AMENDMENT NO. 3 AND WAIVER TO LOAN AGREEMENT
AMENDMENT NO. 3 AND WAIVER TO LOAN AGREEMENT (this "Third Amendment"),
made and executed this 12th day of May, 2000, effective as of March 17, 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 (i) Amendment No. 1 to Loan Agreement dated
October 22, 1999, effective as of August 18, 1999, and (ii) Amendment No. 2 and
Waiver to Loan Agreement dated January 10, 2000 (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-Million ($20,000,000) Dollars" and
substituting therefor the amount "Eight Million Eight Hundred Fifty Thousand
($8,850,000) 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 (i) Section 8.4 of the Loan Agreement as a result of
Omega's failure to meet the minimum consolidated Tangible Net Worth test as of
December 31, 1999 as set forth in subsection 6.9(b) of the Omega Loan Agreement,
and (ii) 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 (i) Section 8.4 of the Loan Agreement for the period commencing December 31,
1999 through and including June 29, 2000, and (ii) Section 8.11 of the Loan
Agreement for the period commencing March 17, 2000 through and including June
29, 2000; provided, however, the waivers granted herein are limited to the
matters expressly stated above and shall not be deemed to be a waiver of any
future violations of Section 8.4 or Section 8.11 after June 29, 2000 or a waiver
of any violation of any other provisions of the Loan Agreement.
The waivers set forth herein are subject to your agreement and
acknowledgement that notwithstanding such waivers, the Borrower shall not
request and the Banks are under no obligation to continue to make, any Loans
under the Loan Agreement (other than the rollover of outstanding LIBOR Loans in
accordance with the terms of the Loan Agreement), irrespective of whether the
Borrower repays or prepays any outstanding Loans.
4. Representations and Warranties. In order to induce the Banks and the
Agent to enter into this Third Amendment, each of the Loan Parties hereby
represents and warrants as to itself with respect to the Loan Documents to which
it is a party to the Banks and the Agent that:
4.1 No Default. After giving effect to this Third 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 Third 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 Third 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 Third
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
Third 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 Third 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 Third 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 Third 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 Third Amendment.
6.2. Law. THIS THIRD AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.3 Successors. This Third 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 Third 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 Third 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
--------------------
Title
Revolving Credit Commitment: FLEET BANK, N.A., as Agent and as
a Bank
$5,310,000
By /s/ Xxxxxxxxx Xxxxxxx
---------------------
Title
Revolving Credit Commitment: XXXXXX TRUST AND SAVINGS BANK
$3,540,000
By /s/Xxxxxxx X. Xxxxxxx
----------------------
Title
Agreed to and Accepted:
OMEGA HEALTHCARE INVESTORS, INC.
By /s/ Xxxxx X. Xxxxxx, Xx.
------------------------
Title
