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EXHIBIT 4
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OMEGA HEALTHCARE INVESTORS, INC.
Issuer
to
NBD BANK
Trustee
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Supplemental Indenture No. 1
Dated as of June 1, 1998
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$125,000,000
of
6.95% Notes due 2002
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TABLE OF CONTENTS
ARTICLE ONE RELATION TO INDENTURE; DEFINITIONS...................................................................4
SECTION 1.1. Relation to Indenture......................................................................4
SECTION 1.2 Definitions................................................................................4
ARTICLE TWO THE SERIES OF NOTES..................................................................................7
SECTION 2.1. Title of the Securities...................................................................7
SECTION 2.2. Limitation on Aggregate Principal Amount..................................................7
SECTION 2.3. Interest and Interest Rates; Maturity Date of Notes.......................................7
SECTION 2.4. Limitations on Incurrence of Debt.........................................................8
SECTION 2.5. Redemption................................................................................9
SECTION 2.6. Places of Payment.........................................................................9
SECTION 2.7. Method of Payment.........................................................................9
SECTION 2.8. Currency..................................................................................9
SECTION 2.9. Registered Securities; Global Form.......................................................10
SECTION 2.10. Form of Notes............................................................................10
SECTION 2.11. Registrar and Paying Agent...............................................................10
SECTION 2.12. Events of Default........................................................................10
SECTION 2.13. Acceleration of Maturity; Rescission and Annulment.......................................11
SECTION 2.14. Provision of Financial Information.......................................................11
SECTION 2.15. Additional Covenant; Waiver of Certain Covenants.........................................12
SECTION 2.16. Defeasance and Covenant Defeasance.......................................................12
ARTICLE THREE MISCELLANEOUS PROVISIONS...........................................................................13
SECTION 3.1. Ratification of Indenture.................................................................13
SECTION 3.2. Governing Law.............................................................................13
SECTION 3.3. Counterparts..............................................................................13
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SUPPLEMENTAL INDENTURE NO. 1, dated as of June 1, 1998 (the
"Supplemental Indenture"), between OMEGA HEALTHCARE INVESTORS, INC., a
corporation duly organized and existing under the laws of the State of Maryland
(herein called the "Company"), and NBD BANK, a Michigan banking corporation duly
organized and existing under the laws of the State of Michigan, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore delivered to the Trustee an Indenture
dated as of August 27, 1997 (the "Indenture"), a form of which has been filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Company's Registration Statement on Form S-3
(Registration No. 333-34763), providing for the issuance from time to time of
Debt Securities of the Company (the "Securities").
Section 301 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 901(3) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 201 and
301 of the Indenture, including any subordination provisions.
The Board of Directors of the Company has duly adopted resolutions
authorizing the Company to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities provided for herein by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the Notes,
as follows:
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ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Indenture.
This Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.2 Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Adjusted Total Assets" means the sum of (without duplication)
(i) the Total Assets of the Company and its Subsidiaries as of the end of the
most recent calendar quarter covered in the Company's Annual Report on Form 10-K
or Quarterly Report on Form 10-Q, as the case may be, most recently filed with
the Commission (or, if such filing is not permitted under the Exchange Act, with
the Trustee) prior to the incurrence of such additional Debt and (ii) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt.
"Annual Service Charge" as of any date means the maximum
amount which is expensed in any 12-month period for interest on Debt of the
Company and its Subsidiaries.
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"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in the
City of New York or in the City of Detroit, Michigan are authorized or required
by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Commission" means the Securities and Exchange Commission.
"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Company and its Subsidiaries plus
amounts which have been deducted, and minus amounts which have been added, for
the following (without duplication): (i) interest on Debt of the Company and its
Subsidiaries, (ii) provision for taxes of the Company and its Subsidiaries based
on income, (iii) amortization of debt discount and deferred financing costs,
(iv) provisions for gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period,
and (vi) amortization of deferred charges.
"Debt" of the Company or any Subsidiary means, without
duplication, any indebtedness of the Company or any Subsidiary, whether or not
contingent, in respect of (i) borrowed money or evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness for borrowed money of a
Person other than the Company or a Subsidiary which is secured by any
Encumbrance existing on property owned by the Company or any Subsidiary, (iii)
the reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued (other than letters of credit issued to
provide credit enhancement or support with respect to other indebtedness of the
Company or any Subsidiary otherwise reflected as Debt hereunder) or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock, or (v) any lease of
property by the Company or any Subsidiary as lessee which is reflected on the
Company's consolidated balance sheet as a capitalized lease in accordance with
GAAP, to the extent, in the case of items of indebtedness under (i) through
(iii) above, that any such items (other than letters of credit) would appear as
a liability on the Company's consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by the
Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purpose of collection in the ordinary course of
business), Debt of another Person (other than the Company or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
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"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than Capital Stock which is redeemable solely in exchange for
common stock or shares), (ii) is convertible into or exchangeable or exercisable
for Debt or Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for common stock or shares), in each case on or
prior to the Stated Maturity of the Notes.
"Earnings from Operations" for any period means net earnings
excluding gains and losses on sales of investments, as reflected in the
financial statements of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or
security interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect from time to
time; provided that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof, applied
on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America, for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository receipt.
"Notes" has the meaning specified in Section 2.1 hereof.
"Secured Debt" means Debt secured by an Encumbrance.
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"Significant Subsidiary" has the meaning ascribed to such term
in Regulation S-X promulgated under the Securities Act of 1933, as amended.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the Company and
its Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Company and its Subsidiaries not subject
to an Encumbrance for borrowed money, determined in accordance with GAAP (but
excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"Unsecured Debt" means Debt which is not secured by any
Encumbrance upon any of the properties of the Company or any Subsidiary.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. Title of the Securities.
There shall be a series of Securities designated the "6.95% Notes due
2002" (the "Notes").
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$125,000,000, and, except as provided in this Section and in Section 306 of the
Indenture, the Company shall not execute and the Trustee shall not authenticate
or deliver Notes in excess of such aggregate principal amount. The Notes are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 303, 304, 305, 306, 905 and 1107 of the
Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Notes.
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The Notes will bear interest at a rate of 6.95% per annum from June 10,
1998 or from the immediately preceding Interest Payment Date to which interest
has been paid or duly provided for, payable semi-annually in arrears on June 15
and December 15 of each year, commencing December 15, 1998 (each, an "Interest
Payment Date"), to the Person in whose name such Note is registered at the close
of business on June 1 or December 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date (each, a "Regular Record
Date"). Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months. The interest so payable on any Note which is not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such Defaulted Interest
shall instead be payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with
the Indenture.
If any Interest Payment Date or Maturity falls on a day that is not a
Business Day, the required payment shall be made on the next Business Day as if
it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or Maturity, as the case may be.
The Notes will mature on June 15, 2002.
SECTION 2.4. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any Subsidiary to,
incur any Debt if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Company and its Subsidiaries on
a consolidated basis determined in accordance with GAAP is greater than 60% of
Adjusted Total Assets.
(b) In addition to the limitation set forth in subsection (a) of
this Section 2.4, the Company will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for Debt Service to
the Annual Service Charge for the four consecutive fiscal quarters most recently
ended prior to the date on which such additional Debt is to be incurred shall
have been less than 1.5x, on a pro forma basis after giving effect thereto and
to the application of the proceeds therefrom, and calculated on the assumption
that (i) such Debt and any other Debt incurred by the Company and its
Subsidiaries since the first day of such four-quarter period and the application
of the proceeds therefrom, including to refinance other Debt, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other Debt
by the Company and its Subsidiaries since the first day of such four-quarter
period had been repaid or retired at the beginning of such period (except that,
in making such computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance of such Debt
since the first day of such four-quarter period); (iii) in the case of Acquired
Debt or Debt incurred in connection with any acquisition since the first day of
such four-quarter period, the related acquisition had occurred as of the first
day of such period with the appropriate adjustments with respect to such
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acquisition being included in such pro forma calculation; and (iv) in the case
of any acquisition or disposition by the Company or its Subsidiaries of any
asset or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments with respect to
such acquisition or disposition being included in such pro forma calculation.
(c) In addition to the limitations set forth in subsections (a)
and (b) of this Section 2.4, the Company will not, and will not permit any
Subsidiary to, incur any Secured Debt if, immediately after giving effect to the
incurrence of such additional Secured Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Secured Debt of the
Company and its Subsidiaries on a consolidated basis is greater than 40% of
Adjusted Total Assets.
(d) The Company and its Subsidiaries will maintain Total
Unencumbered Assets of not less than 200% of the aggregate outstanding principal
amount of the Unsecured Debt of the Company and its Subsidiaries on a
consolidated basis.
(e) For purposes of this Section 2.4, Debt shall be deemed to be
"incurred" by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
SECTION 2.5. Redemption.
The Notes are not subject to redemption prior to maturity.
SECTION 2.6. Places of Payment.
The Places of Payment where the Notes may be presented or surrendered
for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Notes and the Indenture may be served shall be at the office of the Trustee
located at NBD Bank, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
Corporate Trust Department.
SECTION 2.7. Method of Payment.
For so long as the Notes are issued in the form of Global Debt
Securities, payment of principal of and interest on such Notes will be made
through the Depositary for such Debt Securities. In the event the Notes are
issued in definitive form, or the Depositary with respect to any Global Debt
Securities is unable to effect payment of principal and interest on such Notes,
payment of principal and interest on such Notes will be made at the office or
agency of the Trustee maintained for such purpose. In either case, payment of
the principal of and interest on the Notes will be made in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company, payments of principal and interest on the Notes (other than
payments of principal and interest due at Maturity) may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto located within the United States.
SECTION 2.8. Currency.
Principal and interest on the Notes shall be payable in U.S. Dollars.
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SECTION 2.9. Registered Securities; Global Form.
The Notes shall be issuable and transferable in fully registered form
as Registered Debt Securities, without coupons. The Notes shall each be issued
in the form of one or more permanent Global Debt Securities. The Depository for
the Notes shall be The Depository Trust Company ("DTC"). The Notes shall not be
issuable in definitive form except as provided in Section 305 of the Indenture.
SECTION 2.10. Form of Notes.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
SECTION 2.11. Registrar and Paying Agent.
The Trustee shall initially serve as the Debt Securities Registrar and
Paying Agent for the Notes.
SECTION 2.12. Events of Default
The provisions of clauses (5) and (6) of Section 501 of the Indenture
as applicable with respect to the Notes shall be deemed to be amended and
restated in its entirety to read as follows:
(5) a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator or other similar official shall take possession of the
Company or any Significant Subsidiary or any substantial part of its property
without its consent, or the entry of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Company or any Significant
Subsidiary in an involuntary case under the Federal Bankruptcy Code or any other
applicable Federal or State law, or appointing a receiver, liquidator,
custodian, assignee, trustee, sequestrator, conservator, or other similar
official of the Company or any Significant Subsidiary or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such possession, decree or order unstayed and in effect
for a period of 60 consecutive days; or
(6) the commencement by the Company or any Significant
Subsidiary of a voluntary case under the Federal Bankruptcy Code or any other
applicable Federal or State law, or the consent by either of the foregoing to
the entry of an order for relief in an involuntary case under any such law, or
the consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, conservator, sequestrator or other
similar official or of any substantial part of its property, or the making of an
assignment for the benefit of creditors; or
The provisions of Section 501 of the Indenture as applicable with
respect to the Notes shall be further deemed to be amended by renumbering
existing clause (7) to be clause (9) and by adding the following new clauses (7)
and (8):
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(7) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company (or by
any Subsidiary, the repayment of which the Company has guaranteed or for which
the Company is directly responsible or liable as obligor or guarantor), having
an aggregate principal amount outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have given,
by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Notes a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(8) the entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Company or any of its Subsidiaries
in an aggregate amount (excluding amounts covered by insurance) in excess of
$10,000,000 and such judgements, orders or decrees remain undischarged, unstayed
and unsatisfied in an aggregate amount (excluding amounts covered by insurance)
in excess of $10,000,000 for a period of 30 consecutive days; or
SECTION 2.13. Acceleration of Maturity; Rescission and Annulment.
The provisions of the first paragraph of Section 502 of the Indenture
as applicable with respect to the Notes shall be deemed to be amended and
restated in their entirety to read as follows:
If an Event of Default with respect to Debt Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Notes may declare the principal (or, if any Debt Securities are
Original Issue Discount Securities), such portion of the principal as may be
specified in the terms thereof) of all the Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal or specified
portion thereof shall become immediately due and payable. If an Event of Default
with respect to the Notes set forth in Section 501(6) of the Indenture occurs
and is continuing, then in every such case all the Notes shall become
immediately due and payable, without notice to the Company, at the principal
amount thereof (or, if any Notes are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) plus accrued
interest to the date the Notes are paid.
SECTION 2.14. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual
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reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13 or 15(d) if the
Company were so subject, such documents to be filed with the Commission on or
prior to the respective dates (the "Required Filing Dates") by which the Company
would have been required so to file such documents if the Company were so
subject.
The Company will also in any event (x) within 15 days after each
Required Filing Date (i) if the Company is not then subject to Section 13 or
15(d) of the Exchange Act, transmit by mail to all Holders, as their names and
addresses appear in the Debt Securities Register, without cost to such Holders,
copies of the annual reports and quarterly reports which the Company would have
been required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Company were subject to such Sections, and (ii) file with
the Trustee copies of annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (y) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective Holder.
SECTION 2.15. Additional Covenant; Waiver of Certain Covenants.
(a) The following Section 1008 shall be added to Article Ten of the
Indenture:
SECTION 1008. EXISTENCE. Subject to Article Eight, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, all material rights (by articles of
incorporation, by-laws and statute) and material franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
(b) Notwithstanding the provisions of Section 1005 of the
Indenture, the Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 and Sections 1006 to
1008, inclusive, of the Indenture, with Sections 2.4 and 2.14 of this
Supplemental Indenture and with any other term, provision or condition with
respect to the Notes (except any such term, provision or condition which could
not be amended without the consent of all Holders of the Notes), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Notes or such series thereof, as applicable,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition. Except to the extent
so expressly waived, and until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 2.16. Defeasance and Covenant Defeasance.
Pursuant to Section 301 of the Indenture, the Company elects that the
provisions of Section 1501(a) and 1501 (b) shall apply to this Supplemental
Indenture and the Notes and for purposes of a Covenant Defeasance under Section
1503, shall include a release from the obligations of the Company under Sections
2.4 and 2.14 of this Supplemental Indenture.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture continues
in full force and effect and is in all respects confirmed and preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
OMEGA HEALTHCARE INVESTORS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
NBD BANK, as Trustee
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
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EXHIBIT A TO SUPPLEMENTAL INDENTURE
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A SUCCESSOR
DEPOSITORY OR ITS NOMINEE.
Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: 681936 AK 6 $125,000,000
OMEGA HEALTHCARE INVESTORS, INC.
6.95% NOTE DUE 2002
OMEGA HEALTHCARE INVESTORS, INC., a corporation duly organized and
existing under the laws of the State of Maryland (herein referred to as
the "Company" which term shall include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, upon presentation, the principal sum of
ONE HUNDRED TWENTY FIVE MILLION DOLLARS on June 15, 2002 and to pay interest on
the outstanding principal amount thereon from June 10, 1998, or from the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on June 15 and December 15 in each
year, commencing December 15, 1998, at the rate of 6.95% per annum, until the
entire principal hereof is paid or made available for payment. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security is registered at the close of business
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on the Regular Record Date for such interest which shall be the June 1 or
December 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may either be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of the Securities not more than 15 days and not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payment
of the principal of and interest on this Security will be made at the office or
agency maintained for that purpose in the City of New York, New York, or
elsewhere as provided in the Indenture, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payments of principal and interest on the Notes (other than payments of
principal and interest due at Maturity) may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account of the Person entitled
thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of August 27, 1997, as
supplemented by Supplemental Indenture No. 1, dated as of June 1, 1998 (as so
supplemented, herein called the "Indenture"), between the Company and NBD Bank
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are
authenticated and delivered. This Security is one of the series designated in
the first page thereof, limited in aggregate principal amount to $125,000,000.
Securities of this series are not subject to redemption prior to
maturity.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security, and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the
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appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities, the Holders of not
less than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest on or after the respective due dates
expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Debt
Securities Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in the form of one or
more Global Debt Securities (except as otherwise permitted in Section 3.5 of the
Indenture) in registered form without
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coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same. No service charge shall be made
for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced hereby or thereby, shall be had against any past, present or future
shareholder, employee, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Security
by the Holder thereof and as part of the consideration for the issue of the
Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, OMEGA HEALTHCARE INVESTORS, INC. has caused this
instrument to be duly executed under its corporate seal.
Dated: June 10, 1998 OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
[Corporate Seal]
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
NBD BANK, as Trustee
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
--------------------------------------------------
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Security of Omega Healthcare Investors, Inc. and hereby does
irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attorney
to transfer said Security on the books of the within-named Company with
full power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
MEDALLION SIGNATURE GUARANTEE
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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