AMENDMENT NO. 2 TO LOAN AGREEMENT
AMENDMENT NO. 2 TO LOAN AGREEMENT (this "Second Amendment"), made and
executed this 20th day of November, 2000, by and among:
OMEGA HEALTHCARE INVESTORS, INC. and certain of its subsidiaries
(individually, a "Borrower" and collectively, the "Borrowers"),
The Banks that have executed the signature pages hereto (individually, a
"Bank" and collectively, the "Banks"); and
FLEET NATIONAL BANK (successor by merger to 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
(A) The Borrowers have entered into a certain Loan Agreement dated June 15,
2000 (as amended by Amendment No. 1 to Loan Agreement dated August 15, 2000,
hereinafter referred to as the "Loan Agreement") with the Agent and the Banks;
and
(B) The Borrowers have requested that the Banks and the Agent amend certain
provisions of the Loan Agreement, and the Banks and the Agent are willing to do
so, 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 defined herein
shall have the meanings ascribed to such terms in the Loan Agreement.
2. Certain Amendments to the Loan Agreement. The Loan Agreement is hereby
amended as follows:
2.1. The definition of "Funded Indebtedness" contained in Article 1 is
hereby deleted in its entirety and the following is substituted therefor:
"'Funded Indebtedness': as of any date of determination, all
Indebtedness for borrowed money (which in any event does not include
accounts payable and accrued liabilities) of Omega on a consolidated basis
including, in any event, the Credit Loans"
2.2. Section 6.9 (Financial Covenants) of the Loan Agreement is
amended by adding the following sentence to the end of such Section:
"For purposes of computing the financial covenants contained
in Section 6.9, there shall be excluded from the calculation
of "EBITDA" and "Adjusted EBITDA" a one time charge of
$4,664,861, incurred by Omega during the third quarter of
2000, in connection with severance and consulting costs
arising from the consummation of certain transactions
contemplated by the Investment Agreement."
3. Representations and Warranties. In order to induce the Banks and the
Agent to enter into this Second Amendment, each of the Loan Parties hereby
represents and warrants to the Banks and the Agent, as to itself with respect to
the Loan Documents to which it is a party, that:
3.1 No Default. After giving effect to this Second Amendment, no
Default or Event of Default shall have occurred or be continuing.
3.2 Existing Representations and Warranties. As of the date hereof and
after giving effect to this Second 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
performance by each Loan Party of this Second 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 Second
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 Second 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. Reference to and Effect Upon the Loan Agreement.
4.1 Effect. Except as specifically set forth herein, the Loan
Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their terms and are hereby ratified and
confirmed.
4.2 No Waiver; References. The execution, delivery and effectiveness
of this Second 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 Second 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 Second Amendment.
5. Miscellaneous.
5.1 Expenses. The Loan Parties agree to pay the Agent upon 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 Second Amendment.
5.2. Law. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
5.3 Fee. In the event that the Required Banks execute and deliver this
Second Amendment, the Borrowers shall pay to the Agent for the benefit of
each Bank that executes and delivers this Second Amendment no later than
12:00 noon on Monday, November 20, 2000 (the "Second Amendment Fee Date"),
a non-refundable amendment fee equal to the product of (a) 0.05% (i.e., 5
basis points) multiplied by (b) the Revolving Credit Commitment of such
Lender, as of the Second Amendment Fee Date.
5.4 Successors. This Second Amendment shall be binding upon 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.
5.5 Execution in Counterparts. This Second Amendment may be 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.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
OMEGA HEALTHCARE
INVESTORS, INC.
DELTA INVESTORS I, LLC
DELTA INVESTORS II, LLC
JEFFERSON CLARK, INC.
NRS VENTURES, L.L.C.
OHI (CLEMMONS), INC.
OHI (FLORIDA), INC.
OHI (GREENSBORO), INC.
OHI (ILLINOIS), INC.
OHI (IOWA), INC.
OHI (KANSAS), INC.
OHI OF TEXAS, INC.
OMEGA (KANSAS), INC.
OS LEASING COMPANY
STERLING ACQUISITION CORP.
STERLING ACQUISITION CORP. II
By /s/ SUSAN A. KOVACH
---------------------------
Susan A. Kovach, as an executive officer of all of the
aforementioned entities, has executed this Loan Agreement and intending that all
entities above named are bound and are to be bound by the one signature as if
[s]he had executed this Loan Agreement separately for each of the above named
entities.
Signature Page to Second Amendment to Loan Agreement among
Omega Healthcare Investors, Inc., and certain of its Subsidiaries,
the Banks party thereto, and Fleet National Bank, as Agent
FLEET NATIONAL BANK, as Agent
and as a Bank
By: /s/ CHRISTIAN J. COVELLO
-----------------------------
Name: Christian J. Covello
-----------------------
Title: Vice President
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DRESDNER BANK AG, NEW YORK BRANCH
and GRAND CAYMAN BRANCH
By: /s/ DEBRA RITZLER
-----------------------------
Name:Debra Ritzler
------------------------
Title:Assistant Vice President
------------------------
By: /s/ CHARLES M. O'SHEA
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Name: Charles M. O'Shea
-----------------------
Title:Vice President
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HARRIS TRUST AND SAVINGS BANK
By: /s/ EDWARD P. MCGUIRE
------------------------------
Name: Edward P. McGuire
-------------------------
Title:Vice President
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BANK ONE, MICHIGAN
By: /s/ KIRK W. ANDERSON
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Name: Kirk W. Anderson
--------------------------
Title:Senior Vice President
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FOOTHILL INCOME TRUST, L.P.
By FIT-GP, LLC
By: /s/ M. E. STEARS
--------------------------------
Name: M. E. Stearns
---------------------------
Title: Managing Member
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Signature Page to Second Amendment to Loan Agreement among
Omega Healthcare Investors, Inc., and certain of its Subsidiaries,
the Banks party thereto, and Fleet National Bank, as Agent
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ JOSEPH N. LAZEWSKI
-------------------------------
Name: Joseph N. Lazewski
--------------------------
Title:Loan Officer
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KBC N.V.
By: /s/ KATHERINE S. MCCARTHY
---------------------------------
Name: Katherine S. McCarthy
----------------------------
Title:Vice President
----------------------------
By: /s/ ROBERT SNAUFFER
---------------------------------
Name: Robert Snauffer
----------------------------
Title:First Vice President
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Signature Page to Second Amendment to Loan Agreement among
Omega Healthcare Investors, Inc., and certain of its Subsidiaries,
the Banks party thereto, and Fleet National Bank, as Agent