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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) September 30, 1997
OMEGA HEALTHCARE INVESTORS, INC.
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(Exact name of registrant as specified in its charter)
MARYLAND 1-11316 NO. 38-3041398
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File No.) Identification No.)
905 WEST EISENHOWER CIRCLE, SUITE 110, ANN ARBOR, MI 48103
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(Address of principal executive officers) (Zip Code)
Registrant's telephone number, including area code (313) 747-9790
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NOT APPLICABLE
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(Former name or former address, if changed since last report.)
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Item 7. Financial Statements and Exhibits
(c) Exhibits
3 Amended and Restated By-Laws of the Registrant, as amended on
October 15, 1997
10 Second Amended and Restated Loan Agreement by and among Omega
Healthcare Investors, Inc., Fleet Bank, N.A., as agent and the
banks signatory thereto.
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.
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(Registrant)
Date: November 10, 1997 By: /s/ DAVID A. STOVER
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David A. Stover
Chief Financial Officer
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EXHIBIT 3
AMENDED AND RESTATED
BYLAWS
OF
OMEGA HEALTHCARE INVESTORS, INC.
As amended on October 15, 1997
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BYLAWS
OF
OMEGA HEALTHCARE INVESTORS, INC.
AS AMENDED AND RESTATED
OCTOBER 15, 1997
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
corporation shall be established and maintained at the office of THE
CORPORATION TRUST INCORPORATED, 32 South Street, Baltimore, Maryland 21202,
and said THE CORPORATION TRUST INCORPORATED be the registered agent of this
corporation in charge thereof.
Section 2. Other Offices. The corporation may establish such other
offices, within or without the State of Maryland, at such place or places as
the Board of Directors from time to time may designate, or which the business
of the corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meetings. Annual meetings of stockholders for the
election of Directors and for such other business as may be stated in the
notice of the meeting, shall be held on a date and at a time designated by the
Board of Directors at such place, within or without the State of Maryland, as
the Board of Directors by resolution shall determine, and as set forth in the
notice of the meeting.
If the date of the annual meeting shall fall on a legal holiday of
the state in which the meeting is to be held, the meeting shall be held on the
next succeeding business day.
Section 2. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, may be called by the Chairman, the Chief Executive
Officer, the President, or by a majority of the Board of Directors and shall be
called by an officer upon written request of stockholders holding in the
aggregate not less than 10% of the outstanding shares entitled to vote on the
business proposed to be transacted thereat. Such meetings may be held at such
time and place, within or without the State of Maryland, as shall be stated in
the notice of the meeting. The call of a special meeting shall state the
nature of the business to be transacted and no other business shall be
considered at the meeting. A special meeting may be called for the purpose of
removing a Director.
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Section 3. Notice of Meetings. Written or printed notice, stating
the place, date and time of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered to
each stockholder entitled to vote thereat at his address as it appears on the
records of the corporation, by United States mail, postage prepaid, not less
than twenty (20) nor more than sixty (60) days before the date of the meeting.
No business other than that stated in the notice shall be transacted at any
meeting without the unanimous consent of all stockholders entitled to vote
thereat.
Section 4. Voting. At each annual meeting the stockholders entitled
to vote shall elect a Board of Directors, and they may transact such other
corporate business as shall be stated in the notice of the meeting. The vote
for Directors, and, upon the demand of any stockholder, the vote upon any
question before the meeting, shall be by ballot. Unless otherwise provided by
the Articles of Incorporation or by the laws of the State of Maryland, all
elections of Directors shall be by a plurality of the votes cast, and all
substantive questions shall be decided by a majority vote; all procedural
questions shall be decided by the Chairman or Parliamentarian of the meeting.
The Directors may fix a day not more than sixty (60) days prior to
the holding of any such meeting as the date as of which stockholders entitled
to notice of and to vote at such meeting shall be determined; and only
stockholders of record on such day shall be entitled to notice of or to vote at
any such meeting.
Each stockholder entitled to vote, in accordance with the terms of
the Articles of Incorporation and the provisions of these Bylaws, shall be
entitled to one vote, in person or by proxy, for each share of stock entitled
to vote held by such stockholder, but no proxy shall be voted after eleven (11)
months from its date unless such proxy provides for a longer period. In no
case shall any proxy be given for a period in excess of ten (10) years from the
date of its execution.
Section 5. Quorum. Any number of stockholders together holding a
majority of the stock issued and outstanding and entitled to vote thereat, who
shall be present in person or represented by proxy at any meeting duly called,
shall constitute a quorum for the transaction of business. If, at any meeting,
less than a quorum shall be present or represented, those present, either in
person or by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until the
requisite amount of stock shall be present, at which time any business may be
transacted which might have been transacted at the meeting as originally
noticed.
Section 6. Action Without Meeting. Except for the election of
Directors, any action to be taken by the stockholders may be taken without a
meeting, if, prior to such action, all stockholders entitled to vote thereon
shall consent in writing to such action being taken, and such consent shall be
treated for all purposes as vote at a meeting.
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ARTICLE III
DIRECTORS
Section 1. Number and Term. The number of Directors shall be not
less than five (5) nor more than nine (9) until changed by amendment of these
Bylaws. The exact number of Directors shall be seven (7) until changed, within
the limits specified, by a Bylaw amending this Section duly adopted by the
Board of Directors or stockholders. The Directors shall be elected at the
annual meeting of stockholders, and each Director shall be elected to serve
until his successor shall be elected and shall have qualified. In no case
shall the number of Directors be less than five (5), unless changed by an
amendment to the Articles of Incorporation.
The Board of Directors of this corporation shall be classified into
three groups, with two Directors in Group I, three Directors in Group II, and
two Directors in Group III. Each Director in Group I initially shall serve for
a term ending at the annual meeting of stockholders in 1993; each Director in
Group II shall serve for an initial term ending at the annual meeting of
stockholders in 1994; and each Director in Group III shall serve for an initial
term ending at the annual meeting of stockholders in 1995. After the
respective initial terms of the groups indicated, each such group of Directors
shall be elected for successive terms ending at the annual meeting of
stockholders the third year after election.
Directors need not be stockholders.
Section 2. Quorum. A majority of the Directors shall constitute a
quorum for the transaction of business. If, at any meeting of the Board, there
shall be less than a quorum present, a majority of those present may adjourn
the meeting, from time to time, until a quorum is obtained, and no further
notice thereof need be given other than by announcement at said meeting which
shall be so adjourned.
Section 3. First Meeting. The newly elected Directors may hold
their first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after the annual meeting of
stockholders or the time and place of such meeting may be fixed by written
consent of the entire Board.
Section 4. Election of Officers. At the first meeting, or at any
subsequent meeting called for that purpose, the Directors shall elect the
officers of the corporation, as more specifically set forth in ARTICLE V of
these Bylaws. Such officers shall hold office until the next annual election
of officers, or until their successors are elected and shall have qualified.
Section 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held, without notice, at such places and times as shall be
determined, from time to time, by resolution of the Board of Directors.
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Section 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman, the Chief Executive Officer, the
President, or by the Secretary on four (4) days' notice to each Director. In
case such notice is delivered personally, or by telephone, facsimile or
telegram, it shall be delivered at least twenty-four (24) hours prior to the
time of the holding of the meeting.
Section 7. Place of Meetings. The Directors may hold their
meetings, and have one or more offices, and keep the books of the corporation
outside the State of Maryland at any office or offices of the corporation, or
at any other place as they from time to time by resolution may determine.
Section 8. Dispensing With Notice. The transactions of any meeting
of the Board of Directors, however called and noticed or wherever held, shall
be as valid as though had at a meeting duly held after regular call and notice
if a quorum be present and if, either before or after the meeting, each of the
Directors not present signs a written waiver of notice, a consent to holding
the meeting or an approval of the minutes thereof. The waiver of notice or
consent need not specify the purpose of the meeting. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting. Notice of a meeting need not be given to any
Director who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director.
Section 9. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors, or any committee thereof,
may be taken without a meeting if, prior to such action, a written consent
thereto is signed by all members of the Board or of such committee, as the case
may be, and such written consent is filed with the minutes of the proceedings
of the Board of Directors or committee.
Section 10. Telephonic Meetings. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
Section 11. General Powers of Directors. The Board of Directors
shall have the management of the business of the corporation, and, subject to
the restrictions imposed by law exercise all the powers of the corporation.
Each Director shall be entitled to rely upon the books and records of the
corporation, and upon information, opinions, reports, or statements, including
financial statements and other financial data, prepared or presented by
officers or employees of the corporation believed to be reliable and competent
in the matters presented, or by counsel, independent accountants, or other
persons as to matters which the Board of Directors believes to be within such
person's professional or expert competence.
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Section 12. Specific Powers of Directors. Without prejudice to such
general powers, it hereby is expressly declared that the Directors shall have
the following powers:
(1) To make and change regulations, not
inconsistent with these Bylaws, for the management of the business
and affairs of the corporation.
(2) To purchase or otherwise acquire for the
corporation any property, rights or privileges which the corporation
is authorized to acquire.
(3) To pay for any property purchased for the
corporation, either wholly or partly in money, stock, bonds,
debentures or other securities of the corporation.
(4) To borrow money and make and issue notes, bonds
and other negotiable and transferable instruments, mortgages, deeds
of trust and trust agreements, and to do every act and thing
necessary to effectuate the same.
(5) To remove any officer for cause, or any officer
summarily, without cause, and, in their discretion, from time to time
to devolve the powers and duties of any officer upon any other person
for the time being.
(6) To appoint and remove or suspend subordinate
officers or agents as they may deem necessary, and to determine their
duties, and to fix and from time to time to change their salaries or
remuneration, and to require security as and when they think fit.
(7) To confer upon any officer of the corporation
the power to appoint, remove and suspend subordinate officers and
agents.
(8) To determine who shall be authorized, on behalf
of the corporation, to make and sign bills, notes, acceptances,
endorsements, contracts and other instruments.
(9) To determine who shall be entitled, in the name
and on behalf of the corporation, to vote upon or to assign and
transfer any shares of stock, bonds or other securities of other
corporations held by this corporation.
(10) To delegate any of the powers of the Board, in
relation to the ordinary business of the corporation, to any standing
or special committee, or to any officer or agent (with power to
sub-delegate), upon such terms as they deem fit.
(11) To call special meetings of the stockholders for any
purpose or purposes.
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(12) To appoint the accountants and attorneys for
the corporation.
Section 13. Compensation. Directors shall receive a stated salary
for their services as Directors and, by resolution of the Board, a fixed fee
and expenses of attendance for attendance at each meeting. Directors may
participate in retirement plans, stock option and restricted stock plans and
other employee benefit plans of the Company which specifically permit
participation by directors.
Nothing herein contained shall be construed to preclude any Director
from serving the corporation in any other capacity as an officer, agent, or
otherwise.
ARTICLE IV
COMMITTEES
Section 1. Appointments and Powers. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate
one or more committees. The Board of Directors may designate one or more
Directors as alternate members of a committee who may replace any absent or
disqualified member at any meeting of the committee. Such alternate members
shall, for purposes of determining a quorum, be counted in the place of the
absent or disqualified member. The committee, to the extent provided in said
resolution or resolutions or in these Bylaws, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the corporation. Such committee or committees shall have such name or names
as may be stated in these Bylaws or as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 2. Minutes. Committees shall keep regular minutes of their
proceedings, and report the same to the Board of Directors when required.
Section 3. Audit Committee. The Audit Committee shall select and
engage in behalf of the corporation, and fix the compensation of, a firm of
certified public accountants whose duty it shall be to audit the books and
accounts of the corporation and its subsidiaries for the fiscal year in which
they are appointed, and who shall report to such Committee. The Audit
Committee shall confer with the auditors and shall determine, and from time to
time shall report to the Board of Directors upon the scope of the auditing of
the books and accounts of the corporation and its subsidiaries. The Audit
Committee shall also be responsible for determining that the business practices
and conduct of employees and other representatives of the corporation and its
subsidiaries comply with the policies and procedures of the corporation. None
of the members of the Audit Committee shall be officers or employees of the
corporation.
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ARTICLE V
OFFICERS
Section 1. Officers. The officers shall be elected at the first
meeting of the Board of Directors after each annual meeting of stockholders.
The Directors shall elect a Chairman, a Chief Executive Officer, a President, a
Secretary and a Treasurer and one or more Vice Presidents as they may deem
proper. Any person may hold two or more offices.
The Board of Directors may appoint such other officers and agents as
it may deem advisable, who shall hold office for such terms and shall exercise
such powers and perform such duties as shall from time to time be determined by
the Board of Directors.
Section 2. Chairman. The Chairman, if one be elected, shall preside
at all meetings of the Board of Directors and stockholders, and he shall have
and perform such other duties as from time to time may be assigned to him by
the Board of Directors.
Section 3. Chief Executive Officer. The Chief Executive Officer
shall have the general powers and duties of supervision and management usually
vested in the office of Chief Executive Officer of a corporation. He shall
have general supervision, direction and control of the business of the
corporation. Except as the Board of Directors shall authorize the execution
thereof in some other manner, he shall execute bonds, mortgages and other
contracts on behalf of the corporation.
Section 4. President. The President shall have the general powers
and duties of supervision and management usually vested in the office of
President of a corporation. He shall have general supervision, direction and
control of the business of the corporation. Except as the Board of Directors
shall authorize the execution thereof in some other manner, he shall execute
bonds, mortgages and other contracts on behalf of the corporation.
Section 5. Vice Presidents. Each Vice President shall have such
powers and shall perform such duties as are usually vested in the office of
Vice President of a corporation. Except as the Board of Directors shall
authorize the execution thereof in some other manner, he shall execute bonds,
mortgages and other contracts on behalf of the corporation.
Section 6. Secretary. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and Directors, and all other
notices required by law or by these Bylaws, and, in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the Chairman, the Chief Executive Officer, the President,
the Board of Directors, or the stockholders, upon whose requisition the meeting
is called as provided in these Bylaws. He shall record all proceedings of
meetings of the stockholders and of the Board of Directors in a book to be kept
for that purpose, and shall perform such other duties as may be assigned to him
by the Directors or the President.
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Section 7. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities, and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation. He shall
deposit all monies and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors or the President, taking proper vouchers for
such disbursements. He shall render to the President and the Board of
Directors, at the regular meetings of the Board, or whenever they may request
it, an accounting of all his transactions as Treasurer, and of the financial
condition of the corporation.
If required by the Board of Directors, he shall give the corporation
a bond for the faithful discharge of his duties, in such amount and with such
surety as the Board shall prescribe.
Section 8. Assistant Secretaries and Assistant Treasurers.
Assistant Secretaries and Assistant Treasurers, if any, shall be appointed by
the Board of Directors or by the Chief Executive Officer, the President or Vice
President and shall have such powers and shall perform such duties as shall be
assigned to them, respectively, by the Secretary and by the Treasurer.
Section 9. General Powers. In addition to the rights and duties set
forth in this Article V, the Chief Executive Officer, President, Secretary or
any other officer of the corporation shall be authorized and empowered to take
such actions and to execute such documents on behalf of the corporation as may,
from time to time, be required.
ARTICLE VI
RESIGNATIONS; FILLING OF VACANCIES;
INCREASE IN NUMBER OF DIRECTORS;
REMOVAL FROM OFFICE
Section 1. Resignations. Any Director, member of a committee, or
other officer may resign at any time. Such resignation shall be made in
writing, and shall take effect at the time specified therein, and, if no time
be specified, at the time of its receipt by the Board of Directors, the
President or the Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
Section 2. Filling of Vacancies. If the office of any officer,
Director or member of a committee becomes vacant, the remaining Directors in
office, although less than a quorum, may appoint, by a majority vote, any
qualified person to fill such vacancy, who shall hold office for the unexpired
term of his predecessor, or until his successor is elected and shall have
qualified.
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Any vacancy occurring by reason of an increase in the number of
Directors may be filled by action of a majority of the entire Board, for a term
of office continuing only until the next election by the stockholders of
Directors within the Group to which the new Director is appointed, or may be
filled by the affirmative vote of the holders of a majority of the shares then
entitled to vote at an election of Directors.
Section 3. Removal From Office. At a meeting of stockholders
expressly called for such purpose, any or all members of the Board of Directors
may be removed, with or without cause, by a vote of the holders of not less
than two-thirds (2/3) of the issued and outstanding capital stock entitled to
vote thereon and said stockholders may elect a successor or successors to fill
any resulting vacancies, for the unexpired terms of the removed Directors.
Any officer or agent, or member of a committee elected or appointed
by the Board of Directors, may be removed by said Board whenever, in its
judgment, the best interests of the corporation shall be served thereby.
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock. Certificates of stock, numbered,
and signed by a member of the Board of Directors, the Chief Executive Officer,
the President or a Vice President, and the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer, shall be issued to each
stockholder, certifying to the number of shares owned by him in the
corporation. Whenever any certificate is countersigned, or otherwise
authenticated by a transfer agent or registrar, the signatures of such
Chairman, Chief Executive Officer, President, Vice President, Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer may be facsimiles.
In case any officer who has signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer at the date of its issue.
Section 2. Lost Certificates. A new certificate of stock may be
issued in place of any certificate theretofore issued by the corporation and
alleged to have been lost or destroyed, and the Directors may, at their
discretion, request the owner of the lost or destroyed certificate, or his
legal representative, to give the corporation a bond, in such sum as they may
direct, but not exceeding double the value of the stock, to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss of any such certificate.
Section 3. Transfer of Shares. Subject to the restrictions that may
be contained in the Articles of Incorporation, the shares of stock of the
corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized representatives.
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Section 4. Dividends. Subject to the provisions of the Articles of
Incorporation and the laws of the State of Maryland, the Board of Directors
may, at any regular or special meeting, declare dividends upon the capital
stock of the corporation, as and when they may deem expedient.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the corporation shall
end on the 31st day of December of each calendar year.
Section 2. Checks, Drafts, Notes. All checks, drafts, or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or
officers, agent or agents of the corporation, and in such manner as from time
to time shall be determined by resolution of the Board of Directors.
Section 3. Corporate Records. The corporation shall keep correct
and complete books of account and minutes of the proceedings of its
stockholders and Directors.
The corporation shall keep and maintain at its principal offices a
certified copy of its Articles of Incorporation and all amendments thereto, a
certified copy of its Bylaws and all amendments thereto, a stock ledger or
duplicate stock ledger, revised annually, containing the names, alphabetically
arranged, of all stockholders, their residence addresses, and the number of
shares held by them, respectively. In lieu of the stock ledger or duplicate
stock ledger, a statement may be filed in the principal office stating the name
of the custodian of the stock ledger or duplicate stock ledger, and the present
and complete post office address (including street and number, if any) where
such stock ledger or duplicate stock ledger is kept.
The Directors shall take all reasonable steps to assure that a full
and correct annual statement of the affairs of the corporation is prepared
annually, including a balance sheet and a financial statement of operations for
the preceding fiscal year which shall be certified by independent certified
public accountants, and distributed to stockholders within 120 days after the
close of the corporation's fiscal year and a reasonable period of time prior to
the annual meeting of stockholders. The Directors shall also be responsible
for scheduling the annual meeting of stockholders.
Section 4. Notice and Waiver of Notice. Whenever, pursuant to the
laws of the State of Maryland or these Bylaws, any notice is required to be
given, personal notice is not meant unless expressly so stated, and any notice
so required shall be deemed to be sufficient if given by depositing the same in
the United States mail, postage prepaid, addressed to the person entitled
thereto at his address as it appears on the records of the corporation, and
such notice shall be
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deemed to have been given on the day of such mailing. Stockholders not
entitled to vote shall not be entitled to receive notice of any meetings except
as otherwise provided by statute.
Any notice required to be given may be waived, in writing, by the
person or persons entitled thereto, whether before or after the time stated
therein.
Section 5. Inspectors. The Board of Directors may, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If the inspectors shall not be so
appointed or if any of them shall fail to appear or act, the chairman of the
meeting may, and on the request of any stockholder entitled to vote thereat
shall, appoint inspectors. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath to execute faithfully the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares represented
at the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting or any stockholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a certificate of any
fact found by them. No Director or candidate for the office of Director shall
act as inspector of an election of Directors. Inspectors need not be
stockholders.
Section 6. Transactions with Officers and Directors. The
corporation shall not engage in any purchase, sale or lease of property or
other business transaction in which an officer or director of the corporation
has a direct or indirect material interest without the approval by resolution
of a majority of those directors who do not have an interest in such
transaction.
ARTICLE IX
AMENDMENTS TO BYLAWS
Section 1. Amendment by Shareholders. New Bylaws may be adopted or
these Bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote, provided,
however, that any provision of these Bylaws requiring a vote of greater than a
majority may be amended, repealed or modified only by a vote satisfying such
higher voting requirements.
Section 2. Amendment by Directors. Subject to the right of the
shareholders as provided in Section 1 of this Article IX to adopt, amend, or
repeal Bylaws, Bylaws may be adopted, amended, or repealed by the Board of
Directors; provided, however, that the Board of Directors may adopt an
amendment of a Bylaw changing the authorized number of directors only
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within the limits specified in the Articles of Incorporation or in Section 1 of
Article III of these Bylaws.
ARTICLE X
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. Indemnification. The corporation shall indemnify and
hold harmless, and shall pay expenses incurred by or satisfy a judgment or fine
levied against, each officer, director and other person, in the manner and to
the full extent permitted by the General Corporation Law of the State of
Maryland.
Section 2. Provisions Not Exclusive. This Article shall not be
construed as a limitation upon the power of the corporation to enter
into contracts or undertakings of indemnity with a director, officer, employee
or agent of the corporation, nor shall it be construed as a limitation upon any
other rights to which a person seeking indemnification may be entitled under
any agreement, vote of stockholders or disinterested directors or otherwise,
both as to actions in his official capacity and as to action in another
capacity while holding office.
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CERTIFICATE OF SECRETARY
I, Essel W. Bailey, Jr., Secretary of Omega Healthcare Investors,
Inc., hereby certify that the attached Bylaws consisting of 12 pages,
constitute the Bylaws of this corporation, and the same are in full force and
effect as of the 15th day of October, 1997.
IN WITNESS WHEREOF, I have executed this certificate as of the 15th
day of October, 1997.
/s/ ESSEL W. BAILEY, JR.
-------------------------------
ESSEL W. BAILEY, JR., Secretary
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EXHIBIT 10
SECOND 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 AGENT FOR SUCH BANKS
SEPTEMBER 30, 1997
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TABLE OF CONTENTS
<TABLE>
<S><C>
ARTICLE 1. DEFINITIONS
-----------
Section 1.1 Defined Terms
Section 1.2 GAAP
Section 1.3 Certain Calculations
ARTICLE 2. COMMITMENTS; LOANS; LETTERS OF CREDIT
-------------------------------------
Section 2.1 Loans
Section 2.2 Letters of Credit
Section 2.3 Notices Relating to Loans
Section 2.4 Disbursement of Loan Proceeds
Section 2.5 Restated Notes
Section 2.6 Repayment of Loans; Voluntary Changes
in Commitment; Mandatory Repayments
Section 2.7 Interest
Section 2.8 Fees
Section 2.9 Use of Proceeds of Loans
Section 2.10 Computations; Denominations of
Alternative Currency Loans
Section 2.11 Minimum Amounts of Borrowings,
Conversions and Repayments
Section 2.12 Time and Method of Payments
Section 2.13 Lending Offices
Section 2.14 Several Obligations
Section 2.15 Pro Rata Treatment Among Banks
Section 2.16 Non-Receipt of Funds by the Agent
Section 2.17 Sharing of Payments
and Set-Off Among Banks
Section 2.18 Conversions of Loans
Section 2.19 Additional Costs; Capital
Requirements
Section 2.20 Limitation on Types of Loans
Section 2.21 Illegality
Section 2.22 Certain Conversions pursuant
to Sections 2.19 and 2.21
Section 2.23 Indemnification
ARTICLE 3.REPRESENTATIONS AND WARRANTIES
------------------------------
Section 3.1 Organization
Section 3.2 Power, Authority, Consents
Section 3.3 No Violation of Law or Agreements
Section 3.4 Due Execution, Validity,
Enforceability
Section 3.5 Title to Properties
</TABLE>
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<TABLE>
<S><C>
Section 3.6 Judgments, Actions, Proceedings
Section 3.7 No Defaults, Compliance With Laws
Section 3.8 Burdensome Documents
Section 3.9 Financial Statements; Projections
Section 3.10 Tax Returns
Section 3.11 Intangible Assets
Section 3.12 Regulation U
Section 3.13 Name Changes, Mergers, Acquisitions
Section 3.14 Full Disclosure
Section 3.15 Licenses and Approvals
Section 3.16 ERISA
Section 3.17 REIT Status
ARTICLE 4. CONDITIONS TO THE LOANS
-----------------------
Section 4.1 Conditions to Initial Loans
Section 4.2 Conditions to Subsequent Loans
Section 4.3 Conditions to Issuance of L/Cs
ARTICLE 5. DELIVERY OF FINANCIAL REPORTS,
DOCUMENTS AND OTHER INFORMATION
-------------------------------
Section 5.1 Annual Financial Statements
Section 5.2 Quarterly Financial Statements
Section 5.3 Compliance Information
Section 5.4 No Default Certificate
Section 5.5 Certificate of Accountants
Section 5.6 Borrowing Base Certificate
Section 5.7 Business Plans and Budget
Section 5.8 Operator Reports
Section 5.9 Accountants Reports
Section 5.10 Copies of Documents
Section 5.11 Notices of Defaults
Section 5.12 ERISA Notices and Requests
Section 5.13 Additional Information
ARTICLE 6. AFFIRMATIVE COVENANTS
---------------------
Section 6.1 Books and Records
Section 6.2 Inspections and Audits
</TABLE>
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<TABLE>
<S><C>
Section 6.3 Maintenance and Repairs
Section 6.4 Continuance of Business
Section 6.5 Copies of Corporate Documents
Section 6.6 Perform Obligations
Section 6.7 Notice of Litigation
Section 6.8 Insurance
Section 6.9 Financial Covenants
Section 6.10 Notice of Certain Events
Section 6.11 Comply with ERISA
Section 6.12 Environmental Compliance
Section 6.13 Maintenance of REIT Status
Section 6.14 Long-term Care Facilities
Section 6.15 Operator Creditworthiness
Section 6.16 Operator Concentration
Section 6.17 Behavioral Care Facilities
Section 6.18 Non-Healthcare Assets
ARTICLE 7. NEGATIVE COVENANTS
------------------
Section 7.1 Indebtedness
Section 7.2 Liens
Section 7.3 Guaranties
Section 7.4 Mergers, Acquisitions
Section 7.5 Redemptions; Distributions
Section 7.6 Changes in Structure
Section 7.7 Disposition of Assets
Section 7.8 Investments
Section 7.9 Fiscal Year
Section 7.10 ERISA Obligations
Section 7.11 Capital Expenditures
Section 7.12 Use of Cash
Section 7.13 Transactions with
Affilliates
Section 7.14 Hazardous Material
Section 7.15 Interest Rate Protection
Section 7.16 Construction Investments
ARTICLE 8. EVENTS OF DEFAULT
-----------------
Section 8.1 Payments
Section 8.2 Certain Covenants
Section 8.3 Other Covenants
Section 8.4 Other Defaults
Section 8.5 Representations and Warranties
Section 8.6 Bankruptcy
Section 8.7 Judgments
</TABLE>
<PAGE> 5
<TABLE>
<S><C>
Section 8.8 ERISA
Section 8.9 Material Adverse Effect
Section 8.10 Ownership
Section 8.11 REIT Status, Etc.
Section 8.12 Environmental
Section 8.13 Default by Operator
ARTICLE 9. THE AGENT
---------
Section 9.1 Appointment, Powers and Immunities.
Section 9.2 Reliance by Agent
Section 9.3 Events of Default
Section 9.4 Rights as a Bank
Section 9.5 Indemnification
Section 9.6 Non-Reliance on Agent and
other Banks
Section 9.7 Failure to Act
Section 9.8 Resignation or Removal of Agent
Section 9.9 Sharing of Payments
ARTICLE 10. MISCELLANEOUS PROVISIONS
------------------------
Section 10.1 Fees and Expenses; Indemnity
Section 10.2 Taxes
Section 10.3 Payments
Section 10.4 Survival of Agreements and
Representations; Construction
Section 10.5 Lien on and Set-off of Deposits
Section 10.6 Modifications, Consents and
Waivers; Entire Agreement
Section 10.7 Remedies Cumulative; Counterclaims
Section 10.8 Further Assurances
Section 10.9 Notices
Section 10.10 Counterparts
Section 10.11 Severability
Section 10.12 Binding Effect; No Assignment
or Delegation by Borrowers
Section 10.13 Assignments and Participations
by Banks
Section 10.14 Delivery of Tax Forms
Section 10.15 Governing Law; Consent to Juris-
diction; Waiver of Trial by Jury
Section 10.16 Joint and Several Obligations
EXHIBITS
- --------
1 List of Borrowers
A-1 Form of Restated Term Note
A-2 Form of Restated Credit Note
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<PAGE> 6
<TABLE>
<S><C>
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
</TABLE>
<PAGE> 7
SECOND AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made this 30th day of September, 1997, 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., 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 Amended and Restated Loan Agreement dated June 6, 1996
(as heretofore amended or modified, the "ORIGINAL LOAN AGREEMENT"), pursuant to
which the Borrowers obtained (i) a joint and several revolving credit facility
in the aggregate principal Dollar Amount (as hereinafter defined) of up to One
Hundred Twenty-Five Million ($125,000,000) Dollars, and (ii) a joint and several
term loan facility in the aggregate principal Dollar Amount of Twenty-Five
Million ($25,000,000) Dollars, all 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 Seventy-Five
Million ($175,000,000) Dollars, and
(ii) modify the term loan facility in certain respects; and
(C) The Banks are willing to so increase the revolving credit
facility and to modify the term loan facility, but only on the condition, among
other things, that the Borrowers agree to amend and restate the Original Loan
Agreement as provided herein;
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<PAGE> 8
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 securities 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
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<PAGE> 9
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 .875%
Category 2
At least two of the following Ratings:
BBB- by S&P
Baa3 by Moody's
BBB- by D&P 1.000%
Category 3
Any one of the following Ratings:
BBB- by S&P; or
Baa3 by Moody's; or
BBB- by D&P 1.125%
Category 4
No investment grade Rating
by S&P or Moody's or D&P 1.500%
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
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<PAGE> 10
by a nationally recognized appraiser or an appraiser acceptable to 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
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<PAGE> 11
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.
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<PAGE> 12
"CERCLA" - the Comprehensive Environmental Response
Compensation and Liability Act of 1980, 42 U.S.C. Section 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 increased or 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 .200%
Category 2
At least two of the following Ratings:
BBB- by S&P
Baa3 by Moody's
BBB- by D&P .250%
Category 3
Any one of the following Ratings:
BBB- by S&P; or
Baa3 by Moody's; or
BBB- by D&P .300%
Category 4
No investment grade Rating
by S&P or Moody's or D&P .375%
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
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<PAGE> 13
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 1.10:1.00.
"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 PERIOD" - the period commencing on the date of this
Agreement and ending on the Revolving Credit Commitment Termination Date.
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<PAGE> 14
"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)
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<PAGE> 15
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 1.10 to 1.00;
(b) any Investment which is delinquent for thirty
(30) days or more in payments to the Borrowers;
(c) any Construction Investment; and
(d) 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, with respect to Pooled Facilities comprised of
two (2) or more properties, any individual Facility which has a Fixed Charge
Coverage of less than 1.10 to 1.00 may be included in the computation of
Eligible Healthcare Assets if (1) the combined Fixed Charge Coverage of the
Pooled Facilities of which such Facility is a part is greater than or equal to
1.10 to 1.00, and (2) each individual Facility which is a part of such Pooled
Facilities has a Fixed Charge Coverage of not less than .75 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.
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<PAGE> 16
"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 governmental 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 regulations 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.
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"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, 1996 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 and actual management fees paid to any Operator of
such Facility less an imputed management fee equal to four (4%) percent of the
net revenues of the 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 four (4) fiscal quarters ended on such
date of determination and based upon the financial statements (or cost reports,
as the case may be) provided to Omega by each Operator for such four (4) fiscal
quarters of each Operator (or if such financial statements or cost reports have
not been so delivered to Omega, then based upon the financial statements or cost
reports covering the most recent available four (4) fiscal quarters of any such
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.
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<PAGE> 18
"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 the last day of any fiscal
quarter, 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 ending on such date of determination.
"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
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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 Section 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 agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance and other agreements or arrangements 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 counterparties 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.
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"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 .875%
Category 2
At least two of the following Ratings:
BBB- by S&P
Baa3 by Moody's
BBB- by D&P 1.000%
Category 3
Any one of the following Ratings:
BBB- by S&P; or
Baa3 by Moody's; or
BBB- by D&P 1.125%
Category 4
No investment grade Rating
by S&P or Moody's or D&P 1.500%
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
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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.
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"LIBOR RATE" - for any LIBOR Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, 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 Restated 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" - health care facilities which are
comprised of 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
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<PAGE> 23
respective obligations under this Agreement, the Restated 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.
"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 the last day of any
fiscal quarter, with respect to the immediately
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preceding four (4) fiscal quarters of the Borrowers ending on such date, the
ratio of (x) EBITDA, to (y) the sum of Interest Expense, cash 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.
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<PAGE> 25
"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 $5,000,000; 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
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<PAGE> 26
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" - (i) Facilities which are commonly owned
or operated by one Operator or a Subsidiary thereof (as selected by the
Borrowers), and the debt financings or leases of which are cross-defaulted and,
with respect to Mortgages, are cross-collateralized, (ii) the Facilities (or a
group thereof as selected by the Borrowers) comprising the "Vencor Mortgage
Pool" referred to on Schedule 7.8 hereof, and (iii) the Facilities (or a group
thereof as selected by the Borrowers) acquired by Omega in connection with the
merger of Health Equity Properties, Inc. referred to on Schedule 3.13 hereof.
"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 hereunder (other than interest), equal to two (2%) above the
Alternate Base Rate as in effect from time to time.
"PRIME RATE" - the variable per annum rate of interest so
designated from time to time by Fleet as its prime rate. Notwithstanding the
foregoing, the Borrowers acknowledge that the Prime Rate is a reference rate and
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" - the principal office of Fleet presently
located at 10 Exchange Place, Jersey City, New Jersey 07302.
"PROJECTIONS" - the projections relating to Omega and
its Subsidiaries for the three (3) year period 1997-1999, including balance
sheets, statements of operations and cash
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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 administration 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
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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, or if the Total Commitment has been
terminated at such time, Banks having at least 66-2/3% of the aggregate
principal amount of Loans outstanding.
"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.
"RESTATED CREDIT NOTES" - as defined in subsection 2.5(b)
hereof.
"RESTATED NOTES" - as defined in subsection 2.5(b) hereof.
"RESTATED TERM NOTES" - as defined in subsection 2.5(a)
hereof.
"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 increase or reduction in accordance with the terms hereof.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" -
October 1, 2000.
"S&P" - Standard and Poor's Corporation.
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"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 corporation,
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 ordinary 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 partnership 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, intangibles 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 LOAN(S)" - as defined in subsection 2.1(a) hereof.
"TERM MATURITY DATE" - October 1, 2000.
"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 Two Hundred Million ($200,000,000) Dollars.
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"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 Seventy-Five
Million ($175,000,000) Dollars, as such amount may be increased or reduced in
accordance with the terms hereof.
"TOTAL TERM COMMITMENT" - the aggregate obligation of the
Banks to make Term Loans 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 Revolving Credit
Commitment as in effect on such date, and (b) the then aggregate outstanding
principal Dollar Amount of all Credit 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
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<PAGE> 31
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; (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.
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ARTICLE 2. COMMITMENTS; LOANS.
SECTION 2.1 LOANS.
(a) TERM LOANS.
(i) Pursuant to the Original Loan Agreement, each
Bank severally agreed, on the terms and subject to the conditions of the
Original Loan Agreement, to make joint and several term loans (individually, a
"TERM LOAN" and, collectively, the "TERM LOANS") to the Borrowers 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. In connection
therewith, the Borrowers hereby acknowledge and confirm that as of the date
hereof (i) the full amount of the Total Term Commitment has been borrowed and
remains outstanding, (ii) such indebtedness is being amended pursuant hereto,
and (iii) the "Term Notes" evidencing the outstanding Term Loans are,
concurrently herewith, being replaced in the form of the Restated Term Notes
hereinafter referred to in subsection 2.5(a) hereof.
(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.
(iii) In the event the Total Term Commitment is
terminated and the full amount of the outstanding Term Loans are repaid in full,
then concurrently therewith at the option of the Borrowers, the Revolving Credit
Commitment of each Bank which previously maintained a Term Commitment shall be
increased by the amount of such Bank's terminated Term Loan Commitment (which
increase may be denominated in the Alternative Currency up to the Dollar Amount
of $25,000,000). Simultaneously with such increase: (A) the Borrowers shall
execute and deliver to each such Bank a substituted Restated Credit Note
effective as of the date of such increase, which shall be in substitution for
and replacement of the Restated Credit Note, if any, held by such Bank, (B) the
Total Revolving Credit Commitment shall be increased by the amount of the
terminated Total Term Commitment, and (C) the Revolving Credit Commitment of
each such Bank set forth opposite it's name on the signature pages hereto shall
be deemed increased by the amount of such Bank's terminated Term Commitment.
(b) CREDIT LOANS.
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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, or the Total Revolving Credit Commitment, as each is then in
effect; 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 except as otherwise provided in
subsection 2.1(a)(iii) above in which event the aggregate principal amount of
Credit Loans denominated in Alternative Currency at any time shall not exceed
the Dollar Amount of $50,000,000. 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, (i) the principal amount of Six Million Five Hundred Thousand
($6,500,000) Dollars in "Credit Loans" under the Original Loan Agreement is
outstanding, (ii) such indebtedness is being amended pursuant hereto, and (iii)
the "Credit Notes" evidencing the outstanding Credit Loans under the Original
Loan Agreement are, currently herewith, being replaced in the form of the
Restated 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.
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(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 Fifteen Million ($15,000,000) 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.
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(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 obligations of the
Borrowers under this Agreement, the Applications and any other agreement,
instrument or document relating to reimbursement or payment of Unpaid Drawings
shall be absolute, unconditional and irrevocable, and shall
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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.
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(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.
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(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
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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, the same
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Business Day 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 prepayment of, or conversion
into, Designated Rate Loans, not less than four (4) LIBOR Business Days prior to
the requested date of conversion or related date of prepayment. Upon the Agent's
receipt of the Borrowing Notice with respect to the 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
elect to convert the Term Loans into a Designated Rate Loan, such conversion
shall be of the entire outstanding principal balance of the Term Loan as at the
related date of conversion.
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.
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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 RESTATED 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 "RESTATED TERM NOTE" and,
collectively, the "RESTATED TERM NOTES"). Each Restated 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 Restated 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 evidenced by a
single joint and several promissory note of the Borrowers in substantially the
form of Exhibit A-2 hereto (each, a "RESTATED CREDIT NOTE" and collectively, the
"RESTATED CREDIT NOTES"; the Term Notes and the Credit Notes are hereinafter
sometimes referred to individually as a "RESTATED NOTE" and collectively as the
"RESTATED NOTES"). Each Restated 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 Restated 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
Restated Note(s) 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.
(d) Each Bank shall, upon receipt from the Borrowers of a
Restated Term Note or Restated Credit Note, as the case may be, mark each "Note"
held by it pursuant to
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the Original Loan Agreement, "Replaced by Restated Note" and return such Note(s)
as so marked to the Borrowers.
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 lesser of (i) the Borrowing Base, or (ii) the Total Commitment, as at any
date of determination thereof.
(d) 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.
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(e) 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
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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 Restated 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 Restated 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.
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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 certain of
the Banks, a non-refundable origination fee (the "ORIGINATION FEE") as set forth
in a separate written agreement among the Borrowers and the Agent.
(b) The Borrowers shall pay to the Agent for the account of
the Banks, pro rata according to their respective Revolving Credit 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 Revolving Credit Commitment is
terminated, and (ii) the Revolving Credit Commitment Termination Date, at the
rate per annum equal to the Commitment Fee Percentage from time to time in
effect on the amount of the Total Revolving Credit Commitment. The accrued
Commitment Fee shall be payable on the Quarterly Dates, and on the earlier of
(i) the date the Total Revolving Credit Commitment is terminated, or (ii) the
Revolving Credit Commitment Termination Date, and in the event the Borrowers
reduce the Total Revolving Credit 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 (i) the date such Bank's Revolving Credit Commitment is
terminated and (ii) 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 (i) the date the Total
Revolving Credit Commitment is terminated, or (ii) 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".
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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) to acquire Facilities, (b) subject to
the limitation set forth in Section 6.18 hereof, to acquire real estate assets
(other than Facilities), (c) to extend or acquire loans secured by Mortgages,
(d) to maintain a $5,000,000 working capital balance, (e) subject to subsection
2.2(a) hereof, for the issuance of L/C's to beneficiaries designated by the
Borrowers, (f) for general corporate purposes (including those permitted under
Section 7.5 hereof), (g) subject to the limitation set forth in Schedule 7.8(II)
(Permitted Investments), to make capital investments in and/or subordinated
loans to one or more United Kingdom companies 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.
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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
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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 obligation 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 Restated 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 as set forth in subsection 2.8(a) hereof and the Agency
Fee and the Arrangement Fee) shall be made for the account of
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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 applicable to
such Loan (when the recipient is a Borrower).
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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
Loans outstanding
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after giving effect to such continuation or conversion would exceed the Total
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
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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 Restated 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
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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 agreement 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. Section
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 agreement, 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 Financial 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.
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(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 relating 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 Section 221.3 of Regulation U of the Board of Governors of the Federal
Reserve System, 12 C.F.R., Chapter II, Part 221.
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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 foreseeable 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.
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(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 which
could have a Material Adverse Effect on the Borrowers.
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.
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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 Restated Credit Note and Restated 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 Loan Agreement dated July 17, 1995 among the Borrowers, the
Agent and the banks party thereto 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;
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(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 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.
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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.
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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 Restated 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, and certified, as to
the consolidating statements, by the chief financial officer of Omega, 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 GAAP; provided, however, Omega may satisfy its
obligations to deliver the consolidated financial statements described in this
Section 5.1 by furnishing to the Banks a copy of its annual report on Form 10-K
in respect of such fiscal year together with the financial statements required
to be attached thereto, provided Omega is required to file such annual report on
Form 10-K with the Securities and Exchange Commission and such filing is
actually made.
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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 fiscal quarters, 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 corresponding 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 GAAP (subject to year-end audit adjustments); provided, however,
Omega may satisfy its obligations to deliver the consolidated financial
statements described in this Section 5.2 by furnishing to the Banks a copy of
its quarterly report on Form 10-Q in respect of such fiscal quarter together
with the financial statements required to be attached thereto, provided Omega is
required to file such quarterly report on Form 10-Q with the Securities and
Exchange Commission and such filing is actually made.
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 Restated 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.
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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 (with
appropriate detail) prepared as of the close of business on the last day of such
fiscal quarter, together with an aging of delinquent lease and mortgage
receivables (i.e. more than thirty (30) days past due with respect to each
Operator).
SECTION 5.7 BUSINESS PLAN AND BUDGET .
Not later than January 31st in each fiscal year, copies of
Omega's business plan and budget for such fiscal year (together with a copy in
writing of the assumptions on which such business plan and budget 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 Operators which quarterly
report shall include a discussion of Operator performance and a summary of
coverage and occupancy by each such Operator.
(b) Such other information regarding the financial condition of
the Operators as the Agent may from time to time reasonably request.
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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
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(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.
SECTION 5.13 ADDITIONAL INFORMATION.
Such other material additional information regarding the
business, affairs and condition of the Borrowers as the Agent may from time to
time reasonably request, including, without limitation, quarterly schedules, in
form and substance satisfactory to the Agent, with respect to Omega on a
consolidated basis, of recorded liabilities, unfunded commitments, contingent
liabilities and other similar material items.
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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 Restated 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 Restated 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.
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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 amendments 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 ordinary course of business, involving amounts in
excess of Five Million ($5,000,000) Dollars, affecting Omega or any Subsidiary
whether or not fully covered by insurance, 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).
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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 and cause each Operator to do so; (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 1.10:1.00.
(b) Tangible Net Worth of not less than $425,000,000, plus 75% 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 200%.
(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
Reportable 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.
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(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 Environ-mental 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:
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(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 three (3) months of related
initial Lease Rental Expense or Mortgage Expense (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 thirty (30%) percent of the Borrowers'
Investments are maintained with a single Operator (including any Affiliates of
such Operator).
SECTION 6.17 BEHAVIORAL CARE FACILITIES.
Ensure that not more than ten (10%) percent of the Borrowers'
Investments in Healthcare Assets are in Facilities classified as "Behavioral
Care" (i.e., psychiatric hospitals and drug and alcohol rehabilitation
facilities).
SECTION 6.18 NON-HEALTHCARE ASSETS.
Ensure that the Borrowers' "Investments" (as such term is defined
at the end of Section 7.8 hereof) in real estate assets(other than Healthcare
Assets) does not exceed an amount equal to fifteen (15%) percent of the
Borrowers' consolidated Healthcare Assets.
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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 Restated 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 Restated 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;
(f) Unsecured Indebtedness, the terms of which shall not require
any principal payments thereon prior to the Term Maturity Date; and
(g) In addition to the Indebtedness permitted under subsections
7.1(a) through (f) above, other Indebtedness of the Borrowers which does not
exceed in the aggregate at any one time outstanding an amount equal to the
greater of (x) $35,000,000, or (y) five (5%) percent of HealthCare Assets as at
any date of determination thereof.
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SECTION 7.2 LIENS .
Create, or assume or permit to exist, any Lien on any of the
properties or assets of Omega 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(g) 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
obliga-tions guaranteed by the Borrowers, or any of them, would not exceed Two
Million ($2,000,000) Dollars,(iii) guarantees made in the ordinary course of
business by Omega of obligations of any of its Subsidiaries, provided those
obligations are otherwise permitted under this Agreement, and (iv) 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 purchase, 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
condition, 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.
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SECTION 7.4 MERGERS, ACQUISITIONS .
Except as expressly permitted by this Agreement, merge or
consolidate with any Person, or, acquire all or substantially all of the assets
or any of the capital stock of any Person unless (a) Omega is the surviving
entity, (b) no Default or Event of Default exists or will occur after giving
effect thereto, and (c) the consideration paid in connection with any such
merger or acquisition does not exceed an amount equal to fifteen (15%) percent
of Healthcare Assets as at the date of the consummation of such transaction,
prior to giving effect to such transaction.
SECTION 7.5 REDEMPTIONS; DISTRIBUTIONS .
(a) Purchase, redeem, retire or otherwise acquire, directly or
indirectly, or make any sinking fund payments 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
the greater of (x) Twenty Million ($20,000,000) Dollars, or (y) five (5%)
percent of Omega's consolidated Tangible Net Worth as at any date of
determination thereof, 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.
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Except for supplemental issuance of Omega's authorized common
stock and preferred 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 a manner
which would be reasonably likely to cause a Material Adverse Effect.
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 acceptances 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;
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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 Restated 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 fifteen (15%) 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 fifteen (15%) percent of Healthcare Assets as at any date of
determination thereof, prior to giving effect to any such acquisition.
(e) The acquisition by Omega and its Subsidiaries, on a
consolidated basis, of real estate assets (other than Healthcare Assets) which
do not exceed in any single transaction or series of related transactions an
amount equal to fifteen (15%) percent of Healthcare Assets as at any date of
determination thereof, prior to giving effect to any such acquisition.
(f) In addition to the Investments permitted under this Section
7.8, other Investments by the Omega, on a consolidated basis, which do not
exceed Ten Million ($10,000,000) Dollars in the aggregate at any one time
outstanding.
(g) As set forth on Schedule 7.8 hereto.
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For purposes of subsections 7.8(b),(c) and (f) 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 other
than Capital Expenditures incurred in connection with the construction of new
corporate headquarters for Omega which in any event shall not exceed $2,000,000
in the aggregate.
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
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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, guarantees 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 advantageous 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
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(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-five (25%) percent of Indebtedness (other
than outstanding Credit Loans), 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 the outstanding principal amount, accrued interest on and
related fees in connection with its Construction Investments to exceed an amount
equal to ten (10%) percent of the Borrowers' consolidated Investments in
Healthcare Assets; 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.
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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 Restated 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 expressly 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 Restated 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
affected 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
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(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
payable; 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 connection 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 adjudicated 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
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(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 insolvent, 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 institution 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
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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 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 8.13 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.
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ARTICLE 9. THE AGENT .
SECTION 9.1 APPOINTMENT, POWERS AND IMMUNITIES .
Each Bank hereby irrevocably appoints and authorizes 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 securities received by it or its authorized agents, for
the negligence 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.
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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.
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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 responsibility 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.
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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
resignation 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 Restated 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 Restated 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
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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 Restated 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 Restated 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 Restated 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 Restated 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 Restated 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.
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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
Restated 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 contemplated 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 (including, without
limitation, reasonable fees and disbursements of counsel) suffered or incurred
by each Bank in connection with its enforcement of the payment of the Restated
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
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action in respect of any commenced or threatened litigation, 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 Restated
Notes and the termination of this Agreement.
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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 Restated 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 Restated 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 Restated 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 Restated
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 Restated 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,
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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 Restated Notes). Upon payment in full of any Restated Note issued to any
Bank and/or termination of any Bank's Commitment, the Bank holding such Restated
Note shall mark the Restated Note "Paid" and return it to the Borrower specified
on such Restated 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 Restated 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.
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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 Restated 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.
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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
Restated 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 communications 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.,
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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
1185 Avenue of the Americas
New York, New York 10036
Attention: Mr. Robert A. Isaksen
Telecopier No.: (212) 819-4110
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.
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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 jurisdiction, 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 limitations 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.
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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 Restated Note or Restated 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 thereunder 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 connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement 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 observance
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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 Acceptance executed by
an assigning Bank and an assignee representing that it is an Eligible Assignee,
together with any Restated 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 Restated Note(s) a new Restated 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 Restated 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 Restated Note(s) shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Restated 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
-97-
<PAGE> 104
Commitment, the Loans owing to it, and the Restated 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 Restated 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 assignment 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.
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<PAGE> 105
(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 Restated 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 DELIVERY OF TAX FORMS.
Each Bank that is not organized under the laws of the United
States or a state thereof shall:
(a) deliver to the Borrowers and the Agent, on or prior to the
date of the execution and delivery of this Agreement or the date on which it
becomes a Bank hereunder, (i) two accurate and duly completed executed copies of
United States IRS Form 1001 or 4224, or successor applicable form, as the case
may be, and (ii) an accurate and complete IRS Form W-8 or W-9, or successor
applicable form, as the case may be;
(b) deliver to the Borrowers and the Agent two further accurate
and complete executed copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrowers; and
(c) obtain such extensions of time for filing and completing such
forms or certifications as may reasonably be requested by the Borrowers or the
Agent;
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<PAGE> 106
unless in any such case under clause (b) above an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank so advises the
Borrowers and the Agent. Such Bank shall certify (i) in the case of a Form 1001
or 4224 that is provided pursuant to Section 10.14(a), that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States Federal income taxes; (ii) in the case of an IRS Form 1001 or 4224
that is provided pursuant to subsection 10.14(b), to the extent legally entitled
to do so, that it is entitled to receive payments under this Agreement without,
or at a reduced rate of, deduction or withholding of any United States Federal
income taxes; and (iii) and in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax. Each Person
not organized under the laws of the United States or a state thereof that is an
assignee hereunder shall, prior to the effectiveness of the related transfer, be
required to provide all of the forms and statements required pursuant to this
Section 10.14.
SECTION 10.15 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
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<PAGE> 107
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,
INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
SECTION 10.16 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.
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
OHI (ILLINOIS), INC.
BY /s/ ESSEL W. BAILEY, JR.
---------------------------------
PRESIDENT
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
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<PAGE> 108
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.
-102-
<PAGE> 109
REVOLVING CREDIT COMMITMENT:
$19,500,000 FLEET BANK, N.A., AS AGENT
AND AS A BANK
TERM COMMITMENT:
BY /s/ ROBERT A. ISAKSEN
------------------------
VICE PRESIDENT
$13,000,000 Lending Office
for Prime Rate Loans and LIBOR
Loans:
1185 Avenue of the Americas
New York, New York 10036
Attention: Mr. Robert A. Isaksen
Address for Notices:
Fleet Bank, N.A.
1185 Avenue of the Americas
New York, New York 10036
Attention: Mr. Robert A. Isaksen
Telecopier: (212) 819-4110
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<PAGE> 110
REVOLVING CREDIT COMMITMENT:
$18,500,000 DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCHES
TERM COMMITMENT: BY /s/ ANDREW P. NESI
-----------------------------------------
ANDREW P. NESI, VICE PRESIDENT
$4,000,000
BY /s/ FELIX K. CAMACHO
-----------------------------------------
FELIX K. CAMACHO, ASSISTANT TREASURER
Lending Office for Prime Rate Loans:
Dresdner Bank AG, New York Branch
75 Wall Street
New York, New York 10005
Attn: Felix K. Camacho
Lending Office for LIBOR Loans:
Dresdner Bank AG, New York Branch
and Grand Cayman Branches
75 Wall Street
New York, New York 10005
Attn: Felix K. Camacho
Address for Notices:
75 Wall Street
New York, New York 10005
Attn: Robert Reddington
Telecopier No.: (212) 429-2130
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<PAGE> 111
REVOLVING CREDIT COMMITMENT:
$22,500,000 HARRIS TRUST AND SAVINGS BANK
TERM COMMITMENT:
BY /s/ JEFFREY C. NICHOLSON
----------------------------
VICE PRESIDENT
-0-
Lending Office
for Prime Rate Loans and LIBOR Loans:
111 West Monroe Street
Chicago, Illinois 60603
Attention: Mr. Jeffrey Nicholson
Address for Notices:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Attention: Mr. Jeffrey Nicholson
Telecopier: (312) 461-5225
-105-
<PAGE> 112
REVOLVING CREDIT COMMITMENT:
$22,500,000 NBD BANK
TERM COMMITMENT: BY /s/ J. RICHARD SCHOELCH
--------------------------
FIRST VICE PRESIDENT
-0-
Lending Office
for Prime Rate Loans and LIBOR
Loans:
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Mr. Richard Schoelch
Address for Notices:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Mr. Richard Schoelch
Telecopier: (313) 226-0857
-106-
<PAGE> 113
REVOLVING CREDIT COMMITMENT:
$20,000,000 THE SUMITOMO BANK, LIMITED
TERM COMMITMENT:
BY /s/ THOMAS A. GARZA
-------------------------------
VICE PRESIDENT
-0-
BY /s/ BRIAN J. CUSHING
-------------------------------
VICE PRESIDENT
Lending Office
for Prime Rate Loans and LIBOR Loans:
The Sumitomo Bank, Limited
Chicago LPO
233 S. Wacker Drive, Suite 5400
Chicago, Illinois 60606
Attention: Deena M. Larsen
Address for Notices:
The Sumitomo Bank, Limited
233 S. Wacker Drive, Suite 5400
Chicago, Illinois 60606
Attention: Thomas A. Garza
Telecopier: (312) 993-6255
-107-
<PAGE> 114
REVOLVING CREDIT COMMITMENT:
$20,000,000 BANK ONE, N.A.
TERM COMMITMENT:
BY /s/ KAREN ST. ARNAUD
----------------------------
ASSISTANT VICE PRESIDENT
-0-
Lending Office
for Prime Rate Loans and LIBOR Loans:
Bank One, N.A.
Kettering Tower
40 North Main Street
Dayton, Ohio 45423
Attention: Ms. Karen St. Arnaud
Address for Notices:
Bank One, N.A.
Kettering Tower
40 North Main Street
Dayton, Ohio 45423
Attention: Ms. Karen St. Arnaud
Telecopier: (937) 449-4885
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<PAGE> 115
REVOLVING CREDIT COMMITMENT:
$15,000,000 MICHIGAN NATIONAL BANK
TERM COMMITMENT:
BY /s/ DRAGA PALINCAS
--------------------------
RELATIONSHIP MANAGER
-0-
Lending Office
for Prime Rate Loans and LIBOR
Loans:
Michigan National Bank
27777 Inkster Road
Farmington Hills, MI 48333-9065
Attention: Ms. Draga Palincas
Address for Notices:
Michigan National Bank
27777 Inkster Road
Farmington Hills, MI 48333-9065
Attention: Ms. Draga Palincas
Telecopier: (810) 473-4345
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<PAGE> 116
REVOLVING CREDIT COMMITMENT:
$15,000,000 LASALLE NATIONAL BANK
TERM COMMITMENT:
BY /s/ MICHAEL J. BURTON
----------------------------
FIRST VICE PRESIDENT
-0-
Lending Office
for Prime Rate Loans and LIBOR
Loans:
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Ms. Jody Staszesky
Address for Notices:
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Ms. Jody Staszesky
Telecopier: (312) 904-6457
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<PAGE> 117
REVOLVING CREDIT COMMITMENT:
$10,000,000 BHF-BANK AKTIENGESELLSCHAFT
TERM COMMITMENT:
BY /s/ JOHN SYKES
---------------------------
ASSISTANT VICE PRESIDENT
$8,000,000
BY /s/ THOMAS J. SCIFL
----------------------------------
ASSISTANT VICE PRESIDENT
Lending Office
for Prime Rate Loans and LIBOR
Loans:
BHF-BANK Aktiengesellschaft
590 Madison Avenue
New York, New York 10022-2540
Attention: Mr. John Sykes
Address for Notices:
BHF-BANK Aktiengesellschaft
590 Madison Avenue
New York, New York 10022-2540
Attention: Mr. John Sykes
Telecopier: (212) 756-5536
-111-
<PAGE> 118
REVOLVING CREDIT COMMITMENT:
$12,000,000 KREDIETBANK N.V.
BY /s/ JOHN E. THIERSELDER
_____ -------------------------------
VICE PRESIDENT
BY /s/ ROBERT SNAUSSER
_____ -------------------------------
VICE PRESIDENT
Lending Office for
Prime Rate Loans:
Kredietbank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Attention: Lynda Resuma
Lending Office
for LIBOR Loans:
Kredietbank N.V., Grand Cayman Branch
125 West 55th Street
New York, New York 10019
Attention: Lynda Resuma
Address for Notices:
Kredietbank N.V.
125 West 55th Street
New York, New York 10019
Attention: Lynda Resuma
Telecopier: (212) 541-0657
-112-
<PAGE> 119
EXHIBITS AND SCHEDULES TO
SECOND 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 AGENT
EXHIBITS
1 List of Borrowers
A-1 Form of Restated Term Note
A-2 Form of Restated 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
-113-
<PAGE> 120
EXHIBIT 1
TO SECOND 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 AGENT
LIST OF BORROWERS
<TABLE>
<CAPTION>
NAME OF BORROWER STATE OF ORGANIZATION
- ---------------- ---------------------
<S> <C>
Omega Healthcare Investors, Inc. Maryland
Bayside Street, Inc. Maryland
Sterling Acquisition Corp. Kentucky
Sterling Acquisition Corp. II Kentucky
OS Leasing Company Kentucky
OHI (Illinois), Inc. Illinois
</TABLE>
-114-
<PAGE> 121
EXHIBIT A-1
TO SECOND 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 AGENT
FORM OF RESTATED TERM NOTE
US$____________ DATED: SEPTEMBER __, 1997
FOR VALUE RECEIVED, each of the undersigned corporations (collectively,
the "BORROWERS"), hereby jointly and severally promises to pay to the order of
______________________ (the "BANK") on the Term Maturity Date (as defined in
the Agreement referred to below), the principal sum equal to the aggregate
unpaid principal amount of the Term Loans (as defined in the Agreement)
outstanding on the close of business on the Term Maturity Date made by the Bank
to the Borrowers; together with interest on any and all principal amounts
remaining unpaid hereunder from time to time outstanding. Interest upon the
unpaid principal amount hereof shall accrue at the rates, shall be calculated
in the manner and shall be payable on the dates set forth in the Agreement.
After maturity, whether by acceleration or otherwise, accrued interest shall be
payable upon demand. Both principal and interest shall be payable in the
applicable currency determined in accordance with the Agreement to Fleet Bank,
N.A., as Agent (the "AGENT") on behalf of the Bank, at its office determined in
accordance with the Agreement in immediately available funds. The Term Loans
made by the Bank to the Borrowers pursuant to the Agreement and all payments on
account of principal hereof shall be recorded by the Bank on Schedule A
attached hereto which is part of this Term Note or otherwise in accordance with
its usual practices and such notations shall be conclusively presumed to be
accurate absent manifest error; provided, however, that the failure to so
record shall not affect the Borrowers' obligations under this Term Note.
Anything herein 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 the Bank to the extent
that the Bank's receipt thereof would not be permissible under the law or laws
applicable to the Bank limiting rates of interest which may be charged or
collected by the Bank. Any such payments of interest which are not made as a
result of the limitation referred to in the preceding sentence shall be made by
the Borrowers to the Bank on the earliest interest payment date or dates on
which the receipt thereof would be permissible under the laws applicable to the
Bank limiting rates of interest which may be charged or collected by the Bank.
-115-
<PAGE> 122
This Note is a Restated Term Note referred to in, and is entitled to the
benefits of, the Second Amended and Restated Loan Agreement dated as of
September __, 1997 by and among the Borrowers, the Banks signatory thereto
(including the Bank) and the Agent (as amended, modified or supplemented from
time to time, the "AGREEMENT") and the other Loan Documents. [This Term Note
supersedes the Term Note made by the Borrowers dated June 6, 1996 payable to
the order of the Bank in the original principal amount of $_________ in
connection with the Original Loan Agreement but does not constitute a novation,
extinguishment or termination of the obligations evidenced thereby.]
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Agreement. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for repayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The Borrowers shall pay costs and expenses of collection, including,
without limitation, attorneys' fees and disbursements in the event that any
action, suit or proceeding is brought by the holder hereof to collect this Term
Note.
The Borrowers hereby waive presentment, demand, protest or notice of any
kind in connection with this Term Note.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF
NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
OMEGA HEALTHCARE INVESTORS, INC.
BAYSIDE STREET, INC.
STERLING ACQUISITION CORP.
STERLING ACQUISITION CORP. II
OS LEASING COMPANY
OHI (ILLINOIS), INC.
BY_______________________________
TITLE
Essel W. Bailey, Jr., as an executive officer of all of the aforementioned
corporations, has executed this Term Note intending that all corporations above
named are bound and are to be bound by the one signature as if he had executed
this Term Note separately for each of the above named corporations.
-116-
<PAGE> 123
Schedule A
------------------------------------------------------------------------------
PRINCIPAL PAYMENTS
------------------------------------------------------------------------------
Restated Term Note dated September __, 1997
payable to the order of
[Bank]
<TABLE>
<CAPTION>
======================================================================================================
Interest Period
Principal (if other than a
Amount of Type of Prime Rate Loan) Amount of Unpaid Principal Notation
Date Term Loan Loan Currency and Interest Rate Principal Repaid Balance Made By
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
======================================================================================================
</TABLE>
-1-
<PAGE> 124
EXHIBIT A-2
TO SECOND 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 AGENT
FORM OF RESTATED CREDIT NOTE
US$____________ DATED: SEPTEMBER __, 1997
FOR VALUE RECEIVED, each of the undersigned corporations (collectively,
the "BORROWERS"), hereby jointly and severally promises to pay to the order of
______________________ (the "BANK") on the Revolving Credit Commitment
Termination Date (as defined in the Agreement referred to below), the principal
sum of _____________________ United States Dollars (US$___________), or such
lesser amount as shall be equal to the aggregate unpaid principal amount of the
Credit Loans (as defined in the Agreement) outstanding on the close of business
on the Revolving Credit Commitment Termination Date made by the Bank to the
Borrowers; together, in each case, with interest on any and all principal
amounts remaining unpaid hereunder from time to time outstanding. Interest
upon the unpaid principal amount hereof shall accrue at the rates, shall be
calculated in the manner and shall be payable on the dates set forth in the
Agreement. After maturity, whether by acceleration or otherwise, accrued
interest shall be payable upon demand. Both principal and interest shall be
payable in the applicable currency determined in accordance with the Agreement
to Fleet Bank, N.A., as Agent (the "AGENT") on behalf of the Bank, at its
office determined in accordance with the Agreement in immediately available
funds. The Credit Loans made by the Bank to the Borrowers pursuant to the
Agreement and all payments on account of principal hereof shall be recorded by
the Bank on Schedule A attached hereto which is part of this Credit Note or
otherwise in accordance with its usual practices and such notations shall be
conclusively presumed to be accurate absent manifest error; provided, however,
that the failure to so record shall not affect the Borrowers' obligations under
this Credit Note.
Anything herein 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 the Bank to the extent
that the Bank's receipt thereof would not be permissible under the law or laws
applicable to the Bank limiting rates of interest which may be charged or
collected by the Bank. Any such payments of interest which are not made as a
result of the limitation referred to in the preceding sentence shall be made by
the Borrowers to the Bank on the earliest interest payment date or dates on
which the receipt thereof would be
-2-
<PAGE> 125
permissible under the laws applicable to the Bank limiting rates of interest
which may be charged or collected by the Bank.
This Note is a Restated Credit Note referred to in, and is
entitled to the benefits of, the Second Amended and Restated Loan Agreement
dated as of September __, 1997 by and among the Borrowers, the Banks signatory
thereto (including the Bank) and the Agent (as amended, modified or supplemented
from time to time, the "AGREEMENT") and the other Loan Documents. [This Credit
Note supersedes the Credit Note made by the Borrowers dated June 6, 1996 payable
to the order of the Bank in the original principal amount of $_________ in
connection with the Original Loan Agreement but does not constitute a novation,
extinguishment or termination of the obligations evidenced thereby.]
Capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed thereto in the Agreement. The Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for repayments on account
of principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The Borrowers shall pay costs and expenses of collection,
including, without limitation, attorneys' fees and disbursements in the event
that any action, suit or proceeding is brought by the holder hereof to collect
this Credit Note.
The Borrowers hereby waive presentment, demand, protest or notice
of any kind in connection with this Credit Note.
THIS CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS
PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
OMEGA HEALTHCARE INVESTORS, INC.
BAYSIDE STREET, INC.
STERLING ACQUISITION CORP.
STERLING ACQUISITION CORP. II
OS LEASING COMPANY
OHI (ILLINOIS), INC.
BY
-------------------------------
TITLE
Essel W. Bailey, Jr., as an executive officer of all of the aforementioned
corporations, has executed this Credit Note intending that all corporations
above named are bound and are to be bound by the one signature as if he had
executed this Credit Note separately for each of the above named corporations.
-3-
<PAGE> 126
Schedule A
------------------------------------------------------------------------------
PRINCIPAL PAYMENTS
------------------------------------------------------------------------------
Restated Term Note dated June 6, 1996
payable to the order of
[Bank]
<TABLE>
<CAPTION>
======================================================================================================
Interest Period
Principal (if other than a
Amount of Type of Prime Rate Loan) Amount of Unpaid Principal Notation
Date Credit Loan Loan Currency and Interest Rate Principal Repaid Balance Made By
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
======================================================================================================
</TABLE>
-4-
<PAGE> 127
EXHIBIT B
TO SECOND 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 AGENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ___________
Reference is hereby made to the Second Amended and Restated Loan Agreement
dated September __, 1997 (the "LOAN AGREEMENT") by and among Omega Healthcare
Investors, Inc. and certain of its Subsidiaries (collectively, the
"BORROWERS"), the Banks signatory thereto (collectively, the "BANKS") and Fleet
Bank, N.A. in its capacity as agent for the Banks (in such capacity, the
"AGENT"). Capitalized terms used herein that are defined in the Loan Agreement
that are not otherwise defined herein shall have the respective meanings
ascribed thereto in the Loan Agreement.
_______________________________, a __________________ (the "ASSIGNOR") and
_______________________________________, a ________________, (the "ASSIGNEE")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, a __ % interest in and to all
of the Assignor's rights and obligations under the Loan Agreement as of the
Effective Date (as defined below) (including, without limitation, such
percentage interest in the Assignor's Revolving Credit Commitment as in effect
on the Effective Date, and the Loans owing to the Assignor on the Effective
Date, and the Restated Note(s) held by the Assignor).
2. The Assignor: (i) represents and warrants that as of the date hereof
its Total Commitment (without giving effect to assignments thereof that have
not yet become effective) is $__________ ($_________ representing its Term
Commitment and $__________ representing its Revolving Credit Commitment) and
the aggregate outstanding principal amount of Loans owing to it (without giving
effect to assignments thereof that have not yet become effective) is
$__________ ($_________ in Credit Loans and $__________ in Term Loans); (ii)
represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder, and that such interest is free and
clear of any adverse claim; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Agreement or any other
instrument or document furnished pursuant thereto; and (iv) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers or any
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<PAGE> 128
other Loan Party or the performance or observance by the Borrowers or any other
Loan Party of any of their respective obligations under the Loan Agreement or
any other instrument or document furnished pursuant thereto; and (v) attaches
the Restated Note(s) referred to in paragraph 1 above and requests that the
Agent exchange such Restated Note(s) for new Restated Note(s) as follows: [a
Restated Credit Note dated the Effective Date (as such term is defined below)
in the principal amount of $________ payable to the order of the Assignee, a
Restated Credit Note dated the Effective Date in the principal amount of
$_________ payable to the order of the Assignor, a Restated Term Note dated the
Effective Date in the principal amount of $_________ payable to the order of
the Assignee and a Restated Term Note dated the Effective Date in the principal
amount of $_________ payable to the order of the Assignor.]
3. The Assignee: (i) confirms that it has received a copy of the Loan
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 this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor
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 the Loan Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Agent to take such action
as its agent on its behalf and to exercise such powers under the Loan Agreement
as are delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Agreement are required to be performed by it as a Bank; and (vi) specifies
as its addresses for Prime Rate Loans and LIBOR Loans (and address for notices)
the offices set forth beneath its name on the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall be
________________ (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
the Agent, together with a processing fee of $3,500.
5. Upon such acceptance, as of the Effective Date: (i) the Assignee shall
be a party to the Loan Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Bank thereunder and (ii)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Loan
Agreement.
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<PAGE> 129
6. Upon such acceptance, from and after the Effective Date, the Agent
shall make all payments under the Loan Agreement and the Restated Note(s) in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Loan Agreement and the Restated Note(s) for periods prior
to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF ASSIGNOR]
BY_________________________________
TITLE
[NAME OF ASSIGNEE]
BY_________________________________
TITLE
LENDING OFFICE FOR PRIME RATE LOANS:
LENDING OFFICE FOR LIBOR LOANS:
ATTENTION:
ADDRESS FOR NOTICES:
ATTENTION:
TELEPHONE NO.:
TELECOPIER NO.:
ACCEPTED THIS ___ DAY
OF ______________, ______
FLEET BANK, N.A., AS AGENT
7
<PAGE> 130
BY___________________________
TITLE
8
<PAGE> 131
EXHIBIT C
TO SECOND 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 AGENT
FORM OF BORROWING BASE CERTIFICATE
{DATE}
Fleet Bank, N.A., as Agent
1185 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Loan Agreement dated
as of September __, 1997 (the "LOAN AGREEMENT"), among Omega Healthcare
Investors, Inc. and certain of its Subsidiaries (collectively, the "BORROWER"),
the banks party thereto (the "BANKS") and you as agent for the Banks (the
"AGENT"). Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Loan Agreement.
The Borrower hereby represents and warrants to the Agent and the Banks
that:
A. The attached computations of the Borrowing Base, and the related
supporting schedules attached hereto, are true and correct as of the close of
business on the most recent month end and are in conformity with the terms and
conditions of the Loan Agreement; and
B. No Event of Default and no Default (as defined in the Loan Agreement)
has occurred and is continuing.
VERY TRULY YOURS,
OMEGA HEALTHCARE INVESTORS, INC.
BAYSIDE STREET, INC.
STERLING ACQUISITION CORP.
STERLING ACQUISITION CORP. II
OS LEASING COMPANY
OHI (ILLINOIS), INC.
BY:____________________________
TITLE
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<PAGE> 132
_____________, as an executive officer of all of the aforementioned
corporations, has executed this Borrowing Base Certificate intending that all
corporations above named are bound by his/her one signature as if (s)he had
executed this Borrowing Base Certificate separately for each of the above named
corporations.
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<PAGE> 133
EXHIBIT D
TO SECOND 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 AGENT
FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D
TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Section 6.9 (Financial Covenants): Omega Healthcare Investors, Inc. Second
Amended and Restated Loan Agreement
COMPLIANCE CERTIFICATE: QUARTER ENDED (DATE)
<TABLE>
<S><C>
a) Maximum Total Indebtedness to Tangible Net Worth of Not Greater Than 1.10: 1.00:
As of: (date) in thousands
Total Indebtedness $
===========
Shareholders' Equity $___________
less: Goodwill and Noncompete Agreements ___________
Unamortized Deferred Costs ___________
Treasury Stock ___________
Tangible Net Worth $
===========
Ratio COMPLIANCE
----------
*********************************************************************************************
b) Minimum Tangible Net Worth of Not Less Than $__________________ plus 75%
of (i) Net Issuance Proceeds and (ii) Equity Issued Upon the Conversion
of Convertible Subordinated Debt:
As of: (date) in thousands
Tangible Net Worth $___________
plus: Net Equity Proceeds (excluding DRIP) ___________
Equity Issued Upon Conversion of
Convertible Subordinated Debt ___________
Total Tangible Net Worth $ COMPLIANCE
=========== ----------
*********************************************************************************************
c) Minimum EBITDA/Interest Expense of Not Less than 200% (rolling four
quarters basis):
Omega:
Last Four Quarters EBITDA:
June, 1998 $___________
March, 1998 $___________
December, 1997 $___________
September, 1997 $___________
Rolling Four Quarter EBITDA $
==========
Last Four Quarters Interest Expense on All Indebtedness:
June, 1998 $___________
March, 1998 $___________
December, 1997 $___________
September, 1997 $___________
Rolling Four Quarter Interest $
==========
Ratio ________ (%) COMPLIANCE
----------
*********************************************************************************************
d) Minimum Omega's Fixed Charge Coverage of Not Less Than 1.00:1.00 (rolling
four quarters):
Rolling Four Quarter EBITDA (Above) $____________
Rolling Four Quarter Interest (Above) $____________
Cash Dividends Paid for Quarter Ended:
June, 1998 $____________
March, 1998 $____________
</TABLE>
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<PAGE> 134
<TABLE>
<S><C>
December, 1997 $____________
September, 1997 $____________
Rolling Four Quarter Cash Dividends Paid $___________
Balloon Payments, Less Unused on Line $___________
Sub-Total $___________
Ratio COMPLIANCE
----------
*********************************************************************************************
</TABLE>
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<PAGE> 135
EXHIBIT D - FORM OF COMPLIANCE CERTIFICATE (CONT'D)
OFFICER'S CERTIFICATE
I hereby certify that:
(a) Omega Healthcare Investors, Inc. is in compliance with the financial
covenants as set forth above pursuant to Section 6.9 of the Second
Amended and Restated Loan Agreement dated September __, 1997 (the "LOAN
AGREEMENT") among Omega Healthcare Investors, Inc. and certain of its
subsidiaries, the banks party thereto (the "BANKS") and you as agent for
the Banks, and that all the above computations of the financial covenants
are correct and complete as of the close of business [Date] and are in
conformity with the terms and conditions of the Loan Agreement.
(b) The representations and warranties contained in Article 3 of the Loan
Agreement are true and correct and with the same effect as though such
representations and warranties were made on the original date of such
certificate, except for changes in the ordinary course of business, none
of which either singly or in the aggregate, have a Material Adverse
Effect (as defined in the Loan Agreement).
(c) No Event of Default and no Default (as defined in the Loan Agreement)
has occurred and is continuing.
OMEGA HEALTHCARE INVESTORS, INC.
BY:_______________________________
CHIEF FINANCIAL OFFICER
DATE:
