Exhibit 10.21
AMENDMENT NO. 4 TO LOAN AGREEMENT
AMENDMENT NO. 4 TO LOAN AGREEMENT (this "Amendment No. 4"), made and
executed as of this 1st day of April, 2002, by and among:
OMEGA HEALTHCARE INVESTORS, INC. and certain of its subsidiaries
(individually, a "Borrower" and collectively, the "Borrowers"),
The lenders that have executed the signature pages hereto (individually, a
"Lender" and collectively, the "Lenders"); and
THE PROVIDENT BANK, an Ohio banking corporation, as Agent for the Lenders
(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 August
11, 2000, as amended by that certain Amendment No. 1 to Loan Agreement dated
November 30, 2000, that certain Amendment No. 2 dated December 31, 2000 and that
certain Amendment No.3 dated as of December 21, 2001 (hereinafter referred to,
as amended, as the "Loan Agreement") with the Agent and the Lenders; and
(B) The Borrowers have requested that the Lenders and the Agent amend a
certain provision of the Loan Agreement, and the Lenders 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 defined herein shall have
the meanings ascribed to such terms in the Loan Agreement.
2. Amendment to the Loan Agreement. Subject to the terms and conditions of
this Amendment No. 4, Section 8.11(b) of the Loan Agreement shall be amended and
restated to read in its entirety as follows:
(b) The Fleet Obligations; provided, however, that notwithstanding anything
contained in this Agreement or any Schedule thereto to the contrary, in the
event that the Fleet Obligations shall be amended or modified to (i) increase
the amount of the commitment thereunder, (ii) increase the amount of the
amortization thereunder, (iii) increase the rate of interest thereunder, (iv)
change the maturity of the obligations thereunder, (v) increase the fees payable
thereunder, (vi) increase the amount of collateral securing the obligations
thereunder (other than any increase in the collateral value occasioned by the
collateral substitution which closed on or about March 6, 2002, which resulted
in availability under the Fleet Documents of approximately $17,300,000), or
(vii) impose on the Borrowers financial covenants more restrictive than those
set forth in the Fleet Obligations as of the date hereof (any such amendment or
modification, the "Fleet Amendment"), the Borrowers shall execute and deliver to
the Agent an amendment or modification of this Agreement, the effect of which
shall be, to the extent reasonably determined necessary by Agent and Lenders, to
negate any materially adverse impact to the interests of the Agent and the
Lenders under this Agreement which would have otherwise been the effect of the
Fleet Amendment;
3. Representations and Warranties. In order to induce the Lenders and the
Agent to enter into this Amendment No. 4, each of the Borrowers hereby
represents and warrants to the Lenders and the Agent, as to itself with respect
to the Loan Documents to which it is a party, as of the date hereof that:
3.1 No Default. After giving effect to this Amendment No. 4, no Default or
Event of Default shall have occurred or be continuing.
3.2 Authority; Enforceability. (i) The execution, delivery and performance
by each Borrower of this Amendment No. 4 are within its organizational powers
and have been duly authorized by all necessary action (corporate or otherwise)
on the part of each Borrower, (ii) this Amendment No. 4 is the legal, valid and
binding obligation of each Borrower, enforceable against each Borrower in
accordance with its terms, and (iii) this Amendment No. 4 and the execution,
delivery and performance by each Borrower hereof does not: (A) contravene the
terms of any Borrower'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 Borrower is a party or any
order, injunction, writ or decree to which any Borrower or its property is
subject, or (C) violate any requirement of law.
4. Conditions to Effectiveness of Amendment. The effectiveness of the
amendment in Section 2 of this Amendment No. 4 shall subject to the fulfillment
of the following conditions to the satisfaction of Agent :
4.1 As of the date of this Amendment No. 4, Agent shall have received this
Amendment No.4 duly executed by a duly authorized officer or officers of each
Borrower, Agent and each Lender.
4.2 As of the date of this Amendment No. 4, Agent shall have received
opinions of counsel to the Borrowers in substantially the forms attached as
Exhibits A-1 and A-2 hereto concerning this Amendment No. 4.
4.3 On or before April 15, 2002, Agent shall have received an opinion or
opinions of counsel to Borrowers in substantially the forms attached as Exhibit
B-1 through B-9 hereto to the effect that the execution and delivery of
Amendment No. 3 and Amendment No. 4 by Borrowers does not affect the validity or
enforceability of any of the Mortgages delivered by Borrowers under the Loan
Agreement in accordance with their respective terms.
4.4 As of the date of this Amendment No. 4, Agent shall have received a
certificate of the Secretary of Borrowers in the form attached as Exhibit C
hereto, dated as of March 20, 2002, with respect to the representations and
warranties of Borrowers as of such date.
4.5 As of the date of this Amendment No. 4, Agent shall have received a
certificate of the Secretary or Assistant Secretary of each Borrower (i)
attaching a true and complete copy of the resolutions of its Board of Directors
and of all documents evidencing all necessary corporate action (in form and
substance satisfactory to Agent) taken by it to authorize this Amendment No. 4,
and (ii) setting forth the incumbency of its officer or officers who may sign
this Amendment, including therein a signature specimen of such officer or
officers.
5. Reference to and Effect Upon the Loan Agreement.
5.1 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.
5.2 No Waiver; References. The execution, delivery and effectiveness of
this Amendment No. 4 shall not operate as a waiver of any right, power or remedy
of the Agent or any Lender 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 Amendment No. 4, each reference in:
5.2.1 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;
5.2.2 the other Loan Documents to the "Loan Agreement" shall mean and
be a reference to the Loan Agreement as amended hereby; and
5.2.3 the Loan Documents to the "Loan Documents" shall be deemed to
include this Amendment No. 4.
6. Miscellaneous.
6.1 Expenses. The Borrowers 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 Amendment No. 4.
6.2 Law. THIS AMENDMENT NO. 4 SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF OHIO.
6.3 Successors. This Amendment No. 4 shall be binding upon the Borrowers,
the Lenders and the Agent and their respective successors and assigns, and shall
inure to the benefit of the Borrowers, the Lenders and the Agent and the
successors and assigns of the Lenders and the Agent.
6.4 Execution in Counterparts. This Amendment No. 4 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to
be executed and delivered by their respective officers thereunto duly authorized
as of the date first written above.
LENDERS AND AGENT:
THE PROVIDENT BANK, as Lender and Agent
By: /s/ STEVEN J. BLOEMER
--------------------------
Its: Vice President
--------------------------
GREAT AMERICAN INSURANCE COMPANY
By: /s/ RONALD C. HAYES
--------------------------
Its: Assistant Vice President
--------------------------
GREAT AMERICAN LIFE INSURANCE COMPANY
By: /s/ MARK F. MUETHING
--------------------------
Its: Executive Vice President
--------------------------
BORROWERS:
OMEGA HEALTHCARE INVESTORS, INC.
STERLING ACQUISITION CORP.
DELTA INVESTORS I, LLC
OHI (CONNECTICUT) INC.
By: /s/ DANIEL J. BOOTH
--------------------------
Its: Chief Operating Officer
--------------------------
Daniel J. Booth, as an executive officer of all of the aforementioned
Borrowers, has executed this Amendment No. 4 and intending that all of the
Borrowers above named are bound and are to be bound by the one signature as if
(s)he had executed this Amendment No. 4 separately for each of the above named
Borrowers.
OMEGA HEALTHCARE INVESTORS, INC.
Exhibit Index Description
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Exhibit A-1 Munch Hardt Kopf & Harr, P.C. Opinion
Exhibit "A" Subsidiaries
Exhibit "B" Certificates of Existence and Good Standing
Exhibit "C" Officers' Certificates
Schedule 1 Orders, Judgments and Decrees
Exhibit A-2 Special Ohio Counsel Opinion
Exhibit B-1 Alabama Opinion of Counsel
Exhibit B-2 Arkansas Opinion of Counsel
Exhibit B-3 California Opinion of Counsel
Exhibit B-4 Connecticut Opinion of Counsel
Exhibit B-5 Florida Opinion of Counsel
Exhibit B-6 Kentucky Opinion of Counsel
Exhibit B-7 North Carolina Opinion of Counsel
Exhibit B-8 Ohio Opinion of Counsel
Exhibit B-9 West Virginia Opinion of Counsel
Exhibit C Secretary's Certificate
Exhibit A Borrowers
Exhibit B Articles of Incorporation or Articles of Organization
Exhibit C Bylaws or Operating Agreements