AMENDMENT NO. 4 TO LOAN AGREEMENT
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AMENDMENT NO. 4 TO LOAN AGREEMENT (this "Fourth Amendment"), made and
executed this 7th day of July, 2000, effective as of June 29, 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
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(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, (ii) Amendment No. 2 and
Waiver to Loan Agreement dated January 10, 2000, and (iii) Amendment No. 3 and
Waiver to Loan Agreement dated May 12, 2000, effective as of March 17, 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 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 "Applicable Margin" appearing in
Article 1 is deleted in its entirety and the following is substituted therefor:
"'Applicable Margin' - on any date, with respect to LIBOR
Loans, three and 25/100 (3.25%) percent."
2.2. The definition of "Revolving Credit Commitment Date"
appearing in Article 1 is deleted in its entirety and the following is
substituted therefor:
"'Revolving Credit Commitment Termination Date'-
June 30, 2000."
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2.3. The following definitions are added to Article 1 in their
appropriate alphabetic locations:
(a) "'Appraisal' - an appraisal providing an assessment of the
fair market value of the real property covered thereby, which
appraisal is independently and impartially prepared by a
nationally recognized appraiser or an appraiser acceptable to
the Agent and having substantial experience in the appraisal
of healthcare facilities and conforming to Uniform Standards
of Professional Appraisal Practice adopted by the Appraisal
Standards Board of the Appraisal Foundation."
(b) "'Appraised Value' - the value of the Real Property
reflected in the most recent Appraisal thereof.
(c) "'Fourth Amendment' - that certain Amendment No.4 to Loan
Agreement dated July 7, 2000, effective as of June 29, 2000
by and among the Borrower, the Banks and the Agent."
(d) "'Real Property'- as defined in subsection 8.11(a)hereof."
(e) "'Term Loan(s)' - as defined in Section 2.1 hereof."
2.4. Section 2.1 is deleted in its entirety and the following
is substituted therefor:
"Section 2.1 Loans.
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The parties hereto confirm that, as of the date of
the Fourth Amendment, the aggregate outstanding principal
amount of the Loans advanced under the Revolving Credit
Commitment is $8,850,000, that pursuant to the Fourth
Amendment, and as of the date thereof, the Revolving Credit
Commitment is terminated, that all of the outstanding Loans
advanced thereunder shall remain outstanding hereunder and are
being converted, effective as of the date of the Fourth
Amendment, into term loans payable to the Banks (individually,
a "Term Loan" and collectively, the "Term Loans"), that the
aggregate principal amount of the Term Loans is $8,850,000 and
that each Bank's Term Loan is in an amount equal to the amount
of such Bank's Revolving Credit Commitment immediately prior
to the effectiveness of the Fourth Amendment. Concurrently
with the execution and delivery of the Fourth Amendment, the
Notes dated November 20, 1998 delivered to the Banks
evidencing the Loans advanced under the Revolving Credit
Commitment are being restated pursuant to the promissory notes
referred to in subsection 2.5(a) hereof. Subject to the terms
of this Agreement, the Borrower may (i) convert, as often as
is permissible hereunder, all or a portion of the Term Loans
from one Type into Term Loans of another Type; and (ii) repay
or prepay all or a portion of the Term Loans provided that any
amount so repaid or prepaid may not be reborrowed hereunder."
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2.5. Section 2.5 is deleted in its entirety and the
following is substituted therefor:
"Section 2.5 Notes.
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(a) The Term Loans made by each Bank shall be
evidenced by a single restated promissory note of the Borrower
in substantially the form of Exhibit A to the Fourth Amendment
(each a "Note" and collectively, the "Notes"). Each Note shall
be dated the date of the Fourth Amendment, shall be payable to
the order of such Bank in a principal amount equal to such
Bank's Revolving Credit Commitment as in effect immediately
prior to the effectiveness of the Fourth Amendment, and shall
otherwise be duly completed. The Notes shall be payable as
provided in Section 2.6 hereof.
(b) Each Bank shall enter on a schedule with respect
to its Note a notation with the respect to its Term Loan made
hereunder of each repayment or prepayment of principal
thereof. The failure of any Bank to make a notation on any
such schedule as aforesaid shall not limit or otherwise affect
the obligation of the Borrower to repay the Term Loans in
accordance with their respective terms as set forth herein."
2.6. Section 2.6 is deleted in its entirety and the
following is substituted therefor:
"Section 2.6 Repayment and Prepayment of Loans
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(a) The Borrower shall pay to the Agent for the
account of each Bank the principal of the Term Loans in five
(5) consecutive quarterly installments, commencing on the date
of the execution and delivery of the Fourth Amendment and
continuing on the last day of each calendar quarter thereafter
until payment in full of the Term Loans on June 30, 2001. Each
installment shall be in the amount of Two Million ($2,000,000)
Dollars provided that the last such installment (scheduled to
occur on June 30, 2001) shall be in the amount of Eight
Hundred Fifty Thousand ($850,000) Dollars or such other amount
as shall be sufficient to repay in full the outstanding
principal amount of the Term Loans on such date.
(b) The Borrower shall be entitled to prepay the
principal amount of the Term Loans provided that the Borrower
shall give notice of such prepayment to the Agent as provided
in Section 2.3 hereof and that any prepayment of the Term
Loans shall be in the minimum aggregate amount of One Million
($1,000,000) Dollars and multiples of One Million ($1,000,000)
Dollars in excess thereof. Any amount so prepaid may not be
reborrowed and shall be applied to the principal amount
thereof in the inverse order of the maturities thereof. Any
repayment of a LIBOR Loan shall be on the last day of the
relevant Interest Period and all repayments of principal
(whether mandatory or voluntary) shall be applied first to
Prime Rate Loans and then to the fewest number of Types of
LIBOR Loans as possible.
2.7. Clause (i) of subsection 2.7(a) is amended by adding
the phrase "plus one (1%) percent" immediately after the term "Alternate Base
Rate".
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2.8. Section 8.11 is deleted in its entirety and the
following is substituted therefor:
"Section 8.11 Real Estate Collateral.
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The failure by the Guarantor to execute and deliver
to the Agent for the ratable benefit of the Banks the
following on or before the sixtieth (60th) day after the date
of the Fourth Amendment:
(a) Mortgages and/or deeds of trust, as applicable,
in recordable form and otherwise in form and substance
satisfactory to the Agent, pursuant to which the Guarantor
shall have granted to the Agent for the ratable benefit of the
Banks a first mortgage lien on certain real property and all
improvements located thereon owned by the Guarantor, all of
which real property (collectively, the "Real Property") shall
have an aggregate Appraised Value of not less than $8,850,000;
and
(b) Policies of title insurance, in form and
substance satisfactory to the Agent and in amounts reasonably
satisfactory to the Agent, insuring the first lien of the
mortgages and/or deeds of trust referred to in subsection
8.11(a) above (and the Borrower shall pay all costs associated
with the procurement of such policies, including, but not
limited to, insurance premiums, recording fees and search
fees)."
3. Representations and Warranties. In order to induce the Banks and the
Agent to enter into this Fourth 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 Fourth 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 Fourth 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 Fourth 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 Fourth
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
Fourth 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.
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4. Reference to and Effect Upon the Loan Agreement.
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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 Fourth 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 Fourth 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;
(iii) the Loan Documents to the "Loan Documents"
shall be deemed to include this Fourth Amendment;
(iv) the "Loans" shall be deemed to refer to the
Term Loans, as applicable; and
(v) the "Notes" shall be deemed to refer to the Notes
executed in connection herewith.
5. Miscellaneous.
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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 Fourth Amendment.
5.2. Law. THIS FOURTH AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
5.3 Successors. This Fourth 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.
5.4 Execution in Counterparts. This Fourth 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]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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/ EDWARD C. NOBLE
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Edward C. Noble
Chief Financial Officer
FLEET BANK, N.A., as Agent
and as a Bank
By /s/ CHRISTIAN J. COVELLO
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Christian J. Covello
Vice President
HARRIS TRUST AND SAVINGS BANK
By /s/ MICHAEL J. JOHNSON
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Michael J. Johnson
Vice President
Agreed to and Accepted:
OMEGA HEALTHCARE INVESTORS, INC.
By /s/ SUSAN A. KOVACH
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Susan A. Kovach
Vice President, General Counsel and Secretary
