Exhibit 10.1
SECOND
AMENDMENT, WAIVER AND
CONSENT TO CREDIT AGREEMENT
THIS SECOND
AMENDMENT, WAIVER AND CONSENT TO CREDIT AGREEMENT
(this “
Amendment ”), dated as of October 23, 2006, is entered
into by and among OHI
ASSET, LLC , a Delaware
limited liability company, OHI ASSET (ID), LLC , a Delaware
limited liability company, OHI ASSET (LA), LLC , a Delaware
limited liability company, OHI ASSET (TX), LLC , a Delaware
limited liability company, OHI ASSET (CA), LLC , a Delaware
limited liability company, DELTA INVESTORS I, LLC , a
Maryland limited liability company, DELTA INVESTORS II, LLC
, a Maryland limited liability company and TEXAS LESSOR -
STONEGATE, LP , a Maryland limited partnership (each of the
foregoing entities shall be hereinafter referred to individually as
a “ Borrower ” and collectively as the “
Borrowers ”), the Lenders (as defined below) and
BANK OF AMERICA, N.A. , as Administrative Agent (in such capacity, the “
Administrative Agent ”) , Swing Line Lender and
L/C Issuer.
RECITALS
WHEREAS , the Borrowers, the lenders from time to time
party thereto (the “ Lenders ”) and the
Administrative Agent, are party to that certain Credit Agreement
dated as of March 31, 2006, as amended by that certain First
Amendment to Credit Agreement dated as of June 30, 2006 (as
amended, restated, supplemented or otherwise modified from time to
time, the “ Existing Credit Agreement
”);
WHEREAS , Omega Healthcare Investors, Inc. (the “
Parent ”) determined that it may have to restate
certain of its annual and quarterly financial statements, including
but not limited to, the 2005 Audited Financial Statements and the
first two quarters of fiscal year 2006 (the “ Applicable
Restatements ”) as a result of the possible
recharacterization of the Advocat restructuring that occurred in
November, 2000 (the “ Advocat Recharacterization
”);
WHEREAS , the Parent is engaged in work to determine the
financial results as they relate to the Advocat Recharacterization
and, although the review and investigation are not concluded, at
this time the Parent believes that it may be responsible for taxes
and tax penalties in an amount of up to $8,000,000;
WHEREAS , pursuant to Section 4.02, upon any request for
an Extension of Credit, the Parent (on behalf of itself and the
Borrowers) makes certain representations and warranties, including
representations pursuant to Sections 5.01(a), 5.01(c), 5.16 and
5.20, relating to (i) the extent to which the Audited Financial
Statements as well as the most recent financial statements
furnished to the Administrative Agent pursuant to Section 6.01 are
prepared in accordance with GAAP and present fairly the
consolidated financial condition, results of operations and cash
flows of the Consolidated Parties as of the dates thereof and for
the periods covered thereby (the “ Financial Statement
Representations ”), (ii) payment of all Federal, state
and other material taxes and other governmental charges (the
“ Taxes Representations ”), and (iii) all
matters having been disclosed and no misstatements or omissions
existing on materials furnished by each Credit Party (the “
Disclosure Representations ”);
WHEREAS , following the completion of the Applicable
Restatements, it may be determined that one or more Events of
Default had previously occurred under (i) Section 8.01(b) as a
result of the Borrowers’ failure to comply with the covenants
set forth in Sections 6.01(b) and 6.06, (ii) Section 8.01(c) as a
result of the Borrowers’ failure to comply with the covenants
set forth in Section 6.09 and (iii) Section 8.01(d) as a result of
the inaccuracy of the Financial Statement Representations, the
Taxes Representations and the Disclosure Representations
(collectively, the “ Restatement Defaults
”);
WHEREAS , the Parent and the Borrowers have requested
that the Lenders (i) waive the inaccuracy of the Financial
Statement Representations, the Taxes Representations and the
Disclosure Representations solely with respect to the financial
statements that are the subject of the Applicable Restatements (the
“ Specified Prior Financial Statements ”) and
the Advocat Recharacterization, and any corresponding
certifications otherwise made or deemed made pursuant to the
Existing Credit Agreement with respect to the Specified Prior
Financial Statements, in each case to the extent of the Applicable
Restatements and only to the extent related to the Advocat
Recharacterization, and (ii) waive the Restatement Defaults (if and
to the extent any shall have occurred), in each case, as of the
Amendment No. 2 Effective Date (as defined in Subpart 5.1 );
and
WHEREAS , the Required Lenders have directed the
Administrative Agent to execute this Amendment, subject to the
terms and conditions set forth herein.
NOW, THEREFORE
, in consideration of the premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
PART 1
DEFINITIONS
SUBPART 1.1
Certain Definitions
. Unless otherwise defined herein or the context otherwise
requires, the following terms used in this Amendment, including its
preamble and recitals, have the following meanings:
“ Amended Credit
Agreement ” means the Existing Credit Agreement as
amended hereby.
“ Amendment No. 2 Effective
Date ” is defined in Subpart 5.1 .
SUBPART 1.2
Other Definitions
. Unless otherwise defined herein or the context otherwise
requires, terms used in this Amendment, including its preamble and
recitals, have the meanings provided in the Existing Credit
Agreement.
PART 2
WAIVER
SUBPART 2.1
Waiver of Financial
Statement Representations, Taxes Representations and Disclosure
Representations . Subject to the satisfaction of all of
the terms and conditions set forth in this Amendment, the Lenders
hereby waive (i) the inaccuracies in the Financial Statement
Representations, the Taxes Representations and the Disclosure
Representations with respect to the Specified Prior Financial
Statements and only to the extent related to the Advocat
Recharacterization and (ii) any corresponding inaccuracies in the
certifications otherwise made or deemed made pursuant to the
Existing Credit Agreement with respect to the Specified Prior
Financial Statements, in each case, solely to the extent of the
Applicable Restatements and only to the extent related to the
Advocat Recharacterization.
SUBPART 2.2
Waiver of Restatement
Defaults . Subject to the satisfaction of all of the
terms and conditions set forth in this Amendment, the Lenders
hereby waive the Restatement Defaults (if and to the extent any
shall have occurred).
SUBPART 2.3
Reservation of Rights
. Except for the specific waivers set forth in Subpart
2.1 and Subpart 2.2 above, nothing contained herein
shall be deemed to constitute a waiver of (i) any rights or
remedies the Administrative Agent or any Lender may have under the
Existing Credit Agreement or any other Credit Documents or under
applicable law or (ii) any Credit Party’s obligation to
comply fully with any duty, term, condition, obligation or covenant
contained in the Existing Credit Agreement and the other Credit
Documents not specifically waived, consented to or amended
herein. The specific waivers set forth herein are effective
only with respect to the inaccuracies in the Financial Statement
Representations, the Taxes Representations, the Disclosure
Representations, the Specified Prior Financial Statements, the
Applicable Restatements and any corresponding Restatement Defaults,
and shall not obligate the Lenders to waive any other Default or
Event of Default, now existing or hereafter arising.
PART 3
CONSENT
In connection with the Applicable
Restatements, the Lenders hereby consent to the extension of the
deadline by which the quarterly financial statemen
