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Exhibit 4.6
First Amendment to Five Year
Credit Agreement
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FIRST AMENDMENT TO
FIVE YEAR CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIVE YEAR CREDIT AGREEMENT is made and dated as
of February 9, 2000 (the "FIRST 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 HCR 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 Credit Agreement dated as of September 25,
1998 (as amended or modified from time to time, the "CREDIT AGREEMENT").
RECITALS
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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. 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
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December 31, 1999 in connection with the write-down
of its investment in Genesis Health Ventures, Inc.
and the $17,404,000 charge taken by the Company in
the quarter ending December 31, 1999 in connection
with its write-off of accrued and unpaid dividends
from Genesis Health Ventures, Inc. 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.
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 First Amendment:
3.1. Authorization. The execution, delivery and performance by
the Borrowers of this First Amendment have been duly authorized by all
necessary corporate action, and this First Amendment has been duly
executed and delivered by the Borrowers.
3.2. Binding Obligation. This First 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 First 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 First
Amendment, or the transactions contemplated hereby.
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3.4. Incorporation of Certain Representations. After giving
effect to the terms of this First 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 First 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 First
Amendment not later than 5:00 p.m., Eastern Standard Time, on February
9, 2000, of 0.075% of the aggregate Commitments of such consenting
Banks. 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 First Amendment or the Amended Agreement.
4.2. Authorized Signatories. A certificate, signed by the
Secretary or an Assistant Secretary of each of the Borrowers and dated
the date of this First Amendment, as to the incumbency of the person or
persons authorized to execute and deliver this First Amendment and any
instrument or agreement required hereunder on behalf of the Borrowers.
4.3. Guarantor Affirmation. An acknowledgment and
reaffirmation letter in the form of Exhibit A hereto duly executed by
each party to the Guaranty (a "Guarantor").
4.4. 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 trans-actions contemplated
hereby, the taking of all corporate action in connection with this
First Amendment and the Credit
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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 First 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, 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 First 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 First
Amendment shall not become effective until the Borrowers, the Agent and
the Majority 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. Upon satisfaction of the
foregoing conditions, the effectiveness of this First Amendment shall
be retroactive to December 31, 1999. Delivery of an executed
counterpart of a signature page to this First Amendment should be
effective as delivery of a manually executed counterpart of this First
Amendment.
5.4. Governing Law. This First Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
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5.5. Severability. The illegality or unenforceability of any
provision of this First 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 First Amendment
or any instrument or agreement required hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this First 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:________________________
BANK OF AMERICA, N.A., as a Bank
By:___________________________
Title:________________________
THE CHASE MANHATTAN BANK
By:___________________________
Title:________________________
THE TORONTO-DOMINION BANK
By:___________________________
Title:________________________
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DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:___________________________
Title:________________________
By:___________________________
Title:________________________
THE HUNTINGTON NATIONAL BANK
By:___________________________
Title:________________________
BANK OF MONTREAL
By:___________________________
Title:________________________
THE BANK OF NEW YORK
By:___________________________
Title:________________________
BANK ONE, N.A.
By:___________________________
Title:________________________
ALLFIRST BANK
By:___________________________
Title:________________________
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NATIONAL CITY BANK
By:___________________________
Title:________________________
SUNTRUST BANK
By:___________________________
Title:________________________
WACHOVIA BANK, N.A.
By:___________________________
Title:________________________
FLEET NATIONAL BANK
By:___________________________
Title:________________________
THE FIFTH THIRD BANK
By:___________________________
Title:________________________
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EXHIBIT A
TO FIRST AMENDMENT
TO CREDIT AGREEMENT
February 9, 2000
The parties listed on the acknowledgment pages hereof:
Re: Five Year Credit Agreement dated as of
September 25, 1998
Ladies and Gentlemen:
Please refer to (i) the Credit Agreement dated as of September 25, 1998
(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:_____________________________
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Acknowledged and Agreed to:
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.
XXXXXXX 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.
HEARTLAND REHABILITATION SERVICES OF
NORTH FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES, INC.
HEARTLAND SERVICES CORP.
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XXXXXXX XXXXXX, RPT - XXXX XXXXXXXX, 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.
XXXXXXXX AND XXXXXX, INC.
XXXXXXXX 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.
By:____________________________________
Name: _________________________________
Its:___________________________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No. 000-000-0000
Telephone: 000-000-0000
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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.
XXXXX NURSING HOME, INC.
XXXXXXX XXXXX, 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
XXXXX TOWNSHIP, INC.
LEADER NURSING AND REHABILITATION CENTER OF
VIRGINIA, INC.
MCHS OF NEW YORK, INC.
MNR FINANCE CORP.
MRS, INC.
MANORCARE HEALTH SERVICES, INC.
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.
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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 XXXXXXXX, INC.
MANOR CARE OF PINEHURST, INC.
MANOR CARE OF PLANTATION, INC.
MANOR CARE OF ROLLING XXXXXXX, INC.
MANOR CARE OF ROSSVILLE, INC.
MANOR CARE OF SARASOTA, INC.
MANOR CARE OF XXXXXXXXXX, 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.
THE NIGHTINGALE NURSING HOME, INC.
PEAK REHABILITATION, INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
XXXXXX PARK NURSING CENTER, INC.
SILVER SPRING - WHEATON NURSING HOME, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
TOTALCARE CLINICAL LABORATORIES, INC.
By:____________________________________
Name: _________________________________
Title:_________________________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No.: 000-000-0000
Telephone: 000-000-0000
ANNANDALE ARDEN, LLC
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XXXXXXXXXX XXXXX, LLC
XXXXXXX FARMS ARDEN, LLC
CRESTVIEW ARDEN, LLC
FIRST LOUISVILLE ARDEN, LLC
HANOVER ARDEN, LLC
XXXXXXXXX XXXXX, LLC
KENWOOD ARDEN, LLC
LEXINGTON ARDEN, LLC
XXXXXXX XXXXX, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
NASHVILLE ARDEN, LLC
NISHAYUNA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN XXXXXXX XXXXX, LLC
SECOND LOUISVILLE ARDEN, LLC
SETAUKET ARDEN, LLC SILVER SPRING ARDEN, LLC
TAMPA ARDEN, LLC
XXXXXX XXXXX, LLC
WALL ARDEN, LLC
WEST WINDSOR ARDEN, LLC
WILLIAMSVILLE ARDEN, LLC
By: Manor Care of America, Inc., its sole
member
By:_______________________________
Name: _______________________
Title:_______________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No. 000-000-0000
Telephone: 000-000-0000
BATH ARDEN, LLC
XXXXXXX SPRINGHOUSE, LLC
FRESNO ARDEN, LLC
LAKE ZURICH ARDEN, LLC
METUCHEN ARDEN, LLC
MIDDLETOWN ARDEN, LLC
XXXXXX XXXXX, LLC
MOORESTOWN ARDEN, LLC
OVERLAND PARK ARDEN, LLC
OVERLAND PARK SKILLED NURSING, LLC
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ROCKFORD ARDEN, LLC
ROCKLEIGH ARDEN, LLC
TOM'S RIVER ARDEN, LLC
TUSCAWILLA ARDEN, LLC
XXXXX XXXXX, LLC
XXXXX SPRINGHOUSE, LLC
WEST DEPTFORD ARDEN, LLC
WEST ORANGE ARDEN, LLC
WEST ORANGE SPRINGHOUSE, LLC
By: Manor Care Health Services, Inc., its
sole member
By:_______________________________
Name: _______________________
Title:_______________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No. 000-000-0000
Telephone: 000-000-0000
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare
Corporation, its general partner
By:________________________________
Name: ________________________
Title_________________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No.: 000-000-0000
Telephone: 000-000-0000
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation,
its general partner
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By:________________________________
Name: ________________________
Title:________________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No.: 000-000-0000
Telephone: 000-000-0000
HEARTLAND EMPLOYMENT SERVICES, INC.
By:________________________________
Name: _____________________________
Title:_____________________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No.: 000-000-0000
Telephone: 000-000-0000
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Corporation
By:_____________________________________
Name: _____________________________
Title:_____________________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No.: 000-000-0000
Telephone: 000-000-0000
Xxxxxxxxxxxx Xxxxx, LLC
Colonie Arden, LLC
Xxxxxx Xxxxx, LLC
Xxxx Xxxxx Xxxxx, LLC
Kansas skilled Nursing, LLC
Laureldaly Arden, LLC
Susquehanna Arden, LLC
Warminster Arden, LLC
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By: Manor Care of America, Inc.
Name: _____________________________
Title:_____________________________
Address: Xxx Xxxxxxx
Xxxxxx, Xxxx 00000-0000
Fax No.: 000-000-0000
Telephone: 000-000-0000
