AMENDMENT NO. 1 TO LOAN AGREEMENT
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AMENDMENT NO. 1 TO LOAN AGREEMENT (this "First Amendment"), made
and executed this 22nd day of October, 1999, effective as of August 18, 1999,
by and between:
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").
PRELIMINARY STATEMENTS
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(A) The Borrower has entered into a certain Loan Agreement dated
November 20, 1998 (together with all Exhibits and Schedules thereto, hereinafter
referred to as the "Loan Agreement") with the Agent and the Banks;
(B) The Borrower has requested that the Banks and the Agent amend
certain provisions of the Loan Agreement, and the Banks and the Agent are
willing to so amend the Loan Agreement, all on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the agreements and provisions
contained herein, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise
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defined herein shall have the meanings ascribed to such terms in the Loan
Agreement.
2. Certain Amendments to Loan Agreement. The Loan Agreement is hereby
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amended, effective on the date this First Amendment becomes effective in
accordance with Section 4 hereof, as follows:
2.1. Article 1 of the Loan Agreement (Definitions) is amended
by deleting the chart appearing in the definition of "Applicable Margin" and
substituting therefor the following:
"Category 1
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Both of the following Ratings:
BBB or higher by S&P; and
Baa2 or higher by Xxxxx'x 1.0625%
Category 2
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Both of the following Ratings:
BBB- by S&P; and
Baa3 by Xxxxx'x 1.1875%
Category 3
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BBB- or higher by D&P and one of the following Ratings:
BBB- by S&P; or
Baa3 by Xxxxx'x 1.350%"
2.2. Article 1 of the Loan Agreement (Definitions) is amended
by deleting the chart appearing in the definition of "Commitment Fee Percentage"
and substituting therefor the following:
"Category 1
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Both of the following Ratings:
BBB or higher by S&P; and
Baa2 or higher by Xxxxx'x .250%
Category 2
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Both of the following Ratings:
BBB- by S&P; and
Baa3 by Xxxxx'x .300%
Category 3
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BBB- or higher by D&P and one of the following Ratings:
BBB- by S&P; or
Baa3 by Xxxxx'x .400%"
2.3 The following definition is added to Article 1 of the Loan
Agreement (Definitions) in its appropriate alphabetical position:
"'D&P' - Duff & Xxxxxx."
2.4 The definition of "Ratings Agencies" appearing in Article
1 of the Loan Agreement (Definitions) is deleted in its entirety and the
following is substituted therefor:
"'Ratings Agencies' - Xxxxx'x, S&P and D&P."
2.5 Article 8 of the Loan Agreement (Events of Default) is
amended by deleting Section 8.11 (Ratings) in its entirety and substituting
therefor the following:
"Section 8.11 Ratings.
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Failure by Omega to maintain an investment grade Rating
from at least two of the three Ratings Agencies."
2.6 Article 10 of the Loan Agreement (Miscellaneous
Provisions) is amended by substituting the following addresses in subsections
(a) and (c) of Section 10.9 (Notices), 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"
"(c) If to the Agent:
Fleet Bank, N.A., as Agent
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxx 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:
Xxxxx, Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000"
3. Representations and Warranties. In order to induce the Banks and the
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Agent to enter into this First Amendment, each of the Loan Parties hereby
represents and warrants to the Banks and the Agent that:
3.1 No Default. After giving effect to this First Amendment,
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no Default or Event of Default shall have occurred or be continuing.
3.2 Existing Representations and Warranties. As of the date
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hereof and after giving effect to this First Amendment, each and every one of
the representations and warranties set forth in the Loan Documents are true,
accurate and complete in all respects and with the same effect as though made on
the date hereof, and each is hereby incorporated herein in full by reference as
if restated herein in its entirety, except for changes in the ordinary course of
business which are not prohibited by the Loan Agreement (as amended hereby) and
which do not, either singly or in the aggregate, have a Material Adverse Effect.
3.3 Authority; Enforceability. (i) The execution, delivery and
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performance by each Loan Party of this First Amendment are within its
organizational powers and have been duly authorized by all necessary action
(corporate or otherwise) on the part of each Loan Party, (ii) this First
Amendment is the legal, valid and binding obligation of each Loan Party,
enforceable against each Loan Party in accordance with its terms, and (iii) this
First Amendment and the execution, delivery and performance by each Loan Party
thereof does not: (A) contravene the terms of any Loan Party's organization
documents, (B) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any contractual obligation
to which any Loan Party is a party or any order, injunction, writ or decree to
which any Loan Party or its property is subject, or (C) violate any requirement
of law.
4. Conditions Precedent to Effectiveness of Amendments. The amendments
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contemplated by Section 2 hereof are subject to the satisfaction of each of the
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following conditions precedent:
4.1 First Amendment. The Loan Parties shall have delivered or
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caused to be delivered to the Agent and each Bank an original executed
counterpart of this First Amendment.
4.2 No Default. As of the date hereof, no Default or Event
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of Default shall have occurred and be continuing.
4.3 Warranties. As of the date hereof, the representations and
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warranties contained in Section 3 of this First Amendment shall be true and
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correct.
4.4 Amendment Fee. The Borrower shall have paid the
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Amendment Fee in accordance with Section 6.2 below
5. Reference to and Effect Upon the Loan Agreement.
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5.1 Effect. Except as specifically amended hereby, the Loan
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Agreement and the other Loan Documents shall remain in full force and effect in
accordance with their terms and are hereby ratified and confirmed.
5.2 No Waiver; References. The execution, delivery and
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effectiveness of this First Amendment shall not operate as a waiver of any
right, power or remedy of the Agent or any Bank under the Loan Agreement, nor
constitute a waiver of any provision of the Loan Agreement, except as
specifically set forth herein. Upon the effectiveness of this First Amendment,
each reference in:
(i) the Loan Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and
be a reference to the Loan Agreement as amended hereby;
(ii) the other Loan Documents to the "Loan
Agreement" shall mean and be a reference to the Loan Agreement as amended
hereby; and
(iii) the Loan Documents to the "Loan Documents"
shall be deemed to include this First Amendment.
6. Miscellaneous.
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6.1 Expenses. The Loan Parties agree to pay the Agent upon
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demand for all reasonable expenses, including reasonable attorneys' fees and
expenses of the Agent, incurred by the Agent in connection with the preparation,
negotiation and execution of this First Amendment.
6.2. Amendment Fee. Simultaneously with the execution and
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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 Amendment Fee in an amount equal to .125% of the
Total Commitment.
6.3 Law. THIS FIRST AMENDMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.4 Successors. This First Amendment shall be binding upon
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the Loan Parties, the Banks and the Agent and their respective successors and
assigns, and shall inure to the benefit of the Loan Parties, the Banks and the
Agent and the successors and assigns of the Banks and the Agent.
6.5 Execution in Counterparts. This First Amendment may be
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executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
OMEGA WORLDWIDE, INC.
By /s/ Xxxxxx X. Xxxxx
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Title
FLEET BANK, N.A., as Agent and as
a Bank
By /s/ Xxxxxxxxx Xxxxxxx
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Title
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxx X. Law
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Title
Agreed to and Accepted:
OMEGA HEALTHCARE INVESTORS, INC.
By /s/ Xxxxx X. Xxxxxx
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