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EXHIBIT 10.7
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LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A.,
AS AGENT FOR SUCH BANKS
NOVEMBER 20, 1998
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TABLE OF CONTENTS
PAGE
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Article 1. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Defined Terms. . . . . . . . . . . . . . . .1
Section 1.2 GAAP . . . . . . . . . . . . . . . . . . . 13
Article 2. Commitments; Loans. . . . . . . . . . . . . . . . . . .14
Section 2.1 Loans. . . . . . . . . . . . . . . . . . . 14
Section 2.2 Intentionally Omitted. . . . . . . . . . .14
Section 2.3 Notices Relating to Loans. . . . . . . . . 14
Section 2.4 Disbursement of Loan Proceeds. . . . . . . 15
Section 2.5 Notes. . . . . . . . . . . . . . . . . . . 15
Section 2.6 Payment of Loans; Voluntary
Changes in Commitment. . . . . . . . . . .15
Section 2.7 Interest . . . . . . . . . . . . . . . . . 16
Section 2.8 Fees . . . . . . . . . . . . . . . . . . . 17
Section 2.9 Use of Proceeds of Loans . . . . . . . . . 18
Section 2.10 Computations . . . . . . . . . . . . . . . 18
Section 2.11 Minimum Amounts of Borrowings,
Conversions and Repayments . . . . . . . . 18
Section 2.12 Time and Method of Payments. . . . . . . . 18
Section 2.13 Lending Offices. . . . . . . . . . . . . . 19
Section 2.14 Several Obligations. . . . . . . . . . . . 19
Section 2.15 Pro Rata Treatment Among Banks . . . . . . 19
Section 2.16 Non-Receipt of Funds by the Agent. . . . . 19
Section 2.17 Sharing of Payments
and Set-Off Among Banks. . . . . . . . . 20
Section 2.18 Conversion of Loans. . . . . . . . . . . . 20
Section 2.19 Additional Costs; Capital Requirements . . 21
Section 2.20 Limitation on Types of Loans . . . . . . . 23
Section 2.21 Illegality . . . . . . . . . . . . . . . . 23
Section 2.22 Certain Conversions pursuant
to Sections 2.19 and 2.21. . . . . . . . 24
Section 2.23 Indemnification. . . . . . . . . . . . . . 24
Section 2.24 Guaranty . . . . . . . . . . . . . . . . . 25
Article 3. Representations and Warranties . . . . . . . . . . . . 26
Section 3.1 Organization . . . . . . . . . . . . . . . 26
Section 3.2 Power, Authority, Consents . . . . . . . . 26
Section 3.3 No Violation of Law or Agreements. . . . . 27
Section 3.4 Due Execution, Validity, Enforceability. . 27
Section 3.5 Title to Properties. . . . . . . . . . . . 27
Section 3.6 Judgments, Actions, Proceedings. . . . . . 27
Section 3.7 No Defaults, Compliance With Laws. . . . . 28
Section 3.8 Burdensome Documents . . . . . . . . . . . 28
Section 3.9 Intentionally Omitted. . . . . . . . . . . 28
Section 3.10 Tax Returns. . . . . . . . . . . . . . . . 28
Section 3.11 Intangible Assets. . . . . . . . . . . . . 29
Section 3.12 Regulation U . . . . . . . . . . . . . . . 29
Section 3.13 Name Changes, Mergers, Acquisitions. . . . 29
Section 3.14 Full Disclosure. . . . . . . . . . . . . . 29
Section 3.15 Licenses and Approvals . . . . . . . . . . 29
Section 3.16 ERISA. . . . . . . . . . . . . . . . . . . 30
Article 4. Conditions to the Loans . . . . . . . . . . . . . . . 31
Section 4.1 Conditions to Initial Loan(s). . . . . . . 31
Section 4.2 Conditions to Subsequent Loans . . . . . . 32
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Article 5. Delivery of Financial Reports,
Documents and Other Information . . . . . 33
Section 5.1 Annual Financial Statements. . . . . . . . 33
Section 5.2 Quarterly Financial Statements . . . . . . 33
Section 5.3 Compliance Information . . . . . . . . . . 34
Section 5.4 No Default Certificate . . . . . . . . . . 34
Section 5.5 Intentionally Omitted. . . . . . . . . . . 34
Section 5.6 Business Plan and Budget . . . . . . . . . 34
Section 5.7 Accountants' Reports . . . . . . . . . . . 35
Section 5.8 Copies of Documents. . . . . . . . . . . . 35
Section 5.9 Notices of Defaults. . . . . . . . . . . . 35
Section 5.10 ERISA Notices and Requests . . . . . . . . 35
Section 5.11 Additional Information . . . . . . . . . . 36
Article 6. Affirmative Covenants . . . . . . . . . . . . . . . . 37
Section 6.1 Books and Records. . . . . . . . . . . . . 37
Section 6.2 Inspections and Audits . . . . . . . . . . 37
Section 6.3 Maintenance and Repairs. . . . . . . . . . 37
Section 6.4 Continuance of Business. . . . . . . . . . 37
Section 6.5 Copies of Corporate Documents. . . . . . . 37
Section 6.6 Perform Obligations. . . . . . . . . . . . 38
Section 6.7 Notice of Litigation . . . . . . . . . . . 38
Section 6.8 Insurance. . . . . . . . . . . . . . . . . 38
Section 6.9 Financial Covenants. . . . . . . . . . . . 38
Section 6.10 Notice of Certain Events . . . . . . . . . 39
Section 6.11 Comply with ERISA. . . . . . . . . . . . . 39
Section 6.12 Environmental Compliance . . . . . . . . . 39
Section 6.13 Year 2000 Compatibility. . . . . . . . . . 39
Article 7. Negative Covenants. . . . . . . . . . . . . . . . . . 40
Section 7.1 Indebtedness . . . . . . . . . . . . . . . 40
Section 7.2 Liens. . . . . . . . . . . . . . . . . . . 40
Section 7.3 Guaranties . . . . . . . . . . . . . . . . 41
Section 7.4 Mergers, Acquisitions. . . . . . . . . . . 41
Section 7.5 Redemptions; Distributions . . . . . . . . 41
Section 7.6 Changes in Structure . . . . . . . . . . . 42
Section 7.7 Intentionally Omitted. . . . . . . . . . . 42
Section 7.8 Fiscal Year. . . . . . . . . . . . . . . . 42
Section 7.9 ERISA Obligations. . . . . . . . . . . . . 42
Section 7.10 Use of Cash. . . . . . . . . . . . . . . . 42
Article 8. Events of Default. . . . . . . . . . . . . . . . . . . 43
Section 8.1 Payments . . . . . . . . . . . . . . . . . 43
Section 8.2 Certain Covenants. . . . . . . . . . . . . 43
Section 8.3 Other Covenants. . . . . . . . . . . . . . 43
Section 8.4 Other Defaults . . . . . . . . . . . . . . 43
Section 8.5 Representations and Warranties . . . . . . 44
Section 8.6 Bankruptcy . . . . . . . . . . . . . . . . 44
Section 8.7 Judgments. . . . . . . . . . . . . . . . . 45
Section 8.8 ERISA. . . . . . . . . . . . . . . . . . . 45
Section 8.9 Material Adverse Effect. . . . . . . . . . 45
Section 8.10 Ownership. . . . . . . . . . . . . . . . . 45
Section 8.11 Ratings. . . . . . . . . . . . . . . . . . 46
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Article 9. The Agent . . . . . . . . . . . . . . . . . . . . . . 47
Section 9.1 Appointment, Powers and Immunities . . . . 47
Section 9.2 Reliance by Agent. . . . . . . . . . . . . 47
Section 9.3 Events of Default. . . . . . . . . . . . . 48
Section 9.4 Rights as a Bank . . . . . . . . . . . . . 48
Section 9.5 Indemnification. . . . . . . . . . . . . . 48
Section 9.6 Non-Reliance on Agent and other Banks. . . 49
Section 9.7 Failure to Act . . . . . . . . . . . . . . 49
Section 9.8 Resignation or Removal of Agent. . . . . . 49
Section 9.9 Sharing of Payments. . . . . . . . . . . . 50
Article 10. Miscellaneous Provisions . . . . . . . . . . . . . . . 52
Section 10.1 Fees and Expenses; Indemnity . . . . . . . 52
Section 10.2 Taxes. . . . . . . . . . . . . . . . . . . 53
Section 10.3 Payments . . . . . . . . . . . . . . . . . 54
Section 10.4 Survival of Agreements and
Representations; Construction. . . . . . 54
Section 10.5 Lien on and Set-off of Deposits. . . . . . 54
Section 10.6 Modifications, Consents and
Waivers; Entire Agreement. . . . . . . . 55
Section 10.7 Remedies Cumulative; Counterclaims . . . . 55
Section 10.8 Further Assurances . . . . . . . . . . . . 56
Section 10.9 Notices. . . . . . . . . . . . . . . . . . 56
Section 10.10 Counterparts . . . . . . . . . . . . . . . 57
Section 10.11 Severability . . . . . . . . . . . . . . . 57
Section 10.12 Binding Effect; No Assignment
or Delegation by Borrower. . . . . . . . 58
Section 10.13 Assignments and Participations by Banks. . 58
Section 10.14 Delivery of Tax Forms. . . . . . . . . . . 60
Section 10.15 GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF TRIAL BY JURY. . . . . . . . . 61
EXHIBITS
A Form of Note
B Form of Assignment and Acceptance
SCHEDULES
3.1 States of Incorporation and Qualification, and Capitalization of
Borrower
3.2 Consents, Waivers, Approvals; Violation of Agreements
3.6 Judgments, Actions, Proceedings
3.7 Defaults; Compliance with Laws, Regulations, Agreements
3.8 Burdensome Documents
3.13 Name Changes, Mergers, Acquisitions
3.15 Licenses and Approvals
3.16 Employee Benefit Plans
7.1 Permitted Indebtedness and Guaranties
7.2 Permitted Security Interests, Liens and Encumbrances
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LOAN AGREEMENT
AGREEMENT, made this 20th day of November, 1998, by and among:
OMEGA WORLDWIDE, INC., a Maryland corporation (the "Borrower");
The Banks that have executed the signature pages hereto (individually,
a "BANK" and collectively, the "BANKS"); and
FLEET BANK, N.A., a national banking association, as agent for the
Banks (in such capacity, together with its successors in such capacity, the
"AGENT");
W I T N E S S E T H:
WHEREAS, the Borrower wishes to obtain loans from the Banks in the
aggregate principal sum of up to Twenty Five Million ($25,000,000) Dollars, and
the Banks are willing to make such loans to the Borrower in the aggregate
principal amount of up to such sum on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS.
SECTION 1.1 DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"ADDITIONAL COSTS" - as defined in subsection 2.19(b) hereof.
"AFFECTED LOANS" - as defined in Section 2.22 hereof.
"AFFECTED TYPE" - as defined in Section 2.22 hereof.
"ALTERNATE BASE RATE" - for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16th of 1%) equal to the greater of (a) the
Prime Rate in effect on such day, and (b) 0.5% plus the Federal Funds Rate in
effect on such day.
"APPLICABLE MARGIN" - on any date, with respect to LIBOR Loans,
the applicable percentage set forth below based upon the Ratings in effect on
such date:
Category 1
Both of the following Ratings:
BBB or higher by S&P; and
Baa2 or higher by Moody's 1.0625%
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Category 2
Both of the following Ratings:
BBB- by S&P
Baa3 by Moody's 1.1875%
If any Rating shall be changed (other than as a result of a change in the rating
system of the applicable Rating Agency), such change shall be effective as of
the date on which it is first announced by the Rating Agency making such change.
Each such change in the Applicable Margin shall apply to all outstanding LIBOR
Loans during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of any Rating Agency shall change, the parties
hereto shall negotiate in good faith to amend the references to specific ratings
in this definition to reflect such changed rating system.
"ARRANGEMENT FEE" - as defined in subsection 2.8(c) hereof.
"ASSESSMENT RATE" - at any time, the rate (rounded upwards, if
necessary, to the nearest 1/100 of one (1%) percent) then charged by the Federal
Deposit Insurance Corporation (or any successor) to the Reference Bank for
deposit insurance for Dollar time deposits with the Reference Bank at the
Principal Office as determined by the Reference Bank.
"ASSIGNMENT AND ACCEPTANCE" - an agreement in the form of
Exhibit B hereto.
"BORROWING NOTICE" - as defined in Section 2.3 hereof.
"BUSINESS DAY" - any day other than Saturday, Sunday or any other
day on which commercial banks in New York City are authorized or required to
close under the laws of the State of New York.
"CASH" - as to any Person, such Person's cash and cash
equivalents, as defined in accordance with GAAP consistently applied.
"CERCLA" - the Comprehensive Environmental Response Compensation
and Liability Act of 1980, 42 U.S.C. ss.9601, et seq.
"CODE" - the Internal Revenue Code of 1986, as it may be amended
from time to time, and the regulations promulgated thereunder.
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"COMMITMENT FEE" - as defined in subsection 2.8(b) hereof.
"COMMITMENT FEE PERCENTAGE" - on any date, the applicable
percentage set forth below based upon the Ratings in effect on such date:
Category 1
Both of the following Ratings:
BBB or higher by S&P; and
Baa2 or higher by Moody's .250%
Category 2
Both of the following Ratings:
BBB- by S&P
Baa3 by Moody's .300%
If any Rating shall be changed (other than as a result of a change in the rating
system of the applicable Rating Agency), such change shall be effective as of
the date on which it is first announced by the Rating Agency making such change.
Each such change shall apply at any time during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of any Rating
Agency shall change, the parties hereto shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such changed
rating system.
"COMPLIANCE CERTIFICATE" - a certificate executed by the chief
executive officer or chief financial officer of the Borrower to the effect that:
(a) as of the effective date of the certificate, no Default or Event of Default
under this Agreement exists or would exist after giving effect to the action
intended to be taken by the Borrower as described in such certificate,
including, without limitation, that the covenants set forth in Section 6.9
hereof would not be breached after giving effect to such action, together with a
calculation in reasonable detail, and in form and substance satisfactory to the
Agent, of such compliance, and (b) the representations and warranties contained
in Article 3 hereof are true and with the same effect as though such
representations and warranties were made on the date of such certificate, except
for changes in the ordinary course of business none of which, either singly or
in the aggregate, have had a Material Adverse Effect.
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"CONTROLLED GROUP" - all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414(b), 414(c) or 414(m) of the Code and Section
4001(a)(2) of ERISA.
"CREDIT PERIOD" - the period commencing on the date of this
Agreement and ending on the Revolving Credit Commitment Termination Date.
"DEBT INSTRUMENT" - as defined in subsection 8.4(a) hereof.
"DEFAULT" - an event which with notice or lapse of time, or both,
would constitute an Event of Default.
"DOLLARS" and "$" - lawful money of the United States of America.
"ELIGIBLE ASSIGNEE" - a commercial bank or other financial
institution organized under the laws of the United States of America or any
state and having a combined capital and surplus of at least One Hundred Million
($100,000,000) Dollars.
"EMPLOYEE BENEFIT PLAN" - any employee benefit plan within the
meaning of Section 3(3) of ERISA which is subject to ERISA and (a) is maintained
for employees of the Borrower, or (b) with respect to which any Loan Party has
any liability.
"ENVIRONMENTAL LAWS AND REGULATIONS" - all federal, state and
local environmental laws, regulations, ordinances, orders, judgments and decrees
applicable to the Borrower or any other Loan Party, or any of their respective
assets or properties.
"ENVIRONMENTAL LIABILITY" - any liability under any applicable
Environmental Laws and Regulations for any disposal, release or threatened
release of a hazardous substance pollutant or contaminant as those terms are
defined under CERCLA, and any liability which would require a removal, remedial
or response action, as those terms are defined under CERCLA, by any person or by
any environmental regulatory body having jurisdiction over the Borrower and/or
any liability arising under any Environmental Laws and Regulations for the
Borrower's failure to comply with such laws and regulations, including without
limitation, the failure to comply with or obtain any applicable environmental
permit.
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"ENVIRONMENTAL PROCEEDING" - any judgment, action, proceeding or
investigation pending before any court or governmental authority, with respect
to the Borrower and arising under or relating to any Environmental Laws and
Regulations.
"ERISA" - the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time, and the regulations promulgated thereunder.
"ERISA AFFILIATE" - as applied to any Loan Party, any corporation,
person or trade or business which is a member of a group which is under common
control with any Loan Party, who together with any Loan Party, is treated as a
single employer within the meaning of Section 414(b) - (o) of the Code and, if
applicable, Section 4001(a)(14) and (b) of ERISA.
"EVENT OF DEFAULT" - as defined in Article 8 hereof.
"FEDERAL FUNDS RATE" - for any day, the weighted average of the
rates on overnight federal funds transactions with member banks of the Federal
Reserve System arranged by federal funds brokers as published by the Federal
Reserve Bank of New York for such day, or if such day is not a Business Day, for
the next preceding Business Day (or, if such rate is not so published for any
such day, the average rate charged to the Agent on such day on such transactions
as reasonably determined by the Agent).
"FEE(S)" - as defined in subsection 2.8(d) hereof.
"FLEET" - Fleet Bank, N.A., a national banking association, in its
capacity as a Bank hereunder.
"GAAP" - generally accepted accounting principles, as in effect in
the United States.
"GUARANTOR" - as defined in Section 2.24 hereof.
"GUARANTY" - as defined in Section 2.24 hereof.
"HAZARDOUS MATERIALS" - any toxic chemical, hazardous substances,
contaminants or pollutants, medical wastes, infectious wastes, or hazardous
wastes.
"INDEBTEDNESS" - with respect to any Person, all: (a) liabilities
or obligations, direct and contingent, which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person at the date as of which Indebtedness is to be
determined, including, without limitation, contingent liabilities that in
accordance with such principles, would be set forth in a
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specific Dollar amount on the liability side of such balance sheet, and
capitalized lease obligations of such Person; (b)liabilities or obligations of
others for which such Person is directly or indirectly liable, by way of
guaranty (whether by direct guaranty, suretyship, discount, endorsement,
take-or-pay agreement, agreement to purchase or advance or keep in funds or
other agreement having the effect of a guaranty) or otherwise; (c) liabilities
or obligations secured by Liens on any assets of such Person, whether or not
such liabilities or obligations shall have been assumed by it; and (d)
liabilities or obligations of such Person, direct or contingent, with respect to
letters of credit issued for the account of such Person and bankers acceptances
created for such Person.
"INTEREST PERIOD" - with respect to any LIBOR Loan, each period
commencing on the date such Loan is made or converted from a Loan or Loans of
another Type into a LIBOR Loan, or the last day of the next preceding Interest
Period with respect to such Loan, and ending on the same day 1, 2, 3 or 6 months
thereafter, as the Borrower may select as provided in Section 2.3 hereof, except
that each such Interest Period which commences on the last LIBOR Business Day of
a calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end on the last LIBOR
Business Day of the appropriate subsequent calendar month. Notwithstanding the
foregoing: (a) each Interest Period that would otherwise end on a day which is
not a LIBOR Business Day shall end on the next succeeding LIBOR Business Day
(or, if such next succeeding LIBOR Business Day falls in the next succeeding
calendar month, on the next preceding LIBOR Business Day); (b) no more than four
(4) Interest Periods shall be in effect at the same time; (c) any Interest
Period relating to a Loan that commences before the Revolving Credit Commitment
Termination Date shall end no later than the Revolving Credit Commitment
Termination Date; and (d) notwithstanding clause (c) above, no Interest Period
shall have a duration of less than one month. In the event that the Borrower
fails to select the duration of any Interest Period for any LIBOR Loan within
the time period and otherwise as provided in Section 2.3 hereof, such LIBOR
Loans will be automatically converted into a Prime Rate Loan on the last day of
the preceding Interest Period for such LIBOR Loan.
"INTEREST RATE CONTRACTS" - interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance and other agreements or arrangements designed to provide protection
against fluctuation in interest rates, in each case, in form and substance
satisfactory to the Agent and, in each case, with counterparties satisfactory to
the Agent.
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"LENDING OFFICE" - with respect to each Bank, with respect to each
Type of Loan, the Lending Office as designated for such Type of Loan below its
name on the signature pages hereof or such other office of such Bank or of an
affiliate of such Bank as it may from time to time specify to the Agent and the
Borrower as the office at which its Loans of such Type are to be made and
maintained.
"LIBOR BASE RATE" - with respect to any LIBOR Loan, for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of one (1%) percent) quoted by the Reference Bank at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) two
(2) LIBOR Business Days prior to the first day of such Interest Period as the
rate at which the Reference Bank is offered Dollar deposits in the London
interbank market where the LIBOR and foreign currency and exchange operations of
the Reference Bank are customarily conducted, having terms of one (1), two (2),
three (3) or six (6) months and in an amount comparable to the principal amount
of the LIBOR Loan to be made by the Banks to which such Interest Period relates.
"LIBOR BUSINESS DAY" - a Business Day on which dealings in Dollar
deposits are carried out in the London interbank market.
"LIBOR LOAN(S)" - any Loan the interest on which is determined on
the basis of rates referred to in the definition of "LIBOR Base Rate" in this
Article 1.
"LIBOR RATE" - for any LIBOR Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of one (1%) percent) determined by the Agent to be equal to: (a) the LIBOR
Base Rate for such Loan for such Interest Period; divided by (b) one (1) minus
the Reserve Requirement for such Loan for such Interest Period. The Agent shall
use its best efforts to advise the Borrower of the LIBOR Rate as soon as
practicable after each change in the LIBOR Rate; provided, however, that the
failure of the Agent to so advise the Borrower on any one or more occasions
shall not affect the rights of the Banks or the Agent or the obligations of the
Borrower hereunder.
"LIEN" - any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, claim or charge of any kind (including any agreement to give
any of the foregoing), any conditional sale or other title retention agreement,
any lease in the nature of any of the foregoing, and the filing of or agreement
to give any financing statement under the Uniform Commercial Code of any
jurisdiction.
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"LOAN(S)" - as defined in Section 2.1 hereof. Loans of different
Types made or converted from Loans of other Types on the same day (or of the
same Type but having different Interest Periods) shall be deemed to be separate
Loans for all purposes of this Agreement.
"LOAN DOCUMENTS" - this Agreement, the Notes, the Guaranty and all
other documents executed and delivered in connection herewith or therewith,
including all amendments, modifications and supplements of or to all such
documents.
"LOAN PARTY" - the Borrower, the Guarantor and any other Person
(other than the Banks and the Agent) which now or hereafter executes and
delivers to any Bank or the Agent any Loan Document.
"MATERIAL ADVERSE EFFECT" - any fact or circumstance which (a)
materially and adversely affects the business, operation, property or financial
condition of the Borrower, or (b) has a material adverse effect on the ability
of the Borrower to perform its obligations under this Agreement, the Notes or
the other Loan Documents.
"MOODY'S" - Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" - a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate is
making, or is accruing an obligation to make, contributions or has made, or been
obligated to make, contributions within the preceding six (6) years.
"NEW TYPE LOANS" - as defined in Section 2.22 hereof.
"NOTE(S)" - as defined in subsection 2.5(b) hereof.
"OBLIGATIONS" - collectively, all of the Indebtedness, liabilities
and obligations of the Borrower to the Banks and the Agent, whether now existing
or hereafter arising, whether or not currently contemplated, including, without
limitation, those arising under the Loan Documents.
"OMEGA" - Omega Healthcare Investors, Inc., a Maryland
corporation.
"OMEGA LOAN AGREEMENT" - the Second Amended and Restated Loan
Agreement dated September 30, 1997 by and among Omega and certain of its
Subsidiaries, the banks signatory thereto, and Fleet, as Agent, as it may be
amended, modified and supplemented from time to time.
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"ORIGINATION FEE" - as defined in subsection 2.8(a) hereof.
"PAYOR" - as defined in Section 2.16 hereof.
"PBGC" - Pension Benefit Guaranty Corporation.
"PERMITTED LIENS" - as to any Person: (a) pledges or deposits by
such Person under workers' compensation laws, unemployment insurance laws,
social security laws, or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness of such Person), or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits of
Cash or United States Government Bonds to secure surety, appeal, performance or
other similar bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent; (b) liens imposed
by law, including without limitation, carriers', warehousemen's, materialmen's
and mechanics' liens, or liens arising out of judgments or awards or judicial
attachment liens against such Person with respect to which such Person at the
time shall currently be prosecuting an appeal or proceedings for review; (c)
liens for taxes not yet subject to penalties for non-payment and liens for taxes
the payment of which is being contested as permitted by Section 6.6 hereof; (d)
non-consensual liens that have been bonded within thirty (30) days after notice
of such lien(s) by a Person (not an Affiliate of the Borrower) reasonably
satisfactory to the Required Banks in an aggregate amount secured by all such
liens not in excess of $500,000; and (e) minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of, others for rights of
way, highways and railroad crossings, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties, or Liens incidental to the conduct of the
business of such Person or to the ownership of such Person's property that were
not incurred in connection with Indebtedness of such Person, all of which Liens
referred to in this clause (e) do not in the aggregate materially impair the
value of the properties to which they relate or materially impair their use in
the operation of the business taken as a whole of such Person, and as to all the
foregoing only to the extent arising and continuing in the ordinary course of
business.
"PERSON" - an individual, a corporation, a partnership, a limited
liability company, a joint venture, a trust or unincorporated organization, a
joint stock company or other similar organization, a government or any political
subdivision thereof, a court, or any other legal entity, whether acting in an
individual, fiduciary or other capacity.
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"PLAN" - at any time an employee pension benefit plan that is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either: (a) maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower, or by the Borrower
for any other member of such Controlled Group, or (b) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which the Borrower or any member of the
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions.
"POST-DEFAULT RATE" - (a) in respect of any Loans, a rate per
annum equal to: (i) if such Loans are Prime Rate Loans, two (2%) percent above
the Alternate Base Rate as in effect from time to time for Prime Rate Loans, or
(ii) if such Loans are LIBOR Loans, two (2%) percent above the rate of interest
in effect thereon at the time of the Event of Default that resulted in the
Post-Default Rate being instituted until the end of the then current Interest
Period therefor and, thereafter, two (2%) above the Alternate Base Rate as in
effect from time to time; and (b) in respect of other amounts payable by the
Borrower hereunder (other than interest), equal to two (2%) above the Alternate
Base Rate as in effect from time to time.
"PRIME RATE" - the variable per annum rate of interest so
designated from time to time by Fleet as its prime rate. Notwithstanding the
foregoing, the Borrower acknowledges that the Prime Rate is a reference rate and
Fleet may regularly make domestic commercial loans at rates of interest less
than the rate of interest referred to in the preceding sentence. Each change in
any interest rate provided for herein based upon the Prime Rate resulting from a
change in the Prime Rate shall take effect at the time of such change in the
Prime Rate.
"PRIME RATE LOANS" - Loans that bear interest at a rate based upon
the Alternate Base Rate.
"PRINCIPAL OFFICE" - the principal office of Fleet presently
located at 00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000.
"PROPERTY" - any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"QUARTERLY DATES" - the first day of each October, January, April
and July, the first of which shall be the first such day after the date of this
Agreement, provided that, if any such date is not a LIBOR Business Day, the
relevant Quarterly Date shall be the next succeeding LIBOR Business Day (or, if
the
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next succeeding LIBOR Business Day falls in the next succeeding calendar month,
then on the next preceding LIBOR Business Day).
"RATINGS" - shall mean the ratings from time to time established
by the Rating Agencies for senior, unsecured, non-credit enhanced long-term
debt of Omega.
"RATINGS AGENCIES" - Xxxxx'x and S&P.
"REFERENCE BANK" - a bank appearing on the display designated as
page "LIBOR" on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBOR page on that service for the purpose of displaying London
interbank offered rates of major banks); provided, that, if no such offered rate
shall appear on such display, "Reference Bank" shall mean a bank in the London
interbank market as selected by the Agent.
"REGULATION D" - Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
"REGULATORY CHANGE" - as to any Bank, any change after the date of
this Agreement in United States federal, or state, or foreign, laws or
regulations (including Regulation D and the laws or regulations that designate
any assessment rate relating to certificates of deposit or otherwise (including
the "Assessment Rate" if applicable to any Loan)) or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of banks, including such Bank, of or under any United States federal, or
state, or foreign laws or regulations (whether or not having the force of law)
by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"REQUIRED BANKS" - at any time, Banks having at least 66 2/3% of
the Total Commitment hereunder, or if the Total Commitment has been terminated
at such time, Banks having at least 66 2/3% of the aggregate principal amount of
Loans outstanding.
"REQUIRED PAYMENT" - as defined in Section 2.16 hereof.
"RESERVE REQUIREMENT" - for any LIBOR Loans for any quarterly
period (or, as the case may be, shorter period) as to which interest is payable
hereunder, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
period under Regulation D by member banks of the Federal Reserve System in New
York City with deposits exceeding One Billion ($1,000,000,000) Dollars against
"Eurocurrency liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing,
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the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks by reason of any Regulatory Change against: (a)
any category of liabilities which includes deposits by references to which the
LIBOR Rate for LIBOR Loans is to be determined as provided in the definition of
"LIBOR Base Rate" in this Article 1, or (b) any category of extensions of credit
or other assets which include LIBOR Loans.
"REVOLVING CREDIT COMMITMENT" - as to each Bank, the amount set
forth opposite such Bank's name on the signature pages hereof under the caption
"Revolving Credit Commitment" as such amount is subject to reduction in
accordance with the terms hereof.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" - October 1, 2000.
"S&P" - Standard and Poor's Corporation.
"SUBSIDIARY" - with respect to any Person, any corporation,
partnership, joint venture, limited liability company or other entity, whether
now existing or hereafter organized or acquired: (a) in the case of a
corporation, of which a majority of the securities having ordinary voting power
for the election of directors (other than securities having such power only by
reason of the happening of a contingency) are at the time owned by such Person
and/or one or more Subsidiaries of such Person, (b) in the case of a partnership
or limited liability company or other entity, in which such Person is a general
partner, managing member or of which a majority of the partnership or other
equity interests are at the time owned by such Person and/or one or more of its
Subsidiaries, or (c) in the case of a joint venture, in which such Person is a
joint venturer and of which a majority of the ownership interests are at the
time owned by such Person and/or one or more of its Subsidiaries. Unless the
context otherwise requires, references in this Agreement to "Subsidiary" or
"Subsidiaries" shall be deemed to be references to a Subsidiary or Subsidiaries
of the Borrower.
"TANGIBLE NET WORTH" - the sum of capital surplus, earned surplus
and capital stock, minus deferred charges, intangibles and treasury stock, all
as determined in accordance with GAAP consistently applied.
"TOTAL COMMITMENT" - the aggregate obligation of the Banks to make
Loans hereunder up to the aggregate amount of Twenty-Five Million ($25,000,000)
Dollars, as such amount may be reduced in accordance with the terms hereof.
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"TYPE" - refers to the characteristics of a Loan as a Prime Rate
Loan or a LIBOR Loan for a particular Interest Period. All LIBOR Loans are of
the same Type. All LIBOR Loans with identical interest rates and Interest
Periods are of the same Type. All other Loans are of different Types. Interest
Periods are identical if they begin and end on the same days.
"UNUSED COMMITMENT" - as at any date, for each Bank, the
difference, if any, between: (a) the amount of such Bank's Revolving Credit
Commitment as in effect on such date, and (b) the then aggregate outstanding
principal amount of all Loans made by such Bank.
SECTION 1.2 GAAP. Any accounting terms used in this Agreement that
are not specifically defined herein shall have the meanings customarily given to
them in accordance with GAAP as in effect on the date of this Agreement, except
that references in Article 5 to such principles shall be deemed to refer to such
principles as in effect on the date of the financial statements delivered
pursuant thereto.
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ARTICLE 2. COMMITMENTS; LOANS.
SECTION 2.1 LOANS. Each Bank hereby severally agrees, on the terms
and subject to the conditions of this Agreement, to make loans (individually a
"Loan", collectively, the "Loans") to the Borrower during the Credit Period to
and including the Revolving Credit Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to, but not exceeding, the
Revolving Credit Commitment of such Bank as then in effect. Subject to the terms
of this Agreement, during the Credit Period the Borrower may borrow, repay and
reborrow Credit Loans.
SECTION 2.2 INTENTIONALLY OMITTED.
SECTION 2.3 NOTICES RELATING TO LOANS.
The Borrower shall give the Agent written notice of each
termination or reduction of the Revolving Credit Commitments, each borrowing,
conversion and repayment of each Loan and of the duration of each Interest
Period applicable to each LIBOR Loan (in each case, a "BORROWING NOTICE"). Each
such written notice shall be irrevocable and shall be effective only if received
by the Agent not later than 11 a.m., New York City time, on the date that is:
(a) In the case of each notice of termination or reduction of the
Revolving Credit Commitments, five (5) Business Days prior to the date of the
related termination or reduction;
(b) In the case of each notice of borrowing and repayment of, or
conversion into, Prime Rate Loans, the same Business Day of the related
borrowing or repayment or conversion; and
(c) In the case of each notice of borrowing or repayment of, or
conversion into, LIBOR Loans, or the duration of an Interest Period for LIBOR
Loans, three (3) LIBOR Business Days prior to the date of the related borrowing,
repayment or conversion or the first day of such Interest Period.
Each such notice of termination or reduction shall specify the
amount thereof. Each such notice of borrowing, conversion or repayment shall
specify the amount (subject to Section 2.1 hereof) and Type of Loans to be
borrowed, converted or repaid (and, in the case of a conversion, the Type of
Loans to result from such conversion), the date of borrowing, conversion or
repayment (which shall be: (i) a Business Day in the case of each borrowing or
repayment of Prime Rate Loans, and (ii) a LIBOR Business Day in the case of each
borrowing or repayment of LIBOR Loans and each conversion of or into a LIBOR
Loan). Each such notice of the duration of an Interest Period shall specify the
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Loans to which such Interest Period is to relate. The Agent shall notify the
Banks of the content of each such Borrowing Notice promptly after its receipt
thereof.
SECTION 2.4 DISBURSEMENT OF LOAN PROCEEDS.
The Borrower shall give the Agent notice of each borrowing
hereunder as provided in Section 2.3 hereof and the Agent shall promptly notify
the Banks thereof. Not later than 11:00 a.m., New York City time, on the date
specified for each borrowing hereunder, each Bank shall transfer to the Agent,
by wire transfer or otherwise, but in any event in immediately available funds,
the amount of the Loan to be made by it on such date, and the Agent, upon its
receipt thereof, shall disburse such sum to the Borrower by depositing the
amount thereof in an account of the Borrower designated by the Borrower
maintained with the Agent.
SECTION 2.5 NOTES.
(a) The Loans made by each Bank shall be evidenced by a single
promissory note of the Borrower in substantially the form of Exhibit A hereto
(each, a "Note" and collectively, the Notes"). Each Note shall be dated the date
hereof, shall be payable to the order of such Bank in a principal amount equal
to such Bank's Revolving Credit Commitment as originally in effect, and shall
otherwise be duly completed. The Notes shall be payable as provided in Section
2.6 hereof.
(b) Each Bank shall enter on a schedule with respect to its Note a
notation with respect to each Loan made hereunder of: (i) the date and principal
amount thereof and (ii) each repayment of principal thereof. The failure of any
Bank to make a notation on any such schedule as aforesaid shall not limit or
otherwise affect the obligation of the Borrower to repay the Loans in accordance
with their respective terms as set forth herein.
SECTION 2.6 PAYMENT OF LOANS; VOLUNTARY
CHANGES IN COMMITMENT.
(a) All outstanding Loans shall be paid in full not later than the
Revolving Credit Commitment Termination Date.
(b) The Borrower shall be entitled to terminate or reduce the
Total Commitment and repay the principal amount of the Loans provided that the
Borrower shall give notice of such termination, reduction or repayment to the
Agent as provided in Section 2.3 hereof and that any repayment or partial
reduction of the Total Commitment shall be in the minimum aggregate amount of
One Million ($1,000,000) Dollars and multiples of One Million ($1,000,000)
Dollars in excess thereof. Any such termination or
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reduction shall be permanent and irrevocable. Any repayment of a LIBOR Loan
shall be on the last day of the relevant Interest Period and all repayments of
principal (whether mandatory or voluntary) shall be applied first to Prime Rate
Loans and then to the fewest number of Types of LIBOR Loans as possible.
SECTION 2.7 INTEREST.
(a) The Borrower shall pay to the Agent for the account of each
Bank interest on the unpaid principal amount of each Loan made by such Bank for
the period commencing on the date of such Loan until such Loan shall be paid in
full, at the following rates per annum:
(i) During such periods that such Loan is a Prime Rate Loan,
the Alternate Base Rate; and
(ii) During such periods that such Loan is a LIBOR Loan, for
each Interest Period relating thereto, the LIBOR Rate for such Loan for such
Interest Period plus the Applicable Margin.
(b) Notwithstanding the foregoing, the Borrower shall pay interest
on any Loan or any installment thereof, and on any other amount payable by the
Borrower hereunder (to the extent permitted by law) that shall not be paid in
full when due (whether at stated maturity, by acceleration or otherwise) for the
period commencing on the due date thereof until the same is paid in full at the
applicable Post-Default Rate.
(c) Except as provided in the next sentence, accrued interest on
each Loan shall be payable: (i) in the case of each Prime Rate Loan, quarterly
on the Quarterly Dates, (ii) in the case of a LIBOR Loan, on the last day of
each Interest Period for such Loan (and, if such Interest Period exceeds three
months' duration, quarterly, commencing on the first quarterly anniversary of
the first day of such Interest Period), and (iii) in the case of any Loan, upon
the payment or repayment thereof or the conversion thereof into a Loan of
another Type (but only on the principal so paid, repaid or converted). Interest
that is payable at the Post-Default Rate shall be payable from time to time on
demand of the Agent. Promptly after the establishment of any interest rate
provided for herein or any change therein, the Agent will notify the Banks and
the Borrower thereof, provided that the failure of the Agent to so notify the
Banks and the Borrower shall not affect the obligations of the Borrower
hereunder or under any of the Notes in any respect.
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(d) Anything in this Agreement or any of the Notes to the contrary
notwithstanding, the obligation of the Borrower to make payments of interest
shall be subject to the limitation that payments of interest shall not be
required to be made to any Bank to the extent that such Bank's receipt thereof
would not be permissible under the law or laws applicable to such Bank limiting
rates of interest that may be charged or collected by such Bank. Any such
payments of interest that are not made as a result of the limitation referred to
in the preceding sentence shall be made by the Borrower to such Bank on the
earliest interest payment date or dates on which the receipt thereof would be
permissible under the laws applicable to such Bank limiting rates of interest
that may be charged or collected by such Bank. Such deferred interest shall not
bear interest.
SECTION 2.8 FEES.
(a) Simultaneously with the execution and delivery of this
Agreement, the Borrower shall pay to the Agent, for the benefit of the Banks pro
rata according to their respective Revolving Credit Commitments, a
non-refundable origination fee (the "ORIGINATION FEE") in an amount equal to
.125% of the Total Commitment.
(b) The Borrower shall pay to the Agent for the account of the
Banks, pro rata according to their respective Revolving Credit Commitments, a
commitment fee (the "COMMITMENT FEE") on the daily average amount of such Bank's
Unused Commitment, for the period from the date hereof to and including the
earlier of (i) the date such Bank's Revolving Credit Commitment is terminated,
and (ii) the Revolving Credit Commitment Termination Date, at the rate per annum
equal to the Commitment Fee Percentage from time to time in effect on the amount
of the Total Commitment. The accrued Commitment Fee shall be payable on the
Quarterly Dates, and on the earlier of (i) the date the Total Commitment is
terminated, or (ii) the Revolving Credit Commitment Termination Date, and in the
event the Borrower reduces the Total Commitment as provided in subsection 2.6(b)
hereof, on the effective date of such reduction.
(c) The Borrower shall pay to the Agent, for its own account, an
arrangement fee (the "ARRANGEMENT FEE"), as set forth in a separate written
agreement between the Borrower and the Agent.
(d) The Origination Fee, the Commitment Fee and the Arrangement
Fee are hereinafter sometimes referred to individually as a "FEE" and
collectively as the "FEES".
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SECTION 2.9 USE OF PROCEEDS OF LOANS.
The proceeds of the Loans hereunder may be used by the Borrower
solely for working capital and general corporate purposes.
SECTION 2.10 COMPUTATIONS.
Interest on all Loans and each Fee shall be computed on the basis
of a year of 360 days and actual days elapsed (including the first day but
excluding the last) occurring in the period for which payable.
SECTION 2.11 MINIMUM AMOUNTS OF BORROWINGS,
CONVERSIONS AND REPAYMENTS.
Except for borrowings, conversions and repayments that exhaust the
full remaining amount of the Total Commitment (in the case of borrowings) or
result in the conversion or repayment of all Loans of a particular Type (in the
case of conversions or repayments) or conversions made pursuant to Section 2.20
or Section 2.21 hereof, each borrowing from each Bank, each conversion of Loans
of one Type into Loans of another Type and each repayment of principal of Loans
hereunder shall be in a minimum amount of One Million ($1,000,000) Dollars and
if in excess thereof, in integral multiples of One Hundred Thousand ($100,000)
Dollars (borrowings, conversions and repayments of different Types of Loans at
the same time hereunder to be deemed separate borrowings, conversions and
repayments for purposes of the foregoing, one for each Type).
SECTION 2.12 TIME AND METHOD OF PAYMENTS.
All payments of principal, interest, Fees and other amounts
(including indemnities) payable by the Borrower hereunder shall be made in
Dollars, in immediately available funds, to the Agent at the Principal Office
not later than 11:00 a.m., New York City time, on the date on which such payment
shall become due (and the Agent or any Bank for whose account any such payment
is to be made may, but shall not be obligated to, debit the amount of any such
payment that is not made by such time to any ordinary deposit account of the
Borrower, with the Agent or such Bank, as the case may be). Additional
provisions relating to payments are set forth in Section 10.3 hereof. Each
payment received by the Agent hereunder for the account of a Bank shall be paid
promptly to such Bank, in like funds, for the account of such Bank's Lending
Office for the Loan in respect of which such payment is made.
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SECTION 2.13 LENDING OFFICES.
The Loans of each Type made by each Bank shall be made and
maintained at such Bank's applicable Lending Office for Loans of such Type.
SECTION 2.14 SEVERAL OBLIGATIONS.
The failure of any Bank to make any Loan to be made by it on the
date specified therefor shall not relieve the other Banks of their respective
obligations to make their Loans on such date, but no Bank shall be responsible
for the failure of the other Banks to make Loans to be made by such other Banks.
SECTION 2.15 PRO RATA TREATMENT AMONG BANKS.
Except as otherwise provided herein: (a) each borrowing from the
Banks under Section 2.1 hereof will be made from the Banks and each payment of
each Fee (other than the Arrangement Fee) shall be made for the account of the
Banks pro rata according to their respective Revolving Credit Commitments; (b)
each partial reduction of the Total Commitment shall be applied to the Revolving
Credit Commitments of the Banks pro rata according to each Bank's respective
Revolving Credit Commitment; (c) each repayment of principal of or interest on
Loans will be made to the Agent for the account of the Banks pro rata in
accordance with the respective unpaid principal amounts of the Loans held by
such Banks; and (d) each conversion of Loans of a particular Type shall be made
pro rata among the Banks holding Loans of such type according to the respective
principal amounts of such Loans held by such Banks.
SECTION 2.16 NON-RECEIPT OF FUNDS BY THE AGENT.
Unless the Agent shall have been notified by a Bank or the
Borrower (the "PAYOR") prior to the date on which such Bank is to make payment
to the Agent of the proceeds of a Loan to be made by it hereunder or the
Borrower is to make a payment to the Agent for the account of one or more of the
Banks, as the case may be (such payment being herein called the "REQUIRED
PAYMENT"), which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to the Agent, the Agent may assume that the
Required Payment has been made and may, in reliance upon such assumption (but
shall not be required to), make the amount thereof available to the intended
recipient on such date and, if the Payor has not in fact made the Required
Payment to the Agent, the recipient of such payment shall, on demand, repay to
the Agent the amount made available to it together with interest thereon in
respect of each day during the period commencing on the date such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal (i) when the recipient is a Bank, the Federal Funds Rate
for such day, or (ii) the rate of interest applicable to such Loan (when the
recipient is the Borrower).
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SECTION 2.17 SHARING OF PAYMENTS AND SET-OFF AMONG BANKS.
The Borrower hereby agrees that, in addition to (and without
limitation of) any right of setoff, banker's lien or counterclaim a Bank may
otherwise have, each Bank shall be entitled, at its option, to offset balances
held by it at any of its offices against any principal of or interest on any of
its Loans hereunder or any Fee payable to it, that is not paid when due
(regardless of whether such balances are then due to the Borrower), in which
case it shall promptly notify the Borrower and the Agent thereof, provided that
its failure to give such notice shall not affect the validity thereof. If a Bank
shall effect payment of any principal of or interest or Fee on Loans held by it
under this Agreement through the exercise of any right of set-off, banker's
lien, counterclaim or similar right, it shall promptly purchase from the other
Banks participations in the Loans held by the other Banks in such amounts, and
make such other adjustments from time to time as shall be equitable, to the end
that all the Banks shall share the benefit of such payment pro rata in
accordance with the unpaid amount of principal and interest or Fee on the Loans
held by each of them. To such end all the Banks shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored. The Borrower agrees
that any Bank so purchasing a participation in the Loans held by the other Banks
may, to the fullest extent permitted by law, exercise all rights of payment
(including the rights of set-off, banker's lien, counterclaim or similar rights)
with respect to such participation as fully as if such Bank were a direct holder
of Loans in the amount of such participation. Nothing contained herein shall
require any Bank to exercise any such right or shall affect the right of any
Bank to exercise and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of the Borrower.
SECTION 2.18 CONVERSION OF LOANS.
The Borrower shall have the right to convert Loans of one Type
into Loans of another Type from time to time, provided that: (i) the Borrower
shall give the Agent notice of each such conversion as provided in Section 2.3
hereof; (ii) LIBOR Loans may be converted only on the last day of an Interest
Period for such Loans; (iii) no LIBOR Loan shall be continued as or converted
into another LIBOR Loan, or Prime Rate Loan converted into a LIBOR Loan for a
new Interest Period, if the principal amount (determined as of the date of any
proposed conversion or continuation thereof) of the aggregate Loans outstanding
after giving effect to such continuation or conversion would exceed the Total
Commitment then in effect; and (iv) no Prime Rate Loan may be converted into a
LIBOR Loan or LIBOR Loan continued as or converted into another LIBOR Loan if on
the proposed date of conversion a Default or an Event of Default exists. The
Agent shall use its best efforts to notify the Borrower of the effec-
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tiveness of such conversion, and the new interest rate to which the converted
Loans are subject, as soon as practicable after the conversion; provided,
however, that any failure to give such notice shall not affect the Borrower's
obligations, or the Agent's or the Banks' rights and remedies, hereunder in any
way whatsoever.
SECTION 2.19 ADDITIONAL COSTS; CAPITAL REQUIREMENTS.
(a) In the event that any existing or future law or regulation,
guideline or interpretation thereof, by any court or administrative or
governmental authority (foreign or domestic) charged with the administration
thereof, or compliance by any Bank with any request or directive (whether or not
having the force of law) of any such authority shall impose, modify or deem
applicable or result in the application of, any capital maintenance, capital
ratio or similar requirement against loan commitments or other obligations
entered into by any Bank hereunder, and the result of any event referred to
above is to impose upon any Bank or increase any capital requirement applicable
as a result of the making or maintenance of such Bank's Revolving Credit
Commitment or the obligation of such Bank hereunder with respect to such
Revolving Credit Commitment or otherwise (which imposition of capital
requirements may be determined by each Bank's reasonable allocation of the
aggregate of such capital increases or impositions), then, upon demand made by
such Bank as promptly as practicable after it obtains knowledge that such law,
regulation, guideline, interpretation, request or directive exists and
determines to make such demand, the Borrower shall immediately pay to such Bank
from time to time as specified by such Bank additional amounts which shall be
sufficient to compensate such Bank for such imposition of or increase in capital
requirements together with interest on each such amount from the date demanded
until payment in full thereof at the Post-Default Rate. A certificate setting
forth in reasonable detail the amount necessary to compensate such Bank as a
result of an imposition of or increase in capital requirements submitted by such
Bank to the Borrower shall be conclusive, absent manifest error, as to the
amount thereof. All references to any "Bank" shall be deemed to include any
participant in such Bank's Revolving Credit Commitment.
(b) In the event that any Regulatory Change shall: (i) change the
basis of taxation of any amounts payable to any Bank under this Agreement or the
Notes in respect of any Loans including, without limitation, LIBOR Loans (other
than taxes imposed on the overall net income of such Bank for any such Loans by
the United States of America or the jurisdiction in which such Bank has its
principal office); or (ii) impose or modify any reserve, Federal Deposit
Insurance Corporation premium or assessment, special deposit or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Bank (including any of such Loans or
any deposits referred to in the definition of "LIBOR Base
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Rate" in Article 1 hereof); or (iii) impose any other conditions affecting this
Agreement in respect of Loans, including, without limitation, LIBOR Loans (or
any of such extensions of credit, assets, deposits or liabilities); and the
result of any event referred to in clause (i), (ii) or (iii) above shall be to
increase such Bank's costs of making or maintaining any Loans including, without
limitation, LIBOR Loans, or its Revolving Credit Commitment, or to reduce any
amount receivable by such Bank hereunder in respect of its Revolving Credit
Commitment (such increases in costs and reductions in amounts receivable are
hereinafter referred to as "ADDITIONAL COSTS") in each case, only to the extent,
with respect to LIBOR Loans, that such Additional Costs are not included in the
LIBOR Base Rate applicable to LIBOR Loans, then, upon demand made by such Bank
as promptly as practicable after it obtains knowledge that such a Regulatory
Change exists and determines to make such demand (a copy of which demand shall
be delivered to the Agent), the Borrower shall pay to such Bank from time to
time as specified by such Bank, additional amounts which shall be sufficient to
compensate such Bank for such increased cost or reduction in amounts receivable
by such Bank from the date of such change, together with interest on each such
amount from the date demanded until payment in full thereof at the Post-Default
Rate. All references to any "Bank" shall be deemed to include any participant in
such Bank's Revolving Credit Commitment.
(c) Without limiting the effect of the foregoing provisions of
this Section 2.19, in the event that, by reason of any Regulatory Change, any
Bank either: (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Bank which includes deposits by reference to which the
interest rate on LIBOR Loans is determined as provided in this Agreement or a
category of extensions of credit or other assets of such Bank which includes
LIBOR Loans, or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets that it may hold, then, if such Bank so elects
by notice to the Borrower (with a copy to the Agent), the obligation of such
Bank to make, and to convert Loans of any other Type into, Loans of such Type
hereunder shall be suspended until the date such Regulatory Change ceases to be
in effect (and all Loans of such Type then outstanding shall be converted into
Prime Rate Loans or into LIBOR Loans of another duration as the case may be, in
accordance with Sections 2.18 and 2.22).
(d) Determinations by any Bank for purposes of this Section 2.19
of the effect of any Regulatory Change on its costs of making or maintaining
Loans or on amounts receivable by it in respect of Loans, and of the additional
amounts required to compensate such Bank in respect of any Additional Costs,
shall be set forth in writing in reasonable detail and shall be conclusive,
absent manifest error.
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SECTION 2.20 LIMITATION ON TYPES OF LOANS.
Anything herein to the contrary notwithstanding, if, on or prior
to the determination of an interest rate for any LIBOR Loans for any Interest
Period therefor, the Required Banks determine (which determination shall be
conclusive):
(a) by reason of any event affecting the money markets in the
United States of America or the London interbank market, quotations of interest
rates for the relevant deposits are not being provided in the relevant amounts
or for the relevant maturities for purposes of determining the rate of interest
for such Loans under this Agreement; or
(b) the rates of interest referred to in the definition of "LIBOR
Base Rate" in Article 1 hereof upon the basis of which the rate of interest on
any LIBOR Loans for such period is determined, do not accurately reflect the
cost to the Banks of making or maintaining such Loans for such period;
then the Agent shall give the Borrower and each Bank prompt notice
thereof (and shall thereafter give the Borrower and each Bank prompt notice of
the cessation, if any, of such condition), and so long as such condition remains
in effect, the Banks shall be under no obligation to make Loans of such Type or
to convert Loans of any other Type into Loans of such Type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type either repay such Loans in accordance
with Section 2.6 hereof or convert such Loans into Loans of another Type.
SECTION 2.21 ILLEGALITY.
Notwithstanding any other provision in this Agreement, in the
event that it becomes unlawful for any Bank or its applicable Lending Office to:
(a) honor its obligation to make any Type of LIBOR Loans hereunder, or (b)
maintain any Type of LIBOR Loans hereunder, then such Bank shall promptly notify
the Borrower thereof (with a copy to the Agent), describing such illegality in
reasonable detail (and shall thereafter promptly notify the Borrower and the
Agent of the cessation, if any, of such illegality), and such Bank's obligation
to make such Type of LIBOR Loans and to convert Prime Rate Loans into LIBOR
Loans hereunder shall, upon written notice given by such Bank to the Borrower,
be suspended until such time as such Bank may again make and maintain such type
of LIBOR Loans and such Bank's outstanding LIBOR Loans of such Type shall be
converted into Prime Rate Loans, in accordance with Sections 2.18 and 2.22
hereof.
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SECTION 2.22 CERTAIN CONVERSIONS PURSUANT
TO SECTIONS 2.19 AND 2.21.
If the Loans of any Bank of a particular Type (Loans of such Type
are hereinafter referred to as "AFFECTED LOANS" and such Type is hereinafter
referred to as the "AFFECTED TYPE") are to be converted pursuant to Section 2.19
or 2.21 hereof, such Bank's Affected Loans shall be converted into Prime Rate
Loans, or LIBOR Loans of another Type, as the case may be (the "NEW TYPE
LOANS"), on the last day(s) of the then current Interest Period(s) for the
Affected Loans (or, in the case of a conversion required by subsection 2.19(b)
or Section 2.21 hereof, on such earlier date as such Bank may specify to the
Borrower with a copy to the Agent) and, until such Bank gives notice as provided
below that the circumstances specified in Section 2.19 or 2.21 hereof which gave
rise to such conversion no longer exist:
(a) to the extent that such Bank's Affected Loans have been so
converted, all payments and repayments of principal which would otherwise be
applied to such Affected Loans shall be applied instead to its New Type Loans;
and
(b) all Loans which would otherwise be made by such Bank as Loans
of the Affected Type shall be made instead as New Type Loans and all Loans of
such Bank which would otherwise be converted into Loans of the Affected Type
shall be converted instead into (or shall remain as) New Type Loans.
SECTION 2.23 INDEMNIFICATION.
The Borrower shall pay to the Agent for the account of each Bank,
upon the request of such Bank through the Agent, such amount or amounts as shall
compensate such Bank for any loss (including loss of profit), cost or expense
incurred by such Bank (as reasonably determined by such Bank) as a result of:
(a) any payment or repayment or conversion of a LIBOR Loan held by
such Bank on a date other than the last day of an Interest Period for such LIBOR
Loan except pursuant to Sections 2.19 or 2.21 hereof; or
(b) any failure by the Borrower to borrow a LIBOR Loan held by
such Bank on the date for such borrowing specified in the relevant Borrowing
Notice under Section 2.3 hereof,
such compensation to include, without limitation, an amount equal to: (i) any
loss or expense suffered by such Bank during the period from the date of receipt
of such early payment or repayment or the date of such conversion to the last
day of such Interest Period if the rate of interest obtainable by such Bank upon
the redeployment of an amount of funds equal to such Bank's pro rata share of
such payment, repayment or conversion or failure to
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borrow or convert is less than the rate of interest applicable to such LIBOR
Loan for such Interest Period, or (ii) any loss or expense suffered by such Bank
in liquidating LIBOR deposits prior to maturity which correspond to such Bank's
pro rata share of such payment, repayment, conversion, failure to borrow or
failure to convert. The determination by each such Bank of the amount of any
such loss or expense, when set forth in a written notice to the Borrower,
containing such Bank's calculation thereof in reasonable detail, shall be
presumed correct, in the absence of manifest error.
SECTION 2.24 GUARANTY.
The due payment and performance of the Obligations shall be
guaranteed to the Banks and the Agent by Omega (hereinafter referred to as the
"GUARANTOR"), by the execution and delivery to the Agent, simultaneously with
the execution and delivery of this Agreement, of a Guaranty in form and
substance satisfactory to the Agent (the "GUARANTY").
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ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks and the
Agent that:
SECTION 3.1 ORGANIZATION.
(a) The Borrower is duly organized and validly existing under
the laws of its state of organization and has the power to own its assets and to
transact the business in which it is presently engaged and in which it proposes
to be engaged. Schedule 3.1 hereto accurately and completely lists: (i) the
state of incorporation of the Borrower, and (ii) the classes and number of its
authorized and outstanding shares of capital stock. All of the foregoing shares
or other equity interests that are issued and outstanding have been duly and
validly issued and are fully paid and non-assessable. Except as set forth on
Schedule 3.1, the Borrower has no Subsidiary.
(b) The Borrower is in good standing in its state of
organization and in each state in which it is qualified to do business. There
are no jurisdictions other than as set forth on Schedule 3.1 hereto in which the
character of the properties owned or proposed to be owned by the Borrower or in
which the transaction of the business of the Borrower as now conducted or as
proposed to be conducted requires or will require the Borrower to qualify to do
business and as to which failure so to qualify could have a Material Adverse
Effect.
SECTION 3.2 POWER, AUTHORITY, CONSENTS.
The Borrower has the power to execute, deliver and perform
the Loan Documents to be executed by it. The Borrower has the power to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowing hereunder on the terms and conditions of this Agreement. The Borrower
has taken all necessary action, corporate or otherwise, to authorize the
execution, delivery and performance of the Loan Documents to be executed by it.
No consent or approval of any Person (including, without limitation, any
stockholder of the Borrower), no consent or approval of any landlord or
mortgagee, no waiver of any Lien or right of distraint or other similar right
and no consent, license, certificate of need, approval, authorization or
declaration of any governmental authority, bureau or agency, is or will be
required in connection with the execution, delivery or performance by the
Borrower or any other Loan Party, or the validity or enforcement of the Loan
Documents, except as set forth on Schedule 3.2 hereto, each of which either has
been duly and validly obtained on or prior to the date hereof and is now in full
force and effect, or is designated on Schedule 3.2 as waived by the Required
Banks.
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SECTION 3.3 NO VIOLATION OF LAW OR AGREEMENTS.
The execution and delivery by the Borrower of each Loan
Document to which it is a party and performance by it hereunder and thereunder,
will not violate any provision of law and will not conflict with or result in a
breach of any order, writ, injunction, ordinance, resolution, decree, or other
similar document or instrument of any court or governmental authority, bureau or
agency, domestic or foreign, or its certificate of incorporation or by-laws, or
create (with or without the giving of notice or lapse of time, or both) a
default under or breach of any agreement, bond, note or indenture to which it is
a party, or by which it is bound or any of its properties or assets is affected,
except for such defaults and breaches which in the aggregate could not have a
Material Adverse Effect, or result in the imposition of any Lien of any nature
whatsoever upon any of the properties or assets owned by or used in connection
with the business of the Borrower.
SECTION 3.4 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
This Agreement and each other Loan Document to which the
Borrower is a party has been duly executed and delivered by the Borrower and
each constitutes the valid and legally binding obligation of the Borrower,
enforceable in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
other similar laws, now or hereafter in effect, relating to or affecting the
enforcement of creditors' rights generally and except that the remedy of
specific performance and other equitable remedies are subject to judicial
discretion.
SECTION 3.5 TITLE TO PROPERTIES.
The Borrower has good and marketable title in fee simple to,
or valid leasehold interests in, all Property necessary or used in the ordinary
course of its business, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect.
SECTION 3.6 JUDGMENTS, ACTIONS, PROCEEDINGS.
Except as set forth on Schedule 3.6 hereto, there are no
outstanding judgments, actions or proceedings, including, without limitation,
any Environmental Proceeding, pending before any court or governmental
authority, bureau or agency, with respect to or, to the best of the Borrower's
knowledge, threatened against or affecting the Borrower involving, (i) in the
case of any court proceeding, a claim in excess of Two Hundred Fifty Thousand
($250,000) Dollars, and (ii) in the case of any outstanding judgments, in excess
of Five Hundred Thousand ($500,000) Dollars, nor, to the best of the Borrower's
knowledge, is there any reasonable basis for the institution of any such
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action or proceeding that is probable of assertion, nor are there any such
actions or proceedings in which the Borrower is a plaintiff or complainant.
SECTION 3.7 NO DEFAULTS, COMPLIANCE WITH LAWS.
Except as set forth on Schedule 3.7 hereto, the Borrower is
not in default under any agreement, ordinance, resolution, decree, bond, note,
indenture, order or judgment to which it is a party or by which it is bound, or
any other agreement or other instrument by which any of the properties or assets
owned by it or used in the conduct of its business is affected, which default
could have a Material Adverse Effect. The Borrower has complied and is in
compliance in all respects with all applicable laws, ordinances and regulations,
resolutions, ordinances, decrees and other similar documents and instruments of
all courts and governmental authorities, bureaus and agencies, domestic and
foreign, including, without limitation, all applicable provisions of the
Americans with Disabilities Act (42 U.S.C. Section 12101-12213) and the
regulations issued thereunder and all applicable Environmental Laws and
Regulations, non-compliance with which could have a Material Adverse Effect.
SECTION 3.8 BURDENSOME DOCUMENTS.
Except as set forth on Schedule 3.8 hereto, the Borrower is
not a party to or bound by, nor are any of the properties or assets owned by the
Borrower used in the conduct of its business affected by, any agreement,
ordinance, resolution, decree, bond, note, indenture, order or judgment,
including, without limitation, any of the foregoing relating to any
Environmental Liability, that materially and adversely affects its business,
assets or condition, financial or otherwise.
SECTION 3.9 INTENTIONALLY OMITTED.
SECTION 3.10 TAX RETURNS.
The Borrower has filed all federal, state and local tax
returns required to be filed by it and has not failed to pay any taxes, or
interest and penalties relating thereto, on or before the due dates thereof.
There are no material federal, state or local tax liabilities of the Borrower,
due or to become due for any tax year ended on or prior to the date hereof,
whether incurred in respect of or measured by the Borrower, and (ii) there are
no material claims pending or, to the knowledge of the Borrower, proposed or
threatened against the Borrower for past federal, state or local taxes.
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SECTION 3.11 INTANGIBLE ASSETS.
The Borrower possesses all patents, trademarks, service
marks, trade names, and copyrights, and rights with respect to the foregoing,
necessary to conduct its business as now conducted and as proposed to be
conducted, without any conflict with the patents, trademarks, service marks,
trade names, and copyrights and rights with respect to the foregoing, of any
other Person.
SECTION 3.12 REGULATION U.
No part of the proceeds received by the Borrower from the
Loans will be used directly or indirectly for: (a) any purpose other than as set
forth in Section 2.9 hereof, or (b) the purpose of purchasing or carrying, or
for payment in full or in part of Indebtedness that was incurred for the
purposes of purchasing or carrying, any "margin stock", as such term is defined
in Section 221.3 of Regulation U of the Board of Governors of the Federal
Reserve System, 12 C.F.R., Chapter II, Part 221.
SECTION 3.13 NAME CHANGES, MERGERS, ACQUISITIONS.
Except as set forth on Schedule 3.13 hereto, the Borrower has
not within the six-year period immediately preceding the date of this Agreement
changed its name, been the surviving entity of a merger or consolidation, or
acquired all or substantially all of the assets of any Person.
SECTION 3.14 FULL DISCLOSURE.
No certificate, opinion, or any other statement made or
furnished in writing to the Agent or any Bank by or on behalf of the Borrower or
the Guarantor in connection with this Agreement or the transactions contemplated
herein, contains any untrue statement of a material fact, or omits to state a
material fact necessary in order to make the statements contained therein or
herein not misleading, as of the date such statement was made. There is no fact
known to the Borrower that has, or would in the now foreseeable future have, a
Material Adverse Effect, which fact has not been set forth herein or any
certificate, opinion or other written statement so made or furnished to the
Agent or the Banks.
SECTION 3.15 LICENSES AND APPROVALS.
The Borrower has all necessary licenses, permits and
governmental authorizations, including, without limitation, licenses, permits
and authorizations arising under or relating to Environmental Laws and
Regulations, to own and operate its properties and to carry on its business as
now conducted, the absence of which would have a Material Adverse Effect.
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SECTION 3.16 ERISA.
(a) Except as set forth on Schedule 3.16 hereto, no Employee
Benefit Plan is maintained or has ever been maintained by any Loan Party or any
ERISA Affiliate, nor has any Loan Party or any ERISA Affiliate ever contributed
to a Multiemployer Plan.
(b) There are no agreements which will provide payments to
any officer, employee, shareholder or highly compensated individual which will
be "parachute payments" under 280G of the Code that are nondeductible to any
Loan Party and which will be subject to tax under Section 4999 of the Code which
could have a Material Adverse Effect.
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ARTICLE 4. CONDITIONS TO THE LOANS.
SECTION 4.1 CONDITIONS TO INITIAL LOAN(S).
The obligation of each Bank to execute and deliver this
Agreement shall be subject to the fulfillment (to the satisfaction of the Agent)
of the following conditions precedent:
(a) The Borrower shall have executed and delivered to each
Bank its Note.
(b) (i) The Borrower shall have paid to the Agent, for the
benefit of the Banks, the Origination Fee.
(ii) The Borrower shall have paid to the Agent, the
Arrangement Fee.
(c) The Guarantor shall have executed and delivered to the
Agent its Guaranty.
(d) Counsel to the Borrower shall have delivered its opinion
to, and in form and substance satisfactory to, the Agent.
(e) The Agent shall have received copies of the following:
(i) All of the consents, approvals and waivers referred
to on Schedule 3.2 hereto (except only those which, as stated on Schedule 3.2,
shall not be delivered);
(ii) The certificate of incorporation of the Borrower,
certified by the Secretary of State of its state of incorporation;
(iii) The by-laws of the Borrower, certified by its
secretary;
(iv) All corporate action taken by each of the Borrower
and the Guarantor to authorize the execution, delivery and performance of each
of the Loan Documents to which it is a party and the transactions contemplated
thereby, certified by their respective secretaries;
(v) Good standing certificates as of a recent date,
with respect to the Borrower from the Secretary of State of its state of
incorporation and each state in which it is qualified to do business;
(vi) An incumbency certificate (with specimen
signatures) with respect to the Borrower; and
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(vii) A certificate from the Secretary or an Assistant
Secretary of Omega to the effect that the certificate of incorporation, by-laws
and incumbency certificate of Omega delivered to the Agent pursuant to the Loan
Agreement dated July 17, 1995 among Omega and certain of its Subsidiaries, the
Agent and the banks party thereto have not been amended since the date of such
delivery and that such documents are in full force and effect and are true and
correct as of the date hereof; and
(f) (i) The Borrower shall have complied and shall then be
in compliance with all of the terms, covenants and conditions of this Agreement;
(ii) After giving effect to the initial Loan, there
shall exist no Default or Event of Default hereunder; and
(iii) The representations and warranties contained in
Article 3 hereof shall be true and correct on the date hereof;
and the Agent shall have received a Compliance Certificate dated the date hereof
certifying, inter alia, that the conditions set forth in this subsection 4.1(f)
are satisfied on such date.
(g) All legal matters incident to the initial Loans shall be
satisfactory to counsel to the Agent.
SECTION 4.2 CONDITIONS TO SUBSEQUENT LOANS.
The obligation of the Banks to make each Loan subsequent to
the date hereof shall be subject to the fulfillment (to the satisfaction of the
Agent) of the following conditions precedent:
(a) The Agent shall have received a Borrowing Notice in
accordance with Section 2.3 hereof.
(b) The Agent shall have received a Compliance Certificate
dated the date of such Loan and effective as of such date, and the matters
certified therein, including, without limitation, the absence of any Default or
Event of Default, shall be true as of such date.
(c) All legal matters incident to such Loan shall be
satisfactory to counsel for the Agent.
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ARTICLE 5. DELIVERY OF FINANCIAL REPORTS,
DOCUMENTS AND OTHER INFORMATION.
While the Revolving Credit Commitments are outstanding, and,
in the event any Loan remains outstanding, so long as the Borrower is indebted
to the Banks or the Agent and until payment in full of the Notes and full and
complete performance of all of its other obligations arising hereunder, the
Borrower shall deliver to each Bank:
SECTION 5.1 ANNUAL FINANCIAL STATEMENTS.
Annually, as soon as available, but in any event within
ninety (90) days after the last day of each of its fiscal years, a consolidated
and consolidating balance sheet of the Borrower and its Subsidiaries as at such
last day of the fiscal year, and consolidated and consolidating statements of
income and retained earnings and statements of cash flow, for such fiscal year,
each prepared in accordance with generally accepted accounting principles
consistently applied, in reasonable detail, and, as to the consolidated
statements, certified without qualification by Ernst & Young or another
nationally recognized independent public accounting firm or by any other
certified public accounting firm satisfactory to the Agent, or certified, as to
the consolidating statements, by the chief financial officer of the Borrower, as
fairly presenting the financial position and results of operations of the
Borrower and its Subsidiaries as at and for the year ending on its date and as
having been prepared in accordance with GAAP; provided, however, the Borrower
may satisfy its obligations to deliver the consolidated financial statements
described in this Section 5.1 by furnishing to the Banks a copy of its annual
report on Form 10-K in respect of such fiscal year together with the financial
statements required to be attached thereto, provided the Borrower is required to
file such annual report on Form 10-K with the Securities and Exchange Commission
and such filing is actually made.
SECTION 5.2 QUARTERLY FINANCIAL STATEMENTS.
As soon as available, but in any event within forty-five (45)
days after the end of each of the Borrower's fiscal quarters, a consolidated and
consolidating balance sheet of the Borrower and the Subsidiaries as of the last
day of such quarter and consolidated and consolidating statements of income and
retained earnings and statements of cash flow, for such quarter, and on a
comparative basis figures for the corresponding period of the immediately
preceding fiscal year, all in reasonable detail, each such statement to be
certified in a certificate of the chief financial officer of the Borrower as
accurately presenting the financial position and the results of operations of
the Borrower and its Subsidiaries as at its date and for such
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quarter and as having been prepared in accordance with GAAP (subject to year-end
audit adjustments); provided, however, the Borrower may satisfy its obligations
to deliver the consolidated financial statements described in this Section 5.2
by furnishing to the Banks a copy of its quarterly report on Form 10-Q in
respect of such fiscal quarter together with the financial statements required
to be attached thereto, provided the Borrower is required to file such quarterly
report on Form 10-Q with the Securities and Exchange Commission and such filing
is actually made.
SECTION 5.3 COMPLIANCE INFORMATION.
Promptly after a written request therefor, such other
financial data or information evidencing compliance with the requirements of
this Agreement, the Notes and the other Loan Documents, as any Bank may
reasonably request from time to time.
SECTION 5.4 NO DEFAULT CERTIFICATE.
At the same time as it delivers the financial statements
required under the provisions of Sections 5.1 and 5.2 hereof, a certificate of
the chief executive officer or chief financial officer of the Borrower to the
effect that no Event of Default hereunder and that no default under any other
material agreement to which the Borrower is a party or by which it is bound, or
by which, to the best knowledge of the Borrower, any of its properties or
assets, taken as a whole, may be materially affected, and no event which, with
the giving of notice or the lapse of time, or both, would constitute such an
Event of Default or default, exists, or, if such cannot be so certified,
specifying in reasonable detail the exceptions, if any, to such statement. Such
certificate shall be accompanied by a detailed calculation indicating compliance
with the covenants contained in Section 6.9 hereof.
SECTION 5.5 INTENTIONALLY OMITTED.
SECTION 5.6 BUSINESS PLAN AND BUDGET.
Not later than November 30th in each fiscal year, copies of
the Borrower's business plan and budget for such fiscal year (together with a
copy in writing of the assumptions on which such business plan and budget were
based), each prepared by the Borrower's chief financial officer and illustrating
the projected income statements, balance sheets and statements of changes in
cash flow on a consolidated basis.
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SECTION 5.7 ACCOUNTANTS' REPORTS.
Promptly upon receipt thereof, copies of all other reports
submitted to the Borrower by its independent accountants in connection with any
annual or interim audit or review of its books made by such accountants.
SECTION 5.8 COPIES OF DOCUMENTS.
Promptly upon their becoming available, copies of any: (i)
financial statements, non-routine reports, notices (other than routine
correspondence), requests for waivers and proxy statements, in each case,
delivered by the Borrower or any of its Subsidiaries to any of their respective
existing lending institutions or creditors; (ii) correspondence or notices
received by the Borrower from any federal, state or local govern mental
authority that regulates its operations, relating to an actual or threatened
change or development that would be materially adverse to the Borrower; (iii)
registration statements and any amendments and supplements thereto, and any
regular and periodic reports, if any, filed by the Borrower or any of its
Subsidiaries with any securities exchange or with the Securities and Exchange
Commission or any governmental authority succeeding to any or all of the
functions of the said Commission; (iv) letters of comment or correspondence sent
to the Borrower or any of its Subsidiaries by any such securities exchange or
such Commission in relation to the Borrower or any of its Subsidiaries and its
affairs; (v) written reports submitted by the Borrower or any of its
Subsidiaries to its independent accountants in connection with any annual or
interim audit of the books of the Borrower or its Subsidiaries made by such
accountants; and (vi) any appraisals received by the Borrower or any of its
Subsidiaries with respect to the properties or assets of the Borrower or its
Subsidiaries during the term of this Agreement.
SECTION 5.9 NOTICES OF DEFAULTS.
Promptly, notice of the occurrence of any Default or Event of
Default, or any event that would constitute or cause a Material Adverse Effect
in the condition, financial or otherwise, or the operations of the Borrower.
SECTION 5.10 ERISA NOTICES AND REQUESTS.
(a) Concurrently with such filing, a copy of each Form 5500
that is filed with respect to each Plan with the IRS; and
(b) Promptly, upon their becoming available, copies of: (i)
all correspondence with the PBGC, the Secretary of Labor or any representative
of the IRS with respect to any Plan, relating to an actual or threatened change
or development that would be materially adverse to the Borrower; (ii) all
actuarial valuations received by the Borrower with respect to any
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Plan; and (iii) any notices of Plan termination filed by any Plan Administrator
(as those terms are used in ERISA) with the PBGC and of any notices from the
PBGC to the Borrower with respect to the intent of the PBGC to institute
involuntary termination proceedings.
SECTION 5.11 ADDITIONAL INFORMATION.
Such other material additional information regarding the
business, affairs and condition of the Borrower as the Agent may from time to
time reasonably request.
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ARTICLE 6. AFFIRMATIVE COVENANTS.
While the Revolving Credit Commitments are outstanding, and, in the
event any Loan remains outstanding, so long as the Borrower is indebted to the
Banks or the Agent, and until payment in full of the Notes and full and complete
performance of all of its other obligations arising hereunder, the Borrower
shall:
SECTION 6.1 BOOKS AND RECORDS.
Keep proper books of record and account in a manner
reasonably satisfactory to the Agent in which full and true entries shall be
made of all dealings or transactions in relation to its business and activities.
SECTION 6.2 INSPECTIONS AND AUDITS.
Permit the Banks to make or cause to be made (prior to an
Event of Default, at the Banks' expense and after the occurrence of and during
the continuance of an Event of Default, at the Borrower's expense), inspections
and audits of any books, records and papers of the Borrower and to make extracts
therefrom and copies thereof, or to make appraisals, inspections and
examinations of any properties and facilities of the Borrower on reasonable
notice, at all such reasonable times and as often as any Bank may reasonably
require, in order to assure that the Borrower is and will be in compliance with
its obligations under the Loan Documents or to evaluate the Banks' investment in
the then outstanding Notes.
SECTION 6.3 MAINTENANCE AND REPAIRS.
Cause to be maintained in good repair, working order and
condition, subject to normal wear and tear, all material properties and assets
from time to time owned by the Borrower and used in or necessary for the
operation of its business, and make or cause to be made all reasonable repairs,
replacements, additions and improvements thereto.
SECTION 6.4 CONTINUANCE OF BUSINESS.
Do, or cause to be done, all things reasonably necessary to
preserve and keep in full force and effect its corporate existence and all
permits, rights and privileges necessary for the proper conduct of its business,
and continue to engage in the same line of business and comply in all material
respects with all applicable laws, regulations and orders.
SECTION 6.5 COPIES OF CORPORATE DOCUMENTS.
Subject to the prohibitions set forth in Section 7.6 hereof,
promptly deliver to the Agent copies of any amendments or modifications to its
certificate of incorporation and by-laws, certified with respect to the
certificate of
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incorporation by the Secretary of State of its state of incorporation and, with
respect to the by-laws, by its secretary or assistant secretary.
SECTION 6.6 PERFORM OBLIGATIONS.
Pay and discharge all of its obligations and liabilities,
including, without limitation, all taxes, assessments and governmental charges
upon its income and properties when due, unless and to the extent only that such
obligations, liabilities, taxes, assessments and governmental charges shall be
contested in good faith and by appropriate proceedings and that, to the extent
required by generally accepted accounting principles then in effect, proper and
adequate book reserves relating thereto are established by the Borrower, and
then only to the extent that a bond is filed in cases where the filing of a bond
is necessary to avoid the creation of a Lien against any of its properties.
SECTION 6.7 NOTICE OF LITIGATION.
Promptly notify the Agent in writing of any litigation, legal
proceeding or dispute, other than disputes in the ordinary course of business
or, whether or not in the ordinary course of business, involving amounts in
excess of Five Hundred Thousand ($500,000) Dollars, affecting the Borrower,
whether or not fully covered by insurance, and regardless of the subject matter
thereof (excluding, however, any actions relating to workers' compensation
claims or negligence claims relating to use of motor vehicles, if fully covered
by insurance, subject to deductibles).
SECTION 6.8 INSURANCE.
(a) (i) Maintain with responsible insurance companies
acceptable to the Agent such insurance on such of its properties, in such
amounts and against such risks as is customarily maintained by similar
businesses; (ii) file with the Agent upon its request a detailed list of the
insurance then in effect, stating the names of the insurance companies, the
amounts and rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby; and (iii) within ten (10) days after
notice in writing from the Agent, obtain such additional insurance as the Agent
may reasonably request; and
(b) Carry all insurance available through the PBGC or any
private insurance companies covering its obligations to the PBGC.
SECTION 6.9 FINANCIAL COVENANTS.
Have or maintain, on a consolidated basis, as at the last day
of each fiscal quarter, Tangible Net Worth of not less than $50,000,000.
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SECTION 6.10 NOTICE OF CERTAIN EVENTS.
(a) Promptly notify the Agent in writing of the occurrence of
any Reportable Event, as defined in Section 4043 of ERISA, if a notice of such
Reportable Event is required under ERISA to be delivered to the PBGC within 30
days after the occurrence thereof, together with a description of such
Reportable Event and a statement of the action the Borrower or the ERISA
Affiliate intends to take with respect thereto, together with a copy of the
notice thereof given to the PBGC.
(b) Promptly notify the Agent in writing if the Borrower or
ERISA Affiliate receives an assessment of withdrawal liability in connection
with a complete or partial withdrawal with respect to any Multiemployer Plan,
together with a statement of the action that the Borrower or ERISA Affiliate
intends to take with respect thereto.
(c) Promptly notify the Agent in writing if the Borrower
receives: (i) any notice of any violation or administrative or judicial
complaint or order having been filed or about to be filed against the Borrower
alleging violations of any Environmental Law and Regulation, or (ii) any notice
from any governmental body or any other Person alleging that the Borrower is or
may be subject to any Environmental Liability; and promptly upon receipt
thereof, provide the Agent with a copy of such notice together with a statement
of the action the Borrower intends to take with respect thereto.
SECTION 6.11 COMPLY WITH ERISA.
Materially comply with all applicable provisions of ERISA and
the Code now or hereafter in effect.
SECTION 6.12 ENVIRONMENTAL COMPLIANCE.
Operate all property owned, operated or leased by it in
compliance with all Environmental Laws and Regulations, such that no
Environmental Liability arises under any Environmental Laws and Regulations,
which would result in a Lien on any property of the Borrower.
SECTION 6.13 YEAR 2000 COMPATIBILITY.
Take all action necessary to assure that its computer based
systems, hardware and software used in the Borrower's business and operations
are able to operate and effectively receive, transmit, process, store, retrieve
or retransmit data including dates on and after January 1, 2000, and, at the
request of the Agent, the Borrower shall provide evidence to the satisfaction of
the Agent of such year 2000 compatibility.
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ARTICLE 7. NEGATIVE COVENANTS.
While the Revolving Credit Commitments are outstanding, and, in
the event any Loan remains outstanding, so long as the Borrower is indebted to
the Banks or the Agent and until payment in full of the Notes and full and
complete performance of all of its other obligations arising hereunder, the
Borrower shall not and shall not permit any of its Subsidiaries to do, agree to
do, or permit to be done, any of the following:
SECTION 7.1 INDEBTEDNESS.
Create, incur, permit to exist or have outstanding any
Indebtedness, except:
(a) Indebtedness of the Borrower to the Banks and the Agent
and under this Agreement and the Notes;
(b) Taxes, assessments and governmental charges, non-interest
bearing accounts payable and accrued liabilities, in any case not more than 90
days past due from the original due date thereof, and non-interest bearing
deferred liabilities other than for borrowed money (e.g., deferred compensation
and deferred taxes), in each case incurred and continuing in the ordinary course
of business;
(c) Indebtedness secured by the security interests referred
to in subsection 7.2(b) hereof;
(d) Indebtedness consisting of contingent obligations
permitted by Section 7.3 hereof; and
(e) As set forth on Schedule 7.1 hereto.
SECTION 7.2 LIENS.
Create, or assume or permit to exist, any Lien on any of its
properties or assets, whether now owned or hereafter acquired, except:
(a) Permitted Liens;
(b) Purchase money Liens on Property acquired in the ordinary
course of business, securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such Property; provided, that
(i) any such Lien attaches to such Property concurrently with or within twenty
(20) days after the acquisition thereof, (ii) such Lien attaches solely to the
Property so acquired in such transaction, and (iii) the principal amount of the
debt secured thereby does not exceed 100% of the cost of such Property; and
(c) As set forth on Schedule 7.2 hereto.
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SECTION 7.3 GUARANTIES.
Assume, endorse, be or become liable for, or guarantee, the
obligations of any Person, except by the endorsement of negotiable instruments
for deposit or collection in the ordinary course of business and as set forth on
Schedule 7.1 hereof. For the purposes hereof, the term "guarantee" shall include
any agreement, whether such agreement is on a contingency or otherwise, to
purchase, repurchase or otherwise acquire Indebtedness of any other Person, or
to purchase, sell or lease, as lessee or lessor, property or services, in any
such case primarily for the purpose of enabling another person to make payment
of Indebtedness, or to make any payment (whether as an advance, capital
contribution, purchase of an equity interest or otherwise) to assure a minimum
equity, asset base, working capital or other balance sheet or financial
condition, in connection with the Indebtedness of another Person, or to supply
funds to or in any manner invest in another Person in connection with such
Person's Indebtedness.
SECTION 7.4 MERGERS, ACQUISITIONS.
Except as expressly permitted by this Agreement, merge or
consolidate with any Person, or, acquire all or substantially all of the assets
or any of the capital stock of any Person unless (a) the Borrower is the
surviving entity and (b) no Default or Event of Default exists or will occur
after giving effect thereto.
SECTION 7.5 REDEMPTIONS; DISTRIBUTIONS.
(a) Purchase, redeem, retire or otherwise acquire, directly
or indirectly, or make any sinking fund payments with respect to, any shares of
any class of stock of the Borrower or any Subsidiary now or hereafter
outstanding or set apart any sum for any such purpose if a Default or Event of
Default exists or would occur as a result of any such action; or
(b) Declare or pay any dividends or make any distribution of
any kind on the Borrower's outstanding stock, or set aside any sum for any such
purpose, except that:
(i) the Borrower may declare and make dividend payments
or other distributions payable solely in its common stock; and
(ii) the Borrower may pay cash dividends if, and only
if: (x) at the time of such payment and after giving effect thereto, no Default
or Event of Default shall exist hereunder, and (y) after giving effect to such
dividend payment, the aggregate amount of all dividends paid and declared during
any period of four (4) consecutive fiscal quarters of the Borrower in which such
payment is proposed to be made would not exceed an amount equal to fifty percent
(50%) of the consolidated
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net income of the Borrower for such period (as shown on the financial statements
of the Borrower for such fiscal period furnished to the Agent in accordance with
Section 5.1 or Section 5.2 hereof).
SECTION 7.6 CHANGES IN STRUCTURE.
Except for supplemental issuance of Omega's authorized common
stock and preferred stock and as otherwise expressly permitted under Section
7.5, make any changes in the equity capital structure of the Borrower or any
Subsidiary, or amend its certificate of incorporation or by-laws in a manner
which would be reasonably likely to cause a Material Adverse Effect.
SECTION 7.7 INTENTIONALLY OMITTED.
SECTION 7.8 FISCAL YEAR.
Change its fiscal year.
SECTION 7.9 ERISA OBLIGATIONS.
Permit the establishment of any Employee Benefit Plan or
amend any Employee Benefit Plan which establishment or amendment could result in
liability to any Loan Party or increase the obligation for post-retirement
welfare benefits of any Loan Party which liability or increase, individually or
together with all similar liabilities and increases, has a Material Adverse
Effect on any Loan Party.
SECTION 7.10 USE OF CASH.
Use, or permit to be used, in any manner or to any extent,
the Borrower's Cash from operations for the benefit of any Person, except: (a)
in connection with the payment or prepayment of expenses directly incurred for
the benefit of the Borrower in the maintenance and operation of its business, in
each case only in the ordinary course of its business, (b) for the payment of
scheduled, required payments of principal and interest on Indebtedness of the
Borrower permitted to exist hereunder, and (c) for uses that are otherwise
specifically permitted by this Agreement.
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ARTICLE 8. EVENTS OF DEFAULT.
If any one or more of the following events ("EVENTS OF DEFAULT")
shall occur and be continuing, the Revolving Credit Commitments shall terminate
and the entire unpaid balance of the principal of and interest on the Notes
outstanding and all other obligations and Indebtedness of the Borrower to the
Banks and the Agent arising hereunder and under the other Loan Documents shall
immediately become due and payable upon written notice to that effect given to
the Borrower by the Agent (except that in the case of the occurrence of any
Event of Default described in Section 8.6 no such notice shall be required),
without present- ment or demand for payment, notice of non-payment, protest or
further notice or demand of any kind, all of which are expressly waived by the
Borrower:
SECTION 8.1 PAYMENTS.
Failure by the Borrower to make any payment of principal or
interest upon any Note or to make any payment of any Fee when due; or
SECTION 8.2 CERTAIN COVENANTS.
Failure by the Borrower to perform or observe any of its
agreements contained in Section 6.9 or Article 7 hereof; or
SECTION 8.3 OTHER COVENANTS.
(a) Failure by the Borrower to perform or observe any other
term, condition or covenant of this Agreement or of any of the other Loan
Documents to which it is a party, which shall remain unremedied for a period of
thirty (30) days after notice thereof shall have been given to the Borrower by
the Agent; or
(b) Failure by any Loan Party other than the Borrower to
perform or observe any term, condition or covenant of any of the Loan Documents
to which it or he is a party, which shall remain unremedied for a period of
thirty (30) days after notice thereof shall have been given to the Borrower by
the Agent; or
SECTION 8.4 OTHER DEFAULTS.
(a) Failure by the Borrower or the Guarantor to perform or
observe any term, condition or covenant of any bond, note, debenture, loan
agreement, indenture, guaranty, trust agreement, mortgage or similar instrument
to which it is a party or by which it is bound, or by which any of its
properties or assets may be affected, including, without limitation, the Omega
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Loan Agreement(a "DEBT INSTRUMENT"), so that, as a result of any such failure to
perform, the Indebtedness included therein or secured or covered thereby may be
declared due and payable prior to the date on which such Indebtedness would
otherwise become due and payable (without giving effect to any period of grace,
cure or waiver with respect thereto); or
(b) Any event or condition referred to in any Debt Instrument
shall occur or fail to occur, so that, as a result thereof, the Indebtedness
included therein or secured or covered thereby may be declared due and payable
prior to the date on which such Indebtedness would otherwise become due and
payable (without giving effect to any period of grace, cure or waiver with
respect thereto); or
(c) Failure to pay any Indebtedness for borrowed money due at
final maturity or pursuant to demand under any Debt Instrument (without giving
effect to any period of grace, cure or waiver with respect thereto);
provided, however, that the provisions of this Section 8.4 shall not be
applicable to any Debt Instrument that on the date this Section 8.4 would
otherwise be applicable thereto, relates to or evidences Indebtedness in a
principal amount of less than $500,000; or
SECTION 8.5 REPRESENTATIONS AND WARRANTIES.
Any representation or warranty made in writing to the Banks
or the Agent in any of the Loan Documents or in connection with the making of
the Loans, or any certificate, statement or report made or delivered in
compliance with this Agreement, shall have been false or misleading in any
material respect when made or delivered, which in any event results in a
Material Adverse Effect; or
SECTION 8.6 BANKRUPTCY.
(a) The Borrower or the Guarantor shall make an assignment
for the benefit of creditors, file a petition in bankruptcy, be adjudicated
insolvent, petition or apply to any tribunal for the appointment of a receiver,
custodian, or any trustee for it or a substantial part of its assets, or shall
commence any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, or the Borrower or the
Guarantor shall take any corporate action to authorize any of the foregoing
actions; or there shall have been filed any such petition or application, or any
such proceeding shall have been commenced against it, that remains undismissed
for a period of thirty (30) days or more; or any order for relief shall be
entered in any such proceeding; or the Borrower or the Guarantor by any act or
omission shall indicate
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its consent to, approval of or acquiescence in any such petition, application or
proceeding or the appointment of a custodian, receiver or any trustee for it or
any substantial part of any of its properties, or shall suffer any
custodianship, receivership or trusteeship to continue undischarged for a period
of thirty (30) days or more; or
(b) The Borrower or the Guarantor shall generally not pay its
debts as such debts become due; or
(c) The Borrower or the Guarantor shall have concealed,
removed, or permitted to be concealed or removed, any part of its property, with
intent to hinder, delay or defraud its creditors or any of them or made or
suffered a transfer of any of its property that may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law; or shall have made any
transfer of its property to or for the benefit of a creditor at a time when
other creditors similarly situated have not been paid; or shall have suffered or
permitted, while insolvent, any creditor to obtain a Lien upon any of its
property through legal proceedings or distraint that is not vacated within
thirty (30) days from the date thereof; or
SECTION 8.7 JUDGMENTS.
Any judgment against the Borrower or any attachment, levy or
execution against any of its properties for any amount in excess of $500,000
shall remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed
for a period of thirty (30) days or more; or
SECTION 8.8 ERISA.
(a) The termination of any Plan or the institution by the
PBGC of proceedings for the involuntary termination of any Plan, in either case,
by reason of, or that results or could result in, a "material accumulated
funding deficiency" under Section 412 of the Code; or
(b) Failure by the Borrower to make required contributions,
in accordance with the applicable provisions of ERISA, to each of the Plans
hereafter established or assumed by it; or
SECTION 8.9 MATERIAL ADVERSE EFFECT.
There shall occur a Material Adverse Effect; or
SECTION 8.10 OWNERSHIP.
(i) Any Person, or a group of related Persons, shall acquire
beneficial ownership in excess of 25% of the outstanding stock of the Borrower
or other voting interest having
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ordinary voting powers to elect a majority of the directors, managers or
trustees of the Borrower (irrespective of whether at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency), or (ii) a majority of the Board of Directors of
the Borrower, at any time, shall be composed of Persons other than (a) Persons
who were members of the Board of Directors on the date of this Agreement, or (b)
Persons who subsequently become members of the Board of Directors on the date of
this Agreement, or (c) Persons who subsequently become members of the Board of
Directors and who either (x) are appointed or recommended for election with the
affirmative vote of a majority of the directors in office as of the date of this
Agreement or (y) are appointed or recommended for election with the affirmative
vote of a majority of the Board of Directors of the Borrower then in office; or
SECTION 8.11 RATINGS.
Failure by Omega to maintain an investment grade Rating from
both Xxxxx'x and S&P.
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ARTICLE 9. THE AGENT.
SECTION 9.1 APPOINTMENT, POWERS AND IMMUNITIES.
Each Bank hereby irrevocably appoints and authorizes the
Agent to act as its agent hereunder and the other Loan Documents with such
powers as are specifically delegated to the Agent by the terms of this Agreement
and the other Loan Documents together with such other powers as are reasonably
incidental thereto. The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the other Loan Documents and
shall not be a trustee for any Bank. The Agent shall not be responsible to the
Banks for any recitals, statements, representations or warranties contained in
this Agreement or the other Loan Documents in any certificate or other document
referred to or provided for in, or received by any of them under, this Agreement
or the other Loan Documents, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the other Loan
Documents or any other document referred to or provided for herein or therein or
for the collectibility of the Loans or for any failure by the Borrower to
perform any of its obligations hereunder or under the other Loan Documents. The
Agent may employ agents and attorneys-in-fact and shall not be answerable,
except as to money or securities received by it or its authorized agents, for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. Neither the Agent nor any of its directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them hereunder or the other Loan Documents or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct.
SECTION 9.2 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon any certification,
notice or other communication (including any thereof by telephone, telex,
telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper person or persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Agent. As to any matters not expressly provided for by this
Agreement or the other Loan Documents, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder or the other Loan
Documents in accordance with instructions signed by the Required Banks, and such
instructions of the Required Banks and any action taken or failure to act
pursuant thereto shall be binding on all of the Banks.
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SECTION 9.3 EVENTS OF DEFAULT.
The Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the non-payment of principal of or interest
on Loans) unless the Agent has received notice from a Bank or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Agent receives such a notice of the occurrence of a
Default, the Agent shall give notice thereof to the Banks (and shall give each
Bank notice of each such non-payment). The Agent shall (subject to Section 9.7
hereof) take such action with respect to such Default as shall be directed by
the Required Banks.
SECTION 9.4 RIGHTS AS A BANK.
With respect to its Revolving Credit Commitment and the Loans
made by it, the Agent in its capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. The Agent and its affiliates may (without having to account therefor
to any Bank) accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with the Borrower or its affiliates, as
if it were not acting as the Agent, and the Agent may accept fees and other
consideration from the Borrower or its affiliates, for services in connection
with this Agreement or any of the other Loan Documents or otherwise without
having to account for the same to the Banks.
SECTION 9.5 INDEMNIFICATION.
The Banks shall indemnify the Agent (to the extent not
reimbursed by the Borrower under Sections 10.1 and 10.2 hereof), ratably in
accordance with the aggregate principal amount of the Loans made by the Banks
(or, if no Loans are at the time outstanding, ratably in accordance with their
respective Revolving Credit Commitments), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of this Agreement or any of the other Loan Documents or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated by or referred to herein or therein or the transactions
contemplated hereby and thereby (including, without limitation, the costs and
expenses that the Borrower is obligated to pay under Sections 10.1 and 10.2
hereof, but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or of any such
other documents, provided that no Bank shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
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SECTION 9.6 NON-RELIANCE ON AGENT AND OTHER BANKS.
Each Bank agrees that it has, independently and without
reliance on the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or the other Loan Documents. The Agent shall not be
required to keep itself informed as to the performance or observance by the
Borrower of this Agreement or the other Loan Documents or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Borrower. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder or the other Loan Documents, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower, that
may come into the possession of the Agent or any of its affiliates.
SECTION 9.7 FAILURE TO ACT.
Except for action expressly required of the Agent hereunder,
the Agent shall in all cases be fully justified in failing or refusing to act
hereunder or thereunder unless it shall be indemnified to its satisfaction by
the Banks against any and all liability and expense that may be incurred by it
by reason of taking or continuing to take any such action.
SECTION 9.8 RESIGNATION OR REMOVAL OF AGENT.
Subject to the appointment and acceptance of a successor
Agent as provided below, the Agent may resign at any time by giving not less
than 10 days' prior written notice thereof to the Banks and the Borrower and the
Agent may be removed at any time with or without cause by the Required Banks.
Upon any such resignation or removal, the Required Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Banks and shall have accepted such appointment within 30 days after
the retiring Agent's giving of notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, after consultation with the Borrower, appoint a successor Agent which
shall be a bank that has an office in New York, New York with a combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's resigna-
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tion or removal hereunder as Agent, the provisions of this Article 9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Agent.
SECTION 9.9 SHARING OF PAYMENTS.
(a) Prior to any acceleration by the Agent and the Banks of
the Obligations:
(i) in the event that any Bank shall obtain payment in
respect of its Note, or interest thereon, whether voluntarily or involuntarily,
and whether through the exercise of a right of banker's lien, set-off or
counterclaim against the Borrower or otherwise, in a greater proportion than any
such payment obtained by any other Bank in respect of the corresponding Note
held by it, then the Bank so receiving such greater proportionate payment shall
purchase for cash from the other Bank or Banks such portion of each such other
Bank's or Banks' Loan as shall be necessary to cause such Bank receiving the
proportionate overpayment to share the excess payment with each Bank; and
(ii) in the event that any Bank shall obtain payment in
respect of any Interest Rate Contract to which such Bank is a party, whether
voluntarily or involuntarily, and whether through the exercise of a right of
banker's lien, set-off or counterclaim against the Borrower or otherwise, such
Bank shall be permitted to retain the full amount of such payment and shall not
be required to share such payment with any other Bank.
(b) Upon or following any acceleration by the Agent and the
Banks of the Obligations, in the event that any Bank shall obtain payment in
respect of a Note, or interest or Fees thereon, or in respect of an Interest
Rate Contract to which such Bank is a party, whether voluntarily or
involuntarily, and whether through the exercise of a right of banker's lien,
set-off or counterclaim against the Borrower or otherwise, in a greater
proportion than any such payment obtained by any other Bank in respect of the
aggregate amount of the corresponding Note held by such Bank and any Interest
Rate Contract to which such Bank is a party, then the Bank so receiving such
greater proportionate payment shall purchase for cash from the other Bank or
Banks such portion of each such other Bank's or Banks' Loan. For the purposes of
this subsection 9.9(b), payments on Notes received by each Bank shall be in the
same proportion as the proportion of: (A) the sum of: (x) the Obligations owing
to such Bank in respect of the Note held by such Bank, plus (y) the Obligations
owing to such Bank in respect of Interest Rate Contracts to which such Bank is
party, if any, to (B) the sum of: (x) the Obligations owing to all of the Banks
in respect of all of the Notes,
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plus (y) the Obligations owing to all of the Banks in respect of all Interest
Rate Contracts to which any Bank is a party; provided, however, that, with
respect to subsections 9.9(a)(i) and (b) above, if all or any portion of such
excess payment or benefits is thereafter recovered from the Bank that received
the proportionate overpayment, such purchase of Loans or payment of benefits, as
the case may be, shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
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ARTICLE 10. MISCELLANEOUS PROVISIONS.
SECTION 10.1 FEES AND EXPENSES; INDEMNITY.
The Borrower will promptly pay all costs of the Agent in
preparing the Loan Documents and all costs and expenses of the issue of the
Notes and of the Borrower's performance of and compliance with all agreements
and conditions contained herein on its part to be performed or complied with and
the reasonable fees and expenses and disbursements of counsel to the Agent in
connection with the preparation, execution and delivery, administration,
interpretation and enforcement of this Agreement, the other Loan Documents and
all other agreements, instruments and documents relating to this transaction,
the consummation of the transactions contemplated by all such documents, the
preservation of all rights of the Banks and the Agent, the negotiation,
preparation, execution and delivery of any amendment, modification or supplement
of or to, or any consent or waiver under, any such document (or any such
instrument that is proposed but not executed and delivered) and with any claim
or action threatened, made or brought against any of the Banks or the Agent
arising out of or relating to any extent to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby (other than a claim
or action resulting from the gross negligence, willful misconduct, or
intentional violation of law by the Agent and or the Banks). In addition, the
Borrower will promptly pay all costs and expenses (including, without
limitation, reasonable fees and disbursements of counsel) suffered or incurred
by each Bank in connection with its enforce ment of the payment of the Notes
held by it or any other sum due to it under this Agreement or any of the other
Loan Documents or any of its other rights hereunder or thereunder. In addition
to the foregoing, the Borrower shall indemnify each Bank and the Agent and each
of their respective directors, officers, employees, attorneys, agents and
affiliates against, and hold each of them harmless from, any loss, liabilities,
damages, claims, costs and expenses (including reasonable attorneys' fees and
disbursements) suffered or incurred by any of them arising out of, resulting
from or in any manner connected with, the execution, delivery and performance of
each of the Loan Documents, the Loans and any and all transactions related to or
consummated in connection with the Loans (other than as a result of the gross
negligence, willful misconduct or intentional violation of law by the party
seeking indemnification), including, without limitation, losses, liabilities,
damages, claims, costs and expenses suffered or incurred by any Bank or the
Agent or any of their respective directors, officers, employees, attorneys,
agents or affiliates arising out of or related to any Environmental Liability or
Environmental Proceeding, or in investigating, preparing for, defending against,
or providing evidence, producing documents or taking any other action in respect
of any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities law or any other statute of any
jurisdiction,
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or any regulation, or at common law or otherwise against the Agent, the Banks or
any of their officers, directors, affiliates, or agents, that is alleged to
arise out of or is based upon: (i) any untrue statement or alleged untrue
statement of any material fact of the Borrower and its affiliates in any
document or schedule filed with the Securities and Exchange Commission or any
other governmental body; (ii) any omission or alleged omission to state any
material fact required to be stated in such document or schedule, or necessary
to make the statements made therein, in light of the circumstances under which
made, not misleading; (iii) any acts, practices or omission or alleged acts,
practices or omissions of the Borrower or its agents related to the making of
any acquisition, purchase of shares or assets pursuant thereto, financing of
such purchases or the consummation of any other transactions contemplated by any
such acquisitions that are alleged to be in violation of any federal securities
law or of any other statute, regulation or other law of any jurisdiction
applicable to the making of any such acquisition, the purchase of shares or
assets pursuant thereto, the financing of such purchases or the consummation of
the other transactions contemplated by any such acquisition; or (iv) any
withdrawals, termination or cancellation of any such proposed acquisition for
any reason whatsoever. The indemnity set forth herein shall be in addition to
any other obligations or liabilities of the Borrower to the Agent and the Banks
hereunder or at common law or otherwise. The provisions of this Section 10.1
shall survive the payment of the Notes and the termination of this Agreement.
SECTION 10.2 TAXES.
If, under any law in effect on the date of the closing of any
Loan hereunder, or under any retroactive provision of any law subsequently
enacted, it shall be determined that any Federal, state or local tax is payable
in respect of the issuance of any Note, or in connection with the filing or
recording of any assignments, mortgages, financing statements, or other
documents (whether measured by the amount of Indebtedness secured or otherwise)
as contemplated by this Agreement, then the Borrower will pay any such tax and
all interest and penalties, if any, and will indemnify the Banks and the Agent
against and save each of them harmless from any loss or damage resulting from or
arising out of the nonpayment or delay in payment of any such tax. If any such
tax or taxes shall be assessed or levied against any Bank or any other holder of
a Note, such Bank, or such other holder, as the case may be, may notify the
Borrower and make immediate payment thereof, together with interest or penalties
in connection therewith, and shall thereupon be entitled to and shall receive
immediate reimbursement therefor from the Borrower. Notwithstanding any other
provision contained in this Agreement, the covenants and agreements of the
Borrower in this Section 10.2 shall survive payment of the Notes and the
termination of this Agreement.
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SECTION 10.3 PAYMENTS.
As set forth in Article 2 hereof, all payments by the
Borrower on account of principal, interest, fees and other charges (including
any indemnities) shall be made to the Agent at the Principal Office of the
Agent, in lawful money of the United States of America in immediately available
funds, by wire transfer or otherwise, not later than 11:00 A.M. New York City
time on the date such payment is due. Any such payment made on such date but
after such time shall, if the amount paid bears interest, be deemed to have been
made on, and interest shall continue to accrue and be payable thereon until, the
next succeeding Business Day. If any payment of principal or interest becomes
due on a day other than a Business Day, such payment may be made on the next
succeeding Business Day and such extension shall be included in computing
interest in connection with such payment. All payments hereunder and under the
Notes shall be made without set-off or counterclaim and in such amounts as may
be necessary in order that all such payments shall not be less than the amounts
otherwise specified to be paid under this Agreement and the Notes (after
withholding for or on account of: (i) any present or future taxes, levies,
imposts, duties or other similar charges of whatever nature imposed by any
government or any political subdivision or taxing authority thereof, other than
any tax (except those referred to in clause (ii) below) on or measured by the
net income of the Bank to which any such payment is due pursuant to applicable
federal, state and local income tax laws, and (ii) deduction of amounts equal to
the taxes on or measured by the net income of such Bank payable by such Bank
with respect to the amount by which the payments required to be made under this
sentence exceed the amounts otherwise specified to be paid in this Agreement and
the Notes). Upon payment in full of any Note issued to any Bank and/or
termination of any Bank's Revolving Credit Commitment, the Bank holding such
Note shall xxxx the Note "Paid" and return it to the Borrower specified on such
Note.
SECTION 10.4 SURVIVAL OF AGREEMENTS AND
REPRESENTATIONS; CONSTRUCTION.
All agreements, representations and warranties made herein
shall survive the delivery of this Agreement and the Notes. The headings used in
this Agreement and the table of contents are for convenience only and shall not
be deemed to constitute a part hereof. All uses herein of the masculine gender
or of singular or plural terms shall be deemed to include uses of the feminine
or neuter gender, or plural or singular terms, as the context may require.
SECTION 10.5 LIEN ON AND SET-OFF OF DEPOSITS.
As security for the due payment and performance of all the
Obligations, the Borrower hereby grants to Agent for the ratable benefit of the
Banks a Lien on any and all deposits or
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other sums at any time credited by or due from the Agent or any Bank to the
Borrower, whether in regular or special depository accounts or otherwise, and
any and all monies, securities and other property of the Borrower, and the
proceeds thereof, now or hereafter held or received by or in transit to any Bank
or the Agent from or for the Borrower, whether for safekeeping, custody, pledge,
transmission, collection or otherwise, and any such deposits, sums, monies,
securities and other property, may at any time after the occurrence and during
the continuance of any Event of Default be set-off, appropriated and applied by
any Bank or the Agent against any of the Obligations, whether or not any of such
Obligations is then due or is secured by any collateral.
SECTION 10.6 MODIFICATIONS, CONSENTS AND
WAIVERS; ENTIRE AGREEMENT.
No modification, amendment or waiver of or with respect to
any provision of this Agreement, any Notes, or any of the other Loan Documents
and all other agreements, instruments and documents delivered pursuant hereto or
thereto, nor consent to any departure by the Borrower from any of the terms or
conditions thereof, shall in any event be effective unless it shall be in
writing and signed by the Agent and each Bank except that: (i) any modification
or amendment of, or waiver or consent with respect to, Article 4 shall be
required to be signed only by the Agent and the Required Banks (provided,
however, that the consummation of a Loan by a Bank shall be deemed, with respect
to such Loan only, to have the effect of the execution by such Bank of a waiver
of, or consent to a departure from, any term or provision of Article 4 that has
not been satisfied as of the date of the consummation of such Loan); and (ii)
any modification or amendment of, or waiver or consent with respect to, Articles
1 (other than the definition of "Required Banks"), 5, 6, 7, 8 (other than the
preamble to Article 8 or Section 8.1 hereof) and 10 (other than this Section
10.6) may be signed only by the Agent and the Required Banks. Any such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No consent to or demand on the Borrower in any case shall, of
itself, entitle it to any other or further notice or demand in similar or other
circumstances. This Agreement and the other Loan Documents embody the entire
agreement and understanding among the Banks, the Agent and the Borrower and
supersede all prior agreements and understandings relating to the subject matter
hereof.
SECTION 10.7 REMEDIES CUMULATIVE; COUNTERCLAIMS.
Each and every right granted to the Agent and the Banks
hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of the Agent or any Bank or
the holder of any Note to
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exercise, and no delay in exercising, any right shall operate as a waiver
thereof, nor shall any single or partial exercise of any right preclude any
other or future exercise thereof or the exercise of any other right. The due
payment and performance of the Obligations shall be without regard to any
counterclaim, right of offset or any other claim whatsoever that the Borrower
may have against any Bank or the Agent and without regard to any other
obligation of any nature whatsoever that any Bank or the Agent may have to the
Borrower, and no such counterclaim or offset shall be asserted by the Borrower
(unless such counterclaim or offset would, under applicable law, be permanently
and irrevocably lost if not brought in such action) in any action, suit or
proceeding instituted by any Bank or the Agent for payment or performance of the
Obligations.
SECTION 10.8 FURTHER ASSURANCES.
At any time and from time to time, upon the request of the
Agent, the Borrower shall execute, deliver and acknowledge or cause to be
executed, delivered and acknowledged, such further documents and instruments and
do such other acts and things as the Agent may reasonably request in order to
fully effect the purposes of this Agreement, the other Loan Documents and any
other agreements, instruments and documents delivered pursuant hereto or in
connection with the Loans.
SECTION 10.9 NOTICES.
All notices, requests, reports and other communications
pursuant to this Agreement shall be in writing, either by letter (delivered by
hand or commercial messenger service or sent by certified mail, return receipt
requested, except for routine reports delivered in compliance with Article 5
hereof which may be sent by ordinary first-class mail) or telegram or telecopy,
addressed as follows:
(a) If to the Borrower:
c/o Omega Healthcare Investors, Inc.
000 Xxxxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx, Xx.,
President
Telecopier No: 000-000-0000
(b) If to any Bank:
To its address set forth below its
name on the signature pages hereof,
with a copy to the Agent; and
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(c) If to the Agent:
Fleet Bank, N.A., as Agent
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy (other than in the case of
Borrowing Notices and reports and other
documents delivered in compliance with
Article 5 hereof) to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
Any notice, request, demand or other communication hereunder shall be deemed to
have been given on: (x) the day on which it is telecopied to such party at its
telecopier number specified above (provided such notice shall be effective only
if followed by one of the other methods of delivery set forth herein) or
delivered by receipted hand or such commercial messenger service to such party
at its address specified above, or (y) on the third Business Day after the day
deposited in the mail, postage prepaid, if sent by mail, or (z) on the day it is
delivered to the telegraph company, addressed as aforesaid, if sent by
telegraph. Any party hereto may change the Person, address or telecopier number
to whom or which notices are to be given hereunder, by notice duly given
hereunder; provided, however, that any such notice shall be deemed to have been
given hereunder only when actually received by the party to which it is
addressed.
SECTION 10.10 COUNTERPARTS.
This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 10.11 SEVERABILITY.
The provisions of this Agreement are severable, and if any
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision in this Agreement in any
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jurisdiction. Each of the covenants, agreements and conditions contained in this
Agreement is independent and compliance by the Borrower with any of them shall
not excuse non-compliance by the Borrower with any other. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
SECTION 10.12 BINDING EFFECT; NO ASSIGNMENT
OR DELEGATION BY BORROWER.
This Agreement shall be binding upon and inure to the benefit
of the Borrower and its successors and to the benefit of the Banks and the Agent
and their respective successors and assigns. The rights and obligations of the
Borrower under this Agreement shall not be assigned or delegated without the
prior written consent of the Agent and the Required Banks, and any purported
assignment or delegation without such consent shall be void.
SECTION 10.13 ASSIGNMENTS AND PARTICIPATIONS BY BANKS.
(a) Each Bank may assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Revolving Credit
Commitment, the Loans owing to it, and the Note(s) held by it); provided,
however, that: (i) the Borrower (so long as no Event of Default then exists and
is continuing) and the Agent must give prior written consent to such assignment
(unless such assignment is to an affiliate of such Bank), which consent shall
not be unreasonably withheld, (ii) the parties to each such assignment shall
execute and deliver to the Agent an Assignment and Acceptance, and a processing
fee of $3,500.00, (iii) each such assignment shall be of a constant, and not a
varying, percentage of all of the assigning Bank's rights and obligations under
this Agreement, (iv) the amount of the Revolving Credit Commitment of the
assigning Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000, and (v) each such assignment shall be to an Eligible Assignee. Upon
such execution, delivery and acceptance, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof: (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights
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and obligations of a Bank hereunder, and (y) the Bank assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such assigning
Bank or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Bank.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee representing that it is an Eligible
Assignee, together with any Note subject to such assignment, the Agent shall:
(i) accept such Assignment and Acceptance, and (ii) give prompt notice thereof
to the Borrower. Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Agent in exchange
for the surrendered Note(s) a
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new Note(s) to the order of such Eligible Assignee in an amount equal to the
Revolving Credit Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained a Revolving Credit Commitment
hereunder, a new Note to the order of the assigning Bank in an amount equal to
the Revolving Credit Commitment retained by it hereunder. Such new Note shall be
in an aggregate principal amount equal to the aggregate principal amount of such
surrendered Note(s), shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(d) Each Bank may, without the prior consent of the Agent,
the other Banks or the Borrower, sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Revolving
Credit Commitment, the Loans owing to it, and the Note(s) held by it; provided,
however, that: (i) such Bank's obligations under this Agreement (including,
without limitation, its Revolving Credit Commitment hereunder) shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain the
holder of any such Note(s) for all purposes of this Agreement, and the Borrower,
the Agent and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement.
(e) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.13, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Bank.
(f) Anything in this Section 10.13 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of its Loans
and its Notes to any Federal Reserve Bank (and its transferees) as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal Reserve Bank.
No such assignment shall release the assigning Bank from its obligations
hereunder.
SECTION 10.14 DELIVERY OF TAX FORMS.
Each Bank that is not organized under the laws of the United
States or a state thereof shall:
(a) deliver to the Borrower and the Agent, on or prior to the
date of the execution and delivery of this Agreement or the date on which it
becomes a Bank hereunder, (i) two
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accurate and duly completed executed copies of United States IRS Form 1001 or
4224, or successor applicable form, as the case may be, and (ii) an accurate and
complete IRS Form W-8 or W-9, or successor applicable form, as the case may be;
(b) deliver to the Borrower and the Agent two further
accurate and complete executed copies of any such form or certification on or
before the date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(c) obtain such extensions of time for filing and completing
such forms or certifications as may reasonably be requested by the Borrower or
the Agent;
unless in any such case under clause (b) above an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank so advises the
Borrower and the Agent. Such Bank shall certify (i) in the case of a Form 1001
or 4224 that is provided pursuant to Section 10.14(a), that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States Federal income taxes; (ii) in the case of an IRS Form 1001 or 4224
that is provided pursuant to subsection 10.14(b), to the extent legally entitled
to do so, that it is entitled to receive payments under this Agreement without,
or at a reduced rate of, deduction or withholding of any United States Federal
income taxes; and (iii) and in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax. Each Person
not organized under the laws of the United States or a state thereof that is an
assignee hereunder shall, prior to the effectiveness of the related transfer, be
required to provide all of the forms and statements required pursuant to this
Section 10.14.
Section 10.15 GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF TRIAL BY JURY.
(a) THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL OTHER
DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH AND
THEREWITH, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS RULES PERTAINING
TO CONFLICTS OF LAWS.
(b) THE BORROWER IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION
OR PROCEEDING AGAINST IT UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS
AGREEMENT, AND EACH OTHER LOAN DOCUMENT MAY BE BROUGHT IN ANY COURT OF THE STATE
OF NEW YORK, COUNTY OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR
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XXX XXXXXXXX XXXXXXXX XX XXX XXXX. THE BORROWER, BY THE EXECUTION AND DELIVERY
OF THIS AGREEMENT, EXPRESSLY AND IRREVOCABLY ASSENTS AND SUBMITS TO THE PERSONAL
JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING. THE
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS,
NOTICE OR OTHER PROCESS RELATING TO ANY SUCH ACTION OR PROCEEDING BY DELIVERY
THEREOF TO IT BY HAND OR BY MAIL IN THE MANNER PROVIDED FOR IN SECTION 10.9
HEREOF. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR
DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS. THE
BORROWER SHALL NOT BE ENTITLED IN ANY SUCH ACTION OR PROCEEDING TO ASSERT ANY
DEFENSE GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE OTHER THAN THE STATE OF NEW
YORK UNLESS SUCH DEFENSE IS ALSO GIVEN OR ALLOWED BY THE LAWS OF THE STATE OF
NEW YORK. NOTHING IN THIS SECTION 10.15 SHALL AFFECT OR IMPAIR IN ANY MANNER OR
TO ANY EXTENT THE RIGHT OF ANY BANK TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY JURISDICTION OR TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.
(c) THE BORROWER, THE BANKS AND THE AGENT WAIVE TRIAL BY JURY
IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING
OUT OF, THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, OR ANY INSTRUMENT OR
DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT, OR THE VALIDITY, PERFECTION,
INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
OMEGA WORLDWIDE, INC.
By /s/ Xxxxx X. Xxxxxx, Xx.
________________________
President Title
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REVOLVING CREDIT COMMITMENT:
$15,000,000 FLEET BANK, N.A., AS AGENT
AND AS A BANK
BY /s/ Xxxxxx X. Xxxxxxx
__________________________
Vice President TITLE
Lending Office for Prime Rate Loans
and LIBOR Loans:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Address for Notices:
Fleet Bank, N.A.
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
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REVOLVING CREDIT COMMITMENT:
$10,000,000 XXXXXX TRUST AND SAVINGS BANK
BY /s/ Xxxxx X. Law
___________________________
Vice President TITLE
Lending Office for Prime Rate Loans
and LIBOR Loans:
000 Xxxx Xxxxxx Xxxxxx/00xx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx M. Law
Address for Notices:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx/00xx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx M. Law
Telecopier: (000) 000-0000
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EXHIBITS AND SCHEDULES TO
LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
EXHIBITS
A Form of Note
B Form of Assignment and Acceptance
SCHEDULES
3.1 States of Incorporation and Qualification, and
Capitalization of Borrower
3.2 Consents, Waivers, Approvals; Violation of Agreements
3.6 Judgments, Actions, Proceedings
3.7 Defaults; Compliance with Laws, Regulations, Agreements
3.8 Burdensome Documents
3.13 Name Changes, Mergers, Acquisitions
3.15 Licenses and Approvals
3.16 Employee Benefit Plans
7.1 Permitted Indebtedness and Guaranties
7.2 Permitted Security Interests, Liens and Encumbrances
70
EXHIBIT A
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
FORM OF NOTE
71
EXHIBIT B
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
FORM OF ASSIGNMENT AND ACCEPTANCE
72
SCHEDULE 3.1
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
STATES OF INCORPORATION AND QUALIFICATION,
AND CAPITALIZATION OF BORROWER
(i) State of Incorporation: Maryland
(ii) Capitalization: 12,258,000 shares of common stock
outstanding as of November 4, 1998 out of 60,000,000 authorized
shares of capital stock (50,000,000 common and 10,000,000
preferred)
(iii) Business: Omega Worldwide, Inc. provides investment and
management advisory services and invests in providers of capital
finance to the healthcare industry primarily outside the United
States
(iv) States of Qualification: Michigan and Maryland
(v) Subsidiaries:
Omega (UK) Ltd.
Omega (Australia) Pty Ltd.
Rocla B.V.
Dilava B.V.
Principal Healthcare Finance Pty Limited
Principal Healthcare Finance Trust
Principal Healthcare Finance Unit Trust No. 1
Principal Healthcare Finance Unit Trust No. 2
Principal Healthcare Finance Unit Trust No. 3
Principal Healthcare Finance Xxxx Xxxxx Xx. 0
XXX Xx. 0 Pty Limited
PHF No. 2 Pty Limited
73
SCHEDULE 3.2
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
CONSENTS, WAIVERS, APPROVALS;
VIOLATION OF AGREEMENTS
None
74
SCHEDULE 3.6
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
JUDGMENTS, ACTIONS, PROCEEDINGS
None
75
SCHEDULE 3.7
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
DEFAULTS; COMPLIANCE WITH LAWS,
REGULATIONS, AGREEMENTS
None
76
SCHEDULE 3.8
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
BURDENSOME DOCUMENTS
Opportunity Agreement between Omega Worldwide, Inc. and Omega Healthcare
Investors, Inc.
Services Agreement between Omega Worldwide, Inc. and Omega Healthcare Investors,
Inc.
77
SCHEDULE 3.13
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
NAME CHANGES, MERGERS, ACQUISITIONS
None
78
SCHEDULE 3.15
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
LICENSES AND APPROVALS
None
79
SCHEDULE 3.16
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
EMPLOYEE BENEFIT PLANS
None
80
SCHEDULE 7.1
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
PERMITTED INDEBTEDNESS AND GUARANTIES
Deed of Guarantee and Indemnity dated 19 June 1998 in favor of ABN AMRO
Facilities Australia Limited
Mortgage of Deposit dated 19 June 1998 in favor of ABN AMRO Facilities Australia
Limited
Any guaranty by Borrower at any time of any Indebtedness of any direct or
indirect Subsidiary of the Borrower
81
SCHEDULE 7.2
TO LOAN AGREEMENT
BY AND AMONG
OMEGA WORLDWIDE, INC.,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A., AS AGENT
PERMITTED SECURITY INTERESTS,
LIENS AND ENCUMBRANCES
Mortgage of Deposit dated 19 June 1998 in favor of ABN AMRO Facilities Australia
Limited
Any mortgage or other lien granted to any Person by any direct or indirect
Subsidiary of the Borrower on any of the Property of such Subsidiary
