AMENDMENT NO. 2 AND WAIVER TO LOAN AGREEMENT
AMENDMENT NO. 2 AND WAIVER TO LOAN AGREEMENT (this "Second Amendment"),
made and executed this 10th day of January, 2000, 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
(A) The Borrower has entered into a certain Loan Agreement dated
November 20, 1998, as amended by Amendment No. 1 to Loan Agreement dated October
22, 1999, effective as of August 18, 1999 (as so amended, hereinafter referred
to as the "Loan Agreement") with the Agent and the Banks; and
(B) The Borrower has requested that the Banks and the Agent waive a
certain Event of Default under, and 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 Loan Agreement. The Loan Agreement is hereby
amended as follows:
2.1. The definition of "Total Commitment" appearing in Article
1 is amended by deleting the amount "Twenty-Five Million ($25,000,000) Dollars"
and substituting therefor the amount "Twenty Million ($20,000,000) Dollars".
2.2. The phrase "the amount set forth opposite such Bank's
name on the signature pages hereof" appearing in the definition of the term
"Revolving Credit Commitment" in Article 1 of the Loan Agreement shall be deemed
to refer to the amounts set forth opposite each Bank's name on the signature
pages hereto.
3. Waiver. The Borrower has advised the Agent of the occurrence of an
Event of Default under Section 8.11 of the Loan Agreement as a result of the
failure by Omega to maintain an investment grade Rating from at least two of the
three Ratings Agencies.
The Banks and the Agent hereby waive non-compliance by Omega
of Section 8.11 of the Loan Agreement for the period commencing December 29,
1999 through and including March 17, 2000; provided, however, the waiver granted
herein is limited to the matter expressly stated above and shall not be deemed
to be a waiver of any future violations of Section 8.11 after March 17, 2000 or
a waiver of any violation of any other provisions of the Loan Agreement.
4. 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 that:
4.1 No Default. After giving effect to this Second Amendment,
no Default or Event of Default shall have occurred or be continuing.
4.2 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.
4.3 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.
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 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.
6. Miscellaneous.
6.1 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.
6.2. Law. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.3 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.
6.4 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.
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 WORLDWIDE, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Revolving Credit Commitment: FLEET BANK, N.A., as Agent and as
a Bank
$12,000,000
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Revolving Credit Commitment: ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
$8,000,000
By /s/ ▇▇▇▇▇ ▇. Law
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Agreed to and Accepted:
OMEGA HEALTHCARE INVESTORS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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