<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 10, 1996
OMEGA HEALTHCARE INVESTORS, INC.
(Exact name of registrant as specified in its charter)
COMMISSION FILE NUMBER 1-11316
MARYLAND
(State or other jurisdiction of incorporation)
38-3041398
(IRS Employer Identification No.)
905 WEST EISENHOWER CIRCLE, SUITE 110, ANN ARBOR, MI 48103
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (313) 747-9790
NOT APPLICABLE
(Former name or former address, if changed since last report.)
<PAGE> 2
<PAGE>
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.1 Loan Agreement dated June 10, 1996 with Fleet Bank, N.A., et al.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
OMEGA HEALTHCARE INVESTORS, INC.
(Registrant)
Date: July 11, 1996 By: S/DAVID A. STOVER
David A. Stover
Chief Financial Officer<PAGE>
<PAGE> 1
EXHIBIT 10.1
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
OMEGA HEALTHCARE INVESTORS, INC.
AND CERTAIN OF ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
FLEET BANK, N.A.,
AS ADMINISTRATIVE AGENT FOR SUCH BANKS
AND
NATIONAL WESTMINSTER BANK PLC,
AS SYNDICATION AGENT
AND
HARRIS TRUST & SAVINGS BANK AND
KLEINWORT BENSON LIMITED AS CO-AGENTS
JUNE 6, 1996
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C> <C> <C>
Article 1. Definitions . . . . . . . . . . . . . . . . . . 2
Section 1.1 Defined Terms. . . . . . . . . . . . . . 2
Section 1.2 GAAP . . . . . . . . . . . . . . . . . . 22
Section 1.3 Certain Calculations . . . . . . . . . . 22
Article 2. Commitments; Loans; Letters of Credit . . . . . 24
Section 2.1 Loans. . . . . . . . . . . . . . . . . . 24
Section 2.2 Letters of Credit. . . . . . . . . . . . 25
Section 2.3 Notices Relating to Loans. . . . . . . . 30
Section 2.4 Disbursement of Loan Proceeds. . . . . . 32
Section 2.5 Notes. . . . . . . . . . . . . . . . . . 32
Section 2.6 Repayment of Loans; Voluntary Changes
in Commitment; Mandatory Repayments . . 33
Section 2.7 Interest . . . . . . . . . . . . . . . . 34
Section 2.8 Fees . . . . . . . . . . . . . . . . . . 35
Section 2.9 Use of Proceeds of Loans . . . . . . . . 36
Section 2.10 Computations; Denominations of
Alternative Currency Loans . . . . . . 37
Section 2.11 Minimum Amounts of Borrowings,
Conversions and Repayments . . . . . . 37
Section 2.12 Time and Method of Payments. . . . . . . 37
Section 2.13 Lending Offices. . . . . . . . . . . . . 38
Section 2.14 Several Obligations. . . . . . . . . . . 39
Section 2.15 Pro Rata Treatment Among Banks . . . . . 39
Section 2.16 Non-Receipt of Funds by the Agent. . . . 39
Section 2.17 Sharing of Payments
and Set-Off Among Banks. . . . . . . . 40
Section 2.18 Conversions of Loans . . . . . . . . . . 40
Section 2.19 Additional Costs; Capital Requirements . 41
Section 2.20 Limitation on Types of Loans . . . . . . 43
Section 2.21 Illegality . . . . . . . . . . . . . . . 44
Section 2.22 Certain Conversions pursuant
to Sections 2.19 and 2.21. . . . . . . 45
Section 2.23 Indemnification. . . . . . . . . . . . . 45
Article 3. Representations and Warranties. . . . . . . . 47
Section 3.1 Organization . . . . . . . . . . . . . . 47
Section 3.2 Power, Authority, Consents . . . . . . . 47
Section 3.3 No Violation of Law or Agreements. . . . 48
Section 3.4 Due Execution, Validity,
Enforceability. . . . . . . . . . . . . 48
Section 3.5 Title to Properties. . . . . . . . . . . 48
Section 3.6 Judgments, Actions, Proceedings. . . . . 48
Section 3.7 No Defaults, Compliance With Laws. . . . 49
Section 3.8 Burdensome Documents . . . . . . . . . . 49
Section 3.9 Financial Statements; Projections. . . . 49
Section 3.10 Tax Returns. . . . . . . . . . . . . . . 50
Section 3.11 Intangible Assets. . . . . . . . . . . . 50
Section 3.12 Regulation U . . . . . . . . . . . . . . 50
Section 3.13 Name Changes, Mergers, Acquisitions. . . 51
Section 3.14 Full Disclosure. . . . . . . . . . . . . 51
Section 3.15 Licenses and Approvals . . . . . . . . . 51
Section 3.16 ERISA. . . . . . . . . . . . . . . . . . 51
Section 3.17 REIT Status. . . . . . . . . . . . . . . 52
PAGE
Article 4. Conditions to the Loans . . . . . . . . . . 53
Section 4.1 Conditions to Initial Loans. . . . . . 53
Section 4.2 Conditions to Subsequent Loans . . . . 54
Section 4.3 Conditions to Issuance of L/Cs . . . . 54
Article 5. Delivery of Financial Reports,
Documents and Other Information . . . . . . 56
Section 5.1 Annual Financial Statements. . . . . . 56
Section 5.2 Quarterly Financial Statements . . . . 56
Section 5.3 Compliance Information . . . . . . . . 56
Section 5.4 No Default Certificate . . . . . . . . 57
Section 5.5 Certificate of Accountants . . . . . . 57
Section 5.6 Borrowing Base Certificate . . . . . . 57
Section 5.7 Business Plans and Projections . . . . 57
Section 5.8 Operator Reports . . . . . . . . . . . 58
Section 5.9 Accountants Reports. . . . . . . . . . 58
Section 5.10 Copies of Documents. . . . . . . . . . 58
Section 5.11 Notices of Defaults. . . . . . . . . . 59
Section 5.12 ERISA Notices and Requests . . . . . . 59
Article 6. Affirmative Covenants . . . . . . . . . . . . 60
Section 6.1 Books and Records. . . . . . . . . . . 60
Section 6.2 Inspections and Audits . . . . . . . . 60
Section 6.3 Maintenance and Repairs. . . . . . . . 60
Section 6.4 Continuance of Business. . . . . . . . 60
Section 6.5 Copies of Corporate Documents. . . . . 60
Section 6.6 Perform Obligations. . . . . . . . . . 61
Section 6.7 Notice of Litigation . . . . . . . . . 61
Section 6.8 Insurance. . . . . . . . . . . . . . . 61
Section 6.9 Financial Covenants. . . . . . . . . . 62
Section 6.10 Notice of Certain Events . . . . . . . 62
Section 6.11 Comply with ERISA. . . . . . . . . . . 63
Section 6.12 Environmental Compliance . . . . . . . 63
Section 6.13 Maintenance of REIT Status . . . . . . 63
Section 6.14 Long-term Care Facilities. . . . . . . 63
Section 6.15 Operator Creditworthiness. . . . . . . 63
Section 6.16 Operator Concentration . . . . . . . . 63
Article 7. Negative Covenants. . . . . . . . . . . . . . 64
Section 7.1 Indebtedness . . . . . . . . . . . . . 64
Section 7.2 Liens. . . . . . . . . . . . . . . . . 64
Section 7.3 Guaranties . . . . . . . . . . . . . . 65
Section 7.4 Mergers, Acquisitions. . . . . . . . . 65
Section 7.5 Redemptions; Distributions . . . . . . 66
Section 7.6 Changes in Structure . . . . . . . . . 66
Section 7.7 Disposition of Assets. . . . . . . . . 66
Section 7.8 Investments. . . . . . . . . . . . . . 67
Section 7.9 Fiscal Year. . . . . . . . . . . . . . 68
Section 7.10 ERISA Obligations. . . . . . . . . . . 68
Section 7.11 Capital Expenditures . . . . . . . . . 69
Section 7.12 Use of Cash. . . . . . . . . . . . . . 69
PAGE
Section 7.13 Transactions with Affilliates. . . . . 69
Section 7.14 Hazardous Material . . . . . . . . . . 70
Section 7.15 Interest Rate Protection . . . . . . . 70
Section 7.16 Construction Investments . . . . . . . 70
Article 8. Events of Default . . . . . . . . . . . . . . 71
Section 8.1 Payments . . . . . . . . . . . . . . . 71
Section 8.2 Certain Covenants. . . . . . . . . . . 71
Section 8.3 Other Covenants. . . . . . . . . . . . 71
Section 8.4 Other Defaults . . . . . . . . . . . . 71
Section 8.5 Representations and Warranties . . . . 72
Section 8.6 Bankruptcy. . . . . . . . . . . . .. 72
Section 8.7 Judgments. . . . . . . . . . . . . . . 73
Section 8.8 ERISA. . . . . . . . . . . . . . . . . 73
Section 8.9 Material Adverse Effect. . . . . . . . 73
Section 8.10 Ownership. . . . . . . . . . . . . . . 73
Section 8.11 REIT Status, Etc.. . . . . . . . . . . 74
Section 8.12 Personnel. . . . . . . . . . . . . . . 74
Section 8.13 Environmental. . . . . . . . . . . . . 74
Section 8.14 Default by Operator. . . . . . . . . . 74
Article 9. The Agent . . . . . . . . . . . . . . . . . . 75
Section 9.1 Appointment, Powers and Immunities.. . 75
Section 9.2 Reliance by Agent. . . . . . . . . . . 75
Section 9.3 Events of Default. . . . . . . . . . . 76
Section 9.4 Rights as a Bank . . . . . . . . . . . 76
Section 9.5 Indemnification. . . . . . . . . . . . 76
Section 9.6 Non-Reliance on Agent and other Banks. 77
Section 9.7 Failure to Act . . . . . . . . . . . . 77
Section 9.8 Resignation or Removal of Agent. . . . 77
Section 9.9 Sharing of Payments. . . . . . . . . . 78
Article 10. Miscellaneous Provisions . . . . . . . . . . 80
Section 10.1 Fees and Expenses; Indemnity . . . . . 80
Section 10.2 Taxes. . . . . . . . . . . . . . . . . 81
Section 10.3 Payments . . . . . . . . . . . . . . . 82
Section 10.4 Survival of Agreements and
Representations; Construction. . . . 82
Section 10.5 Lien on and Set-off of Deposits. . . . 82
Section 10.6 Modifications, Consents and
Waivers; Entire Agreement . . . . . 83
Section 10.7 Remedies Cumulative; Counterclaims . . 83
Section 10.8 Further Assurances . . . . . . . . . . 84
Section 10.9 Notices. . . . . . . . . . . . . . . . 84
Section 10.10 Counterparts . . . . . . . . . . . . . 85
Section 10.11 Severability . . . . . . . . . . . . . 86
Section 10.12 Binding Effect; No Assignment
or Delegation by Borrowers . . . . . 86
Section 10.13 Assignments and Participations
by Banks . . . . . . . . . . . . . . 86
Section 10.14 Governing Law; Consent to Juris-
diction; Waiver of Trial by Jury . . 89
Section 10.15 Joint and Several Obligations. . . . . 90
Section 10.16 Syndication Agent. . . . . . . . . . . 90
</TABLE>
Exhibits
1 List of Borrowers
A-1 Form of Term Note
A-2 Form of Credit Note
B Form of Assignment and Acceptance
C Form of Borrowing Base Certificate
D Form of Compliance Certificate
Schedules
3.1 States of Incorporation and Qualification, and
Capitalization of Borrowers and Subsidiaries
3.2 Consents, Waivers, Approvals; Violation of
Agreements
3.6 Judgments, Actions, Proceedings
3.7 Defaults; Compliance with Laws, Regulations,
Agreements
3.8 Burdensome Documents
3.13 Name Changes, Mergers, Acquisitions
3.15 Licenses and Approvals
3.16 Employee Benefit Plans
6.15 List of Operators
7.1 Permitted Indebtedness and Guaranties
7.2 Permitted Security Interests, Liens and
Encumbrances
7.8 Permitted Investments
AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made this 6th day of June, 1996, by and among:
Each of the corporations listed on Exhibit 1 annexed hereto
(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 BANK, N.A. (formerly NatWest Bank N.A.), a national
banking association, as Agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS:
(A) The Borrowers, the Agent and the banks signatory
thereto entered into a certain Loan Agreement dated July 17, 1995
(as heretofore amended or modified, the "Original Loan
Agreement"), pursuant to which the Borrowers obtained a joint and
several revolving credit facility in the aggregate principal
Dollar Amount (as hereinafter defined) of up to One Hundred
Million ($100,000,000) Dollars, on the terms and conditions set
forth therein;
(B) The Borrowers wish to (i) increase the aggregate
principal Dollar Amount of the revolving credit facility to up to
One Hundred Twenty-Five Million ($125,000,000) Dollars, and (ii)
obtain a joint and several term loan facility in the aggregate
principal Dollar Amount of up to Twenty-Five Million
($25,000,000) Dollars; and
(C) The Banks are willing to so increase the revolving
credit facility and to make available the term loan facility as
aforesaid, but only on the condition, among other things, that
the Borrowers agree to amend and restate the Original Loan
Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree that
the Original Loan Agreement (including all Exhibits and Schedules
thereto) is hereby amended and restated in its entirety to read
as follows:
Article 1. Definitions.
Section 1.1 Defined Terms. As used in this Agreement,
the following terms shall have the following meanings:
"Additional Costs" - as defined in subsection 2.19(b)
hereof.
"Affected Loans" - as defined in Section 2.22 hereof.
"Affected Type" - as defined in Section 2.22 hereof.
"Affiliate" - as to any Person, any other Person that
directly or indirectly controls, or is under common control with,
or is controlled by, such Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled
by" and "under common control with") shall mean possession,
directly or indirectly, of power to direct or cause the direction
of management or policies (whether through ownership of securi-
ties or partnership or other ownership interests, by contract or
otherwise), provided that, in any event: (a) any Person that
owns directly or indirectly five (5%) percent or more of the
securities having ordinary voting power for the election of
directors or other governing body of a corporation or five (5%)
percent or more of the partnership or other ownership interests
of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other
Person; and (b) each shareholder, director and officer of any
Borrower shall be deemed to be an Affiliate of such Borrower.
"Agency Fee" - as defined in subsection 2.8(c) hereof.
"Alternate Base Rate" - for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16th of 1%) equal
to the greater of (a) the Prime Rate in effect on such day, and
(b) 0.5% plus the Federal Funds Rate in effect on such day.
"Alternative Currency" - subject to availability
pursuant to Section 2.20 and to the extent fully transferable and
convertible into Dollars, the lawful currency of England.
"Applicable Margin" - on any date, with respect to
Fixed Rate Loans, the applicable percentage set forth below based
upon the Ratings in effect on such date:
Category 1
Both of the following Ratings:
BBB or higher by S&P; and
Baa2 or higher by Moody's 1.000%
Category 2
At least two of the following Ratings:
BBB- by S&P
Baa3 by Moody's
BBB- by D&P 1.125%
Category 3
Any one of the following Ratings:
BBB- by S&P; or
Baa3 by Moody's; or
BBB- by D&P 1.250%
Category 4
No investment grade Rating
by S&P or Moody's or D&P 1.500%
For purposes of the foregoing, if the Ratings shall fall within
different Categories, the Applicable Margin shall be based on the
lower Rating (and higher Applicable Margin). If any Rating shall
be changed (other than as a result of a change in the rating
system of the applicable Rating Agency), such change shall be
effective as of the date on which it is first announced by the
Rating Agency making such change. Each such change in the
Applicable Margin shall apply to all outstanding LIBOR Loans
during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date
of the next such change. If the rating system of any Rating
Agency shall change, the parties hereto shall negotiate in good
faith to amend the references to specific ratings in this
definition to reflect such changed rating system.
"Application(s)" - as defined in subsection 2.2(a)(iv)
hereof.
"Appraisal" - an appraisal providing an assessment of
the fair market value of a Property (whether appraised on a
stand-alone basis or "in bulk" together with similar Properties)
which is independently and impartially prepared by any of
Valuation Counselors, Healthcare Property Appraisers, Tellatin &
Associates, Capital Valuation Group or David & Company, London,
Gulf/Atlantic Valuation Services, Inc. or another qualified
appraiser retained or approved in writing by the Agent and having
substantial experience in the appraisal of health care facilities
and conforming to Uniform Standards of Professional Appraisal
Practice adopted by the Appraisal Standards Board of the
Appraisal Foundation.
"Appraised Value" - with respect to any Facility, the
value of such Facility reflected in the most recent Appraisal
prepared with respect to such Facility.
"Arrangement Fee" - as defined in subsection 2.8(c)
hereof.
"Assessment Rate" - at any time, the rate (rounded
upwards, if necessary, to the nearest 1/100 of one (1%) percent)
then charged by the Federal Deposit Insurance Corporation (or any
successor) to the Reference Bank for deposit insurance for Dollar
time deposits with the Reference Bank at the Principal Office as
determined by the Reference Bank.
"Assignment and Acceptance" - an agreement in the form
of Exhibit B hereto.
"Balloon Payments" - as of any date as of which the
amount thereof shall be determined, with respect to Omega on a
consolidated basis, an amount equal to (x) its aggregate
obligation to make payments of principal in respect of
Indebtedness having a maturity during the immediately succeeding
six (6) month period, less (y) the sum of Cash and unused amounts
under this Agreement; provided, however, any Indebtedness with
respect to which Omega (or any of its Subsidiaries) has received
a commitment for the renewal or other refinancing of such
Indebtedness shall not be included in the computation of Balloon
Payments and provided, further, if the calculation of the amount
of Balloon Payments results in negative number, then the amount
thereof shall be deemed to be zero (0).
"Beneficiary Documents" - as defined in subsection
2.2(c)(i) hereof.
"Borrowing Base" - with respect to the Borrowers on a
combined basis, as of any date as of which the amount thereof
shall be determined, an amount equal to (x) the sum of
(i) 66-2/3% of Eligible Healthcare Assets plus (ii) Cash on hand
as of such date, minus (y) the sum of (i) unsecured Indebtedness
(less the aggregate principal amount outstanding under this
Agreement) as of such date, and (ii) current maturities of
secured Indebtedness as of such date. For purposes of computing
the Borrowing Base, the amount of "unsecured Indebtedness" shall
not include (i) the aggregate principal amount of $95,000,000 of
Omega's 8.5% Convertible Subordinated Debentures due 2001, and
(ii) the aggregate principal amount of any additional unsecured
subordinated Indebtedness provided (x) such Indebtedness does not
permit any payment or prepayment of the principal amount thereof
prior to the payment in full of the Obligations hereunder, (y)
the terms and conditions thereof are substantially similar to
Omega's 8.5% Convertible Subordinated Debentures due 2001
referred to in clause (i) above, and (z) the issuance thereof
would not result in an Event of Default under the Loan Agreement.
"Borrowing Base Certificate" - a certificate certified
and executed by the chief executive officer or chief financial
officer of Omega substantially in the form annexed hereto as
Exhibit C.
"Borrowing Notice" - as defined in Section 2.3 hereof.
"Business Day" - any day other than Saturday, Sunday or
any other day on which commercial banks in New York City are
authorized or required to close under the laws of the State of
New York.
"Capital Expenditures" - for any period, the aggregate
amount of all payments made or to be made during such period by
any Person directly or indirectly for the purpose of acquiring,
constructing or maintaining fixed assets, real property or
equipment that, in accordance with GAAP, would be added as a
debit to the fixed asset account of such Person, including,
without limitation, all amounts paid or payable during such
period with respect to Capitalized Lease Obligations and interest
that are required to be capitalized in accordance with GAAP.
"Capitalized Lease" - any lease, the obligations to pay
rent or other amounts under which constitute Capitalized Lease
Obligations.
"Capitalized Lease Obligations" - as to any Person, the
obligations of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real
and/or personal property which obligations are required to be
classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP and, for purposes of this
Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Cash" - as to any Person, such Person's cash and cash
equivalents, as defined in accordance with GAAP consistently
applied.
"CERCLA" - the Comprehensive Environmental Response
Compensation and Liability Act of 1980, 42 U.S.C. 9601, et seq.
"Code" - the Internal Revenue Code of 1986, as it may
be amended from time to time, and the regulations promulgated
thereunder.
"Commitment" - as to each Bank, the sum of such Bank's
Revolving Credit Commitment and Term Commitment set forth
opposite such Bank's name on the signature pages hereof under the
captions "Revolving Credit Commitment" and "Term Commitment," as
such amounts may be reduced in accordance with the terms hereof.
"Commitment Fee" - as defined in subsection 2.8(b)
hereof.
"Commitment Fee Percentage" - on any date, the
applicable percentage set forth below based upon the Ratings in
effect on such date:
Category 1
Both of the following Ratings:
BBB or higher by S&P; and
Baa2 or higher by Moody's .250%
Category 2
At least two of the following Ratings:
BBB- by S&P
Baa3 by Moody's
BBB- by D&P .300%
Category 3
Any one of the following Ratings:
BBB- by S&P; or
Baa3 by Moody's; or
BBB- by D&P .375%
Category 4
No investment grade Rating
by S&P or Moody's or D&P .375%
For purposes of the foregoing, if the Ratings shall fall within
different Categories, the Commitment Fee Percentage shall be
based on the lower Rating (and higher Commitment Fee Percentage).
If any Rating shall be changed (other than as a result of a
change in the rating system of the applicable Rating Agency),
such change shall be effective as of the date on which it is
first announced by the Rating Agency making such change. Each
such change with respect to the Borrowers shall apply at any time
during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date
of the next such change. If the rating system of any Rating
Agency shall change, the parties hereto shall negotiate in good
faith to amend the references to specific ratings in this
definition to reflect such changed rating system.
"Compliance Certificate" - a certificate in the form of
Exhibit D annexed hereto, executed by the chief executive officer
or chief financial officer of Omega to the effect that: (a) as
of the effective date of the certificate, no Default or Event of
Default under this Agreement exists or would exist after giving
effect to the action intended to be taken by the Borrowers as
described in such certificate, including, without limitation,
that the covenants set forth in Section 6.9 hereof would not be
breached after giving effect to such action, together with a
calculation in reasonable detail, and in form and substance
satisfactory to the Agent, of such compliance, and (b) the
representations and warranties contained in Article 3 hereof are
true and with the same effect as though such representations and
warranties were made on the date of such certificate, except for
changes in the ordinary course of business none of which, either
singly or in the aggregate, have had a Material Adverse Effect.
"Construction Investments" - financing extended by
Omega with respect to a Facility which is either under
construction (i.e., has not received a certificate of occupancy)
or in development (i.e., has received a certificate of occupancy
or operating license within the preceding eighteen (18) months);
provided, however, that a Facility will not be considered to be
in development if at least three (3) calendar months have elapsed
since the date on which the Facility received a certificate of
occupancy and such Facility has a Fixed Charge Coverage of at
least 1.65:1.00.
"Controlled Group" - all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with Omega,
are treated as a single employer under Section 414(b), 414(c) or
414(m) of the Code and Section 4001(a)(2) of ERISA.
"Credit Loans" - as defined in subsection 2.1(b)
hereof.
"Credit Notes" - as defined in subsection 2.5(b)
hereof.
"Credit Period" - the period commencing on the date of
this Agreement and ending on the Revolving Credit Commitment
Termination Date.
"D&P" - Duff & Phelps.
"Debt Instrument" - as defined in subsection 8.4(a)
hereof.
"Default" - an event which with notice or lapse of
time, or both, would constitute an Event of Default.
"Designated Rate" - with respect to the Term Loan,
the fixed rate of interest determined at the sole discretion of
the Agent for the period commencing on the date set forth in the
Designated Rate Notice through the Term Maturity Date based upon
a rate per annum or blending of rates per annum at which the
Agent is able to raise funds to fund the Term Loan, the source of
which may change daily, as set forth by the Agent in a Designated
Rate Notice.
"Designated Rate Loan(s)" - the Term Loan(s), the
interest on which is determined on the basis of the Designated
Rate.
"Designated Rate Notice" - as defined in subsection
2.3(d) hereof.
"Disposition" - the sale, lease, conveyance, transfer
or other disposition of any Facility (whether in one or a series
of transactions), including accounts and notes receivable (with
or without recourse) and sale-leaseback transactions.
"Dollars" and "$" - lawful money of the United States
of America.
"Dollar Amount" - (a) with respect to each Loan to be
made, continued or converted in Dollars, the principal amount
thereof, and (b) with respect to each Loan in Alternative
Currency, the amount of Dollars into which the principal amount
of such Loan may be converted on the date of determination at the
spot rate at which Dollars are offered to the Agent in London for
the Alternative Currency in which such Loan is or is to be
denominated in an amount comparable to the amount of such Loan at
approximately 11:00 A.M. (London time) two (2) Business Days
before such date of determination.
"EBITDA" - for any period, with respect to Omega on a
consolidated basis, determined in accordance with GAAP, the sum
of net income (or net loss) for such period plus, the sum of all
amounts treated as expenses for: (a) interest, (b) depreciation,
(c) amortization, and (d) all accrued taxes on or measured by
income to the extent included in the determination of such net
income (or net loss); provided, however, that net income (or net
loss) shall be computed without giving effect to extraordinary
losses or gains.
"Eligible Assignee" - a commercial bank or other
financial institution organized under the laws of the United
States of America or any state and having a combined capital and
surplus of at least One Hundred Million ($100,000,000) Dollars.
"Eligible Healthcare Assets" - as of any date as of
which the amount thereof is to be determined, an amount equal to
the sum of:
(i) the lesser of the Appraised Value or purchase
price of each Facility owned entirely by a Borrower and leased to
an Operator; plus
(ii) the lesser of the Appraised Value of any
Facility encumbered by a Mortgage or the outstanding principal
amount of the Mortgage which encumbers any such Facility;
provided, however, there shall be excluded from the calculation
of Eligible Healthcare Assets:
(a) any Facility which has a Fixed Charge
Coverage of less than 1.65 to 1.00;
(b) any Investment which is delinquent for thirty
(30) days or more in payments to the Borrowers; and
(c) any Facility which is subject to any Lien
other than a Permitted Lien or a Mortgage referred to in clause
(ii) above.
Notwithstanding clause (a) above, any individual Facility which
has a Fixed Charge Coverage of less than 1.65 to 1.00 may be
included in the computation of Eligible Healthcare Assets if the
combined Fixed Charge Coverage of the Pooled Facilities of which
such Facility is a part is greater than or equal to 1.65 to 1.00.
"Employee Benefit Plan" - any employee benefit plan
within the meaning of Section 3(3) of ERISA which is subject to
ERISA and (a) is maintained for employees of Omega, or (b) with
respect to which any Loan Party has any liability.
"Entitled Person" - as defined in subsection 2.12(b)
hereof.
"Environmental Laws and Regulations" - all federal,
state and local environmental laws, regulations, ordinances,
orders, judgments and decrees applicable to the Borrowers or any
other Loan Party, or any of their respective assets or
properties.
"Environmental Liability" - any liability under any
applicable Environmental Laws and Regulations for any disposal,
release or threatened release of a hazardous substance pollutant
or contaminant as those terms are defined under CERCLA, and any
liability which would require a removal, remedial or response
action, as those terms are defined under CERCLA, by any person or
by any environmental regulatory body having jurisdiction over
Omega and its Subsidiaries and/or any liability arising under any
Environmental Laws and Regulations for Omega's or any
Subsidiary's failure to comply with such laws and regulations,
including without limitation, the failure to comply with or
obtain any applicable environmental permit.
"Environmental Proceeding" - any judgment, action,
proceeding or investigation pending before any court or govern-
mental authority, with respect to Omega or any Subsidiary and
arising under or relating to any Environmental Laws and
Regulations.
"ERISA" - the Employee Retirement Income Security Act
of 1974, as it may be amended from time to time, and the regu-
lations promulgated thereunder.
"ERISA Affiliate" - as applied to any Loan Party, any
corporation, person or trade or business which is a member of a
group which is under common control with any Loan Party, who
together with any Loan Party, is treated as a single employer
within the meaning of Section 414(b) - (o) of the Code and, if
applicable, Section 4001(a)(14) and (b) of ERISA.
"Event of Default" - as defined in Article 8 hereof.
"Facility" - a health care facility offering health
care-related products and services, including any acute care
hospital, rehabilitation hospital, nursing home, retirement
center, long-term care facility, or medical office building, and
facilities directly related thereto.
"Federal Funds Rate" - for any day, the weighted
average of the rates on overnight federal funds transactions with
member banks of the Federal Reserve System arranged by federal
funds brokers as published by the Federal Reserve Bank of New
York for such day, or if such day is not a Business Day, for the
next preceding Business Day (or, if such rate is not so published
for any such day, the average rate charged to the Agent on such
day on such transactions as reasonably determined by the Agent).
"Fee(s)" - as defined in subsection 2.8(e) hereof.
"Financial Statements" - the audited Consolidated
Balance Sheets of Omega and its Subsidiaries as of December 31,
1995 and the related audited Consolidated Statements of
Operations, Shareholders' Equity and Cash Flows for the fiscal
year then ended, certified by Ernst & Young.
"Fixed Charge Coverage" - with respect to any Facility,
the ratio of: (x) pre-tax net income plus Mortgage Expense (but
excluding therefrom any amounts relating to principal), Lease
Rental Expense, depreciation and amortization on the Facility
plus actual management fees paid to the Operator of any such
Facility, to (y) the sum of Lease Rental Expense and Mortgage
Expense; all of the foregoing calculated as at any date of
determination thereof by reference to the immediately preceding
four (4) calendar quarters and based upon the financial
statements provided to Omega by each Operator for the immediately
preceding four (4) fiscal quarters of each Operator.
"Fixed Rate Loans" - LIBOR Loans and Designated Rate
Loans.
"Fleet" - Fleet Bank, N.A., a national banking
association, in its capacity as a Bank or L/C Issuer hereunder.
"GAAP" - generally accepted accounting principles, as
in effect in the United States.
"Hazardous Materials" - any toxic chemical, hazardous
substances, contaminants or pollutants, medical wastes,
infectious wastes, or hazardous wastes.
"Healthcare Assets" - as of any date as of which the
amount thereof is to be determined, the aggregate amount equal to
the sum of:
(i) the lesser of the Appraised Value or purchase
price of each Facility owned entirely by a Borrower and leased to
an Operator; plus
(ii) the lesser of the Appraised Value of any
Facility encumbered by a Mortgage or the outstanding principal
amount of the Mortgage which encumbers any such Facility.
"Indebtedness" - with respect to any Person, all:
(a) liabilities or obligations, direct and contingent, which in
accordance with GAAP would be included in determining total
liabilities as shown on the liability side of a balance sheet of
such Person at the date as of which Indebtedness is to be
determined, including, without limitation, contingent liabilities
that in accordance with such principles, would be set forth in a
specific Dollar amount on the liability side of such balance
sheet, and Capitalized Lease Obligations of such Person; (b)
liabilities or obligations of others for which such Person is
directly or indirectly liable, by way of guaranty (whether by
direct guaranty, suretyship, discount, endorsement, take-or-pay
agreement, agreement to purchase or advance or keep in funds or
other agreement having the effect of a guaranty) or otherwise;
(c) liabilities or obligations secured by Liens on any assets of
such Person, whether or not such liabilities or obligations shall
have been assumed by it; and (d) liabilities or obligations of
such Person, direct or contingent, with respect to letters of
credit issued for the account of such Person and bankers
acceptances created for such Person.
"Interest Coverage" - as at any date, the quotient,
expressed as a percentage (which may be in excess of 100%),
determined by dividing EBITDA by Interest Expense; all of the
foregoing calculated by reference to the immediately preceding
four (4) fiscal quarters of the Borrowers.
"Interest Expense" - for any period, on a combined
basis, the sum of all interest paid or payable (excluding
unamortized debt issuance costs) on all items of Indebtedness of
the Borrowers outstanding at any time during such period.
"Interest Period" -
(a) with respect to any LIBOR Loan, each period
commencing on the date such Loan is made or converted from a Loan
or Loans of another Type into a LIBOR Loan, or the last day of
the next preceding Interest Period with respect to such Loan, and
ending on the same day 1, 2, 3 or 6 months thereafter, as the
Borrowers may select as provided in Section 2.3 hereof, except
that each such Interest Period which commences on the last LIBOR
Business Day of a calendar month (or on any day for which there
is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last LIBOR Business Day of the
appropriate subsequent calendar month; and
(b) with respect to the Designated Rate Loan, the
period commencing on the date set forth in the Designated Rate
Notice through the Term Maturity Date.
Notwithstanding the foregoing: (a) each Interest Period that
would otherwise end on a day which is not a LIBOR Business Day
shall end on the next succeeding LIBOR Business Day (or, if such
next succeeding LIBOR Business Day falls in the next succeeding
calendar month, on the next preceding LIBOR Business Day);
(b) with respect to LIBOR Loans, no more than six (6) Interest
Periods for Credit Loans and no more than two (2) Interest
Periods for Term Loans shall be in effect at the same time;
(c) any Interest Period relating to a Credit Loan that commences
before the Revolving Credit Commitment Termination Date shall end
no later than the Revolving Credit Commitment Termination Date;
(d) any Interest Period relating to the Term Loan(s) shall end no
later than the Term Maturity Date; and (e) notwithstanding
clauses (c) and (d) above, no Interest Period shall have a
duration of less than one month. In the event that the Borrowers
fail to select the duration of any Interest Period for any LIBOR
Loan within the time period and otherwise as provided in Sec-
tion 2.3 hereof, such LIBOR Loans will be automatically converted
into a Prime Rate Loan on the last day of the preceding Interest
Period for such LIBOR Loan.
"Interest Rate Contracts" - interest rate swap agree-
ments, interest rate cap agreements, interest rate collar agree-
ments, interest rate insurance and other agreements or arrange-
ments designed to provide protection against fluctuation in
interest rates, in each case, in form and substance satisfactory
to the Agent and, in each case, with counter-parties satisfactory
to the Agent.
"Investment" - a Facility or a Mortgage, individually
or collectively, as the case may be.
"Issuance Request" - as defined in subsection 2.2(a)
hereof.
"Judgment Currency" - as defined in subsection 2.12(b)
hereof.
"Latest Balance Sheet" - as defined in subsection
3.9(a) hereof.
"L/C(s)" - any irrevocable letter of credit issued by
the L/C Issuer for the account of the Borrowers pursuant to
subsection 2.2(a) hereof, in each case, as amended, supplemented
or modified from time to time.
"L/C Documents" - as defined in subsection 2.2(a)
hereof.
"L/C Fee" - as defined in subsection 2.8(d) hereof.
"L/C Fee Percentage" - on any date, the applicable
percentage set forth below based upon the Ratings in effect on
such date:
Category 1
Both of the following Ratings:
BBB or higher by S&P; and
Baa2 or higher by Moody's 1.000%
Category 2
At least two of the following Ratings:
BBB- by S&P
Baa3 by Moody's
BBB- by D&P 1.125%
Category 3
Any one of the following Ratings:
BBB- by S&P; or
Baa3 by Moody's; or
BBB- by D&P 1.250%
Category 4
No investment grade Rating
by S&P or Moody's or D&P 1.500%
For purposes of the foregoing, if the Ratings shall fall within
different Categories, the L/C Fee Percentage shall be based on
the lower Rating (and higher L/C Fee Percentage). If any Rating
shall be changed (other than as a result of a change in the
rating system of the applicable Rating Agency), such change shall
be effective as of the date on which it is first announced by the
Rating Agency making such change. Each such change in the L/C
Fee Percentage shall apply to all L/C Obligations during the
period commencing on the effective date of such change and ending
on the date immediately preceding the effective date of the next
such change. If the rating system of any Rating Agency shall
change, the parties hereto shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect
such changed rating system.
"L/C Issuer" - Fleet in its individual capacity as
issuer of L/Cs under this Agreement.
"L/C Obligations" - as at any date, an amount equal to:
(a) the aggregate face amount (reduced by any partial drawing) of
all L/Cs, plus (b) all Unpaid Drawings.
"Lease Rental Expense" - for any period and with
respect to any Facility, the total amount payable during such
period by the lessee of such Facility to any Borrower, including,
without limitation, (a) base rent (as adjusted from time to
time), plus (b) all incremental charges to which the Facility is
subject under the lease relating thereto.
"Lending Office" - with respect to each Bank, with
respect to each Type of Loan, the Lending Office as designated
for such Type of Loan below its name on the signature pages
hereof or such other office of such Bank or of an affiliate of
such Bank as it may from time to time specify to the Agent and
the Borrowers as the office at which its Loans of such Type are
to be made and maintained.
"LIBOR Base Rate" - with respect to any LIBOR Loan, for
any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of one (1%) percent)
quoted by the Reference Bank at approximately 11:00 a.m. London
time (or as soon thereafter as practicable) two (2) LIBOR
Business Days prior to the first day of such Interest Period as
the rate at which the Reference Bank is offered deposits in the
applicable Permitted Currency in the London interbank market
where the LIBOR and foreign currency and exchange operations of
the Reference Bank are customarily conducted, having terms of one
(1), two (2), three (3) or six (6) months and in an amount
comparable to the principal amount of the LIBOR Loan to be made
by the Banks to which such Interest Period relates.
"LIBOR Business Day" - a Business Day on which dealings
in Dollar deposits and pounds sterling are carried out in the
London interbank market.
"LIBOR Loan(s)" - any Credit Loan or Term Loan
denominated in a Permitted Currency the interest on which is
determined on the basis of rates referred to in the definition of
"LIBOR Base Rate" in this Article 1.
"LIBOR Rate" - for any LIBOR Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if neces-
sary, to the nearest 1/100 of one (1%) percent) determined by the
Agent to be equal to: (a) the LIBOR Base Rate for such Loan for
such Interest Period; divided by (b) one (1) minus the Reserve
Requirement for such Loan for such Interest Period. The Agent
shall use its best efforts to advise the Borrower of the LIBOR
Rate as soon as practicable after each change in the LIBOR Rate;
provided, however, that the failure of the Agent to so advise the
Borrower on any one or more occasions shall not affect the rights
of the Banks or the Agent or the obligations of the Borrowers
hereunder.
"Lien" - any mortgage, deed of trust, pledge, security
interest, encumbrance, lien, claim or charge of any kind
(including any agreement to give any of the foregoing), any
conditional sale or other title retention agreement, any lease in
the nature of any of the foregoing, and the filing of or
agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction.
"Loan(s)" - as defined in subsection 2.1(b) hereof.
Loans of different Types made or converted from Loans of other
Types on the same day (or of the same Type but having different
Interest Periods) shall be deemed to be separate Loans for all
purposes of this Agreement.
"Loan Documents" - this Agreement, the Notes, the L/C
Documents, Interest Rate Contracts and all other documents
executed and delivered in connection herewith or therewith,
including all amendments, modifications and supplements of or to
all such documents.
"Loan Party" - each Borrower and any other Person
(other than the Banks and the Agent) which now or hereafter
executes and delivers to any Bank or the Agent any Loan Document.
"Long-Term Care Facilities" - licensed residential
facilities providing extended care services meeting the medical,
social and psychosocial needs of geriatric and other residents.
"Mandatory Borrowing" - as defined in subsection
2.2(b)(ii) hereof.
"Material Adverse Effect" - any fact or circumstance
which (a) materially and adversely affects the business,
operation, property or financial condition of the Borrowers taken
as a whole, or (b) has a material adverse effect on the ability
of the Borrowers to perform their respective obligations under
this Agreement, the Notes or the other Loan Documents.
"Moody's" - Moody's Investors Service, Inc.
"Mortgage(s)" - mortgages of real property constituting
a Facility for which any Borrower is the mortgagee.
"Mortgage Expense" - for any period and with respect to
any Facility, the total amount payable during such period by the
mortgagor of such Facility to any Borrower, including, without
limitation, (a) interest and principal (as adjusted from time to
time) plus (b) all incremental charges to which the Facility is
subject under the mortgage.
"Multiemployer Plan" - a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which any Loan Party or
any ERISA Affiliate is making, or is accruing an obligation to
make, contributions or has made, or been obligated to make,
contributions within the preceding six (6) years.
"Net Issuance Proceeds" - in respect of any issuance of
Indebtedness or equity, the proceeds in Cash received by Omega or
any of its Subsidiaries upon or simultaneously with such
issuance, net of direct costs of such issuance and any taxes paid
or payable by the recipient of such proceeds.
"Net Proceeds" - in respect of any Disposition, the
proceeds in Cash received by any of the Borrowers upon or
simultaneously with such Disposition, net of (i) direct costs of
such Disposition, (ii) any taxes paid or payable by the recipient
of such proceeds, and (iii) amounts required to be applied to
repay any Indebtedness secured by a lien on the asset which is
the subject of the Disposition.
"New Type Loans" - as defined in Section 2.22 hereof.
"Notes" - as defined in subsection 2.5(b) hereof.
"Obligations" - collectively, all of the Indebtedness,
of the Borrowers to the Banks and the Agent, whether now existing
or hereafter arising, whether or not currently contemplated,
including, without limitation, those arising under the Loan
Documents.
"Omega" - Omega Healthcare Investors, Inc., a Maryland
corporation.
"Omega's Fixed Coverage Ratio" - as at any date with
respect to the immediately preceding four (4) fiscal quarters of
the Borrowers, the ratio of (x) EBITDA, to (y) the sum of
Interest Expense, dividends and Balloon Payments.
"Operator" - (a) the lessee of any Facility owned or
leased by a Borrower, and (b) the mortgagor of a Facility which
is subject to a Mortgage to the extent that such entity controls
the operation of the Facility.
"Origination Fee" - as defined in subsection 2.8(a)
hereof.
"Payor" - as defined in Section 2.16 hereof.
"PBGC" - Pension Benefit Guaranty Corporation.
"Permitted Currencies" - (a) Dollars with respect to
Prime Rate Loans, and (b) Dollars or any Alternative Currency
with respect to LIBOR Loans.
"Permitted Liens" - as to any Person: (a) pledges or
deposits by such Person under workers' compensation laws,
unemployment insurance laws, social security laws, or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness of
such Person), or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person
or deposits of Cash or United States Government Bonds to secure
surety, appeal, performance or other similar bonds to which such
Person is a party, or deposits as security for contested taxes or
import duties or for the payment of rent; (b) liens imposed by
law, including without limitation, carriers', warehousemen's,
materialmen's and mechanics' liens, or liens arising out of
judgments or awards or judicial attachment liens against such
Person with respect to which such Person at the time shall
currently be prosecuting an appeal or proceedings for review; (c)
liens for taxes not yet subject to penalties for non-payment and
liens for taxes the payment of which is being contested as
permitted by Section 6.6 hereof; (d) non-consensual liens that
have been bonded within thirty (30) days after notice of such
lien(s) by a Person (not an Affiliate of a Borrower) reasonably
satisfactory to the Required Banks in an aggregate amount secured
by all such liens not in excess of $2,000,000; and (e) minor
survey exceptions, minor encumbrances, easements or reservations
of, or rights of, others for rights of way, highways and railroad
crossings, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to
the use of real properties, or Liens incidental to the conduct of
the business of such Person or to the ownership of such Person's
property that were not incurred in connection with Indebtedness
of such Person, all of which Liens referred to in this clause (e)
do not in the aggregate materially impair the value of the
properties to which they relate or materially impair their use in
the operation of the business taken as a whole of such Person,
and as to all the foregoing only to the extent arising and
continuing in the ordinary course of business.
"Person" - an individual, a corporation, a partnership,
a joint venture, a trust or unincorporated organization, a joint
stock company or other similar organization, a government or any
political subdivision thereof, a court, or any other legal
entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" - at any time an employee pension benefit plan
that is covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code and is either:
(a) maintained by Omega or any member of the Controlled Group for
employees of Omega, or by Omega for any other member of such
Controlled Group, or (b) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which Omega or any
member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five
plan years made contributions.
"Pooled Facilities" - all Facilities which are commonly
owned or operated by one Operator or a Subsidiary thereof.
"Post-Default Rate" - (a) in respect of any Loans, a
rate per annum equal to: (i) if such Loans are Prime Rate Loans,
two (2%) percent above the Alternate Base Rate as in effect from
time to time for Prime Rate Loans, or (ii) if such Loans are
Fixed Rate Loans, two (2%) percent above the rate of interest in
effect thereon at the time of the Event of Default that resulted
in the Post-Default Rate being instituted until the end of the
then current Interest Period therefor and, thereafter, two (2%)
above the Alternate Base Rate as in effect from time to time; and
(b) in respect of other amounts payable by the Borrowers here-
under (other than interest), equal to two (2%) above the
Alternate Base Rate as in effect from time to time.
"Prime Rate" - the interest rate established from time
to time by Fleet as its prime rate at the Principal Office.
Notwithstanding the foregoing, the Borrowers acknowledge that
Fleet may regularly make domestic commercial loans at rates of
interest less than the rate of interest referred to in the
preceding sentence. Each change in any interest rate provided
for herein based upon the Prime Rate resulting from a change in
the Prime Rate shall take effect at the time of such change in
the Prime Rate.
"Prime Rate Loans" - Loans that bear interest at a rate
based upon the Alternate Base Rate.
"Principal Office" - 10 Exchange Place, Jersey City,
New Jersey 07302.
"Projections" - the projections relating to Omega and
its Subsidiaries for the three (3) year period 1996-1998,
including balance sheets, statements of operations and cash flows
(together with related assumptions) as furnished by Omega to the
Agent.
"Property" - any estate or interest in any kind of
property or asset, whether real, personal or mixed, and whether
tangible or intangible.
"Quarterly Dates" - the first day of each October,
January, April and July, the first of which shall be the first
such day after the date of this Agreement, provided that, if any
such date is not a LIBOR Business Day, the relevant Quarterly
Date shall be the next succeeding LIBOR Business Day (or, if the
next succeeding LIBOR Business Day falls in the next succeeding
calendar month, then on the next preceding LIBOR Business Day).
"Ratings" - shall mean the ratings from time to time
established by the Rating Agencies for senior, unsecured, non-credit
enhanced long-term debt of Omega.
"Ratings Agencies" - Moody's, S&P and D&P.
"Reference Bank" - a bank appearing on the display
designated as page "LIBOR" on the Reuters Monitor Money Rates
Service (or such other page as may replace the LIBOR page on that
service for the purpose of displaying London interbank offered
rates of major banks); provided, that, if no such offered rate
shall appear on such display, "Reference Bank" shall mean a bank
in the London interbank market as selected by the Agent.
"Regulation D" - Regulation D of the Board of Governors
of the Federal Reserve System, as the same may be amended or
supplemented from time to time.
"Regulatory Change" - as to any Bank, any change after
the date of this Agreement in United States federal, or state, or
foreign, laws or regulations (including Regulation D and the laws
or regulations that designate any assessment rate relating to
certificates of deposit or otherwise (including the "Assessment
Rate" if applicable to any Loan)) or the adoption or making after
such date of any interpretations, directives or requests applying
to a class of banks, including such Bank, of or under any United
States federal, or state, or foreign laws or regulations (whether
or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or adminis-
tration thereof.
"REIT Status" - with respect to any Person, (a) the
qualification of such Person as a real estate investment trust
under Sections 856 through 860 of the Code, and (b) the
applicability to such Person and its shareholders of the method
of taxation provided for in Sections 857 et seq. of the Code.
"Required Banks" - at any time, Banks having at least
66-2/3% of the Total Commitment hereunder.
"Required Payment" - as defined in Section 2.16 hereof.
"Reserve Requirement" - for any LIBOR Loans for any
quarterly period (or, as the case may be, shorter period) as to
which interest is payable hereunder, the average maximum rate at
which reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such period under
Regulation D by member banks of the Federal Reserve System in New
York City with deposits exceeding One Billion ($1,000,000,000)
Dollars against "Eurocurrency liabilities" (as such term is used
in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required
to be maintained by such member banks by reason of any Regulatory
Change against: (a) any category of liabilities which includes
deposits by references to which the LIBOR Rate for LIBOR Loans is
to be determined as provided in the definition of "LIBOR Base
Rate" in this Article 1, or (b) any category of extensions of
credit or other assets which include LIBOR Loans.
"Revolving Credit Commitment" - as to each Bank, the
obligation of such Bank to make Credit Loans and/or participate
in the Letter of Credit Documents issued on behalf of the
Borrowers hereunder in the aggregate amount, if any, set forth
opposite such Bank's name on the signature pages hereof under the
caption "Revolving Credit Commitment" as such amount is subject
to reduction in accordance with the terms hereof.
"Revolving Credit Commitment Termination Date" -
July 1, 1999.
"S&P" - Standard and Poor's Corporation.
"Security Deposits" - as defined in subsection
6.15(ii).
"Specified Currency" - as defined in subsection 2.12(b)
hereof.
"Specified Place" - as defined in subsection 2.12(b)
hereof.
"Subsidiary" - with respect to any Person, any corpo-
ration, partnership, joint venture or other entity, whether now
existing or hereafter organized or acquired: (a) in the case of
a corporation, of which a majority of the securities having ordi-
nary voting power for the election of directors (other than
securities having such power only by reason of the happening of a
contingency) are at the time owned by such Person and/or one or
more Subsidiaries of such Person, (b) in the case of a part-
nership or other entity, in which such Person is a general
partner or of which a majority of the partnership or other equity
interests are at the time owned by such Person and/or one or more
of its Subsidiaries, or (c) in the case of a joint venture, in
which such Person is a joint venturer and of which a majority of
the ownership interests are at the time owned by such Person
and/or one or more of its Subsidiaries. Unless the context
otherwise requires, references in this Agreement to "Subsidiary"
or "Subsidiaries" shall be deemed to be references to a
Subsidiary or Subsidiaries of Omega.
"Tangible Net Worth" - the sum of capital surplus,
earned surplus and capital stock, minus deferred charges, intan-
gibles and treasury stock, all as determined in accordance with
GAAP consistently applied.
"Term Commitment" - as to each Bank, the obligation of
such Bank to make Term Loan(s) in the aggregate Dollar Amount, if
any, set forth opposite such Bank's name on the signature pages
hereof under the caption "Term Commitment".
"Term Credit Period" - the period commencing on the
date of this Agreement and ending on [September 1, 2000.]
"Term Loan(s)" - as defined in subsection 2.1(a)
hereof.
"Term Maturity Date" - October 1, 2000.
"Term Note(s)" - as defined in subsection 2.5(a)
hereof.
"Test Period" - as defined in subsection 2.7(d) hereof.
"Total Commitment" - the aggregate obligation of the
Banks to make Loans and/or issue or participate in the L/C
Documents hereunder up to the aggregate amount of One Hundred
Fifty Million ($150,000,000) Dollars.
"Total Revolving Credit Commitment" - the aggregate
obligation of the Banks to make Credit Loans and/or issue or
participate in the L/C Documents hereunder up to the aggregate
amount of One Hundred Twenty-Five Million ($125,000,000) Dollars.
"Total Term Commitment" - the aggregate obligation of
the Banks to make Term Loans hereunder up to the aggregate Dollar
Amount of Twenty-Five Million ($25,000,000) Dollars.
"Type" - refers to the characteristics of a Loan as a
Prime Rate Loan or a Fixed Rate Loan for a particular Interest
Period in a particular Permitted Currency. All Prime Rate Loans
are of the same Type. All Fixed Rate Loans with identical
interest rates and Interest Periods and in the same currency are
of the same Type. All other Loans are of different Types.
Interest Periods are identical if they begin and end on the same
days.
"Unpaid Drawings" - any payment or disbursement made by
the L/C Issuer with respect to a L/C and not reimbursed by the
Borrowers.
"Unused Commitment" - as at any date, for each Bank,
the difference, if any, between: (a) the amount of such Bank's
Commitment as in effect on such date, and (b) the then aggregate
outstanding principal Dollar Amount of all Loans made by such
Bank and such Bank's pro rata share of all L/C Obligations.
Section 1.2 GAAP. Any accounting terms used in this
Agreement that are not specifically defined herein shall have the
meanings customarily given to them in accordance with GAAP as in
effect on the date of this Agreement, except that references in
Article 5 to such principles shall be deemed to refer to such
principles as in effect on the date of the financial statements
delivered pursuant thereto.
Section 1.3 Certain Calculations.
(a) Except in the circumstances set forth in
subsection 1.3(b) below, for the purposes of determining the
amount of outstanding Indebtedness or any other obligations or
liabilities of Omega or any of its Subsidiaries or any other
Person, or the amount or value of any investments or assets of or
obligations owed to Omega or any of its Subsidiaries or any other
Person, or the amount of any other item included in the financial
statements of Omega or any of its Subsidiaries or any other
Person (each of the foregoing being a "Calculation Item"), if
such Calculation Item is owed or otherwise recorded or measured
in Alternative Currency, the amount or value of the Calculation
Item shall be calculated in U.S. Dollars and shall be the amount
of U.S. Dollars that can be purchased with such Alternative
Currency calculated on the basis of the Agent's spot rate of
exchange for the purchase of U.S. Dollars with the Alternative
Currency on the date such calculation is to be made; provided
that notwithstanding the continuous nature of certain
representations and covenants in this Agreement, unless requested
to do so by Agent or unless the Borrowers are aware of any
material currency movement or other circumstance which would be
reasonably likely to have an effect on their ability to satisfy
any such representation or covenant, the Borrowers shall not be
required to make such calculation with respect to such
representations and covenants at any time other than in
connection with the delivery of a Borrowing Base Certificate or
the delivery of a Compliance Certificate; provided further that
even if not required to make such calculations, nothing in this
subsection 1.3(a) shall be construed to in any way limit the
Borrowers' obligations to satisfy all such representations and
covenants in accordance with their terms.
(b) The Agent shall calculate the Dollar Amount of
Loans denominated in Alternative Currency: (i) as often as the
Agent considers it necessary or desirable to make such
calculation to monitor compliance by the Borrowers with the
limits set forth in Section 2.1 and the Agent shall notify the
Borrowers if, based on such calculation, the Borrowers are in
compliance with the requirements of Section 2.1 as to the maximum
aggregate outstanding principal amount of Credit Loans
denominated in Alternative Currency or whether repayment of the
Loans is necessary as required by subsection 2.6(d); (ii) on any
proposed borrowing date to determine whether, after giving effect
to a proposed borrowing, the Borrowers will be in compliance with
the requirements of Section 2.1; (iii) on any proposed
continuation or conversion date under Section 2.18 to determine
whether, after giving effect to such proposed continuation or
conversion, the Borrowers will be in compliance with the
requirements of Section 2.1, and (iv) if any Loans denominated in
Alternative Currency are outstanding, as necessary for the
purpose of calculating the Commitment Fee payable under
subsection 2.8(b); provided that any failure by the Agent to make
such calculations or provide the information under this
subsection 1.3(b) shall not affect the obligations of the
Borrowers to comply with the limits set forth in Section 2.1 or
otherwise to satisfy all representations and covenants made by
them in this Agreement.<PAGE>
Article 2. Commitments; Loans.
Section 2.1 Loans.
(a) Term Loans.
(i) Each Bank hereby severally agrees, on the
terms and subject to the conditions of this Agreement, to make
joint and several term loans (individually, a "Term Loan" and,
collectively, the "Term Loans") to the Borrowers during the Term
Credit Period in the Alternative Currency in an aggregate
principal Dollar Amount at any one time outstanding up to, but
not exceeding, such Bank's Term Commitment. Subject to
subsection 2.3(d) hereof, the Total Term Commitment shall be
borrowed by the Borrowers and advanced by the Banks in no more
than three (3) installments.
(ii) The Term Loans may be prepaid at any time and
from time to time, in whole or in part, upon prior written notice
to the Agent as provided in Section 2.3 hereof, without premium
or penalty except as otherwise provided in Section 2.23 hereof
and any amounts so prepaid (whether voluntary or mandatory) may
not be reborrowed hereunder.
(b) Credit Loans.
Each Bank hereby severally agrees, on the terms
and subject to the conditions of this Agreement, to make joint
and several loans (individually a "Credit Loan", collectively,
the "Credit Loans"; the Term Loans and the Credit Loans are
hereinafter sometimes referred to individually as a "Loan" and
collectively as the "Loans") to the Borrowers during the Credit
Period to and including the Revolving Credit Commitment
Termination Date in any one or more of the Permitted Currencies
in an aggregate principal Dollar Amount at any one time
outstanding up to, but not exceeding, the Revolving Credit
Commitment of such Bank as then in effect; provided, however,
that the sum of (x) the aggregate principal Dollar Amount of
Credit Loans at any one time outstanding, and (y) L/C
Obligations, shall not exceed the lesser of (i) the Borrowing
Base, as then in effect, or $125,000,000; and provided, further,
in no event shall the aggregate outstanding principal amount of
Credit Loans denominated in Alternative Currency at any time
exceed the Dollar Amount of $25,000,000. Subject to the terms of
this Agreement, including the borrowing limitation referred to
above, during the Credit Period the Borrowers may borrow, repay
and reborrow Credit Loans.
(c) The parties hereto acknowledge that, as of the
date hereof, the principal amount of Seventeen Million Five
Hundred Thousand Dollars ($17,500,000) in "Loans" under the
Original Loan Agreement is outstanding (the "Existing Loans") and
such indebtedness is being amended pursuant hereto, and the
"Notes" evidencing the Existing Loans under the Original Loan
Agreement are, currently herewith, being replaced in the form of
the Credit Notes hereinafter referred to in subsection 2.5(b)
hereof.
Section 2.2 Letters of Credit.
(a) Issuance.
(i) Subject to the terms and conditions of this
Agreement, the Borrowers may request that the L/C Issuer, in its
individual capacity, issue L/Cs to beneficiaries designated by
the Borrowers pursuant to an Application and other documentation
in form and substance satisfactory to the L/C Issuer
(collectively, the "L/C Documents"). Each L/C shall be deemed to
be a utilization of the Revolving Credit Commitment of each Bank
in an amount equal to each Bank's pro rata share of the face
amount of each L/C.
(ii) Each L/C Document shall provide that drafts
drawn thereunder shall be payable on sight (but in no event later
than the Revolving Credit Commitment Termination Date). The
maximum aggregate face amount of L/C's issued and outstanding at
any one time hereunder shall not exceed Five Million ($5,000,000)
Dollars and all L/C's shall be denominated in Dollars.
(iii) The Borrowers shall give notice to the L/C
Issuer of a request for issuance of any L/C not less than ten
(10) Business Days prior to the proposed issuance date (which
prescribed time period may be waived at the option of the L/C
Issuer in the exercise of its sole discretion). Each such notice
(an "Issuance Request") shall specify: (1) the requested date of
such issuance (which shall be a Business Day); (2) the maximum
face amount of such L/C; (3) the expiration date of such L/C;
(4) the purpose of such L/C; (5) the name and address of the
beneficiary of such L/C; and (6) the required documents under any
such L/C.
(iv) Each L/C shall be issued by the L/C Issuer,
subject to the payment by the Borrowers of the standard issuance
fees and charges customarily imposed by the L/C Issuer in
connection with the issuance thereof, pursuant to the L/C
Issuer's standard form of application for such L/C Documents
(each, an "Application" and collectively, the "Applications")
executed by the Borrowers. In the event that any term or
condition set forth in any Application shall be inconsistent with
the terms and conditions of this Agreement, the terms and
conditions herein set forth shall prevail.
(v) Notwithstanding the foregoing, the L/C Issuer
shall not be under any obligation to issue any L/C Document if at
the time of such issuance any order, judgment or decree of any
governmental authority or arbitrator shall purport by its terms
to enjoin or restrain the L/C Issuer from issuing such L/C
Documents or any requirement of law applicable to the L/C Issuer
or any request or directive (whether or not having the force of
law) from any governmental authority with jurisdiction over the
L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from the issuance of letters of credit generally or any such L/C
Documents in particular, or shall impose upon the L/C Issuer with
respect to any L/C Documents any requirement (for which the L/C
Issuer is not otherwise compensated) not in effect on the date
hereof.
(b) Repayment; Mandatory Borrowings.
(i) The Borrowers shall be obligated pursuant to
each Application to reimburse the L/C Issuer immediately in
immediately available funds at the Principal Office for sight
drafts drawn under any L/C Document.
(ii) If any drawing under a L/C shall not be
reimbursed on the date when due, provided that an event of the
type set forth in subsection 8.6(a) has not occurred, the
Borrowers' reimbursement obligation in respect of such Unpaid
Drawing shall be funded on such date with the borrowing of a Loan
(each such borrowing a "Mandatory Borrowing") in the full amount
of the Unpaid Drawings from all Banks based on each Bank's pro
rata share of the Total Revolving Credit Commitment. The L/C
Issuer shall promptly notify the Agent of the amount of such
Unpaid Drawings and the Agent shall promptly notify the Banks of
the amount of each such Mandatory Borrowing not later than 12:00
noon (New York City time) on the date on which such Mandatory
Borrowing is to be made. Provided that an event of the type set
forth in subsection 8.6(a) has not occurred, each such Bank
hereby irrevocably agrees to make Credit Loans pursuant to each
Mandatory Borrowing in the amount, and not later than 5:00 p.m.
(New York City time), on the date, and in the manner specified in
the preceding sentence, notwithstanding that the amount of the
Mandatory Borrowing may not comply with the minimum amount for
borrowings otherwise required hereunder. In the event that the
Agent delivers the above-described notice to any Bank later than
12:00 noon (New York City time) on the date of the required
Mandatory Borrowing, then such Bank shall not be obligated to
effect such Mandatory Borrowing until the next succeeding
Business Day (but not later than 5:00 p.m. (New York City time)).
(iii) Notwithstanding the foregoing, in the event
that at any time when a draft is drawn under a L/C Document,
there are not sufficient funds in any account of the Borrowers
with the L/C Issuer or sufficient availability to permit creation
of Credit Loans sufficient to fund payment of the draft(s) in
accordance with its terms, any funds advanced by the L/C Issuer
and the other Banks in payment thereof shall be due and payable
immediately and shall bear interest until paid in full at the
Post-Default Rate, such interest to be payable on demand. In the
event of any conflict or discrepancy between the terms provided
herein and the terms established by the L/C Issuer in its
Application or otherwise and this Loan Agreement, the terms
provided herein shall prevail.
(c) General Unconditional Obligations. The obliga-
tions of the Borrowers under this Agreement, the Applications and
any other agreement, instrument or document relating to reim-
bursement or payment of Unpaid Drawings shall be absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement and the L/C
Documents, under all circumstances whatsoever, including, without
limitation, the following circumstances, whether relating to any
one or more L/C Documents:
(i) any agreement between the Borrower(s) and any
beneficiary or any agreement or instrument relating thereto (the
"Beneficiary Documents") proving to be forged, fraudulent,
invalid, unenforceable or insufficient in any respect;
(ii) any amendment or waiver of or any consent to
departure from all or any of the Beneficiary Documents;
(iii) the existence of any claim, setoff, defense
or other rights which the Borrower(s) may have at any time
against any beneficiary or any transferee of any L/C Document (or
any persons or entities for whom any beneficiary or any such
transferee may be acting), the L/C Issuer, any other Bank, the
Agent or any other person or entity, whether in connection with
the Agreement, the Beneficiary Documents or any unrelated
transaction;
(iv) any demand presented under any L/C Document
(or any endorsement thereon) proving to be forged, fraudulent,
invalid, unenforceable or insufficient in any respect or any
statement therein being inaccurate in any respect whatsoever;
(v) the use to which any L/C Document may be put
or any acts or omission of any beneficiary in connection
therewith; or
(vi) any other circumstances or happening
whatsoever, whether or not similar to any of the foregoing.
(d) Participations by Banks.
(i) On the date of issuance of each L/C, the L/C
Issuer thereof shall be deemed irrevocably and unconditionally to
have sold and transferred to each Bank (excluding, for all
purposes of this paragraph (i), the L/C Issuer, which shall
retain a portion equal to its pro rata share of the Total
Revolving Credit Commitment) without recourse or warranty, and
each Bank shall be deemed to have irrevocably and unconditionally
purchased and accepted from the L/C Issuer, an undivided interest
and participation, to the extent of such Bank's pro rata share of
the Total Revolving Credit Commitment in effect on the date of
such issuance, in such L/C, each substitute therefor, each
drawing made thereunder, the related Applications and all
Obligations relating thereto and all Loan Documents supporting,
or otherwise benefitting the payment of such Obligations.
(ii) In the event that any Unpaid Drawing is not
paid to the L/C Issuer with respect to any L/C Document in full
immediately or by a Mandatory Borrowing from all the Banks, the
L/C Issuer shall promptly notify the Agent to that effect, and
the Agent shall promptly notify the Banks of the amount of such
Unpaid Drawing and each such Bank shall immediately pay to the
Agent, for immediate payment to the L/C Issuer, in lawful money
of the United States and in immediately available funds, an
amount equal to such Bank's ratable portion of the amount of such
Unpaid Drawing.
(iii) The obligation of each Bank to make Credit
Loans in respect of each Mandatory Borrowing and to make payments
under the preceding subparagraph (d)(ii) shall be absolute and
unconditional and irrevocable and not subject to any
qualification or exception whatsoever (except as set forth in
this subsection 2.2(d)(iii)), and shall be made in accordance
with the terms and conditions of this Agreement under all
circumstances and shall not be subject to any conditions set
forth in Article 4 hereof or otherwise affected by any
circumstance including, without limitation: (1) the occurrence or
continuance of a Default or Event of Default (except that the
Banks shall not, and shall not have any obligation to, make any
Credit Loan in respect of a Mandatory Borrowing after an event of
the type specified in subsection 8.6(a) hereof has occurred); (2)
any adverse change in the business condition (financial or
otherwise), operations, performance, properties or prospects of
any Loan Party; (3) any breach of this Agreement or any
Application or other Loan Documents by the Borrowers; (4) any
setoff, counterclaim, recoupment, defense or other right which
such Bank or the Borrowers may have at any time against the L/C
Issuer, any other Bank, or any beneficiary named in any L/C
Document in connection herewith or otherwise; (5) the validity,
sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (6) any
lack of validity or enforcement of this Agreement or any of the
Loan Documents; (7) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing,
provided that such circumstances or happenings shall not have
constituted gross negligence or willful misconduct of the L/C
Issuer. The Borrowers agree that any Bank purchasing a
participation in any L/C Document from the L/C Issuer may, to the
fullest extent permitted by law, exercise all of its rights of
payment with respect to such participation as fully as if such
Bank were the direct creditor of the Borrowers in the amount of
such participation.
(iv) If the L/C Issuer receives a payment on
account of an Unpaid Drawing with respect to any L/C Document as
to which any other Bank has funded its participation pursuant to
subparagraph (d)(iii) above, the L/C Issuer shall, within one
Business Day, pay to the Agent, and the Agent shall, within one
Business Day, pay to each Bank which funded its participation
therein, in lawful money of the United States and in the kind of
funds so received, an amount equal to such Bank's ratable share
thereof.
(v) If any payment received on account of any
reimbursement obligation with respect to any L/C Document and
distributed to a Bank as a participant under paragraph (iv) is
thereafter recovered from the L/C Issuer thereof in connection
with any bankruptcy or insolvency proceeding relating to the
Borrower(s) or otherwise, each Bank which received such
distribution shall, upon demand by the Agent, repay to the L/C
Issuer such Bank's ratable share of the amount so recovered
together with an amount equal to such Bank's ratable share
(according to the proportion of (1) the amount of such Bank's
required repayment to (2) the total amount so recovered) of any
interest or other amount paid or payable by the L/C Issuer in
respect of the total amount so recovered.
(e) Non-Liability. The Borrowers assume all risks of
the acts or omissions of any beneficiary or transferee of any L/C
Document with respect to its use thereof. None of the Agent, the
L/C Issuer, or any other Bank, nor any of their respective
officers or directors, shall be liable or responsible for: (1)
the use that may be made of any L/C Document or any acts or
omissions of any beneficiary or transferee in connection
therewith; (2) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (3) payment by the L/C Issuer against
presentation of documents that do not comply with the terms of
the L/C Documents issued by the L/C Issuer, except that the
Borrowers shall have a claim against the L/C Issuer, and the L/C
Issuer shall be liable to the Borrowers, to the extent of any
direct, but not consequential, damages suffered by the Borrowers
that the Borrowers prove were caused solely by (A) the L/C
Issuer's willful misconduct or gross negligence in determining
whether documents presented under any L/C Document comply with
the terms of such L/C Document or (B) the L/C Issuer's willful
failure to make lawful payment under a L/C Document after the
presentation to it of a draft and documents and/or certificates
strictly complying with the terms and conditions thereof; (4) for
errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they are in cipher; (5) for errors in
interpretation of technical terms; (6) for any loss or delay in
the transmission or otherwise of any document required in order
to make a drawing under any such L/C Document or of the proceeds
thereof; and (6) for any consequence arising from causes beyond
the control of the L/C Issuer, including, without limitation, any
government acts. The Uniform Customs and Practice for
Documentary Credits as most recently published by the
International Chamber of Commerce shall be deemed a part of this
Section 2.2 as if incorporated herein in all respects and shall
apply to the L/Cs.
(f) Indemnification. In addition to amounts payable
as elsewhere provided in this Agreement, without duplication, the
Borrowers agree to indemnify and save harmless the Agent and each
Bank including the L/C Issuer from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees and allocated
costs of internal counsel) which such Agent, Bank or L/C Issuer
may incur or be subject to as a consequence, direct or indirect,
of the issuance of any L/C Document or any action or proceeding
relating to a court order, injunction, or other process or decree
restraining or seeking to restrain the L/C Issuer or the Agent
from paying any amount under any L/C Document or the failure of
the L/C Issuer to honor a drawing under any L/C Document issued
by such Issuer as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de
facto government or governmental authority, except that no such
Person shall be entitled to indemnification for matters caused
solely by such Person's gross negligence or willful misconduct.
Without modifying the foregoing, and anything contained herein to
the contrary notwithstanding, the Borrowers shall cause each L/C
issued for its account to be canceled and returned to the L/C
Issuer thereof on or before its expiration date.
Section 2.3 Notices Relating to Loans.
The Borrowers shall give the Agent written notice of
each termination or reduction of the Commitments, each borrowing,
conversion, repayment and prepayment of each Loan and of the
duration of each Interest Period applicable to each LIBOR Loan
(in each case, a "Borrowing Notice"). Each such written notice
shall be irrevocable and shall be effective only if received by
the Agent not later than 11 a.m., New York City time (except as
otherwise specified in subsection (d) below with respect to
Designated Rate Loans), on the date that is:
(a) In the case of each notice of termination or
reduction of the Commitments, five (5) Business Days prior to the
date of the related termination or reduction;
(b) In the case of each notice of borrowing and
repayment of, or conversion into, Prime Rate Loans, one (1)
Business Day prior to the date of the related borrowing or
repayment or conversion;
(c) In the case of each notice of borrowing or
repayment of, or conversion into, LIBOR Loans, or the duration of
an Interest Period for LIBOR Loans, three (3) LIBOR Business Days
prior to the date of the related borrowing, repayment or
conversion or the first day of such Interest Period with respect
to LIBOR Loans denominated in Dollars, and four (4) LIBOR
Business Days with respect to LIBOR Loans denominated in
Alternative Currency; and
(d) In the case of each notice of borrowing or
prepayment of, or conversion into, Designated Rate Loans, not
less than four (4) LIBOR Business Days prior to the requested
date of borrowing or conversion or related date of prepayment.
Upon the Agent's receipt of the Borrowing Notice with respect to
the borrowing of, or conversion into, the Designated Rate Loan,
the Agent shall thereafter notify the Borrowers, which notice may
be telephonic or written (the "Designated Rate Notice") of the
interest rate that the Banks are willing to make available to the
Borrower with respect to the Interest Period for the Term Loan.
Upon the Borrowers' receipt of the Designated Rate Notice, the
Borrowers may choose to accept the terms set forth therein by
delivering to the Agent not later than one-half (1/2) of one hour
after the time of the Agent's Designated Rate Notice, a written
acceptance thereof (which acceptance may be by telephone, if it
is followed by written confirmation given no later than the next
Business Day). Notwithstanding anything to the contrary
contained in this Agreement, in the event the Borrowers
(i) initially borrow the Term Loans at the Designated Rate, or
(ii) elect to convert the Term Loans into a Designated Rate Loan,
such borrowing or conversion, as the case may be, shall be of the
entire outstanding principal balance of the Term Loan as at the
related date of borrowing or conversion and the amount of the
unused Total Term Commitment, if any, as at such date, shall no
longer be available.
Each such notice of termination or reduction shall
specify the amount thereof. Each such notice of borrowing,
conversion, repayment or prepayment shall specify the amount
(subject to Section 2.1 hereof) and Type of Loans to be borrowed,
converted, repaid or prepaid (and, in the case of a conversion,
the Type of Loans to result from such conversion), the date of
borrowing, conversion, repayment or prepayment (which shall be:
(i) a Business Day in the case of each borrowing or repayment of
Prime Rate Loans, and (ii) a LIBOR Business Day in the case of
each borrowing, prepayment, or repayment of Fixed Rate Loans and
each conversion of or into a Fixed Rate Loan). Each such notice
of the duration of an Interest Period shall specify the Loans to
which such Interest Period is to relate. The Agent shall notify
the Banks of the content of each such Borrowing Notice promptly
after its receipt thereof.
Section 2.4 Disbursement of Loan Proceeds.
The Borrowers shall give the Agent notice of each
borrowing hereunder as provided in Section 2.3 hereof and the
Agent shall promptly notify the Banks thereof. Not later than
11:00 a.m., New York City time, on the date specified for each
borrowing hereunder, each Bank shall transfer to the Agent, by
wire transfer or otherwise, but in any event in immediately
available funds, the amount of the Loan to be made by it on such
date, and the Agent, upon its receipt thereof, shall disburse
such sum to the Borrowers by depositing the amount thereof in an
account of the Borrowers, or any of them, designated by the
Borrowers maintained with the Agent.
Section 2.5 Notes.
(a) The Term Loan made by each Bank shall be evidenced
by a single joint and several promissory note of the Borrowers in
substantially the form of Exhibit A-1 annexed hereto (each, a
"Term Note" and, collectively, the "Term Notes"). Each Term Note
shall be dated the date hereof, shall be payable to the order of
such Bank in a principal amount equal to such Bank's Term
Commitment, and shall otherwise be duly completed. The Term
Notes shall be subject to repayment as provided in Section 2.1
and 2.6 hereof.
(b) The Credit Loans made by each Bank shall be evi-
denced by a single joint and several promissory note of the
Borrowers in substantially the form of Exhibit A-2 hereto (each,
a "Credit Note" and collectively, the "Credit Notes"; the Term
Notes and the Credit Notes are hereinafter sometimes referred to
individually as a "Note" and collectively as the "Notes"). Each
Credit Note shall be dated the date hereof, shall be payable to
the order of such Bank in a principal amount equal to such Bank's
Revolving Credit Commitment as originally in effect, and shall
otherwise be duly completed. The Credit Notes shall be payable
as provided in Sections 2.1 and 2.6 hereof.
(c) Each Bank shall enter on a schedule with respect
to its Note a notation with respect to each Loan made hereunder
of: (i) the date and principal amount thereof and (ii) each
payment and repayment 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 joint and several obligation of
the Borrowers to repay the Loans in accordance with their
respective terms as set forth herein.
Section 2.6 Payment of Loans; Voluntary Changes in
Commitment; Mandatory Repayments.
(a) (i) All outstanding Credit Loans shall be paid in
full not later than the Revolving Credit Commitment Termination
Date.
(ii) The outstanding principal amount of the Term
Loans shall be paid in full in one installment on the Term
Maturity Date.
(b) The Borrowers shall be entitled to terminate or
reduce the Total Commitment and repay or prepay the principal
amount of the Loans provided that the Borrowers shall give notice
of such termination, reduction, prepayment or repayment to the
Agent as provided in Section 2.3 hereof and that any repayment or
prepayment or partial reduction of the Total Commitment shall be
in the minimum aggregate Dollar Amount of Three Million
($3,000,000) Dollars and Dollar Amount multiples of One Million
($1,000,000) Dollars in excess thereof. Any such termination or
reduction shall be permanent and irrevocable. Any repayment of a
Fixed Rate Loan shall be on the last day of the relevant Interest
Period and all repayments or prepayments of principal (whether
mandatory or voluntary) shall be applied first to Prime Rate
Loans, then to the fewest number of Types of LIBOR Loans as
possible and then to the Designated Rate Loans. Each partial
reduction of the Total Commitment shall be applied to the Total
Revolving Commitment or the Total Term Commitment, as the case
may be, pro rata according to each Bank's respective Commitment
(with a proportionate reduction of the amount of the Revolving
Credit Commitments otherwise available for the borrowing of
Credit Loans denominated in Alternative Currency).
(c) Notwithstanding any other provision of this
Agreement, the Loans shall be repaid as and when necessary to
cause the aggregate principal Dollar Amount of (x) Loans
outstanding, plus (y) L/C Obligations not to exceed the Borrowing
Base, as at any date of determination thereof.
(d) If at any time the principal balance of the Credit
Loans outstanding denominated in Alternative Currency exceeds the
Dollar Amount of $25,000,000 (as determined in accordance with
Section 1.3 hereof), the Borrowers shall promptly (and in any
event no later than two (2) Business Days after becoming aware
thereof) repay the Credit Loans denominated in Alternative
Currency to the extent necessary to reduce the aggregate
outstanding principal amount thereof to an amount equal to or
less than the Dollar Amount of $25,000,000.
(e) If any of the Borrowers shall at any time agree to
a Disposition, the Borrowers shall promptly notify the Agent of
such Disposition and repay the Loans in an amount equal to the
aggregate Net Proceeds of such Disposition immediately upon
receipt thereof.
(f) If Omega (or any of its Subsidiaries) shall make
any public or private issuance of Indebtedness or equity (other
than in connection with any dividend reinvestment program(s)),
Omega shall promptly notify the Agent of such issuance and repay
the Credit Loans in an amount equal to the aggregate Net Issuance
Proceeds of such issuance immediately upon receipt thereof.
Section 2.7 Interest.
(a) The Borrowers shall pay to the Agent for the
account of each Bank interest on the unpaid principal amount of
each Loan made by such Bank for the period commencing on the date
of such Loan until such Loan shall be paid in full, at the
following rates per annum:
(i) During such periods that such Loan is a Prime
Rate Loan, the Alternate Base Rate;
(ii) During such periods that such Loan is a LIBOR
Loan, for each Interest Period relating thereto, the LIBOR Rate
for such Loan for such Interest Period plus the Applicable
Margin; and
(iii) During the period (if any) that the Term Loan
is a Designated Rate Loan, for the Interest Period relating
thereto, the Designated Rate plus the Applicable Margin as in
effect on the first day of such Interest Period.
(b) Notwithstanding the foregoing, the Borrowers shall
pay interest on any Loan or any installment thereof, and on any
other amount (including Unpaid Drawings) payable by the Borrowers
hereunder (to the extent permitted by law) that shall not be paid
in full when due (whether at stated maturity, by acceleration or
otherwise) for the period commencing on the due date thereof
until the same is paid in full at the applicable Post-Default
Rate.
(c) Except as provided in the next sentence, accrued
interest on each Loan shall be payable: (i) in the case of each
Prime Rate Loan and the Designated Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a LIBOR Loan, on the last
day of each Interest Period for such Loan (and, if such Interest
Period exceeds three months' duration, quarterly, commencing on
the first quarterly anniversary of the first day of such Interest
Period), and (iii) in the case of any Loan, upon the payment,
repayment or prepayment thereof or the conversion thereof into a
Loan of another Type (but only on the principal so paid, repaid
or converted). Interest that is payable at the Post-Default Rate
shall be payable from time to time on demand of the Agent.
Promptly after the establishment of any interest rate provided
for herein or any change therein, the Agent will notify the Banks
and the Borrowers thereof, provided that the failure of the Agent
to so notify the Banks and the Borrowers shall not affect the
obligations of the Borrowers hereunder or under any of the Notes
in any respect.
(d) In addition to the interest accruing under
subsection (a) above, in the event the sum of the daily average
Dollar Amount of the outstanding Credit Loans and L/C Obligations
exceeds 50% of the Total Revolving Credit Commitment for any
period in excess of twelve (12) consecutive months (each, a "Test
Period"), the Borrowers shall pay additional interest on the
daily average Dollar Amount of the Credit Loans outstanding
during such Test Period at a rate per annum equal to one-eighth
of one (.125%) percent. Such additional interest shall be
payable to the Agent for the account of each Bank which maintains
a Revolving Credit Commitment on the first Quarterly Date
immediately succeeding the last day of each Test Period and if
any such Quarterly Date would otherwise end after the Revolving
Credit Commitment Termination Date, on the Revolving Credit
Commitment Termination Date.
(e) Anything in this Agreement or any of the Notes to
the contrary notwithstanding, the obligation of the Borrowers to
make payments of interest shall be subject to the limitation that
payments of interest shall not be required to be made to any Bank
to the extent that such Bank's receipt thereof would not be
permissible under the law or laws applicable to such Bank
limiting rates of interest that may be charged or collected by
such Bank. Any such payments of interest that are not made as a
result of the limitation referred to in the preceding sentence
shall be made by the Borrowers to such Bank on the earliest
interest payment date or dates on which the receipt thereof would
be permissible under the laws applicable to such Bank limiting
rates of interest that may be charged or collected by such Bank.
Such deferred interest shall not bear interest.
Section 2.8 Fees.
(a) Simultaneously with the execution and delivery of
this Agreement, the Borrowers shall pay to the Agent, for the
benefit of the Banks pro rata according to their respective
Commitments, a non-refundable origination fee (the "Origination
Fee") in an amount equal to (x) (.375%) percent of the Total Term
Commitment, plus (y) (.25%) percent of the increase in the Total
Revolving Credit Commitment from the Original Loan Agreement
(which shall be for the account of only those Banks participating
in such increase).
(b) The Borrowers shall pay to the Agent for the
account of the Banks, pro rata according to their respective
Commitments, a commitment fee (the "Commitment Fee") on the daily
average amount of such Bank's Unused Commitment, for the period
from the date hereof to and including the earlier of (i) the date
such Bank's Commitment is terminated, and (ii) the Revolving
Credit Commitment Termination Date or the last day of the Term
Credit Period, as applicable, at the rate per annum equal to the
Commitment Fee Percentage from time to time in effect on the
amount of the Total Commitment. The accrued Commitment Fee shall
be payable on the Quarterly Dates, and on the earlier of (i) the
date the Commitments are terminated, or (ii) the Revolving Credit
Commitment Termination Date or the last day of the Term Credit
Period, as applicable, and in the event the Borrowers reduce the
Total Commitment as provided in subsection 2.6(b) hereof, on the
effective date of such reduction.
(c) The Borrowers shall pay to the Agent, for its own
account: (i) an annual agency fee (the "Agency Fee"), and (ii) an
arrangement fee (the "Arrangement Fee"), as set forth in a
separate written agreement among the Borrowers and the Agent.
(d) The Borrowers shall pay to the Agent for the
account of the Banks, pro rata according to their respective
Revolving Credit Commitments, a letter of credit fee (the "L/C
Fee") on the daily average amount of the aggregate face amount of
the L/C's, for the period from the date hereof to and including
the earlier of the date such Bank's Revolving Credit Commitment
is terminated and the Revolving Credit Commitment Termination
Date, at the rate per annum equal to the L/C Fee Percentage from
time to time in effect on the amount of the Total Revolving
Credit Commitment. The accrued L/C Fee shall be payable on the
Quarterly Dates, and on the earlier of the date the Revolving
Credit Commitments are terminated or the Revolving Credit
Commitment Termination Date.
(e) The Origination Fee, the Commitment Fee, the
Agency Fee, the Arrangement Fee and the L/C Fee are hereinafter
sometimes referred to individually as a "Fee" and collectively as
the "Fees".
Section 2.9 Use of Proceeds of Loans.
The proceeds of the Loans hereunder have been and may
continue to be used by the Borrowers solely: (a) for the
repayment in full of all indebtedness outstanding under the
Existing Credit Facility (as defined in the Original Loan
Agreement), (b) to acquire Facilities, (c) to extend or acquire
loans secured by Mortgages, (d) to maintain a $5,000,000 working
capital balance, (e) for the issuance of L/C's to beneficiaries
designated by the Borrowers, and (f) for general corporate
purposes (including those permitted under Section 7.5 hereof),
provided, however, the sum of the borrowings under this Agreement
for the purposes set forth in clauses (d) through (f) shall at no
time exceed the aggregate amount of $15,000,000 at any one time
outstanding, (g) subject to the limitation set forth in Schedule
7.8(II) (Permitted Investments), to make capital investments in
and/or subordinated loans to a United Kingdom company (which in
any event, from and after September 30, 1996 may not comprise
more than 40% of the total capitalization of such United Kingdom
company), whose principal business is owning Facilities or
extending loans on the security of Mortgages with respect to
Facilities located in the United Kingdom, and (h) capital
investments permitted by subsection 7.8(c) hereof.
Section 2.10 Computations; Denominations
of Alternative Currency Loans.
(a) Interest on all Loans (excepting Loans denominated
in an Alternative Currency) and each Fee shall be computed on the
basis of a year of 360 days and actual days elapsed (including
the first day but excluding the last) occurring in the period for
which payable. Interest on all Loans denominated in the
Alternative Currency shall be computed on the basis of a year of
365 (or 366, as applicable) days and actual days elapsed
(including the first day but excluding the last) occurring in the
period for which payable.
(b) Whenever, pursuant to the terms of this Agreement,
an existing Loan denominated in an Alternative Currency is to be
continued, in whole or in part, the Loan shall be continued in
the same amount of the Alternative Currency subject, however, to
all other terms and conditions of this Agreement.
Section 2.11 Minimum Amounts of Borrowings,
Conversions and Repayments.
Except for borrowings, conversions and repayments that
exhaust the full remaining amount of a Commitment (in the case of
borrowings) or result in the conversion or repayment of all Loans
of a particular Type (in the case of conversions or repayments)
or conversions made pursuant to Section 2.20 or Section 2.21
hereof, each borrowing from each Bank, each conversion of Loans
of one Type into Loans of another Type and each repayment or
prepayment of principal of Loans hereunder shall be in a minimum
Dollar Amount of One Million ($1,000,000) Dollars, in the case of
Prime Rate Loans, and Three Million ($3,000,000) Dollars, in the
case of Fixed Rate Loans, and in either case if in excess
thereof, in integral Dollar Amount multiples of One Hundred
Thousand ($100,000) Dollars (borrowings, conversions and
repayments of different Types of Loans at the same time hereunder
to be deemed separate borrowings, conversions and repayments for
purposes of the foregoing, one for each Type). The Agent and the
Borrowers may make immaterial mutually convenient adjustments to
the thresholds and multiples set forth above in respect of LIBOR
Loans in Alternative Currency.
Section 2.12 Time and Method of Payments.
(a) All payments of principal, interest, Fees and
other amounts (including indemnities) payable by the Borrowers
hereunder shall be made in Dollars (or, in the case of payments
of principal or interest on Loans denominated in an Alternative
Currency, in the Alternative Currency borrowed), in immediately
available funds, to the Agent at the Principal Office not later
than 11:00 a.m., New York City time, on the date on which such
payment shall become due (and the Agent or any Bank for whose
account any such payment is to be made may, but shall not be
obligated to, debit the amount of any such payment that is not
made by such time to any ordinary deposit account of the
Borrowers, or any of them, with the Agent or such Bank, as the
case may be). Additional provisions relating to payments are set
forth in Section 10.3 hereof. Each payment received by the Agent
hereunder for the account of a Bank shall be paid promptly to
such Bank, in like funds, for the account of such Bank's Lending
Office for the Loan in respect of which such payment is made.
(b) All payments of principal of and interest on any
Fixed Rate Loan shall be made by the Borrowers in the currency
borrowed (the "Specified Currency") in the manner and at the
address (the "Specified Place") specified in subsection 2.12(a)
above. Payment of such obligations shall not be discharged by an
amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the
amount so paid on conversion to the Specified Currency and
transferred to the Specified Place under normal banking
procedures does not yield the amount of the Specified Currency at
the Specified Place due hereunder. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum
due hereunder in the Specified Currency into another currency
(the "Judgment Currency"), the rate of exchange which shall be
applied shall be that at which in accordance with normal banking
procedures the Agent could purchase the Judgment Currency with
that amount of the Specified Currency on the Business Day next
preceding that on which such judgment is rendered. The obliga-
tion of the Borrowers in respect of any such sum due from them to
the Agent or any Bank hereunder (an "Entitled Person") shall,
notwithstanding the rate of exchange actually applied in
rendering such judgment, be discharged only to the extent that on
the Business Day following receipt by such Entitled Person of any
sum adjudged to be due hereunder or under the Notes in the
Judgment Currency, such Entitled Person may in accordance with
normal banking procedures purchase and transfer to the Specified
Place the Specified Currency with the amount of the Judgment
Currency so adjudged to be due; and the Borrowers hereby, as a
separate obligation and notwithstanding any such judgment, agree
to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in the Specified Currency, any
difference between the sum originally due to such Entitled Person
in the Specified Currency and the amount of the Specified
Currency so purchased and transferred.
Section 2.13 Lending Offices.
The Loans of each Type made by each Bank shall be made
and maintained at such Bank's applicable Lending Office for Loans
of such Type.
Section 2.14 Several Obligations.
The failure of any Bank to make any Loan to be made by
it on the date specified therefor shall not relieve the other
Banks of their respective obligations to make their Loans on such
date, but no Bank shall be responsible for the failure of the
other Banks to make Loans to be made by such other Banks.
Section 2.15 Pro Rata Treatment Among Banks.
Except as otherwise provided herein: (a) each
borrowing from the Banks under Section 2.1 hereof will be made
from the Banks and each payment of each Fee (other than the
Agency Fee and the Arrangement Fee) shall be made for the account
of the Banks pro rata according to the Dollar Amount of their
respective Commitments; (b) each partial reduction of the Total
Commitment shall be applied to the Commitments of the Banks pro
rata according to each Bank's respective Commitment; (c) each
payment and repayment of principal of or interest on Loans will
be made to the Agent for the account of the Banks pro rata in
accordance with the respective unpaid principal amounts of the
Loans held by such Banks; and (d) each conversion of Loans of a
particular Type shall be made pro rata among the Banks holding
Loans of such type according to the respective principal amounts
of such Loans held by such Banks.
Section 2.16 Non-Receipt of Funds by the Agent.
Unless the Agent shall have been notified by a Bank or
the Borrowers (the "Payor") prior to the date on which such Bank
is to make payment to the Agent of the proceeds of a Loan to be
made by it hereunder or the Borrowers are to make a payment to
the Agent for the account of one or more of the Banks, as the
case may be (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the Agent,
the Agent may assume that the Required Payment has been made and
may, in reliance upon such assumption (but shall not be required
to), make the amount thereof available to the intended recipient
on such date and, if the Payor has not in fact made the Required
Payment to the Agent, the recipient of such payment shall, on
demand, repay to the Agent the amount made available to it
together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a
rate per annum equal (i) when the recipient is a Bank, the
Federal Funds Rate for such day for amounts denominated in or
calculated with reference to Dollars, and the applicable LIBOR
Base Rate for amounts denominated in or calculated with reference
to an Alternative Currency, or (ii) the rate of interest appli-
cable to such Loan (when the recipient is a Borrower).
Section 2.17 Sharing of Payments
and Set-Off Among Banks.
The Borrowers hereby agree that, in addition to (and
without limitation of) any right of setoff, banker's lien or
counterclaim a Bank may otherwise have, each Bank shall be
entitled, at its option, to offset balances held by it at any of
its offices against any principal of or interest on any of its
Loans hereunder or any Fee payable to it, that is not paid when
due (regardless of whether such balances are then due to the
Borrowers), in which case it shall promptly notify the Borrowers
and the Agent thereof, provided that its failure to give such
notice shall not affect the validity thereof. If a Bank shall
effect payment of any principal of or interest or Fee on Loans
held by it under this Agreement through the exercise of any right
of set-off, banker's lien, counterclaim or similar right, it
shall promptly purchase from the other Banks participations in
the Loans held by the other Banks in such Dollar Amounts, and
make such other adjustments from time to time as shall be
equitable, to the end that all the Banks shall share the benefit
of such payment pro rata in accordance with the unpaid Dollar
Amount of principal and interest or Fee on the Loans held by each
of them. To such end all the Banks shall make appropriate
adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Borrowers agree that any Bank so purchasing a
participation in the Loans held by the other Banks may, to the
fullest extent permitted by law, exercise all rights of payment
(including the rights of set-off, banker's lien, counterclaim or
similar rights) with respect to such participation as fully as if
such Bank were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Bank
to exercise any such right or shall affect the right of any Bank
to exercise and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the
Borrowers.
Section 2.18 Conversion of Loans.
The Borrowers shall have the right to convert Loans of
one Type into Loans of another Type from time to time, provided
that: (i) the Borrowers shall give the Agent notice of each such
conversion as provided in Section 2.3 hereof; (ii) LIBOR Loans
may be converted only on the last day of an Interest Period for
such Loans; (iii) no LIBOR Loan shall be continued as or
converted into another LIBOR Loan, or Prime Rate Loan converted
into a LIBOR Loan for a new Interest Period, if the principal
Dollar Amount (determined as of the date of any proposed
conversion or continuation thereof) of the aggregate Credit Loans
outstanding after giving effect to such continuation or
conversion would exceed the Total Revolving Credit Commitment
then in effect; (iv) no Prime Rate Loan may be converted into a
LIBOR Loan or LIBOR Loan continued as or converted into another
Fixed Rate Loan if on the proposed date of conversion a Default
or an Event of Default exists; and (v) there may be one
conversion of the Term Loan(s) into a Designated Rate Loan with a
single Interest Period relating thereto. The Agent shall use its
best efforts to notify the Borrowers of the effectiveness of such
conversion, and the new interest rate to which the converted
Loans are subject, as soon as practicable after the conversion;
provided, however, that any failure to give such notice shall not
affect the Borrowers' obligations, or the Agent's or the Banks'
rights and remedies, hereunder in any way whatsoever.
Section 2.19 Additional Costs; Capital Requirements.
(a) In the event that any existing or future law or
regulation, guideline or interpretation thereof, by any court or
administrative or governmental authority (foreign or domestic)
charged with the administration thereof, or compliance by any
Bank with any request or directive (whether or not having the
force of law) of any such authority shall impose, modify or deem
applicable or result in the application of, any capital
maintenance, capital ratio or similar requirement against loan
commitments or other obligations entered into by any Bank
hereunder, and the result of any event referred to above is to
impose upon any Bank or increase any capital requirement
applicable as a result of the making or maintenance of such
Bank's Commitment or the obligation of such Bank hereunder with
respect to such Commitment or otherwise (which imposition of
capital requirements may be determined by each Bank's reasonable
allocation of the aggregate of such capital increases or
impositions), then, upon demand made by such Bank as promptly as
practicable after it obtains knowledge that such law, regulation,
guideline, interpretation, request or directive exists and
determines to make such demand, the Borrowers shall immediately
pay to such Bank from time to time as specified by such Bank
additional amounts which shall be sufficient to compensate such
Bank for such imposition of or increase in capital requirements
together with interest on each such amount from the date demanded
until payment in full thereof at the Post-Default Rate. A
certificate setting forth in reasonable detail the amount
necessary to compensate such Bank as a result of an imposition of
or increase in capital requirements submitted by such Bank to the
Borrowers shall be conclusive, absent manifest error, as to the
amount thereof. All references to any "Bank" shall be deemed to
include any participant in such Bank's Commitment.
(b) In the event that any Regulatory Change shall:
(i) change the basis of taxation of any amounts payable to any
Bank under this Agreement or the Notes in respect of any Loans
including, without limitation, Fixed Rate Loans (other than taxes
imposed on the overall net income of such Bank for any such Loans
by the United States of America or the jurisdiction in which such
Bank has its principal office); or (ii) impose or modify any
reserve, Federal Deposit Insurance Corporation premium or
assessment, special deposit or similar requirements relating to
any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Bank (including any of such Loans
or any deposits referred to in the definition of "LIBOR Base
Rate" in Article 1 hereof); or (iii) impose any other conditions
affecting this Agreement in respect of Loans or L/C's, including,
without limitation, Fixed Rate Loans (or any of such extensions
of credit, assets, deposits or liabilities); and the result of
any event referred to in clause (i), (ii) or (iii) above shall be
to increase such Bank's costs of making or maintaining any Loans
or L/C's including, without limitation, Fixed Rate Loans, or its
Commitment, or to reduce any amount receivable by such Bank
hereunder in respect of its Commitment (such increases in costs
and reductions in amounts receivable are hereinafter referred to
as "Additional Costs") in each case, only to the extent, with
respect to Fixed Rate Loans, that such Additional Costs are not
included in the LIBOR Base Rate applicable to LIBOR Loans or the
Designated Rate applicable to Designated Rate Loans, then, upon
demand made by such Bank as promptly as practicable after it
obtains knowledge that such a Regulatory Change exists and
determines to make such demand (a copy of which demand shall be
delivered to the Agent), the Borrowers shall pay to such Bank
from time to time as specified by such Bank, additional amounts
which shall be sufficient to compensate such Bank for such
increased cost or reduction in amounts receivable by such Bank
from the date of such change, together with interest on each such
amount from the date demanded until payment in full thereof at
the Post-Default Rate. All references to any "Bank" shall be
deemed to include any participant in such Bank's Commitment.
(c) Without limiting the effect of the foregoing
provisions of this Section 2.19, in the event that, by reason of
any Regulatory Change, any Bank either: (i) incurs Additional
Costs based on or measured by the excess above a specified level
of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the
interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets
of such Bank which includes LIBOR Loans, or (ii) becomes subject
to restrictions on the amount of such a category of liabilities
or assets that it may hold, then, if such Bank so elects by
notice to the Borrowers (with a copy to the Agent), the
obligation of such Bank to make, and to convert Loans of any
other Type into, Loans of such Type hereunder shall be suspended
until the date such Regulatory Change ceases to be in effect (and
all Loans of such Type then outstanding shall be converted into
Prime Rate Loans or into LIBOR Loans of another duration as the
case may be, in accordance with Sections 2.18 and 2.22).
(d) In addition to any other amounts payable by the
Borrowers hereunder, each Bank may require the Borrowers to pay,
contemporaneously with each payment of interest on Fixed Rate
Loans which are denominated in pounds sterling, additional
interest on the related Fixed Rate Loan of such Bank at the
percentage calculated from time to time by such Bank to be the
percentage required to fully compensate such Bank for all reserve
costs, liabilities, expenses and assessments (other than reserve
costs, liabilities, expenses and assessments taken into account
in determining the interest rate applicable to such Fixed Rate
Loan) which have been incurred by such Bank (or its applicable
Lending Office) regarding the making, funding or maintaining of
such Fixed Rate Loan (including, without limitation, any and all
liquid asset maintenance requirements of the Bank of England). A
certificate of any Bank claiming compensation under the preceding
sentence, setting forth the additional interest to be paid to it
thereunder and setting forth in reasonable detail a reasonable
basis therefor, shall be conclusive in the absence of manifest
error, and in determining the amount of such interest, such Bank
may use any reasonable averaging and attribution methods. Any
Bank wishing to require payment of such additional interest (i)
shall so notify Borrowers and the Agent, in which case such
additional interest on the Fixed Rate Loans of such Bank
denominated in pounds sterling shall be payable in pounds
sterling to such Bank at the place indicated in such notice with
respect to each Interest Period commencing at least five (5)
Business Days after receipt by the Borrowers of such notice, and
(ii) shall notify the Borrowers at least five (5) Business Days
prior to each date on which interest is payable on such Fixed
Rate Loans of the amount then due it under this Section 2.19(d).
Following Borrowers' request made at least two (2) Business Days
prior to the delivery of any Borrowing Notice relating thereto,
the Agent and the Banks shall, prior to the making of a proposed
Fixed Rate Loan denominated in pounds sterling, provide notice to
the Borrowers of any such additional interest known at such time
to be payable with respect thereto.
(e) Determinations by any Bank for purposes of this
Section 2.19 of the effect of any Regulatory Change on its costs
of making or maintaining Loans or L/C's or on amounts receivable
by it in respect of Loans, and of the additional amounts required
to compensate such Bank in respect of any Additional Costs, shall
be set forth in writing in reasonable detail and shall be
conclusive, absent manifest error.
Section 2.20 Limitation on Types of Loans.
Anything herein to the contrary notwithstanding, if, on
or prior to the determination of an interest rate for any LIBOR
Loans for any Interest Period therefor, the Required Banks
determine (which determination shall be conclusive):
(a) by reason of any event affecting the money markets
in the United States of America or the London interbank market,
quotations of interest rates for the relevant deposits are not
being provided in the relevant amounts or for the relevant
maturities for purposes of determining the rate of interest for
such Loans under this Agreement;
(b) the rates of interest referred to in the
definition of "LIBOR Base Rate" in Article 1 hereof upon the
basis of which the rate of interest on any LIBOR Loans for such
period is determined, do not accurately reflect the cost to the
Banks of making or maintaining such Loans for such period; or
(c) with respect to LIBOR Loans in Alternative
Currency, that (i) deposits in the applicable Alternative
Currency in the amounts and maturities required to fund such Loan
will not be available to a Bank; (ii) a fundamental change has
occurred in the foreign exchange or interbank markets with
respect to the applicable Alternative Currency (including,
without limitation, changes in national or international
financial, political or economic conditions or currency exchange
rates or exchange controls); or (iii) it has become otherwise
materially impractical for a Bank to make such Loan in the
applicable Alternative Currency;
then the Agent shall give the Borrowers and each Bank prompt
notice thereof (and shall thereafter give the Borrowers and each
Bank prompt notice of the cessation, if any, of such condition),
and so long as such condition remains in effect, the Banks shall
be under no obligation to make Loans of such Type or to convert
Loans of any other Type into Loans of such Type and the Borrowers
shall, on the last day(s) of the then current Interest Period(s)
for the outstanding Loans of the affected Type either repay such
Loans in accordance with Section 2.6 hereof or convert such Loans
into Loans of another Type.
Section 2.21 Illegality.
Notwithstanding any other provision in this Agreement,
in the event that it becomes unlawful for any Bank or its
applicable Lending Office to: (a) honor its obligation to make
any Type of LIBOR Loans hereunder, or (b) maintain any Type of
LIBOR Loans hereunder, then such Bank shall promptly notify the
Borrowers thereof (with a copy to the Agent), describing such
illegality in reasonable detail (and shall thereafter promptly
notify the Borrowers and the Agent of the cessation, if any, of
such illegality), and such Bank's obligation to make such Type of
LIBOR Loans and to convert Prime Rate Loans into LIBOR Loans
hereunder shall, upon written notice given by such Bank to the
Borrowers, be suspended until such time as such Bank may again
make and maintain such type of LIBOR Loans and such Bank's
outstanding LIBOR Loans of such Type shall be converted into
Prime Rate Loans, in accordance with Sections 2.18 and 2.22
hereof.
Section 2.22 Certain Conversions pursuant
to Sections 2.19 and 2.21.
If the Loans of any Bank of a particular Type (Loans of
such Type are hereinafter referred to as "Affected Loans" and
such Type is hereinafter referred to as the "Affected Type") are
to be converted pursuant to Section 2.19 or 2.21 hereof, such
Bank's Affected Loans shall be converted into Prime Rate Loans,
or LIBOR Loans of another Type, as the case may be (the "New Type
Loans"), on the last day(s) of the then current Interest
Period(s) for the Affected Loans (or, in the case of a conversion
required by subsection 2.19(b) or Section 2.21 hereof, on such
earlier date as such Bank may specify to the Borrowers with a
copy to the Agent) and, until such Bank gives notice as provided
below that the circumstances specified in Section 2.19 or 2.21
hereof which gave rise to such conversion no longer exist:
(a) to the extent that such Bank's Affected Loans have
been so converted, all payments and repayments of principal which
would otherwise be applied to such Affected Loans shall be
applied instead to its New Type Loans;
(b) all Loans which would otherwise be made by such
Bank as Loans of the Affected Type shall be made instead as New
Type Loans and all Loans of such Bank which would otherwise be
converted into Loans of the Affected Type shall be converted
instead into (or shall remain as) New Type Loans.
Section 2.23 Indemnification.
The Borrowers shall pay to the Agent for the account of
each Bank, upon the request of such Bank through the Agent, such
amount or amounts as shall compensate such Bank for any loss
(including loss of profit), cost or expense incurred by such Bank
(as reasonably determined by such Bank) as a result of:
(a) any payment or repayment or conversion of a Fixed
Rate Loan held by such Bank on a date other than the last day of
an Interest Period for such Fixed Rate Loan except pursuant to
Sections 2.19 or 2.21 hereof; or
(b) any failure by the Borrowers to borrow a Fixed
Rate Loan held by such Bank on the date for such borrowing
specified in the relevant Borrowing Notice under Section 2.3
hereof, such compensation to include, without limitation, an
amount equal to: (i) any loss or expense suffered by such
Bank during the period from the date of receipt of such early
payment or repayment or the date of such conversion to the last
day of such Interest Period if the rate of interest obtainable
by such Bank upon the redeployment of an amount of funds equal
to such Bank's pro rata share of such payment, repayment or
conversion or failure to borrow or convert is less than the rate
of interest applicable to such Fixed Rate Loan for such Interest
Period, or (ii) any loss or expense suffered by such Bank in
liquidating LIBOR deposits prior to maturity which correspond
to such Bank's pro rata share of such payment, repayment,
conversion, failure to borrow or failure to convert. The
determination by each such Bank of the amount of any such
loss or expense, when set forth in a written notice to the
Borrowers, containing such Bank's calculation thereof in
reasonable detail, shall be presumed correct, in the absence
of manifest error.
<PAGE>
Article 3. Representations and Warranties.
Each of the Borrowers hereby represents and warrants to
the Banks and the Agent that:
Section 3.1 Organization.
(a) Each Borrower is duly organized and validly
existing under the laws of its state of organization and has the
power to own its assets and to transact the business in which it
is presently engaged and in which it proposes to be engaged.
Schedule 3.1 hereto accurately and completely lists, as to each
Borrower: (i) the state of incorporation or organization of each
such entity, (ii) as to each of them that is a corporation, the
classes and number of authorized and outstanding shares of
capital stock of each such corporation, and (iii) the business in
which each of such entities is engaged. All of the foregoing
shares or other equity interests that are issued and outstanding
have been duly and validly issued and are fully paid and non-
assessable. Except as set forth on Schedule 3.1, none of the
Borrowers has any Subsidiary.
(b) Each Borrower is in good standing in its
state of organization and in each state in which it is qualified
to do business. There are no jurisdictions other than as set
forth on Schedule 3.1 hereto in which the character of the
properties owned or proposed to be owned by each Borrower or in
which the transaction of the business of each Borrower as now
conducted or as proposed to be conducted requires or will require
such Borrower to qualify to do business and as to which failure
so to qualify could have a Material Adverse Effect on such
Borrower.
Section 3.2 Power, Authority, Consents.
Each Borrower has the power to execute, deliver
and perform the Loan Documents to be executed by it. Each
Borrower has the power to borrow hereunder and has taken all
necessary corporate action to authorize the borrowing hereunder
on the terms and conditions of this Agreement. Each Borrower has
taken all necessary action, corporate or otherwise, to authorize
the execution, delivery and performance of the Loan Documents to
be executed by it. No consent or approval of any Person
(including, without limitation, any stockholder of any Borrower),
no consent or approval of any landlord or mortgagee, no waiver of
any Lien or right of distraint or other similar right and no
consent, license, certificate of need, approval, authorization or
declaration of any governmental authority, bureau or agency, is
or will be required in connection with the execution, delivery or
performance by each Borrower or any other Loan Party, or the
validity or enforcement of the Loan Documents, except as set
forth on Schedule 3.2 hereto, each of which either has been duly
and validly obtained on or prior to the date hereof and is now in
full force and effect, or is designated on Schedule 3.2 as waived
by the Required Banks.
Section 3.3 No Violation of Law or Agreements.
The execution and delivery by each Borrower of
each Loan Document to which it is a party and performance by it
hereunder and thereunder, will not violate any provision of law
and will not conflict with or result in a breach of any order,
writ, injunction, ordinance, resolution, decree, or other similar
document or instrument of any court or governmental authority,
bureau or agency, domestic or foreign, or any certificate of
incorporation or by-laws of each Borrower, or create (with or
without the giving of notice or lapse of time, or both) a default
under or breach of any agreement, bond, note or indenture to
which each Borrower is a party, or by which each Borrower is
bound or any of their respective properties or assets is
affected, except for such defaults and breaches which in the
aggregate could not have a Material Adverse Effect on the
Borrowers, or result in the imposition of any Lien of any nature
whatsoever upon any of the properties or assets owned by or used
in connection with the business of each Borrower.
Section 3.4 Due Execution, Validity, Enforceability.
This Agreement and each other Loan Document to
which each Borrower is a party has been duly executed and
delivered by each Borrower that is a party thereto and each
constitutes the valid and legally binding obligation of each
Borrower, enforceable in accordance with its terms, except as
such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws,
now or hereafter in effect, relating to or affecting the
enforcement of creditors' rights generally and except that the
remedy of specific performance and other equitable remedies are
subject to judicial discretion.
Section 3.5 Title to Properties.
Each of the Borrowers has good and marketable
title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary course of its
business, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect.
Section 3.6 Judgments, Actions, Proceedings.
Except as set forth on Schedule 3.6 hereto, there
are no outstanding judgments, actions or proceedings, including,
without limitation, any Environmental Proceeding, pending before
any court or governmental authority, bureau or agency, with
respect to or, to the best of each Borrower's knowledge,
threatened against or affecting such Borrower involving, (i) in
the case of any court proceeding, a claim in excess of Two
Million Five Hundred Thousand ($2,500,000) Dollars, and (ii) in
the case of any outstanding judgments, in excess of One Million
($1,000,000) Dollars, nor, to the best of each Borrower's
knowledge, is there any reasonable basis for the institution of
any such action or proceeding that is probable of assertion, nor
are there any such actions or proceedings in which any Borrower
is a plaintiff or complainant.
Section 3.7 No Defaults, Compliance With Laws.
Except as set forth on Schedule 3.7 hereto, none
of the Borrowers is in default under any agreement, ordinance,
resolution, decree, bond, note, indenture, order or judgment to
which it is a party or by which it is bound, or any other agree-
ment or other instrument by which any of the properties or assets
owned by it or used in the conduct of its business is affected,
which default could have a Material Adverse Effect on such
Borrower. Each Borrower has complied and is in compliance in all
respects with all applicable laws, ordinances and regulations,
resolutions, ordinances, decrees and other similar documents and
instruments of all courts and governmental authorities, bureaus
and agencies, domestic and foreign, including, without
limitation, all applicable provisions of the Americans with
Disabilities Act (42 U.S.C. 12101-12213) and the regulations
issued thereunder and all applicable Environmental Laws and
Regulations, non-compliance with which could have a Material
Adverse Effect on such Borrower.
Section 3.8 Burdensome Documents.
Except as set forth on Schedule 3.8 hereto, none
of the Borrowers is a party to or bound by, nor are any of the
properties or assets owned by any of the Borrowers used in the
conduct of their respective businesses affected by, any agree-
ment, ordinance, resolution, decree, bond, note, indenture, order
or judgment, including, without limitation, any of the foregoing
relating to any Environmental Liability, that materially and
adversely affects their respective businesses, assets or
conditions, financial or otherwise.
Section 3.9 Financial Statements; Projections.
(a) Each of the Financial Statements is complete
and presents fairly the consolidated financial position of Omega
as at its date, and has been prepared in accordance with
generally accepted accounting principles. To the best of Omega's
knowledge, none of the Borrowers to which any of the Financial
Statements relates, has any material obligation, liability or
commitment, direct or contingent (including, without limitation,
any Environmental Liability), that is not reflected in the Finan-
cial Statements which would be required to be so reflected in
accordance with GAAP. There has been no material adverse change
in the financial position or operations of any of the Borrowers
since the date of the latest balance sheet included in the
Financial Statements (the "Latest Balance Sheet"). Each
Borrower's fiscal year is the twelve-month period ending on
December 31 in each year.
(b) The Projections have been prepared on the
basis of the assumptions accompanying them and reflect as of the
date thereof Omega's good faith projections, after reasonable
analysis, of the matters set forth therein, based on such
assumptions.
Section 3.10 Tax Returns.
Each Borrower has filed all federal, state and
local tax returns required to be filed by it and has not failed
to pay any taxes, or interest and penalties relating thereto, on
or before the due dates thereof. Except to the extent that
reserves therefor are reflected in the Financial Statements:
(i) there are no material federal, state or local tax liabilities
of any of the Borrowers, due or to become due for any tax year
ended on or prior to the date of the Latest Balance Sheet relat-
ing to such entity, whether incurred in respect of or measured by
the income of such entity, that are not properly reflected in the
Latest Balance Sheet relating to such entity, and (ii) there are
no material claims pending or, to the knowledge of each of the
Borrowers, proposed or threatened against such Borrower for past
federal, state or local taxes, except those, if any, as to which
proper reserves are reflected in the Financial Statements.
Section 3.11 Intangible Assets.
Each Borrower possesses all patents, trademarks,
service marks, trade names, and copyrights, and rights with
respect to the foregoing, necessary to conduct its business as
now conducted and as proposed to be conducted, without any
conflict with the patents, trademarks, service marks, trade
names, and copyrights and rights with respect to the foregoing,
of any other Person.
Section 3.12 Regulation U.
No part of the proceeds received by any of the
Borrowers from the Loans will be used directly or indirectly for:
(a) any purpose other than as set forth in Section 2.9 hereof, or
(b) the purpose of purchasing or carrying, or for payment in full
or in part of Indebtedness that was incurred for the purposes of
purchasing or carrying, any "margin stock", as such term is
defined in 221.3 of Regulation U of the Board of Governors of
the Federal Reserve System, 12 C.F.R., Chapter II, Part 221.
Section 3.13 Name Changes, Mergers, Acquisitions.
Except as set forth on Schedule 3.13 hereto, none
of the Borrowers has within the six-year period immediately
preceding the date of this Agreement changed its name, been the
surviving entity of a merger or consolidation, or acquired all or
substantially all of the assets of any Person.
Section 3.14 Full Disclosure.
None of the Financial Statements, the Projections,
nor any certificate, opinion, or any other statement made or
furnished in writing to the Agent or any Bank by or on behalf of
the Borrowers in connection with this Agreement or the
transactions contemplated herein, contains any untrue statement
of a material fact, or omits to state a material fact necessary
in order to make the statements contained therein or herein not
misleading, as of the date such statement was made. There is no
fact known to any Borrower that has, or would in the now foresee-
able future have, a Material Adverse Effect on such Borrower,
which fact has not been set forth herein, in the Financial
Statements, the Projections, or any certificate, opinion or other
written statement so made or furnished to the Agent or the Banks.
Section 3.15 Licenses and Approvals.
(a) Each Borrower has all necessary licenses,
permits and governmental authorizations, including, without
limitation, licenses, permits and authorizations arising under or
relating to Environmental Laws and Regulations, to own and
operate its properties and to carry on its business as now
conducted, the absence of which would have a Material Adverse
Effect on the Borrowers.
(b) To the best of Omega's knowledge, other than
as set forth on Schedule 3.15 hereto, no violation exists of any
applicable law pertaining to the ownership or operation of any
Facility or any Operator that would have a reasonable likelihood
of leading to revocation of any license necessary for the
operation of such Facility.
Section 3.16 ERISA.
(a) Except as set forth on Schedule 3.16 hereto,
no Employee Benefit Plan is maintained or has ever been
maintained by any Loan Party or any ERISA Affiliate, nor has any
Loan Party or any ERISA Affiliate ever contributed to a
Multiemployer Plan.
(b) There are no agreements which will provide
payments to any officer, employee, shareholder or highly
compensated individual which will be "parachute payments" under
280G of the Code that are nondeductible to any Loan Party and
which will be subject to tax under Section 4999 of the Code for
which any Loan Party will have a material withholding liability.
Section 3.17 REIT Status.
Omega currently has REIT Status and has maintained
REIT Status on a continuous basis since its formation. None of
the Subsidiaries of Omega currently has REIT Status.
<PAGE>
Article 4. Conditions to the Loans.
Section 4.1 Conditions to Initial Loan(s).
The obligation of each Bank to execute and deliver
this Agreement shall be subject to the fulfillment (to the
satisfaction of the Agent) of the following conditions precedent:
(a) Each Borrower shall have executed and
delivered to each Bank its Credit Note and Term Note, as the case
may be.
(b) (i) The Borrowers shall have paid to the
Agent, for the benefit of the Banks, the Origination Fee.
(ii) The Borrowers shall have paid to the
Agent, the Agency Fee and the Arrangement Fee.
(c) Counsel to the Borrowers shall have delivered
its opinion to, and in form and substance satisfactory to, the
Agent.
(d) The Agent shall have received complete copies
of the Financial Statements and the Projections, each certified
as such in a certificate executed by an executive officer of
Omega.
(e) The Agent shall have received copies of the
following:
(i) All of the consents, approvals and
waivers referred to on Schedule 3.2 hereto (except only those
which, as stated on Schedule 3.2, shall not be delivered);
(ii) A certificate from the Secretary or an
Assistant Secretary of each Borrower to the effect that the
certificate of incorporation, by-laws and incumbency certificate
of each Borrower delivered to the Agent pursuant to the Original
Loan Agreement have not been amended since the date of such
delivery and that such documents are in full force and effect and
are true and correct as of the date hereof; and
(iii) All corporate action taken by each of the
Borrowers to authorize the execution, delivery and performance of
each of the Loan Documents to which it is a party and the
transactions contemplated thereby, certified by their respective
secretaries.
(f) (i) Each of the Borrowers shall have
complied and shall then be in compliance with all of the terms,
covenants and conditions of this Agreement;
(ii) After giving effect to the initial Loan,
there shall exist no Default or Event of Default hereunder; and
(iii) The representations and warranties
contained in Article 3 hereof shall be true and correct on the
date hereof;
and the Agent shall have received a Compliance Certificate dated
the date hereof certifying, inter alia, that the conditions set
forth in this subsection 4.1(f) are satisfied on such date.
(g) All legal matters incident to the initial
Loans shall be satisfactory to counsel to the Agent.
Section 4.2 Conditions to Subsequent Loans.
The obligation of the Banks to make each Credit
Loan subsequent to the date hereof and to make each Term Loan
shall be subject to the fulfillment (to the satisfaction of the
Agent) of the following conditions precedent:
(a) The Agent shall have received a Borrowing
Notice in accordance with Section 2.3 hereof, together with the
most recently prepared Borrowing Base Certificate delivered to
the Agent in accordance with Section 5.6 hereof, which Borrowing
Base Certificate shall reflect any acquisitions or dispositions
of Facilities since such date of preparation as well as Cash on
hand and the principal amount of outstanding unsecured Indebt-
edness as at the date of the Borrowing Notice (other than under
this Agreement).
(b) The Agent shall have received a Compliance
Certificate dated the date of such Loan and effective as of such
date, and the matters certified therein, including, without
limitation, the absence of any Default or Event of Default, shall
be true as of such date.
(c) All legal matters incident to such Loan shall
be satisfactory to counsel for the Agent.
Section 4.3 Conditions to Issuance of L/Cs.
The obligation of the L/C Issuer to issue an L/C shall
be subject to the fulfillment (to the satisfaction of the L/C
Issuer) of (a) the conditions set forth in Section 4.1 hereof,
and (b) the following additional conditions precedent:
(a) The Borrower(s) shall have delivered to the L/C
Issuer an Issuance Request pursuant to subsection 2.2(a)(iii)
hereof, together with all other documents required to be
delivered in connection therewith and all Applications, and the
L/C Issuer shall have been paid any and all fees then due in
connection therewith.
(b) The Agent shall have received a Compliance
Certificate dated the date of the issuance of the L/C Documents
and effective as of such date, and the matters certified therein,
including, without limitation, the absence of any Default or
Event of Default, shall be true as of such date.
(c) All legal matters incident to the L/C Documents
shall be reasonably satisfactory to counsel for the Agent.
<PAGE>
Article 5. Delivery of Financial Reports,
Documents and Other Information.
While the Commitments are outstanding, and, in the
event any Loan remains outstanding, so long as any of the
Borrowers are indebted to the Banks or the Agent and until
payment in full of the Notes and full and complete performance of
all of its other obligations arising hereunder, Omega shall
deliver to each Bank:
Section 5.1 Annual Financial Statements.
Annually, as soon as available, but in any event
within ninety (90) days after the last day of each of its fiscal
years, a consolidated and consolidating balance sheet of Omega
and its Subsidiaries as at such last day of the fiscal year, and
consolidated and consolidating statements of income and retained
earnings and statements of cash flow, for such fiscal year, each
prepared in accordance with generally accepted accounting
principles consistently applied, in reasonable detail, and, as to
the consolidated statements, certified without qualification by
Ernst & Young or another nationally recognized independent public
accounting firm or by any other certified public accounting firm
satisfactory to the Agent as fairly presenting the financial
position and results of operations of Omega and its Subsidiaries
as at and for the year ending on its date and as having been
prepared in accordance with generally accepted accounting
principles.
Section 5.2 Quarterly Financial Statements.
As soon as available, but in any event within
forty-five (45) days after the end of each of Omega's first three
fiscal quarterly periods, a consolidated and consolidating
balance sheet of Omega and the Subsidiaries as of the last day of
such quarter and consolidated and consolidating statements of
income and retained earnings and statements of cash flow, for
such quarter, and on a comparative basis figures for the corres-
ponding period of the immediately preceding fiscal year, all in
reasonable detail, each such statement to be certified in a
certificate of the chief financial officer of Omega as accurately
presenting the financial position and the results of operations
of Omega and its Subsidiaries as at its date and for such quarter
and as having been prepared in accordance with generally accepted
accounting principles consistently applied (subject to year-end
audit adjustments).
Section 5.3 Compliance Information.
Promptly after a written request therefor, such
other financial data or information evidencing compliance with
the requirements of this Agreement, the Notes and the other Loan
Documents, as any Bank may reasonably request from time to time.
Section 5.4 No Default Certificate.
At the same time as it delivers the financial
statements required under the provisions of Sections 5.1 and 5.2
hereof, a certificate of the chief executive officer or chief
financial officer of Omega to the effect that no Event of Default
hereunder and that no default under any other material agreement
to which any Borrower is a party or by which it is bound, or by
which, to the best knowledge of Omega or any other Borrower, any
of its properties or assets, taken as a whole, may be materially
affected, and no event which, with the giving of notice or the
lapse of time, or both, would constitute such an Event of Default
or default, exists, or, if such cannot be so certified,
specifying in reasonable detail the exceptions, if any, to such
statement. Such certificate shall be accompanied by a detailed
calculation indicating compliance with the covenants contained in
Section 6.9 hereof in the form annexed hereto as Exhibit D.
Section 5.5 Certificate of Accountants.
At the same time as it delivers the financial
statements required under the provisions of Section 5.1 hereof, a
certificate of the independent certified public accountants of
Omega addressed specifically to both Omega and the Agent to the
effect that during the course of their audit of the operations of
Omega and its Subsidiaries and its condition as of the end of the
fiscal year, nothing has come to their attention which would
indicate that a Default or an Event of Default hereunder has
occurred or that there was any violation of the covenants of
Omega and its Subsidiaries contained in Section 6.9 or Article 7
of this Agreement, or, if such cannot be so certified, specifying
in reasonable detail the exceptions, if any, to such statement.
Section 5.6 Borrowing Base Certificates.
As soon as available but in any event not less
than (i) sixty (60) days after the end of each of the first three
fiscal quarters of Omega in each fiscal year, and (ii) ninety
(90) days after the end of the last fiscal quarter of each fiscal
year of Omega, a Borrowing Base Certificate prepared as of the
close of business on the last day of such fiscal quarter.
Section 5.7 Business Plan and Projections.
Not later than January 31st in each year, copies
of Omega's business plan and financial projections for the
upcoming three (3) fiscal years (together with a copy in writing
of the assumptions on which such business plan and projections
were based), each prepared by Omega's chief financial officer and
illustrating the projected income statements, balance sheets and
statements of changes in cash flow on a consolidated basis.
Section 5.8 Quarterly Operator Reports.
(a) As soon as available after the end of each
fiscal quarter of Omega, a copy of the quarterly report submitted
by Omega to its Board of Directors with respect to the financial
condition of the Operators which quarterly report shall include a
discussion of Operator performance and a summary of coverage and
occupancy by Operator.
(b) Promptly after the receipt thereof, a copy of
the annual audited financial statements of each Operator
delivered to Omega by each Operator.
(c) Such other information regarding the
financial condition of the Operators as the Agent may from time
to time reasonably request.
Section 5.9 Accountants' Reports.
Promptly upon receipt thereof, copies of all other
reports submitted to Omega by its independent accountants in
connection with any annual or interim audit or review of the
books of Omega or its Subsidiaries made by such accountants.
Section 5.10 Copies of Documents.
Promptly upon their becoming available, copies of
any: (i) financial statements, non-routine reports, notices
(other than routine correspondence), requests for waivers and
proxy statements, in each case, delivered by Omega or any of its
Subsidiaries to any of their respective existing lending
institutions or creditors; (ii) correspondence or notices
received by Omega from any federal, state or local governmental
authority that regulates the operations of Omega or any of its
Subsidiaries, relating to an actual or threatened change or
development that would be materially adverse to Omega or any
Subsidiary; (iii) registration statements and any amendments and
supplements thereto, and any regular and periodic reports, if
any, filed by Omega or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange
Commission or any governmental authority succeeding to any or all
of the functions of the said Commission; (iv) letters of comment
or correspondence sent to Omega or any of its Subsidiaries by any
such securities exchange or such Commission in relation to Omega
or any of its Subsidiaries and its affairs; (v) written reports
submitted by Omega or any of its Subsidiaries to its independent
accountants in connection with any annual or interim audit of the
books of Omega or its Subsidiaries made by such accountants; and
(vi) any appraisals received by Omega or any of its Subsidiaries
with respect to the properties or assets of Omega or its
Subsidiaries during the term of this Agreement.
Section 5.11 Notices of Defaults.
Promptly, notice of the occurrence of any Default
or Event of Default, or any event that would constitute or cause
a Material Adverse Effect in the condition, financial or
otherwise, or the operations of Omega or any of the Subsidiaries.
Section 5.12 ERISA Notices and Requests.
(a) Concurrently with such filing, a copy of each
Form 5500 that is filed with respect to each Plan with the IRS;
and
(b) Promptly, upon their becoming available,
copies of: (i) all correspondence with the PBGC, the Secretary
of Labor or any representative of the IRS with respect to any
Plan, relating to an actual or threatened change or development
that would be materially adverse to the Borrower(s); (ii) all
actuarial valuations received by the Borrower(s) with respect to
any Plan; and (iii) any notices of Plan termination filed by any
Plan Administrator (as those terms are used in ERISA) with the
PBGC and of any notices from the PBGC to the Borrower(s) with
respect to the intent of the PBGC to institute involuntary
termination proceedings.
<PAGE>
Article 6. Affirmative Covenants.
While the Commitments are outstanding, and, in the
event any Loan remains outstanding, so long as any Borrower is
indebted to the Banks or the Agent, and until payment in full of
the Notes and full and complete performance of all of its other
obligations arising hereunder, each Borrower shall:
Section 6.1 Books and Records.
Keep proper books of record and account in a
manner reasonably satisfactory to the Agent in which full and
true entries shall be made of all dealings or transactions in
relation to its business and activities.
Section 6.2 Inspections and Audits.
Permit the Banks to make or cause to be made
(prior to an Event of Default, at the Banks' expense and after
the occurrence of and during the continuance of an Event of
Default, at the Borrowers' expense), inspections and audits of
any books, records and papers of Omega or any Subsidiary and to
make extracts therefrom and copies thereof, or to make
appraisals, inspections and examinations of any properties and
facilities of Omega or any Subsidiary on reasonable notice, at
all such reasonable times and as often as any Bank may reasonably
require, in order to assure that the Borrowers are and will be in
compliance with their obligations under the Loan Documents or to
evaluate the Banks' investment in the then outstanding Notes.
Section 6.3 Maintenance and Repairs.
Cause to be maintained in good repair, working
order and condition, subject to normal wear and tear, all
material properties and assets from time to time owned by Omega
or any Subsidiary and used in or necessary for the operation of
its businesses, and make or cause to be made all reasonable
repairs, replacements, additions and improvements thereto.
Section 6.4 Continuance of Business.
Do, or cause to be done, all things reasonably
necessary to preserve and keep in full force and effect the
corporate existence of Omega or any Subsidiary and all permits,
rights and privileges necessary for the proper conduct of its
business, and continue to engage in the same line of business and
comply in all material respects with all applicable laws,
regulations and orders.
Section 6.5 Copies of Corporate Documents.
Subject to the prohibitions set forth in Section
7.6 hereof, promptly deliver to the Agent copies of any amend-
ments or modifications to the certificate of incorporation and
by-laws of Omega or any Subsidiary, certified with respect to the
certificate of incorporation by the Secretary of State of its
state of incorporation and, with respect to the by-laws, by the
secretary or assistant secretary of such corporation.
Section 6.6 Perform Obligations.
Pay and discharge all of the obligations and
liabilities of Omega or any Subsidiary, including, without
limitation, all taxes, assessments and governmental charges upon
its income and properties when due, unless and to the extent only
that such obligations, liabilities, taxes, assessments and
governmental charges shall be contested in good faith and by
appropriate proceedings and that, to the extent required by
generally accepted accounting principles then in effect, proper
and adequate book reserves relating thereto are established by
Omega or any Subsidiary, and then only to the extent that a bond
is filed in cases where the filing of a bond is necessary to
avoid the creation of a Lien against any of its properties.
Section 6.7 Notice of Litigation.
Promptly notify the Agent in writing of any
litigation, legal proceeding or dispute, other than disputes in
the ordinary course of business or, whether or not in the ordi-
nary course of business, involving amounts in excess of Two
Million Five Hundred Thousand ($2,500,000) Dollars, affecting
Omega or any Subsidiary whether or not fully covered by insur-
ance, and regardless of the subject matter thereof (excluding,
however, any actions relating to workers' compensation claims or
negligence claims relating to use of motor vehicles, if fully
covered by insurance, subject to deductibles).
Section 6.8 Insurance.
(a) (i) Maintain with responsible insurance
companies acceptable to the Agent such insurance on such of the
properties of Omega or any Subsidiary, in such amounts and
against such risks as is customarily maintained by similar
businesses; (ii) file with the Agent upon its request a detailed
list of the insurance then in effect, stating the names of the
insurance companies, the amounts and rates of the insurance, the
dates of the expiration thereof and the properties and risks
covered thereby; and (iii) within ten (10) days after notice in
writing from the Agent, obtain such additional insurance as the
Agent may reasonably request; and
(b) Carry all insurance available through the
PBGC or any private insurance companies covering its obligations
to the PBGC.
Section 6.9 Financial Covenants.
Have or maintain, with respect to Omega, on a
consolidated basis, as at the last day of each fiscal quarter of
Omega:
(a) A ratio of Indebtedness to Tangible Net Worth
of not more than 1.00:1.00.
(b) Tangible Net Worth of not less than
$300,000,000, plus 100% of (i) the Net Issuance Proceeds received
by Omega (or any of its Subsidiaries) in connection with the
issuance of any equity interest in Omega (or any of its
Subsidiaries) other than any such equity interests issued in
connection with any dividend reinvestment program(s), and
(ii) the value (determined in accordance with GAAP) of any
capital stock by Omega issued upon the conversion of convertible
Indebtedness.
(c) Interest Coverage of not less than 275%.
(d) Omega's Fixed Coverage Ratio of not less than
1.0 to 1.0.
Section 6.10 Notice of Certain Events.
(a) Promptly notify the Agent in writing of the
occurrence of any Reportable Event, as defined in Section 4043 of
ERISA, if a notice of such Reportable Event is required under
ERISA to be delivered to the PBGC within 30 days after the
occurrence thereof, together with a description of such Report-
able Event and a statement of the action the Borrower(s) or the
ERISA Affiliate intends to take with respect thereto, together
with a copy of the notice thereof given to the PBGC.
(b) Promptly notify the Agent in writing if the
Borrower(s) or ERISA Affiliate receives an assessment of
withdrawal liability in connection with a complete or partial
withdrawal with respect to any Multiemployer Plan, together with
a statement of the action that such Borrower(s) or ERISA
Affiliate intends to take with respect thereto.
(c) Promptly notify the Agent in writing if any
Borrower receives: (i) any notice of any violation or
administrative or judicial complaint or order having been filed
or about to be filed against such Borrower alleging violations of
any Environmental Law and Regulation, or (ii) any notice from any
governmental body or any other Person alleging that such Borrower
is or may be subject to any Environmental Liability; and promptly
upon receipt thereof, provide the Agent with a copy of such
notice together with a statement of the action such Borrower
intends to take with respect thereto.
Section 6.11 Comply with ERISA.
Materially comply with all applicable provisions
of ERISA and the Code now or hereafter in effect.
Section 6.12 Environmental Compliance.
Operate all property owned, operated or leased by
it in compliance with all Environmental Laws and Regulations,
such that no Environmental Liability arises under any
Environmental Laws and Regulations, which would result in a Lien
on any property of any Borrower.
Section 6.13 Maintenance of REIT Status.
Maintain its REIT Status.
Section 6.14 Long-Term Care Facilities.
Ensure that not less than seventy-five (75%)
percent of its domestic Investments are in Long-Term Care
Facilities; provided, however, there shall be excluded from such
calculation the aggregate amount of all domestic Investments as
of the date of this Agreement in Facilities other than Long-Term
Care Facilities.
Section 6.15 Operator Creditworthiness.
Ensure that each Operator of a Facility shall:
(i) have a Rating of at least BBB- from S&P or
Baa3 from Moody's; or
(ii) provide either Cash collateral to Omega or
an irrevocable letter of credit for the benefit of Omega issued
by a financial institution reasonably satisfactory to the Agent
(collectively, the "Security Deposits"), in either case in an
amount equal to not less than six (6) months of related initial
Lease Rental Expense or Mortgage Expense (or not less than three
(3) months with respect to a publicly-held Operator), as the case
may be (excluding those Facilities acquired in connection with
Omega's merger with Health Equity Properties, Inc. described on
Schedule 3.13 hereto); or
(iii) be otherwise acceptable to the Required
Lenders (and each of the Operators set forth on Schedule 6.15 are
deemed acceptable to the Required Lenders).
Section 6.16 Operator Concentration.
Ensure that no more than twenty-five (25%) percent
of the Borrowers' Investments are maintained with a single
Operator (including any Affiliates of such Operator).<PAGE>
Article 7. Negative Covenants.
While the Commitments are outstanding, and, in the
event any Loan remains outstanding, so long as any Borrower is
indebted to the Banks or the Agent and until payment in full of
the Notes and full and complete performance of all of its other
obligations arising hereunder, Omega shall not and shall not
permit any of its Subsidiaries to do, agree to do, or permit to
be done, any of the following:
Section 7.1 Indebtedness.
Create, incur, permit to exist or have outstanding
any Indebtedness, except:
(a) Indebtedness of the Borrowers to the Banks
and the Agent and under this Agreement and the Notes;
(b) Taxes, assessments and governmental charges,
non-interest bearing accounts payable and accrued liabilities, in
any case not more than 90 days past due from the original due
date thereof, and non-interest bearing deferred liabilities other
than for borrowed money (e.g., deferred compensation and deferred
taxes), in each case incurred and continuing in the ordinary
course of business;
(c) Indebtedness secured by the security
interests referred to in subsection 7.2(b) hereof;
(d) Indebtedness consisting of contingent
obligations permitted by Section 7.3 hereof;
(e) As set forth on Schedule 7.1 hereto; and
(f) In addition to the Indebtedness permitted
under subsections 7.1(a) through (e) above, other Indebtedness of
the Borrowers which does not exceed in the aggregate an amount
equal to $25,000,000 outstanding at any time which Indebtedness
is incurred in order to enhance the overall economics of the
Facilities which are leased to an Operator.
Section 7.2 Liens.
Create, or assume or permit to exist, any Lien on
any of the properties or assets of the Borrower or any of its
Subsidiaries, whether now owned or hereafter acquired, except:
(a) Permitted Liens;
(b) Purchase money Liens on Property acquired or
held by Omega or its Subsidiaries in the ordinary course of
business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring
such Property; provided, that (i) any such Lien attaches to such
Property concurrently with or within twenty (20) days after the
acquisition thereof, (ii) such Lien attaches solely to the
Property so acquired in such transaction, and (iii) the principal
amount of the debt secured thereby does not exceed 100% of the
cost of such Property;
(c) Liens on assets securing Indebtedness
permitted under subsection 7.1(f) hereof; and
(d) As set forth on Schedule 7.2 hereto.
Section 7.3 Guaranties.
Assume, endorse, be or become liable for, or
guarantee, the obligations of any Person, except (i) by the
endorsement of negotiable instruments for deposit or collection
in the ordinary course of business, (ii) if, after giving effect
to the proposed guarantee, the aggregate amount of all
obligations guaranteed by the Borrowers, or any of them, would
not exceed One Million ($1,000,000) Dollars, and (iii) as set
forth on Schedule 7.1 hereto. For the purposes hereof, the term
"guarantee" shall include any agreement, whether such agreement
is on a contingency or otherwise, to purchase, repurchase or
otherwise acquire Indebtedness of any other Person, or to pur-
chase, sell or lease, as lessee or lessor, property or services,
in any such case primarily for the purpose of enabling another
person to make payment of Indebtedness, or to make any payment
(whether as an advance, capital contribution, purchase of an
equity interest or otherwise) to assure a minimum equity, asset
base, working capital or other balance sheet or financial condi-
tion, in connection with the Indebtedness of another Person, or
to supply funds to or in any manner invest in another Person in
connection with such Person's Indebtedness.
Section 7.4 Mergers, Acquisitions.
Merge or consolidate with any Person (whether or
not any Borrower is the surviving entity), or, acquire all or
substantially all of the assets or any of the capital stock of
any Person except:
(a) as expressly permitted by this Agreement; and
(b) Omega may acquire Properties that constitute
Eligible Healthcare Assets through merger if: (i) Omega is the
surviving entity, (ii) the consideration paid by Omega in
connection with any such acquisition is solely shares of common
stock of Omega (unless such merger is a "tax-free" merger), (iii)
after giving effect to the consummation of each acquisition, the
aggregate amount of common stock paid by Omega for all such
acquisitions does not exceed twenty (20%) percent of all of the
issued and outstanding shares of common stock of Omega, and
(iv) no Default or Event of Default exists or will occur after
giving effect thereto, including, without limitation, under
Section 7.8 hereof.
Section 7.5 Redemptions; Distributions.
(a) Purchase, redeem, retire or otherwise
acquire, directly or indirectly, or make any sinking fund pay-
ments with respect to, any shares of any class of stock of Omega
or any Subsidiary now or hereafter outstanding or set apart any
sum for any such purpose, if after giving effect thereto, the
aggregate amount of all such purchases, redemptions or payments
would exceed Ten Million ($10,000,000) Dollars for the Borrowers
on a consolidated basis over the term of this Agreement; or
(b) Declare or pay any dividends or make any
distribution of any kind on Omega's outstanding stock, or set
aside any sum for any such purpose, except that:
(i) Omega may declare and make dividend
payments or other distributions payable solely in its common
stock;
(ii) if no Default or Event of Default
exists or will occur after giving effect thereto, Omega may
declare and pay cash dividends in any fiscal quarter in an
amount, when added to the cash dividends paid with respect to the
three (3) immediately preceding fiscal quarters, that does not
exceed ninety-five (95%) percent of EBITDA (which shall be
calculated without adding back interest expense for the purpose
hereof) for those four (4) fiscal quarters calculated on a
rolling four-quarter basis; and
(iii) if a Default or an Event of Default
exists or will occur as a result of the dividend payment, Omega
may declare and pay dividends to the minimum extent necessary
(taking into account any dividends or distributions otherwise
made) to generate the minimum deduction for dividends paid during
each year that would be required to satisfy Code Section
857(a)(1).
Section 7.6 Changes in Structure.
Except for supplemental issuance of Omega's common
stock and as otherwise expressly permitted under Sections 7.5 and
7.8, make any changes in the equity capital structure of Omega or
any Subsidiary, or amend its certificate of incorporation or by-
laws in any material respect.
Section 7.7 Disposition of Assets.
Make any Disposition of Property, or enter into
any agreement to do so, unless (a) the Disposition is at fair
market value, (b) at the time of the Disposition no Event of
Default exists, and (c) any mandatory prepayment required in
connection therewith under Section 2.6 is made as provided
therein.
Section 7.8 Investments.
Make, or suffer to exist, any Investment in any
Person, including, without limitation, any shareholder, director,
officer or employee of Omega or any of its Subsidiaries, except:
(a) Investments in:
(i) obligations issued or guaranteed by the
United States of America;
(ii) certificates of deposit, bankers accep-
tances and other "money market instruments" issued by any bank or
trust company organized under the laws of the United States of
America or any State thereof and having capital and surplus in an
aggregate amount of not less than $100,000,000;
(iii) open market commercial paper bearing the
highest credit rating issued by Standard & Poor's Corporation or
by another nationally recognized credit rating agency;
(iv) repurchase agreements entered into with
any bank or trust company organized under the laws of the United
States of America or any State thereof and having capital and
surplus in an aggregate amount of not less than $100,000,000
relating to United States of America government obligations; and
(v) shares of "money market funds", each
having net assets of not less than $100,000,000;
in each case maturing or being due or payable in full not more
than 180 days after the Borrower's acquisition thereof.
(b) Investments by Omega in any Subsidiary, and
by any Subsidiary in Omega or another Subsidiary, provided, Omega
shall cause each newly-created Subsidiary, if any, within thirty
(30) days after its organization thereof, to become a party to
this Agreement and a signatory to the Notes, with the effect that
each such new Subsidiary shall be deemed to become a "Borrower"
for the purposes of this Agreement and in connection therewith,
there shall be delivered to the Agent with respect to such
Subsidiary those certificates and documents described in
subsection 4.1(e) hereof and all legal matters incident to the
addition of such Subsidiary as a "Borrower" hereunder shall be
satisfactory to counsel to the Agent.
(c) Capital Investments by Omega in entities
which maintain REIT Status and whose principal business is owning
Facilities or extending loans on the security of mortgages with
respect to Facilities; provided that (i) the aggregate amount of
such Investments (on a cumulative basis) does not exceed an
amount equal to five (5%) percent of Healthcare Assets as at any
date of determination thereof, after giving effect to any such
Investment, and (ii) no single Investment represents more than
five (5%) percent of the issued and outstanding common stock of
any such entity.
(d) The acquisition by Omega and its
Subsidiaries, on a consolidated basis, of healthcare assets
consisting of Facilities and Mortgages which do not exceed in any
single transaction or series of related transactions an amount
equal to ten (10%) percent of Healthcare Assets as at any date of
determination thereof, prior to giving effect to any such
acquisition.
(e) As set forth on Schedule 7.8 hereto.
For purposes of subsections 7.8(b) and (c) hereof, "Investments"
shall mean, by any Person:
(i) the amount paid or committed to be paid,
or the value of property or services contributed or committed to
be contributed, by such Person for or in connection with the
acquisition by such Person of any stock, bonds, notes,
debentures, partnership or other ownership interests or other
securities of any other Person; and
(ii) the amount of any advance, loan or
extension of credit by such Person, to any other Person, or
guaranty or other similar obligation of such Person with respect
to any Indebtedness of such other Person, and (without
duplication) any amount committed to be advanced, loaned, or
extended by such Person to any other Person, or any amount the
payment of which is committed to be assured by a guaranty or
similar obligation by such Person for the benefit of, such other
Person.
Section 7.9 Fiscal Year.
Change its fiscal year.
Section 7.10 ERISA Obligations.
Permit the establishment of any Employee Benefit
Plan or amend any Employee Benefit Plan which establishment or
amendment could result in liability to any Loan Party or increase
the obligation for post-retirement welfare benefits of any Loan
Party which liability or increase, individually or together with
all similar liabilities and increases, has a Material Adverse
Effect on any Loan Party.
Section 7.11 Capital Expenditures.
Except as otherwise permitted under this
Agreement, make or be or become obligated to make Capital
Expenditures in the aggregate for Omega and its Subsidiaries on a
consolidated basis, during each fiscal year of Omega and its
Subsidiaries, in excess of Two Hundred Fifty Thousand ($250,000)
Dollars.
Section 7.12 Use of Cash.
Use, or permit to be used, in any manner or to any
extent, each Borrower's Cash from operations for the benefit of
any Person, except: (a) in connection with the payment or
prepayment of expenses (other than Capital Expenditures) directly
incurred for the benefit of each Borrower in the maintenance and
operation of its business, in each case only in the ordinary
course of its business, (b) for the payment of scheduled,
required payments of principal and interest on Indebtedness of
each Borrower permitted to exist hereunder, and (c) for uses that
are otherwise specifically permitted by this Agreement.
Section 7.13 Transactions with Affiliates.
Except as expressly permitted by this Agreement,
directly or indirectly: (a) make any Investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any
assets to an Affiliate; (c) merge into or consolidate with or
purchase or acquire assets from an Affiliate; or (d) enter into
any other transaction directly or indirectly with or for the
benefit of any Affiliate (including, without limitation, guaran-
tees and assumptions of obligations of an Affiliate); provided,
however, that: (i) payments on Investments expressly permitted
by Section 7.8 hereof may be made, (ii) any Affiliate who is a
natural person may serve as an employee or director of Omega or
any Subsidiary and receive reasonable compensation for his
services in such capacity, and (iii) Omega or any Subsidiary may
enter into any transaction with an Affiliate providing for the
leasing of property, the rendering or receipt of services or the
purchase or sale of product, inventory and other assets in the
ordinary course of business if the monetary or business
consideration arising therefrom would be substantially as advan-
tageous to Omega or a Subsidiary as the monetary or business
consideration that would obtain in a comparable arm's length
transaction with a Person not an Affiliate.
Section 7.14 Hazardous Material.
Cause or permit: (i) any Hazardous Material to be
placed, held, located or disposed of, on, under or at any
Facility or any part thereof, except for such Hazardous Materials
that are necessary for Omega's or any Subsidiary's or any
Operator's operation of its business thereon and which shall be
used, stored, treated and disposed of in compliance with all
applicable Environmental Laws and Regulations or (ii) such
Facility or any part thereof to be used as a collection, storage,
treatment or disposal site for any Hazardous Material. Omega and
each Subsidiary acknowledges and agrees that the Agent and the
Banks shall have no liability or responsibility for either:
(i) damage, loss or injury to human health,
the environment or natural resources caused by the presence,
disposal, release or threatened release of Hazardous Materials on
any part of such Facility; or
(ii) abatement and/or clean-up required under
any applicable Environmental Laws and Regulations for a release,
threatened release or disposal of any Hazardous Materials located
at any Facility or used by or in connection with the Omega's or
any Subsidiary's or any Operator's business.
Section 7.15 Interest Rate Protection.
Permit more than twenty (20%) percent of the sum
of (i) Indebtedness and (ii) Tangible Net Worth, on a
consolidated basis, to bear interest at other than fixed rates;
provided, however, that if and to the extent that any such
Indebtedness is subject to an Interest Rate Contract, such
Indebtedness shall be deemed to bear interest at a fixed rate.
Section 7.16 Construction Investments.
Permit its Construction Investments to exceed
Twenty-Five Million ($25,000,000) Dollars at any one time
outstanding; provided, Omega shall not make a Construction
Investment for a Facility unless (i) there is included in the
terms thereof an agreement for the conversion of Omega's
interests in the Facility upon the completion thereof into full
ownership or a mortgage interest, and (ii) if a mortgage
interest, Omega shall retain a first Lien on such Facility.<PAGE>
Article 8. Events of Default.
If any one or more of the following events ("Events of
Default") shall occur and be continuing, the Commitments shall
terminate and the entire unpaid balance of the principal of and
interest on the Notes outstanding and all other obligations and
Indebtedness of each of the Borrowers to the Banks and the Agent
arising hereunder and under the other Loan Documents shall
immediately become due and payable upon written notice to that
effect given to each Borrower by the Agent (except that in the
case of the occurrence of any Event of Default described in
Section 8.6 no such notice shall be required), without
presentment or demand for payment, notice of non-payment, protest
or further notice or demand of any kind, all of which are ex-
pressly waived by each Borrower:
Section 8.1 Payments.
Failure by any Borrower to make any payment or
mandatory repayment of principal or interest upon any Note or to
make any payment of any Fee when due; or
Section 8.2 Certain Covenants.
Failure by any Borrower to perform or observe any
of the agreements of a Borrower contained in Section 6.9 or
Article 7 hereof; or
Section 8.3 Other Covenants.
Failure by any Borrower to perform or observe any
other term, condition or covenant of this Agreement or of any of
the other Loan Documents to which it is a party, which shall
remain unremedied for a period of thirty (30) days after notice
thereof shall have been given to such Borrower by the Agent; or
Section 8.4 Other Defaults.
(a) Failure by any Borrower to perform or observe
any term, condition or covenant of any bond, note, debenture,
loan agreement, indenture, guaranty, trust agreement, mortgage or
similar instrument to which it is a party or by which it is
bound, or by which any of its properties or assets may be affect-
ed including, without limitation, any of the subordinated notes
or other agreements or evidences of Indebtedness covered by any
Subordination Agreement (a "Debt Instrument"), so that, as a
result of any such failure to perform, the Indebtedness included
therein or secured or covered thereby may be declared due and
payable prior to the date on which such Indebtedness would
otherwise become due and payable; or
(b) Any event or condition referred to in any
Debt Instrument shall occur or fail to occur, so that, as a
result thereof, the Indebtedness included therein or secured or
covered thereby may be declared due and payable prior to the date
on which such Indebtedness would otherwise become due and pay-
able; or
(c) Failure to pay any Indebtedness for borrowed
money due at final maturity or pursuant to demand under any Debt
Instrument;
provided, however, that the provisions of this Section 8.4 shall
not be applicable to any Debt Instrument that on the date this
Section 8.4 would otherwise be applicable thereto, relates to or
evidences Indebtedness in a principal amount of less than
$5,000,000; or
Section 8.5 Representations and Warranties.
Any representation or warranty made in writing to
the Banks or the Agent in any of the Loan Documents or in connec-
tion with the making of the Loans, or any certificate, statement
or report made or delivered in compliance with this Agreement,
shall have been false or misleading in any material respect when
made or delivered, which in any event results in a Material
Adverse Effect; or
Section 8.6 Bankruptcy.
(a) Any Borrower shall make an assignment for the
benefit of creditors, file a petition in bankruptcy, be adjudi-
cated insolvent, petition or apply to any tribunal for the
appointment of a receiver, custodian, or any trustee for it or
him or a substantial part of its or his assets, or shall commence
any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute
of any jurisdiction, whether now or hereafter in effect, or any
Borrower shall take any corporate action to authorize any of the
foregoing actions; or there shall have been filed any such
petition or application, or any such proceeding shall have been
commenced against it or him, that remains undismissed for a
period of thirty (30) days or more; or any order for relief shall
be entered in any such proceeding; or any Borrower by any act or
omission shall indicate its or his consent to, approval of or
acquiescence in any such petition, application or proceeding or
the appointment of a custodian, receiver or any trustee for it or
him or any substantial part of any of its or his properties, or
shall suffer any custodianship, receivership or trusteeship to
continue undischarged for a period of thirty (30) days or more;
or
(b) Any Borrower shall generally not pay its or
his debts as such debts become due; or
(c) Any Borrower shall have concealed, removed,
or permitted to be concealed or removed, any part of its or his
property, with intent to hinder, delay or defraud its or his
creditors or any of them or made or suffered a transfer of any of
its or his property that may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or shall have made any
transfer of its or his property to or for the benefit of a
creditor at a time when other creditors similarly situated have
not been paid; or shall have suffered or permitted, while insol-
vent, any creditor to obtain a Lien upon any of its or his
property through legal proceedings or distraint that is not
vacated within thirty (30) days from the date thereof; or
Section 8.7 Judgments.
Any judgment against any Borrower or any
attachment, levy or execution against any of its properties for
any amount in excess of $2,500,000 shall remain unpaid, unstayed
on appeal, undischarged, unbonded or undismissed for a period of
thirty (30) days or more; or
Section 8.8 ERISA.
(a) The termination of any Plan or the institu-
tion by the PBGC of proceedings for the involuntary termination
of any Plan, in either case, by reason of, or that results or
could result in, a "material accumulated funding deficiency"
under Section 412 of the Code; or
(b) Failure by any Borrower to make required
contributions, in accordance with the applicable provisions of
ERISA, to each of the Plans hereafter established or assumed by
it; or
Section 8.9 Material Adverse Effect.
There shall occur a Material Adverse Effect; or
Section 8.10 Ownership.
(i) Any Person, or a group of related Persons,
shall acquire (a) beneficial ownership in excess of 25% of the
outstanding stock of Omega or other voting interest having
ordinary voting powers to elect a majority of the directors,
managers or trustees of Omega (irrespective of whether at the
time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency) or
(b) all or substantially all of the Investments of Omega, or
(ii) a majority of the Board of Directors of Omega, at any time,
shall be composed of Persons other than (a) Persons who were
members of the Board of Directors on the date of this Agreement,
or (b) Persons who subsequently become members of the Board of
Directors on the date of this Agreement, or (c) Persons who
subsequently become members of the Board of Directors and who
either (x) are appointed or recommended for election with the
affirmative vote of a majority of the directors in office as of
the date of this Agreement or (y) are appointed or recommended
for election with the affirmative vote of a majority of the Board
of Directors of Omega then in office; or
Section 8.11 REIT Status, Etc.
Omega shall at any time fail to maintain its REIT
Status, or Omega or any Subsidiary shall lose, through
suspension, termination, impoundment, revocation, failure to
renew or otherwise, any material license or permit; or
Section 8.12 Personnel.
Essel Bailey, Jr. shall for any reason other than
death or disability cease to act as Chief Executive Officer of
Omega or Robert Parker shall for any reason other than death or
disability cease to be a member of the Board of Directors of
Omega; or
Section 8.13 Environmental.
Omega or any of its Facilities shall become
subject to one or more liens for costs or damages in excess of
$2,500,000 individually or in the aggregate under any
Environmental Laws and Regulations and such liens shall remain in
place for 30 days after the creation thereof; or
Section 8.14 Default by Operator.
Ninety (90) days after the occurrence of any
default by an Operator in the payment of amounts which are due
and owing under any lease, note, mortgage or deed of trust (or
related security documents) between an Operator and any Borrower
or any other event of default by an Operator under the applicable
lease, note, mortgage or deed of trust (or related security
document) as a result of which such Borrower accelerates the
obligations of such Operator, with respect in each case to an
Operator whose aggregate Lease Rental Expense and/or Mortgage
Expense accounts for 15% or more of the aggregate amount of all
Lease Rental Expense and/or Mortgage Expense owing to the
Borrowers from all Operators.
<PAGE>
Article 9. The Agent.
Section 9.1 Appointment, Powers and Immunities.
Each Bank hereby irrevocably appoints and author-
izes the Agent to act as its agent hereunder and the other Loan
Documents with such powers as are specifically delegated to the
Agent by the terms of this Agreement and the other Loan Documents
together with such other powers as are reasonably incidental
thereto. The Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and the other
Loan Documents and shall not be a trustee for any Bank. The Agent
shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this
Agreement or the other Loan Documents in any certificate or other
document referred to or provided for in, or received by any of
them under, this Agreement or the other Loan Documents, or for
the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or the other Loan Documents or
any other document referred to or provided for herein or therein
or for the collectibility of the Loans or for any failure by any
Borrower to perform any of its obligations hereunder or under the
other Loan Documents. The Agent may employ agents and attorneys-
in-fact and shall not be answerable, except as to money or secu-
rities received by it or its authorized agents, for the negli-
gence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither the Agent nor any of
its directors, officers, employees or agents shall be liable or
responsible for any action taken or omitted to be taken by it or
them hereunder or the other Loan Documents or in connection
herewith or therewith, except for its or their own gross
negligence or willful misconduct.
Section 9.2 Reliance by Agent.
The Agent shall be entitled to rely upon any
certification, notice or other communication (including any
thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on
behalf of the proper person or persons, and upon advice and
statements of legal counsel, independent accountants and other
experts selected by the Agent. As to any matters not expressly
provided for by this Agreement or the other Loan Documents, the
Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or the other Loan Documents in
accordance with instructions signed by the Required Banks, and
such instructions of the Required Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the
Banks.
Section 9.3 Events of Default.
The Agent shall not be deemed to have knowledge of
the occurrence of a Default (other than the non-payment of
principal of or interest on Loans) unless the Agent has received
notice from a Bank or the Borrower specifying such Default and
stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a
Default, the Agent shall give notice thereof to the Banks (and
shall give each Bank notice of each such non-payment). The Agent
shall (subject to Section 9.7 hereof) take such action with
respect to such Default as shall be directed by the Required
Banks.
Section 9.4 Rights as a Bank.
With respect to its Commitment and the Loans made
by it, the Agent in its capacity as a Bank hereunder shall have
the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting as the Agent, and
the term "Bank" or "Banks" shall, unless the context otherwise
indicates, include the Agent in its individual capacity. The
Agent and its Affiliates may (without having to account therefor
to any Bank) accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with each
Borrower or its Affiliates, as if it were not acting as the
Agent, and the Agent may accept fees and other consideration from
each Borrower or its Affiliates, for services in connection with
this Agreement or any of the other Loan Documents or otherwise
without having to account for the same to the Banks.
Section 9.5 Indemnification.
The Banks shall indemnify the Agent (to the extent
not reimbursed by each Borrower under Sections 10.1 and 10.2
hereof), ratably in accordance with the aggregate principal
amount of the Loans made by the Banks (or, if no Loans are at the
time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement or any of the other
Loan Documents or any other documents contemplated by or referred
to herein or therein or the transactions contemplated by or
referred to herein or therein or the transactions contemplated
hereby and thereby (including, without limitation, the costs and
expenses that each Borrower is obligated to pay under Sections
10.1 and 10.2 hereof, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties
hereunder) or the enforcement of any of the terms hereof or of
any such other documents, provided that no Bank shall be liable
for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
Section 9.6 Non-Reliance on Agent and other Banks.
Each Bank agrees that it has, independently and
without reliance on the Agent or any other Bank, and based on
such documents and information as it has deemed appropriate, made
its own credit analysis of each Borrower and decision to enter
into this Agreement and that it will, independently and without
reliance upon the Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking
or not taking action under this Agreement or the other Loan
Documents. The Agent shall not be required to keep itself
informed as to the performance or observance by each Borrower of
this Agreement or the other Loan Documents or any other document
referred to or provided for herein or therein or to inspect the
properties or books of each Borrower. Except for notices,
reports and other documents and information expressly required to
be furnished to the Banks by the Agent hereunder or the other
Loan Documents, the Agent shall not have any duty or responsi-
bility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of each
Borrower, that may come into the possession of the Agent or any
of its Affiliates.
Section 9.7 Failure to Act.
Except for action expressly required of the Agent
hereunder, the Agent shall in all cases be fully justified in
failing or refusing to act hereunder or thereunder unless it
shall be indemnified to its satisfaction by the Banks against any
and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.
Section 9.8 Resignation or Removal of Agent.
Subject to the appointment and acceptance of a
successor Agent as provided below, the Agent may resign at any
time by giving not less than 10 days' prior written notice
thereof to the Banks and each Borrower and the Agent may be
removed at any time with or without cause by the Required Banks.
Upon any such resignation or removal, the Required Banks shall
have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within 30 days after the
retiring Agent's giving of notice of resignation or the Required
Banks' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Banks, after consultation with each
Borrower, appoint a successor Agent which shall be a bank that
has an office in New York, New York with a combined capital and
surplus of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resigna-
tion or removal hereunder as Agent, the provisions of this
Article 9 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was
acting as the Agent.
Section 9.9 Sharing of Payments.
(a) Prior to any acceleration by the Agent and
the Banks of the Obligations:
(i) in the event that any Bank shall obtain
payment in respect of a Note, or interest thereon, whether
voluntarily or involuntarily, and whether through the exercise of
a right of banker's lien, set-off or counterclaim against each
Borrower or otherwise, in a greater proportion than any such
payment obtained by any other Bank in respect of the
corresponding Note held by it, then the Bank so receiving such
greater proportionate payment shall purchase for cash from the
other Bank or Banks such portion of each such other Bank's or
Banks' Loan as shall be necessary to cause such Bank receiving
the proportionate overpayment to share the excess payment with
each Bank; and
(ii) in the event that any Bank shall obtain
payment in respect of any Interest Rate Contract to which such
Bank is a party, whether voluntarily or involuntarily, and
whether through the exercise of a right of banker's lien, set-off
or counterclaim against each Borrower or otherwise, such Bank
shall be permitted to retain the full amount of such payment and
shall not be required to share such payment with any other Bank.
(b) Upon or following any acceleration by the
Agent and the Banks of the Obligations, in the event that any
Bank shall obtain payment in respect of a Note, or interest or
Fees thereon, or in respect of an Interest Rate Contract to which
such Bank is a party, whether voluntarily or involuntarily, and
whether through the exercise of a right of banker's lien, set-off
or counterclaim against each Borrower or otherwise, in a greater
proportion than any such payment obtained by any other Bank in
respect of the aggregate amount of the corresponding Note held by
such Bank and any Interest Rate Contract to which such Bank is a
party, then the Bank so receiving such greater proportionate
payment shall purchase for cash from the other Bank or Banks such
portion of each such other Bank's or Banks' Loan. For the
purposes of this subsection 9.9(b), payments on Notes received by
each Bank shall be in the same proportion as the proportion of:
(A) the sum of: (x) the Obligations owing to such Bank in
respect of the Note held by such Bank, plus (y) the Obligations
owing to such Bank in respect of Interest Rate Contracts to which
such Bank is party, if any, to (B) the sum of: (x) the
Obligations owing to all of the Banks in respect of all of the
Notes, plus (y) the Obligations owing to all of the Banks in
respect of all Interest Rate Contracts to which any Bank is a
party; provided, however, that, with respect to subsections
9.9(a)(i) and (b) above, if all or any portion of such excess
payment or benefits is thereafter recovered from the Bank that
received the proportionate overpayment, such purchase of Loans or
payment of benefits, as the case may be, shall be rescinded, and
the purchase price and benefits returned, to the extent of such
recovery, but without interest.
<PAGE>
Article 10. Miscellaneous Provisions.
Section 10.1 Fees and Expenses; Indemnity.
The Borrowers will promptly pay all costs of the
Agent in preparing the Loan Documents and all costs and expenses
of the issue of the Notes and of each Borrower's performance of
and compliance with all agreements and conditions contained
herein on its part to be performed or complied with and the
reasonable fees and expenses and disbursements of counsel to the
Agent in connection with the preparation, execution and delivery,
administration, interpretation and enforcement of this Agreement,
the other Loan Documents and all other agreements, instruments
and documents relating to this transaction, the consummation of
the transactions contemplated by all such documents, the
preservation of all rights of the Banks and the Agent, the
negotiation, preparation, execution and delivery of any
amendment, modification or supplement of or to, or any consent or
waiver under, any such document (or any such instrument that is
proposed but not executed and delivered) and with any claim or
action threatened, made or brought against any of the Banks or
the Agent arising out of or relating to any extent to this
Agreement, the other Loan Documents or the transactions contem-
plated hereby or thereby (other than a claim or action resulting
from the gross negligence, willful misconduct, or intentional
violation of law by the Agent and or the Banks). In addition,
the Borrowers will promptly pay all costs and expenses (in-
cluding, without limitation, reasonable fees and disbursements of
counsel) suffered or incurred by each Bank in connection with its
enforcement of the payment of the Notes held by it or any other
sum due to it under this Agreement or any of the other Loan
Documents or any of its other rights hereunder or thereunder. In
addition to the foregoing, the Borrowers shall indemnify each
Bank and the Agent and each of their respective directors,
officers, employees, attorneys, agents and Affiliates against,
and hold each of them harmless from, any loss, liabilities,
damages, claims, costs and expenses (including reasonable
attorneys' fees and disbursements) suffered or incurred by any of
them arising out of, resulting from or in any manner connected
with, the execution, delivery and performance of each of the Loan
Documents, the Loans and any and all transactions related to or
consummated in connection with the Loans (other than as a result
of the gross negligence, willful misconduct or intentional
violation of law by the party seeking indemnification),
including, without limitation, losses, liabilities, damages,
claims, costs and expenses suffered or incurred by any Bank or
the Agent or any of their respective directors, officers,
employees, attorneys, agents or Affiliates arising out of or
related to any Environmental Liability or Environmental
Proceeding, or in investigating, preparing for, defending
against, or providing evidence, producing documents or taking any
other action in respect of any commenced or threatened litiga-
tion, administrative proceeding or investigation under any federal
securities law or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise against the Agent, the
Banks or any of their officers, directors, affiliates, agents or
Affiliates, that is alleged to arise out of or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact of any Borrower and its affiliates in any document
or schedule filed with the Securities and Exchange Commission or
any other governmental body; (ii) any omission or alleged
omission to state any material fact required to be stated in such
document or schedule, or necessary to make the statements made
therein, in light of the circumstances under which made, not
misleading; (iii) any acts, practices or omission or alleged
acts, practices or omissions of any Borrower or its agents
related to the making of any acquisition, purchase of shares or
assets pursuant thereto, financing of such purchases or the
consummation of any other transactions contemplated by any such
acquisitions that are alleged to be in violation of any federal
securities law or of any other statute, regulation or other law
of any jurisdiction applicable to the making of any such acqui-
sition, the purchase of shares or assets pursuant thereto, the
financing of such purchases or the consummation of the other
transactions contemplated by any such acquisition; or (iv) any
withdrawals, termination or cancellation of any such proposed
acquisition for any reason whatsoever. The indemnity set forth
herein shall be in addition to any other obligations or
liabilities of any Borrower to the Agent and the Banks hereunder
or at common law or otherwise. The provisions of this Section
10.1 shall survive the payment of the Notes and the termination
of this Agreement.
Section 10.2 Taxes.
If, under any law in effect on the date of the
closing of any Loan hereunder, or under any retroactive provision
of any law subsequently enacted, it shall be determined that any
Federal, state or local tax is payable in respect of the issuance
of any Note, or in connection with the filing or recording of any
assignments, mortgages, financing statements, or other documents
(whether measured by the amount of Indebtedness secured or
otherwise) as contemplated by this Agreement, then each Borrower
will pay any such tax and all interest and penalties, if any, and
will indemnify the Banks and the Agent against and save each of
them harmless from any loss or damage resulting from or arising
out of the nonpayment or delay in payment of any such tax. If
any such tax or taxes shall be assessed or levied against any
Bank or any other holder of a Note, such Bank, or such other
holder, as the case may be, may notify each Borrower and make
immediate payment thereof, together with interest or penalties in
connection therewith, and shall thereupon be entitled to and
shall receive immediate reimbursement therefor from each
Borrower. Notwithstanding any other provision contained in this
Agreement, the covenants and agreements of the Borrowers in this
Section 10.2 shall survive payment of the Notes and the
termination of this Agreement.
Section 10.3 Payments.
As set forth in Article 2 hereof, all payments by
each Borrower on account of principal, interest, fees and other
charges (including any indemnities) shall be made to the Agent at
the Principal Office of the Agent, in lawful money of the United
States of America in immediately available funds, by wire
transfer or otherwise, not later than 11:00 A.M. New York City
time on the date such payment is due. Any such payment made on
such date but after such time shall, if the amount paid bears
interest, be deemed to have been made on, and interest shall
continue to accrue and be payable thereon until, the next
succeeding Business Day. If any payment of principal or interest
becomes due on a day other than a Business Day, such payment may
be made on the next succeeding Business Day and such extension
shall be included in computing interest in connection with such
payment. All payments hereunder and under the Notes shall be
made without set-off or counterclaim and in such amounts as may
be necessary in order that all such payments shall not be less
than the amounts otherwise specified to be paid under this
Agreement and the Notes (after withholding for or on account of:
(i) any present or future taxes, levies, imposts, duties or other
similar charges of whatever nature imposed by any government or
any political subdivision or taxing authority thereof, other than
any tax (except those referred to in clause (ii) below) on or
measured by the net income of the Bank to which any such payment
is due pursuant to applicable federal, state and local income tax
laws, and (ii) deduction of amounts equal to the taxes on or
measured by the net income of such Bank payable by such Bank with
respect to the amount by which the payments required to be made
under this sentence exceed the amounts otherwise specified to be
paid in this Agreement and the Notes). Upon payment in full of
any Note issued to any Bank and/or termination of any Bank's
Commitment, the Bank holding such Note shall mark the Note "Paid"
and return it to the Borrower specified on such Note.
Section 10.4 Survival of Agreements and
Representations; Construction.
All agreements, representations and warranties
made herein shall survive the delivery of this Agreement and the
Notes. The headings used in this Agreement and the table of
contents are for convenience only and shall not be deemed to
constitute a part hereof. All uses herein of the masculine
gender or of singular or plural terms shall be deemed to include
uses of the feminine or neuter gender, or plural or singular
terms, as the context may require.
Section 10.5 Lien on and Set-off of Deposits.
As security for the due payment and performance of
all the Obligations, each Borrower hereby grants to Agent for the
ratable benefit of the Banks a Lien on any and all deposits or
other sums at any time credited by or due from the Agent or any
Bank to the Borrower, whether in regular or special depository
accounts or otherwise, and any and all monies, securities and
other property of the Borrower, and the proceeds thereof, now or
hereafter held or received by or in transit to any Bank or the
Agent from or for such Borrower, whether for safekeeping,
custody, pledge, transmission, collection or otherwise, and any
such deposits, sums, monies, securities and other property, may
at any time after the occurrence and during the continuance of
any Event of Default be set-off, appropriated and applied by any
Bank or the Agent against any of the Obligations, whether or not
any of such Obligations is then due or is secured by any
collateral.
Section 10.6 Modifications, Consents and
Waivers; Entire Agreement.
No modification, amendment or waiver of or with
respect to any provision of this Agreement, any Notes, or any of
the other Loan Documents and all other agreements, instruments
and documents delivered pursuant hereto or thereto, nor consent
to any departure by any Borrower from any of the terms or
conditions thereof, shall in any event be effective unless it
shall be in writing and signed by the Agent and each Bank except
that: (i) any modification or amendment of, or waiver or consent
with respect to, Article 4 shall be required to be signed only by
the Agent and the Required Banks (provided, however, that the
consummation of a Loan by a Bank shall be deemed, with respect to
such Loan only, to have the effect of the execution by such Bank
of a waiver of, or consent to a departure from, any term or
provision of Article 4 that has not been satisfied as of the date
of the consummation of such Loan); and (ii) any modification or
amendment of, or waiver or consent with respect to, Articles 1
(other than the definition of "Required Banks"), 5, 6, 7, 8
(other than the preamble to Article 8 or Section 8.1 hereof) and
10 (other than this Section 10.6) may be signed only by the Agent
and the Required Banks. Any such waiver or consent shall be
effective only in the specific instance and for the purpose for
which given. No consent to or demand on any Borrower in any case
shall, of itself, entitle it to any other or further notice or
demand in similar or other circumstances. This Agreement and the
other Loan Documents embody the entire agreement and
understanding among the Banks, the Agent and the Borrowers and
supersede all prior agreements and understandings relating to the
subject matter hereof.
Section 10.7 Remedies Cumulative; Counterclaims.
Each and every right granted to the Agent and the
Banks hereunder or under any other document delivered hereunder
or in connection herewith, or allowed it by law or equity, shall
be cumulative and may be exercised from time to time. No failure
on the part of the Agent or any Bank or the holder of any Note to
exercise, and no delay in exercising, any right shall operate as
a waiver thereof, nor shall any single or partial exercise of any
right preclude any other or future exercise thereof or the
exercise of any other right. The due payment and performance of
the Obligations shall be without regard to any counterclaim,
right of offset or any other claim whatsoever that any Borrower
may have against any Bank or the Agent and without regard to any
other obligation of any nature whatsoever that any Bank or the
Agent may have to any Borrower, and no such counterclaim or
offset shall be asserted by any Borrower (unless such counter-
claim or offset would, under applicable law, be permanently and
irrevocably lost if not brought in such action) in any action,
suit or proceeding instituted by any Bank or the Agent for
payment or performance of the Obligations .
Section 10.8 Further Assurances.
At any time and from time to time, upon the
request of the Agent, each Borrower shall execute, deliver and
acknowledge or cause to be executed, delivered and acknowledged,
such further documents and instruments and do such other acts and
things as the Agent may reasonably request in order to fully
effect the purposes of this Agreement, the other Loan Documents
and any other agreements, instruments and documents delivered
pursuant hereto or in connection with the Loans.
Section 10.9 Notices.
All notices, requests, reports and other communi-
cations pursuant to this Agreement shall be in writing, either by
letter (delivered by hand or commercial messenger service or sent
by certified mail, return receipt requested, except for routine
reports delivered in compliance with Article 5 hereof which may
be sent by ordinary first-class mail) or telegram or telecopy,
addressed as follows:
(a) If to the Borrowers:
c/o Omega Healthcare Investors, Inc.
905 West Eisenhower Circle/Suite 110
Ann Arbor, Michigan 48103
Attention: Mr. Essel W. Bailey, Jr.,
President
Telecopier No: (313) 996-0020
with a copy to:
Dykema Gossett PLLC
1577 North Woodward Avenue/Suite 300
Bloomfield Hills, Michigan 48304-2820
Attention: Fred J. Fechheimer, Esq.
Telecopier No.: (810) 540-0763
(b) If to any Bank:
To its address set forth below its
name on the signature pages hereof,
with a copy to the Agent; and
(c) If to the Agent:
Fleet Bank, N.A., as Agent
1133 Avenue of the Americas
New York, New York 10036
Attention: Ms. Pauline T. McHugh
Telecopier No.: (212) 703-1744
with a copy (other than in the case
of Borrowing Notices and reports
and other documents delivered in
compliance with Article 5 hereof) to:
Winston & Strawn
200 Park Avenue
New York, New York 10166
Attention: Richard S. Talesnick, Esq.
Telecopier No.: (212) 294-4700
Any notice, request, demand or other communication hereunder
shall be deemed to have been given on: (x) the day on which it
is telecopied to such party at its telecopier number specified
above (provided such notice shall be effective only if followed
by one of the other methods of delivery set forth herein) or
delivered by receipted hand or such commercial messenger service
to such party at its address specified above, or (y) on the third
Business Day after the day deposited in the mail, postage
prepaid, if sent by mail, or (z) on the day it is delivered to
the telegraph company, addressed as aforesaid, if sent by
telegraph. Any party hereto may change the Person, address or
telecopier number to whom or which notices are to be given
hereunder, by notice duly given hereunder; provided, however,
that any such notice shall be deemed to have been given hereunder
only when actually received by the party to which it is
addressed.
Section 10.10 Counterparts.
This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Section 10.11 Severability.
The provisions of this Agreement are severable,
and if any clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or
provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdic-
tion, or any other clause or provision in this Agreement in any
jurisdiction. Each of the covenants, agreements and conditions
contained in this Agreement is independent and compliance by the
Borrower with any of them shall not excuse non-compliance by the
Borrower with any other. All covenants hereunder shall be given
independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limita-
tions of, another covenant shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or
condition exists.
Section 10.12 Binding Effect; No Assignment
or Delegation by Borrowers.
This Agreement shall be binding upon and inure to
the benefit of each of the Borrowers and their respective
successors and to the benefit of the Banks and the Agent and
their respective successors and assigns. The rights and
obligations of each Borrower under this Agreement shall not be
assigned or delegated without the prior written consent of the
Agent and the Required Banks, and any purported assignment or
delegation without such consent shall be void.
Section 10.13 Assignments and Participations by Banks.
(a) Each Bank may assign to one or more banks or
other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a
portion of its Commitment, the Loans owing to it, and the Note or
Notes held by it); provided, however, that: (i) the Borrowers
and the Agent must give prior written consent to such assignment
(unless such assignment is to an Affiliate of such Bank), which
consent shall not be unreasonably withheld, (ii) the parties to
each such assignment shall execute and deliver to the Agent an
Assignment and Acceptance, and a processing fee of $3,500.00,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of all of the assigning Bank's rights and
obligations under this Agreement, (iv) the amount of each of the
Revolving Credit Commitment and the Term Commitment, as the case
may be, of the assigning Bank being assigned pursuant to each
such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 and shall be an integral multiple of
$1,000,000, and (v) each such assignment shall be to an Eligible
Assignee. Upon such execution, delivery and acceptance, from and
after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof: (x) the assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations
of a Bank hereunder, and (y) the Bank assignor thereunder shall,
to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Bank's
rights and obligations under this Agreement, such Bank shall
cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee there-
under confirm to and agree with each other and the other parties
hereto as follows: (i) other than as provided in such Assignment
and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connec-
tion with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agree-
ment or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of each Borrower or the performance or obser-
vance by each Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of such financial
statements and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Agent, such
assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed
by it as a Bank.
(c) Upon its receipt of an Assignment and Accep-
tance executed by an assigning Bank and an assignee representing
that it is an Eligible Assignee, together with any Note subject
to such assignment, the Agent shall: (i) accept such Assignment
and Acceptance, and (ii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and
deliver to the Agent in exchange for the surrendered Note(s) a
new Note(s) to the order of such Eligible Assignee in an amount
equal to the Revolving Credit Commitment and/or Term Commitment
assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Bank has retained a Revolving Credit Commitment
and/or a Term Commitment hereunder, a new Note(s) to the order of
the assigning Bank in an amount equal to the Revolving Credit
Commitment and/or Term Commitment retained by it hereunder. Such
new Note(s) shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note(s), shall
be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A hereto.
(d) Each Bank may, without the prior consent of
the Agent, the other Banks or the Borrowers, sell participations
to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit Commitment,
the Loans owing to it, and the Note(s) held by it; provided,
however, that: (i) such Bank's obligations under this Agreement
(including, without limitation, its Revolving Credit Commitment
hereunder) shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Bank shall remain the
holder of any such Note(s) for all purposes of this Agreement,
and the Borrowers, the Agent and the other Banks shall continue
to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement.
(e) Any Bank may, in connection with any assign-
ment or participation or proposed assignment or participation
pursuant to this Section 10.13, disclose to the assignee or
participant or proposed assignee or participant, any information
relating to any Borrower furnished to such Bank by or on behalf
of such Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any confidential
information relating to such Borrower received by it from such
Bank.
(f) Anything in this Section 10.13 to the
contrary notwithstanding, any Bank may assign and pledge all or
any portion of its Loans and its Notes to any Federal Reserve
Bank (and its transferees) as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Bank from
its obligations hereunder.
Section 10.14 GOVERNING LAW; CONSENT TO JURIS-
DICTION; WAIVER OF TRIAL BY JURY.
(a) THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND
ALL OTHER DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED IN
CONNECTION HEREWITH AND THEREWITH, SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS RULES PERTAINING TO
CONFLICTS OF LAWS.
(b) EACH BORROWER IRREVOCABLY CONSENTS THAT ANY
LEGAL ACTION OR PROCEEDING AGAINST IT UNDER, ARISING OUT OF OR IN
ANY MANNER RELATING TO THIS AGREEMENT, AND EACH OTHER LOAN
DOCUMENT MAY BE BROUGHT IN ANY COURT OF THE STATE OF NEW YORK,
COUNTY OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK. EACH BORROWER, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY AND
IRREVOCABLY ASSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF
ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING. EACH
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY
COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY SUCH
ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY
MAIL IN THE MANNER PROVIDED FOR IN SECTION 10.9 HEREOF. EACH
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR
DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS OR ANY SIMILAR BASIS. EACH BORROWER SHALL NOT BE
ENTITLED IN ANY SUCH ACTION OR PROCEEDING TO ASSERT ANY DEFENSE
GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE OTHER THAN THE STATE
OF NEW YORK UNLESS SUCH DEFENSE IS ALSO GIVEN OR ALLOWED BY THE
LAWS OF THE STATE OF NEW YORK. NOTHING IN THIS SECTION 10.14
SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO ANY EXTENT THE RIGHT
OF ANY BANK TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE BORROWER IN ANY JURISDICTION OR TO SERVE PROCESS IN
ANY MANNER PERMITTED BY LAW.
(c) EACH BORROWER, THE BANKS AND THE AGENT WAIVE
TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT, ANY OF THE
OTHER LOAN DOCUMENTS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT TO THIS AGREEMENT, OR THE VALIDITY, PERFECTION, INTER-
PRETATION, COLLECTION OR ENFORCEMENT THEREOF.
Section 10.15 Joint and Several Obligations.
All of the Obligations, indebtedness, liabilities,
undertakings, representations and warranties of the Borrowers
hereunder shall be joint and several obligations of the
Borrowers.
Section 10.16 Syndication Agent.
The parties hereto acknowledge that National
Westminster Bank Plc has acted as "syndication agent" in
connection with the consummation of the transactions contemplated
by this Amended and Restated Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the date first above written.
OMEGA HEALTHCARE INVESTORS, INC.
BAYSIDE STREET, INC.
STERLING ACQUISITION CORP.
STERLING ACQUISITION CORP. II
OS LEASING COMPANY
By S/Essel W. Bailey Jr., President
Title
Essel W. Bailey, Jr., as an executive officer of all of the
aforementioned corporations, has executed this Amended and
Restated Loan Agreement and intending that all corporations above
named are bound and are to be bound by the one signature as if he
had executed this Amended and Restated Loan Agreement separately
for each of the above named corporations.
<PAGE>
Revolving Credit Commitment:
$19,000,000 FLEET BANK, N.A. (formerly NatWest
Bank N.A.), as Agent and as a Bank
Term Commitment: By S/Pauline T. McHugh, VP
Title
$5,000,000
Lending Office for Prime Rate Loans
and LIBOR Loans:
1133 Avenue of the Americas
New York, New York 10036
Attention: Ms. Pauline T. McHugh
Address for Notices:
Fleet Bank, N.A.
1133 Avenue of the Americas
New York, New York 10036
Attention: Ms. Pauline T. McHugh
Telecopier: (212) 703-1744
<PAGE>
Revolving Credit Commitment:
$20,000,000 FLEET NATIONAL BANK
Term Commitment: By S/Cliff Mellor, VP
Title
-0-
Lending Office for Prime Rate Loans
and LIBOR Loans:
777 Main Street, MO4A
Hartford, CT 06115
Attention: Mr. Cliff Mellor
Address for Notices:
Fleet National Bank
777 Main Street, M04A
Hartford, CT 06115
Attention: Mr. Cliff Mellor
Telecopier: (860) 986-3450
<PAGE>
Revolving Credit Commitment:
$11,000,000 KLEINWORT BENSON LIMITED
Term Commitment: By S/Peter Kettle, EVP
Title
$4,000,000
Lending Office for Prime Rate Loans
and LIBOR Loans:
20 Fenchurch Street
London EC3P 3DB
England
Address for Notices:
Kleinwort Benson Limited
200 Park Avenue
New York, New York 10166
Attention: Mr. Peter Kettle
Telecopier: (212) 983-5981
<PAGE>
Revolving Credit Commitment:
$17,000,000 HARRIS TRUST AND SAVINGS BANK
Term Commitment: By S/Jeffrey C. Nicholson, VP
Title
-0-
Lending Office for Prime Rate Loans
and LIBOR Loans:
111 West Monroe Street
Chicago, Illinois 60603
Attention: Mr. Peter Dancy
Address for Notices:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Attention: Mr. Peter Dancy
Telecopier: (312) 461-2591
<PAGE>
Revolving Credit Commitment:
$15,000,000 NBD BANK
Term Commitment: By S/Robert Lawrence, VP
Title
-0-
Lending Office for Prime Rate Loans
and LIBOR Loans:
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Mr. Robert Lawrence
Address for Notices:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Mr. Robert Lawrence
Telecopier: (313) 225-3939
<PAGE>
Revolving Credit Commitment:
$15,000,000 THE SUMITOMO BANK, LIMITED
Term Commitment: By S/Thomas A. Garza, VP
-0- Title
By S/H.W. Redding, VP and Manager
Title
Lending Office for Prime Rate Loans
and LIBOR Loans:
233 S. Wacker Drive
Suite 5400
Sears Tower
Chicago, Illinois 60606
Attention: Vice President and
Manager - Operations
Address for Notices:
The Sumitomo Bank, Limited
233 S. Wacker Drive
Suite 5400
Sears Tower
Chicago, Illinois 60606
Attention: Thomas A. Garza
Telecopier: (312) 993-6255
<PAGE>
Revolving Credit Commitment:
$12,000,000 BANK ONE, DAYTON, N.A.
Term Commitment: By S/Karen St. Arnaud, AVP
Title
-0-
Lending Office for Prime Rate Loans
and LIBOR Loans:
Kettering Tower
40 North Main Street
Dayton, Ohio 45423
Attention: Ms. Karen St. Arnaud
Address for Notices:
Bank One, Dayton, N.A.
Kettering Tower
40 North Main Street
Dayton, Ohio 45423
Attention: Ms. Karen St. Arnaud
Telecopier: (513) 449-4885
<PAGE>
Revolving Credit Commitment:
$8,000,000 MICHIGAN NATIONAL BANK
Term Commitment: By S/Lisa McKinnon, VP
Title
-0-
Lending Office for Prime Rate Loans
and LIBOR Loans:
27777 Inkster Road
Farmington Hills, MI 48333-9065
Attention: Ms. Lisa McKinnon
Address for Notices:
27777 Inkster Road
Farmington Hills, MI 48333-9065
Attention: Ms. Lisa McKinnon
Telecopier: (810) 473-4345
<PAGE>
Revolving Credit Commitment:
-0- BANK OF SCOTLAND
Term Commitment: By S/Kevan Walker, Banking Manager
Title
$8,000,000
Lending Office for Prime Rate Loans
and LIBOR Loans:
Centre Bank
2 Robertson Avenue
Edinburgh, Scotland EL11 1P2
Attention: Mr. Kevan Walker
Address for Notices:
Centre Bank
2 Robertson Avenue
Edinburgh, Scotland EL11 1P2
Attention: Mr. Kevan Walker
Telecopier: 0131-346-6089
<PAGE>
Revolving Credit Commitment:
$8,000,000 THE NIPPON CREDIT BANK, LTD.
Term Commitment: By S/Peter Capitelli, VP and Manager
Title
-0-
Lending Office for Prime Rate Loans
and LIBOR Loans:
245 Park Avenue
New York, New York 10167
Attention: Mr. Peter Fiorillo
Address for Notices:
245 Park Avenue
New York, New York 10167
Attention: Mr. Peter Capitelli
Telecopier: (212) 490-3895
<PAGE>
Revolving Credit Commitment:
BHF-BANK, Aktiengesellschaft
-0- formerly known as
BERLINER HANDELS FRANKFURTER-BANK AG
Term Commitment: By S/John Sykes, AVP
Title
$8,000,000
By S/David Fraenkel, VP
Title
Lending Office for Prime Rate Loans
and LIBOR Loans:
590 Madison Avenue
New York, New York 10022-2540
Attention: Mr. John Sykes
Address for Notices:
590 Madison Avenue
New York, New York 10022-2540
Attention: Mr. John Sykes
Telecopier: (212) 756-5536
