TO THE EXCHANGE OFFER OF THE COMPANY.
CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN HAVE THE MEANINGS ASCRIBED TO THEM
IN THE PROSPECTUS.
This will instruct you to tender the principal amount of Private Notes
indicated below held by you for the account or benefit of the undersigned,
pursuant to the terms of and conditions set forth in the Prospectus and the
Letter of Transmittal.
The aggregate face amount of the Private Notes held by you for the account
of the undersigned is (fill in amount):
$ of the Private Notes.
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate box):
[ ] To TENDER the following Private Notes held by you for the account of
the undersigned (insert principal amount of Private Notes to be tendered, if
any):
$ of the Private Notes.
[ ] NOT to TENDER any Private Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Private Notes held by you
for the account of the undersigned, it is understood that you are authorized (a)
to make, on behalf of the undersigned (and the undersigned, by its signature
below, hereby makes to you), the representations and warranties contained in the
Letter of Transmittal that are to be made with respect to the undersigned as a
beneficial owner of the Private Notes, including but not limited to the
representations that (i) the undersigned's principal residence is in the state
of (fill in state) , (ii) the undersigned is acquiring the Exchange
Notes in the ordinary course of business of the undersigned, (iii) the
undersigned has no arrangement or understanding with any person to participate
in the distribution of Exchange Notes, (iv) the undersigned acknowledges that
any person who is a broker-dealer registered under the Exchange Act or is
participating in the Exchange Offer for the purpose of distributing the Exchange
Notes must comply with the registration and prospectus delivery requirements of
Section 10 of the Securities Act in connection with a secondary resale
transaction of the Exchange Notes acquired by such person and cannot rely on the
position of the Staff of the Securities and Exchange Commission set forth in
certain no action letters (See the section of the Prospectus entitled "The
Exchange Offer -- Effect of the Exchange Offer"), (v) the undersigned
understands that a secondary resale transaction described in clause (iv) above
and any resales of Exchange Notes obtained by the undersigned in exchange for
the Private Notes acquired by the undersigned directly from the Company should
be covered by an effective registration statement containing the selling
securityholder information required by Item 507 or Item 508, if applicable, of
Regulation S-K of the Commission, (vi) the undersigned is not an "affiliate," as
defined in Rule 405 under the Securities Act, of the Company, and (vii) if the
undersigned is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Private Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus meeting the requirements of Section 10 of the
Securities Act in connection with any resale of such Exchange Notes; however, by
so acknowledging and by delivering such prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act; (b) to agree, on behalf of the undersigned, as set forth in the Letter of
Transmittal; and (c) to take such other action as necessary under the Prospectus
or the Letter of Transmittal to effect the valid tender of Private Notes.
The purchaser status of the undersigned is (check the box that applies):
[ ] A "Qualified Institutional Buyer" (as defined in Rule 144A under the
Securities Act)
[ ] An "Institutional Accredited Investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act)
[ ] A non "U.S. person" (as defined in Regulation S of the Securities Act) that
purchased the Private Notes outside the United States in accordance with
Rule 904 of the Securities Act
[ ] Other (describe) ------------------------------------------------
SIGN HERE
Name of Beneficial Owner(s): ------------------------------------------------
Signature(s): ------------------------------------------------------------------
Name(s): -----------------------------------------------------------------------
(PLEASE PRINT)
Address -------------------------------------------------------------------
Principal place of business (if different from address listed above): ----------
Telephone Number(s): -----------------------------------------------------------
Taxpayer Identification or Social Security Number(s): --------------------------
Date: --------------------------------------------------------------------------
EX-99.5
17
c78303exv99w5.txt
FORM OF LETTER TO CLIENTS
EXHIBIT 99.5
LETTER TO CLIENTS
REGARDING THE OFFER TO EXCHANGE
$200,000,000 PRINCIPAL AMOUNT OF 6.25% SENIOR NOTES DUE 2013
FOR ANY AND ALL OUTSTANDING
$200,000,000 PRINCIPAL AMOUNT OF 6.25% SENIOR NOTES DUE 2013
OF
MANOR CARE, INC.
To Our Clients:
We are enclosing herewith a Prospectus, dated , 2003, of Manor
Care, Inc. (the "Company") and a related Letter of Transmittal (which together
constitute the "Exchange Offer") relating to the offer by the Company to
exchange its new 6.25% Senior Notes due 2013 (the "Exchange Notes"), pursuant to
an offering registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like principal amount of its issued and outstanding
6.25% Senior Notes due 2013 (the "Private Notes") upon the terms and subject to
the conditions set forth in the Prospectus and the Letter of Transmittal.
PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 2003, UNLESS EXTENDED.
The Exchange Offer is not conditioned upon any minimum number of Private
Notes being tendered.
We are the Registered Holder or DTC participant through which you hold an
interest in the Private Notes. A tender of such Private Notes can be made only
by us pursuant to your instructions. The Letter of Transmittal is furnished to
you for your information only and cannot be used by you to tender your
beneficial ownership of Private Notes held by us for your account.
We request instructions as to whether you wish to tender any or all of your
Private Notes held by us for your account pursuant to the terms and subject to
the conditions of the Exchange Offer. We also request that you confirm that we
may on your behalf make the representations contained in the Letter of
Transmittal that are to be made with respect to you as beneficial owner.
Pursuant to the Letter of Transmittal, each holder of Private Notes must
make certain representations and warranties that are set forth in the Letter of
Transmittal and in the attached form that we have provided to you for your
instructions regarding what action we should take in the Exchange Offer with
respect to your interest in the Private Notes.
EX-99.6
18
c78303exv99w6.txt
GUIDELINES FOR CERTIFICATION OF TAXPAYER ID
EXHIBIT 99.6
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER
Social Security Numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer Identification Numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the type of
number to give the payer.
- ------------------------------------------------------------
GIVE THE NAME AND
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF --
- ------------------------------------------------------------
1. Individual The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, the
first individual on
the account(1)
3. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
4. a. The usual revocable savings The grantor-
trust (grantor is also trustee) trustee(1)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust
under state law
5. Sole proprietorship The owner(3)
- ------------------------------------------------------------
- ------------------------------------------------------------
GIVE THE NAME AND
EMPLOYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF --
- ------------------------------------------------------------
6. Sole proprietorship The owner(3)
7. A valid trust, estate, or pension The legal entity
trust (Do not furnish the
identifying number
of the personal
representative or
trustee unless the
legal entity itself
is not designated
in the account
title.)(4)
8. Corporate The corporation
9. Association, club, religious, The organization
charitable, educational or other
tax-exempt organization
10. Partnership The partnership
11. A broker or registered nominee The broker or
nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a state or
local government, school district
or prison) that receives
agriculture program payments
- ------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Show the name of the owner. The name of the business or the "doing business
as" name may also be entered. Either the social security number or the
employer identification number may be used.
(4) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you do not have a taxpayer identification number or if you do not know your
number, obtain Form SS-5, Application for Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number, at
the local office of the Social Security Administration or the Internal Revenue
Service (the "IRS") and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on all dividend and
interest payments and on broker transactions include the following:
- A corporation.
- A financial institution.
- An organization exempt from a tax under Section 501(a), or an individual
retirement plan or a custodial account under Section 403(b)(7) if the
account satisfies the requirements of Section 401(f)(2).
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under Section 584(a).
- An entity registered at all times during the tax year under the Investment
Company Act of 1940.
- A foreign central bank of issue.
PAYMENTS EXEMPT FROM BACKUP WITHHOLDING
Payments that are not subject to information reporting also are not subject to
backup withholding. For details, see sections 6041, 6041A, 6042, 6045, 6049,
6050A, and 6050N, and the regulations thereunder.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under Section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Section 404(k) distributions made by an ESOP.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
Section 852).
- Payments described in Section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under Section 1451.
- Payments made by certain foreign organizations.
- Mortgage or student loan interest paid by you.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, CHECK "EXEMPT" IN PART 2 OF THE FORM, SIGN AND DATE THE
FORM AND RETURN IT TO THE PAYER.
PRIVACY ACT NOTICE.
Section 6109 requires most recipients of dividend, interest, or other payments
to give taxpayer identification numbers to payers who must report the payments
to the IRS. The IRS uses the numbers for identification purposes and to help
verify the accuracy of tax returns. Payers must be given the numbers whether or
not recipients are required to file tax returns. Payers must generally withhold
at the applicable rate with respect to taxable interest, dividend, and certain
other payments to a payee who does not furnish a taxpayer identification number
to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.
If you fail to furnish your correct taxpayer identification number to a payer,
you are subject to a penalty of $50 for each such failure unless your failure is
due to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.
If you make a false statement with no reasonable basis that results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.
Willfully falsifying certifications or affirmations may subject you to criminal
penalties including fines and/or imprisonment.
(4) MISUSE OF TAXPAYER IDENTIFICATION NUMBERS
If the payer discloses or uses taxpayer identification numbers in violation of
Federal law, the payer may be subject to civil and criminal penalties.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
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