JULY 16, 2009.
1.2
AMENDMENT TO ARTICLE II:
AMOUNTS AND TERMS OF THE FACILITY;
SECURITY FOR THE FACILITY.
A.
SUBSECTION 2.1.3 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY
DELETING IT IN ITS ENTIRETY AND SUBSTITUTING THE FOLLOWING THEREFOR:
"2.1.3
AMOUNT AND AVAILABILITY OF LETTERS OF CREDIT AND TRI-PARTY
AGREEMENTS.
PROVIDED THAT NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING,
AND SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, BORROWERS MAY REQUEST,
AND AGENT, PURSUANT TO THIS SECTION 2.1.2 SHALL ISSUE OR EXECUTE ON BEHALF OF
THE LENDERS; (I) LETTERS OF CREDIT OR TRI-PARTY AGREEMENTS TO ASSURE
GOVERNMENTAL AUTHORITIES OF THE COMPLETION OF IMPROVEMENTS THAT ARE TO BE
CONSTRUCTED IN PROJECTS AND FINANCED WITH THE PROCEEDS OF LOANS, BUT ONLY IF IN
EACH INSTANCE AGENT'S LIABILITY UNDER SUCH LETTER OF CREDIT OR TRI-PARTY
AGREEMENT IS SUBJECT TO PERIODIC REDUCTION BY THE BENEFICIARY THEREOF AS
CONSTRUCTION OF THE SUBJECT IMPROVEMENTS IS COMPLETED (INCLUDING LETTERS OF
CREDIT ISSUED FOR THE BENEFIT OF THE ISSUER OF A SURETY OR PERFORMANCE BOND
ISSUED FOR ANY PURPOSE DESCRIBED IN THIS CLAUSE (I)), (II) LETTERS OF CREDIT TO
ASSURE GOVERNMENTAL AUTHORITIES THAT BORROWERS WILL PERFORM THEIR MAINTENANCE
OBLIGATIONS WITH RESPECT TO IMPROVEMENTS FINANCED WITH THE PROCEEDS OF LOANS
(INCLUDING LETTERS OF CREDIT ISSUED FOR THE BENEFIT OF THE ISSUER OF A SURETY OR
PERFORMANCE BOND ISSUED FOR ANY PURPOSE DESCRIBED IN THIS CLAUSE (II)),
(III) LETTERS OF CREDIT THAT ARE IN LIEU OF CASH DEPOSITS UNDER AGREEMENTS OF
SALE FOR THE PURCHASE OF REAL ESTATE, LOTS OR UNITS BY BORROWERS PERMITTED
PURSUANT TO SECTION 8.5 AND NOT SUBJECT TO PURCHASE MONEY MORTGAGE OTHER THAN
THOSE SECURING THE INDEBTEDNESS, (IV) LETTERS OF CREDIT ISSUED AS A REPLACEMENT
OR EXTENSION OF ANY LETTER OF CREDIT IDENTIFIED ON SCHEDULE 1.1D TO THE EXTENT
ANY SUCH LETTER OF CREDIT DOES NOT OTHERWISE FALL UNDER CLAUSES (I), (II),
(III) OR (V) SO LONG AS SUCH LETTER OF CREDIT IS RELATED TO AN ELIGIBLE PROJECT
THAT SECURES THE LINE OF CREDIT AND SATISFIES THE REQUIREMENTS OF
SECTION 4.1.11, OR SUCH LETTER OF CREDIT HAS HERETOFORE BEEN ISSUED WITH RESPECT
TO A BORROWING BASE PROJECT OR WITH RESPECT TO DEVELOPMENTS PREVIOUSLY COMPLETED
BY A BORROWER, AND (V) LETTERS OF
3
Credit solely to the extent required to comply with the reserve requirements
under the OHI Financing Subordinated Debt in an aggregate amount not to exceed
$7,500,000.
Letters of Credit of the type described in clauses (iii) and
(v) are sometimes referred to in this Agreement as "Financial Letters of
Credit."
Each Letter of Credit identified on Schedule 1.1D also shall be deemed
to have been issued on behalf of the Lenders.
No Letter of Credit or Tri-Party
Agreement shall be issued or executed by Agent if, as a result thereof, (x) the
aggregate liability of Agent and all other Issuers under all Letters of Credit
and Tri-Party Agreements then outstanding or in effect would exceed the Letter
of Credit Sublimit or (y) the aggregate liability of Agent under all outstanding