EX-4.1 3 l84465aex4-1.txt EXHIBIT 4.1 1 Exhibit 4.1 THIRD AMENDMENT TO 364 DAY CREDIT AGREEMENT THIS THIRD AMENDMENT TO 364 DAY CREDIT AGREEMENT is made and dated as of September 22, 2000 (the "THIRD Amendment") among MANOR CARE, INC., a Delaware corporation formerly known as HCR Manor Care, Inc. (the "COMPANY"), MANOR CARE OF AMERICA, INC., a Delaware corporation formerly known as Manor Care, Inc. ("MANOR CARE"; Manor Care and the Company are collectively called the "BORROWERS" and are each individually called a "BORROWER"), the financial institution's party to the Credit Agreement referred to below, and BANK OF AMERICA, N.A., a national banking association, as Administrative Agent (the "AGENT"), and amends that certain 364 Day Credit Agreement dated as of September 25, 1998, as amended by that certain First Amendment to 364 Day Credit Agreement dated as of September 24, 1999 and that certain Second Amendment to 364 Day Credit Agreement dated as of February 9, 2000 (as amended or modified from time to time, the "CREDIT AGREEMENT"). RECITALS WHEREAS, the Borrowers have requested that the Agent and the Banks amend certain provisions of the Credit Agreement, and the Agent and the Banks are willing to do so, on the terms and conditions specified herein; NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. TERMS. All terms used herein shall have the same meanings as in the Credit Agreement unless otherwise defined herein. 2. AMENDMENTS. The Credit Agreement is hereby amended as follows: 2.1 AMENDMENTS TO COVER PAGE. The cover page of the Credit Agreement is hereby amended and restated in its entirety to read as set forth in Exhibit B hereof. 2.2 AMENDMENTS TO SECTION 1.1. (a) The definition of the term "Consolidated EBITDA" in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows: "CONSOLIDATED EBITDA" means the Company's and its Subsidiaries' earnings BEFORE Consolidated Interest Expense, taxes, depreciation, amortization, extraordinary items of gain and all Specified Losses and BEFORE the $274,120,000 of charges taken by the Company in the quarter ending December 31, 1999 in connection with the write-down of its investment in Genesis Health Ventures, Inc. ("GENESIS"), the $17,404,000 charge taken by the Company in 2 the quarter ending December 31, 1999 in connection with its write-off of accrued and unpaid dividends from Genesis and the $27,300,000 of charges taken by the Company in the quarter ending June 30, 2000 in connection with the write-down of its investment in Genesis and in a joint venture with Genesis and the write-down of certain receivables from Genesis, and AFTER deduction of $4,351,000 for each of the fiscal quarters ending on March 31, 1999, June 30, 1999, September 30, 1999 and December 31, 1999. (b) The definition of the term "Revolving Termination Date" in Section 1.1 of the Credit Agreement is hereby amended by deleting the date "September 22, 2000" from clause (a) thereof and replacing it with the date "September 21, 2001." 2.3 AMENDMENTS TO SECTION 5.5. Section 5.5 of the Credit Agreement is hereby amended by deleting the date "December 31, 1998" from clause (a) thereof and replacing it with "December 31, 1999" and by deleting the date "June 30, 1999" from clause (b) thereof and replacing it with "June 30, 2000". 2.4 AMENDMENT TO SECTION 5.6. Section 5.6 of the Credit Agreement is hereby amended by deleting the date "December 31, 1998" and replacing it with "December 31, 1999." 2.5 AMENDMENT TO SCHEDULE 2.1. Schedule 2.1 to the Credit Agreement is hereby amended and restated to read as set forth on Schedule 2.1 hereof. 3. REPRESENTATIONS AND WARRANTIES. The Borrowers represent and warrant to the Agent and the Banks that, on and as of the date hereof, and after giving effect to this Third Amendment: 3.1 AUTHORIZATION. The execution, delivery and performance by the Borrowers of this Third Amendment have been duly authorized by all necessary corporate action, and this Third Amendment has been duly executed and delivered by the Borrowers. 3.2 BINDING OBLIGATION. This Third Amendment constitutes the legal, valid and binding obligation of the Borrowers, enforceable against the Borrowers in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability. 3.3 NO LEGAL OBSTACLE TO AMENDMENT. The execution, delivery and performance of this Third Amendment will not (a) contravene the Organization Documents of either Borrower; (b) constitute a breach or default under any material Contractual Obligation or violate or contravene any law or governmental regulation or court decree or order binding on or affecting either Borrower which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect; or (c) result in, or require the creation or imposition of, any Lien on any of either Borrower's properties. No approval or authorization of any governmental authority is required to permit the execution, delivery or performance by the Borrowers of this Third Amendment, or the transactions contemplated hereby. 2 3 3.4 INCORPORATION OF CERTAIN REPRESENTATIONS. After giving effect to the terms of this Third Amendment, the representations and warranties of the Company set forth in Article V of the Credit Agreement are true and correct in all respects on and as of the date hereof as though made on and as of the date hereof, except as to such representations made as of an earlier specified date. 3.5 DEFAULT. No Default or Event of Default under the Credit Agreement has occurred and is continuing. 4. CONDITIONS, EFFECTIVENESS. The effectiveness of this Third Amendment shall be subject to the compliance by the Borrowers with their agreements herein contained, and to the delivery of the following to Agent in form and substance satisfactory to Agent: 4.1 AMENDMENT FEE. An amendment fee (the "Amendment Fee"), for the ratable benefit of the Banks that have consented to the Third Amendment not later than 3:00 p.m., Eastern Standard Time, on September 21, 2000, in the amounts set forth in the presentation to the Banks on August 8, 2000. The Amendment Fee shall be paid to the Agent in immediately available funds and shall be non-refundable. The Amendment Fee is in addition to any fees, costs, expenses or other amounts otherwise payable pursuant to this Third Amendment or the Amended Agreement. 4.2 GUARANTOR AFFIRMATION. An acknowledgment and reaffirmation letter in the form of EXHIBIT A hereto duly executed by each party to the Guaranty (a "Guarantor"). 4.3 OTHER EVIDENCE. Such other evidence with respect to the Borrowers or any other person as the Agent or any Bank may reasonably request to establish the consummation of the transactions contemplated hereby, the taking of all corporate action in connection with this Third Amendment and the Credit Agreement and the compliance with the conditions set forth herein. 5. MISCELLANEOUS. 5.1 EFFECTIVENESS OF THE CREDIT AGREEMENT. Except as hereby expressly amended, the Credit Agreement shall each remain in full force and effect and is hereby ratified and confirmed in all respects on and as of the date hereof. 5.2 WAIVERS. This Third Amendment is limited solely to the matters expressly set forth herein and is specific in time and in intent and does not constitute, nor should it be construed as, a waiver or amendment of any other term or condition, right, power or privilege under the Credit Agreement or under any agreement, contract, indenture, document or instrument mentioned therein; nor does it preclude or prejudice any rights of the Agent or the Banks thereunder, or any exercise thereof or the exercise of any other right, power or privilege, nor shall it require the Majority Banks to agree to an amendment, waiver or consent for a similar transaction or on a future occasion, nor shall any future waiver of any right, power, privilege or default hereunder, or under any agreement, 3 4 contract, indenture, document or instrument mentioned in the Credit Agreement, constitute a waiver of any other right, power, privilege or default of the same or of any other term or provision. 5.3 COUNTERPARTS. This Third Amendment may be executed in any number of counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. This Third Amendment shall not become effective until the Borrowers, the Agent and all Banks shall have signed a copy hereof and the same shall have been delivered to the Agent and the conditions set forth in Section 4 hereof have been satisfied. Delivery of an executed counterpart of a signature page to this Third Amendment should be effective as delivery of a manually executed counterpart of this Third Amendment. 5.4 GOVERNING LAW. This Third Amendment shall be governed by and construed in accordance with the laws of the State of New York. 5.5 SEVERABILITY. The illegality or unenforceability of any provision of this Third Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Third Amendment or any instrument or agreement required hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. MANOR CARE, INC. By: ___________________________ Title: _________________________ MANOR CARE OF AMERICA, INC. By: ___________________________ Title: _________________________ BANK OF AMERICA, N.A., as Agent By: ___________________________ Title: _________________________ 4 5 BANK OF AMERICA, N.A., as a Bank By: ___________________________ Title: _________________________ THE CHASE MANHATTAN BANK By: ___________________________ Title: _________________________ THE HUNTINGTON NATIONAL BANK By: ___________________________ Title: _________________________ THE BANK OF NEW YORK By: ___________________________ Title: _________________________ 5 6 ALLFIRST BANK By: ___________________________ Title: _________________________ NATIONAL CITY BANK By: ___________________________ Title: _________________________ SUNTRUST BANK By: ___________________________ Title: _________________________ 6 7 EXHIBIT A TO THIRD AMENDMENT TO CREDIT AGREEMENT September 22, 2000 The parties listed on the acknowledgment pages hereof: Re: 364 Day Credit Agreement dated as of September 25, 1998 Ladies and Gentlemen: Please refer to (i) the 364 Day Credit Agreement dated as of September 25, 1998, as amended (as so amended, the "CREDIT AGREEMENT") by and among Manor Care, Inc. and Manor Care of America, Inc., as the borrowers, the commercial lending institutions party thereto (the "BANKS") and Bank of America, N.A., as administrative agent (in such capacity, the "AGENT") and (ii) the Guaranty dated as of September 25, 1998 (the "GUARANTY"), which was executed by you on such date or to which you later became a party pursuant to a Guaranty Assumption Agreement. Pursuant to an amendment of even date herewith, certain terms of the Credit Agreement were amended. We hereby request that you (i) consent to the terms of the amendment, (ii) acknowledge and reaffirm all of your obligations and undertakings under the Guaranty and (iii) acknowledge and agree that the Guaranty is and shall remain in full force and effect in accordance with the terms thereof. Please indicate your agreement to the foregoing by signing in the space provided below, and returning the executed copy to the undersigned. Very truly yours, BANK OF AMERICA, N.A., as Agent By:________________________________ Title:_____________________________ Acknowledged and Agreed to: A-1 8 MANOR CARE, INC. By:________________________________ Title:_____________________________ MANOR CARE OF AMERICA, INC. By:________________________________ Title:_____________________________ ANCILLARY SERVICES MANAGEMENT, INC. BIRCHWOOD MANOR, INC. BLUE RIDGE REHABILITATION SERVICES, INC. CANTEBURY VILLAGE, INC. DIVERSIFIED REHABILITATION SERVICES, INC. DONAHOE MANOR, INC. EAST MICHIGAN CARE CORPORATION EYE-Q NETWORK, INC. GEORGIAN BLOOMFIELD, INC. GREENVIEW MANOR, INC. HCR ACQUISITION CORPORATION HCR HOME HEALTH CARE AND HOSPICE, INC. HCR INFORMATION CORPORATION HCR PHYSICIAN MANAGEMENT SERVICES, INC. HCR REHABILITATION CORP. HCR THERAPY SERVICES, INC. HCRA OF TEXAS, INC. HCRC INC. HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA HEARTLAND CAREPARTNERS, INC. HEARTLAND HOME CARE, INC. HEARTLAND HOME HEALTH CARE SERVICES, INC. HEARTLAND HOSPICE SERVICES, INC. HEARTLAND MANAGEMENT SERVICES, INC. HEARTLAND PAIN AND REHABILITATION CENTER, INC. A-2 9 HEARTLAND REHABILITATION SERVICES OF NORTH FLORIDA, INC. HEARTLAND REHABILITATION SERVICES, INC. HEARTLAND SERVICES CORP. HERBERT LASKIN, RPT - JOHN MCKENZIE, RPT PHYSICAL THERAPY PROFESSIONAL ASSOCIATES, INC. HGCC OF ALLENTOWN, INC. IONIA MANOR, INC. KENSINGTON MANOR, INC. KNOLLVIEW MANOR, INC. LINCOLN HEALTH CARE, INC. MARINA VIEW MANOR, INC. MEDI-SPEECH SERVICE, INC. MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC. MILESTONE HEALTH SYSTEMS, INC. MILESTONE HEALTHCARE, INC. MILESTONE REHABILITATIONS SERVICES, INC. MILESTONE THERAPY SERVICES, INC. MRC REHABILITATION, INC. NUVISTA REFRACTIVE SURGERY AND LASER CENTER, INC. PERRYSBURG PHYSICAL THERAPY, INC. PHYSICAL OCCUPATIONAL AND SPEECH THERAPY, INC. REHABILITATION ADMINISTRATIVE CORPORATION REHABILITATION ASSOCIATES, INC. REHABILITATION SERVICES OF ROANOKE, INC. REINBOLT AND BURKAM, INC. RICHARDS HEALTHCARE, INC. RIDGEVIEW MANOR, INC. RVA MANAGEMENT SERVICES, INC. SPRINGHILL MANOR, INC. SUN VALLEY MANOR, INC. THERAPY ASSOCIATES, INC. THREE RIVERS MANOR, INC. VISION MANAGEMENT SERVICES, INC. WASHTENAW HILLS MANOR, INC. WHITEHALL MANOR, INC. A-3 10 By:____________________________________ Name: _________________________________ Its:____________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 AMERICAN HOSPITAL BUILDING CORPORATION AMERICANA HEALTHCARE CENTER OF PALOS TOWNSHIP, INC. AMERICANA HEALTHCARE CORPORATION OF GEORGIA AMERICANA HEALTHCARE CORPORATION OF NAPLES ARCHIVE ACQUISITION, INC. ARCHIVE RETRIEVAL SYSTEMS, INC. BAILY NURSING HOME, INC. CHARLES MANOR, INC. CHESAPEAKE MANOR, INC. DEVON MANOR CORPORATION DISTCO, INC. EXECUTIVE ADVERTISING, INC. FOUR SEASONS NURSING CENTERS, INC. HEALTHCARE CONSTRUCTION CORP. INDUSTRIAL WASTES INC. JACKSONVILLE HEALTHCARE CORPORATION LEADER NURSING AND REHABILITATION CENTER OF BETHEL PARK, INC. LEADER NURSING AND REHABILITATION CENTER OF GLOUCESTER, INC. LEADER NURSING AND REHABILITATION CENTER OF SCOTT TOWNSHIP, INC. LEADER NURSING AND REHABILITATION CENTER OF VIRGINIA INC. MCHS OF NEW YORK, INC. MNR FINANCE CORP. MRS, INC. MANORCARE HEALTH SERVICES, INC. A-4 11 MANORCARE HEALTH SERVICES OF BOYNTON BEACH, INC. MANORCARE HEALTH SERVICES OF GEORGIA, INC. MANOR CARE AVIATION, INC. MANOR CARE MANAGEMENT CORPORATION MANOR CARE OF AKRON, INC. MANOR CARE OF ARIZONA, INC. MANOR CARE OF ARLINGTON, INC. MANOR CARE OF BOCA RATON, INC. MANOR CARE OF BOYNTON BEACH, INC. MANOR CARE OF CANTON, INC. MANOR CARE OF CHARLESTON, INC. MANOR CARE OF CINCINNATI, INC. MANOR CARE OF COLUMBIA, INC. MANOR CARE OF DARIEN, INC. MANOR CARE OF DUNEDIN, INC. MANOR CARE OF FLORIDA, INC. MANORCARE HEALTH SERVICES OF NORTHHAMPTON COUNTY, INC. MANORCARE HEALTH SERVICES OF VIRGINIA, INC. MANOR CARE OF HINSDALE, INC. MANOR CARE OF KANSAS, INC. MANOR CARE OF KINGSTON COURT, INC. MANOR CARE OF LARGO, INC. MANOR CARE OF LEXINGTON, INC. MANOR CARE OF MEADOW PARK, INC. MANOR CARE OF MESQUITE, INC. MANOR CARE OF NORTH OLMSTEAD, INC. MANOR CARE OF PINEHURST, INC. MANOR CARE OF PLANTATION, INC. MANOR CARE OF ROLLING MEADOWS, INC. MANOR CARE OF ROSSVILLE, INC. MANOR CARE OF SARASOTA, INC. MANOR CARE OF WILLOUGHBY, INC. MANOR CARE OF WILMINGTON, INC. MANOR OF YORK (NORTH), INC. MANOR OF YORK (SOUTH), INC. MANOR CARE PROPERTIES, INC. MANOR LIVING CENTERS, INC. MEDICAL AID TRAINING SCHOOLS, INC. NEW MANORCARE HEALTH SERVICES, INC. A-5 12 THE NIGHTINGALE NURSING HOME, INC. PEAK REHABILITATION, INC. PNEUMATIC CONCRETE, INC. PORTFOLIO ONE, INC. ROLAND PARK NURSING CENTER, INC. SILVER SPRING - WHEATON NURSING HOME, INC. STEWALL CORPORATION STRATFORD MANOR, INC. STUTEX CORP. TOTALCARE CLINICAL LABORATORIES, INC. By:____________________________________ Name: _________________________________ Its:____________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 ANNANDALE ARDEN, LLC BAINBRIDGE ARDEN, LLC BINGHAM FARMS ARDEN, LLC CRESTVIEW ARDEN, LLC FIRST LOUISVILLE ARDEN, LLC HANOVER ARDEN, LLC JEFFERSON ARDEN, LLC KENWOOD ARDEN, LLC LEXINGTON ARDEN, LLC LINWOOD ARDEN, LLC LIVONIA ARDEN, LLC MEMPHIS ARDEN, LLC NAPA ARDEN, LLC NASHVILLE ARDEN, LLC NISHAYUNA ARDEN, LLC ROANOKE ARDEN, LLC SAN ANTONIO ARDEN, LLC SECOND LOUISVILLE ARDEN, LLC SETAUKET ARDEN, LLC SILVER SPRING ARDEN, LLC A-6 13 TAMPA ARDEN, LLC TUSTIN ARDEN, LLC WALL ARDEN, LLC WEST WINDSOR ARDEN, LLC WILLIAMSVILLE ARDEN, LLC By: Manor Care of America, Inc., its sole member By:____________________________________ Name: _________________________________ Its:____________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 BATH ARDEN, LLC EMERSON SPRINGHOUSE, LLC FRESNO ARDEN, LLC LAKE ZURICH ARDEN, LLC METUCHEN ARDEN, LLC MIDDLETOWN ARDEN, LLC MONROE ARDEN, LLC MOORESTOWN ARDEN, LLC OVERLAND PARK ARDEN, LLC OVERLAND PARK SKILLED NURSING, LLC ROCKFORD ARDEN, LLC ROCKLEIGH ARDEN, LLC TOM'S RIVER ARDEN, LLC TUSCAWILLA ARDEN, LLC WAYNE ARDEN, LLC WAYNE SPRINGHOUSE, LLC WEST DEPTFORD ARDEN, LLC WEST ORANGE ARDEN, LLC WEST ORANGE SPRINGHOUSE, LLC By: Manor Care Health Services, Inc., its sole member A-7 14 By:____________________________________ Name: _________________________________ Its:____________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 BOOTH LIMITED PARTNERSHIP By: Jacksonville Healthcare Corporation, its general partner By:____________________________________ Name: _________________________________ Its:____________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 COLEWOOD LIMITED PARTNERSHIP By: American Hospital Building Corporation, its general partner By:____________________________________ Name: _________________________________ Its:____________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 A-8 15 Telephone: 419-252-5500 HEARTLAND EMPLOYMENT SERVICES, INC. By:____________________________________ Name: _________________________________ Its:____________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 ANCILLARY SERVICES, LLC By: Heartland Rehabilitation Corporation By:____________________________________ Name: _________________________________ Title___________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 Alburquerque Arden, LLC Colonie Arden, LLC Geneva Arden, LLC Glen Ellyn Arden, LLC Kansas skilled Nursing, LLC Laureldaly Arden, LLC Susquehanna Arden, LLC Warminster Arden, LLC By: Manor Care of America, Inc. By:____________________________________ A-9 16 Name: _________________________________ Title___________________________________ Address: One Seagate Toledo, Ohio 43604-2616 Fax No.: 419-252-5571 Telephone: 419-252-5500 A-10 17 EXHIBIT B TO THIRD AMENDMENT TO CREDIT AGREEMENT 364 DAY CREDIT AGREEMENT Dated as of September 25, 1998, as amended as of September 24, 1999, February 9, 2000 and September 22, 2000 among MANOR CARE OF AMERICA, INC., MANOR CARE, INC., BANK OF AMERICA, N.A., as Administrative Agent, THE CHASE MANHATTAN BANK, as Syndication Agent, and THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO Arranged by BANC OF AMERICA SECURITIES, LLC, as Lead Arranger and CHASE SECURITIES INC., as Co-Lead Arranger B-1 18 SCHEDULE 2.1 COMMITMENTS AND PRO RATA SHARES BANK COMMITMENT SHARE Bank of America, N.A. $ 68,125,000 34.06% The Chase Manhattan Bank $ 68,125,000 34.06% The Bank of New York $ 20,000,000 10.00% National City Bank $ 15,000,000 7.50% AllFirst Bank $ 11,250,000 5.63% The Huntington National Bank $ 10,000,000 5.00% SunTrust Bank $ 7,500,000 3.75% TOTAL $200,000,000 100%