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EXHIBIT 4.2
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of January 24, 1997 (this "Amendment"), amends the Amended and Restated Credit
Agreement, dated as of August 2, 1994, among HEALTH CARE AND RETIREMENT
CORPORATION, a Delaware corporation (the "Borrower"), the various financial
institutions parties thereto (collectively, the "Lenders") and Bank of America
National Trust and Savings Association, as agent for the Lenders, as amended by
a First Amendment dated July 7, 1995 and a Second Amendment dated as of July 25,
1996 (as so amended the "Credit Agreement"). Terms defined in the Credit
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the parties hereto desire to (i) add The Bank of New York,
Mellon Bank N.A. and The Sanwa Bank, Limited, Chicago Branch (the "New Lenders")
as Lenders under the Credit Agreement and (ii) amend the Credit Agreement in
certain respects as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT.
Section 2.1.2 (a) (i) of the Credit Agreement is hereby
amended by deleting "$225,000,000" and substituting
"$325,000,000" in place thereof.
SECTION 2. ADDITION OF NEW LENDERS; CHANGE IN COMMITMENTS.
Concurrently with the effectiveness of this Amendment, each
New Lender shall become a "Lender" under and for all purposes
of the Credit Agreement and shall be bound thereby and
entitled to the benefits thereof. The parties hereto
acknowledge and agree that the address of each New Lender for
purposes of the Credit Agreement is set forth under such
Lender's name on the signature pages hereof.
Concurrently with the effectiveness of this Amendment, each
Lender will have a Commitment as set forth on the signature
page hereof and will make available their pro rata share of
the Contract Loans.
SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 3 shall have
been satisfied, and notice thereof shall have been given by the Agent to the
Borrower and the Lenders.
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SECTION 3.1. RECEIPT OF DOCUMENTS. The Agent shall have received (a)
this Amendment, duly executed by the Borrower, the Agent and the Lenders and a
(b) Consent in the form of Exhibit A hereto duly executed by the Obligors, other
than the Borrower.
SECTION 3.2. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to the effectiveness of this Amendment, the following
statements by the Borrower shall be true and correct (and the Borrower, by its
execution of this Agreement, hereby represents and warrants to the Agent and
each Lender that such statements are true and correct as at such times):
(a) The representations and warranties set forth in Article
VIII of the Credit Agreement shall be true and correct with the same
effect as if then made (unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true
and correct as of such earlier date); and
(b) No default shall have then occurred and be continuing, and
neither the Borrower nor any of its Subsidiaries shall be in material
violation of any law or governmental regulation or court order or
decree.
SECTION 4. MISCELLANEOUS.
SECTION 4.1. CONTINUING EFFECTIVENESS, ETC. This Amendment shall be
deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as
amended hereby, shall remain in full force and effect and is hereby ratified,
approved and confirmed in each and every respect. The Borrower reaffirms its
obligations under the Credit Agreement, including, without limitation, those
under Section 4.8. After the effectiveness of this Amendment in accordance with
its terms, all references to the Credit Agreement in the Loan Documents or in
any other document, instrument, agreement or writing shall be deemed to refer to
the Credit Agreement as amended hereby.
SECTION 4.2. PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to pay
on demand all expenses of the Agent (including the fees and out-of-pocket
expenses of counsel to the Agent (including allocated costs of internal
counsel)) in connection with the negotiation, preparation, execution and
delivery of this Amendment. The Borrower agrees to indemnify each Lender for any
loss or expense (including those incurred by reasons of the liquidation or
reemployment of deposits or other funds) as a result of Borrower's request for a
Eurodollar Rate Loan which is funded prior to the effectiveness of this
Amendment.
SECTION 4.3. SEVERABILITY. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
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SECTION 4.4. HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION 4.5. EXECUTION IN COUNTERPARTS. This Amendment may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION 4.6. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
SECTION 4.7. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
HEALTH CARE AND RETIREMENT
CORPORATION
By
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Title:
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By
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Title:
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Commitment: $42,500,000 BANK OF AMERICA ILLINOIS
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By
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Title:
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Commitment: $30,000,000 BANK OF MONTREAL, individually
----------- and as Co-Agent
By
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Title:
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Commitment: $30,000,000 NATIONSBANK OF NORTH CAROLINA,
----------- N. A., individually and as Co-Agent
By
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Title:
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Commitment: $32,500,000 THE TORONTO-DOMINION BANK,
----------- individually and as Co-Agent
By
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Title:
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Commitment: $30,000,000 PNC BANK, NATIONAL ASSOCIATION,
----------- individually and as Co-Agent
By
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Title:
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Commitment: $15,000,000 THE LONG-TERM CREDIT BANK OF
----------- JAPAN, LTD., Chicago Branch
By
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Title:
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Commitment: $25,000,000 HUNTINGTON NATIONAL BANK
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By
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Title:
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Commitment: $20,000,000 NATIONAL CITY BANK
-----------
By
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Title:
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Commitment: $30,000,000 THE BANK OF TOKYO-MITSUBISHI,
----------- LTD., Chicago Branch
By
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Title:
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Commitment: $25,000,000 MELLON BANK, N.A.
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By
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Title:
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Address: Two Mellon Bank Center
Room 152-0270
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
FAX No: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Commitment: $25,000,000 THE BANK OF NEW YORK
-----------
By
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Title:
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Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Commitment: $20,000,000 THE SANWA BANK, LIMITED, Chicago
----------- Branch
By
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Title:
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Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Total Commitments: $325,000,000
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