1
EXHIBIT 4
--------------------------------------------------------------------------------
OMEGA HEALTHCARE INVESTORS, INC.
Issuer
to
NBD BANK
Trustee
-------------------------
Supplemental Indenture No. 1
Dated as of August 5, 1997
-------------------------
$100,000,000
of
6.95% Notes due 2007
--------------------------------------------------------------------------------
2
SUPPLEMENTAL INDENTURE NO. 1, dated as of August 5, 1997 (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 January 28, 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. 333-20967), 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:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Indenture.
This Supplemental Indenture constitutes an integral part of
the Indenture.
3
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.
"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.
"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
2
4
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).
"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.
3
5
"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.
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of such dollar if
such redemption or accelerated payment had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date such
notice of redemption is given or declaration of acceleration is made) from the
respective dates on which such principal and interest would have been payable
if such redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Notes" has the meaning specified in Section 2.1 hereof.
"Reinvestment Rate" means .25% (twenty-five one hundredths of
one percent) plus the arithmetic mean of the yields under the respective
headings "This Week" and "Last Week" published in the Statistical Release under
the caption "Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the remaining life to maturity, as of the
payment date of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities most
closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or
4
6
extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For such purposes of calculating
the Reinvestment Rate, the most recent Statistical Release published prior to
the date of determination of the Make-Whole Amount shall be used.
"Secured Debt" means Debt secured by an Encumbrance.
"Significant Subsidiary" has the meaning ascribed to such term
in Regulation S-X promulgated under the Securities Act of 1933, as amended.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination of the
Make-Whole Amount, then such other reasonably comparable index which shall be
designated by the Company.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (i) the voting power of the
voting equity securities, or (ii) the outstanding equity interests of which are
owned, directly or indirectly, by such Person. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"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.
5
7
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 2007" (the "Notes").
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited
to $100,000,000, 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.
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.
The Notes will bear interest at a rate of 6.95% per annum from
August 5, 1997 or from the immediately preceding Interest Payment Date to which
interest has been paid or duly provided for, payable semi-annually in arrears
on February 1 and August 1 of each year, commencing February 1, 1998 (each, an
"Interest Payment Date"), to the Person in whose name such Note is registered
at the close of business on January 15 or July 15 (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 August 1, 2007.
6
8
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 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.
7
9
SECTION 2.5. Redemption.
The Notes may be redeemed at any time at the option of the
Company, in whole or in part, at a redemption price equal to the sum of (i) the
principal amount of the Notes being redeemed plus accrued interest thereon to
the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes (the "Redemption Price").
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, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
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.
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.
8
10
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. Defeasance.
(a) The following Article Fifteen shall be added to the
Indenture.
ARTICLE FIFTEEN -- DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Applicability of Article: Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Debt Securities
of or within a series under 1502 or (b) covenant defeasance of the Debt
Securities of or within a series under Section 1503, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be specified
pursuant to Section 301 with respect to any Debt Securities), shall be
applicable to such Debt Securities, and the Company may at its option by Board
Resolution, at any time, with respect to such Debt Securities, elect to have
Section 1502 (if applicable) or Section 1503 (if applicable) be applied to such
Outstanding Debt Securities upon compliance with the conditions set forth below
in this Article.
SECTION 1502. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Debt Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Debt
Securities on the date the conditions set forth in Section 1504 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Debt Securities, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1505 and the other
Sections of this Indenture referred to in clauses (A) and (B) below, and to
have satisfied all of its other obligations under such Debt Securities and this
Indenture insofar as such Debt Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding Debt
Securities to receive, solely from the trust fund described in Section 1504 and
as more fully set forth in such Section, payments in respect of the principal
of (and premium or Make-Whole Amount, if any) and interest, if any, on such
Debt Securities when such payments are due, (B) the Company's obligations with
respect to such Debt Securities under Sections 305, 306, 1002 and 1003, and
Article Thirteen (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this
Article Fifteen, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1503 with
respect to such Debt Securities.
SECTION 1503. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Debt Securities of or within a series, the Company shall be released from its
obligations under Sections 1004
9
11
and Sections 1006 to 1008, inclusive, and, if specified pursuant to Section
301, its obligations under any other covenant contained herein or in any
indenture supplemental, with respect to such Outstanding Debt Securities
thereto on and after the date the conditions set forth in Section 1504 are
satisfied (hereinafter, "covenant defeasance"), and such Debt Securities shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1004 and Sections 1006 to 1008, inclusive,
or such other covenant, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Debt Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or other covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(4) or 501(9) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Debt Securities shall
be unaffected thereby.
SECTION 1504. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of Section
1502 or Section 1503 to any Outstanding Debt Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who shall agree to comply with the provisions of this Article
Fifteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Debt Securities, (1) an amount in such
currency, currencies or currency unit in which such Debt Securities are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Debt Securities (determined on the basis of the currency,
currencies or currency unit in which such Debt Securities are then specified as
payable at Stated Maturity) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide,
not later than the due date of any payment of principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Debt Securities, money
in an amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of (and
premium or Make-Whole Amount, if any) and interest, if any, on such Outstanding
Debt Securities on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Debt Securities on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities.
10
12
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party or
by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such Debt
Securities shall have occurred and be continuing on the date of such deposit
or, insofar as Sections 501(5) and 501(6) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1502, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Outstanding Debt Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1503, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Debt Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1502 or the covenant
defeasance under Section 1503 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1502 or Section 1503 (as the case may be), registration
is not required under the Investment Company Act of 1940, as amended, by the
Company, with respect to the trust funds representing such deposit or by the
Trustee for such trust funds or (ii) all necessary registrations under said Act
have been effected.
(g) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
SECTION 1505. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
the last paragraph of Section 1003, all money and Government Obligations (or
other property as may be provided pursuant to Section 301) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1505,
11
13
the "Trustee") pursuant to Section 1504 in respect of any Outstanding Debt
Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Debt Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Debt Securities of all sums due and to become due thereon in respect of
principal (and premium or Make-Whole Amount, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
Unless otherwise specified with respect to any Debt Security
pursuant to Section 301, if, after a deposit referred to in Section 1504(a) has
been made, (a) the Holder of a Debt Security in respect of which such deposit
was made is entitled to, and does, elect pursuant to Section 301 or the terms
of such Debt Security to receive payment in a currency or currency unit other
than that in which the deposit pursuant to Section 1504(a) has been made in
respect of such Debt Security, or (b) a Conversion Event occurs in respect of
the currency or currency unit in which the deposit pursuant to Section 1504(a)
has been made, the indebtedness represented by such Debt Security shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium or Make-Whole Amount, if any),
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the currency or currency unit in which such Debt Security becomes
payable as a result of such election or Conversion Event based on the
applicable market exchange rate for such currency or currency unit in effect on
the second Business Day prior to each payment date, except, with respect to a
Conversion Event, for such currency or currency unit in effect (as nearly as
feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Debt Securities.
Anything in this Article to the contrary notwithstanding,
subject to Section 607, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1504
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
(b) The provisions of Sections 1502 and 1503 of the
Indenture, together with the other provisions of Article Fifteen of the
Indenture, shall be applicable to the Notes. The provisions of Section 1503 of
the Indenture shall apply to the covenants set
12
14
forth in Sections 2.4 and 2.16 of this Supplemental Indenture and to those
covenants specified in Section 1503 of the Indenture.
SECTION 2.13. Events of Default
The provisions of clauses (2), (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:
(2) default in the payment of the principal of (or
Make-Whole Amount, if any,) on any Notes when due and payable; or
(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):
(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 Compa-
13
15
ny 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 2.14. 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 or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of, and the Make-Whole
Amount, if any, on, 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 or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) plus accrued
interest to the date the Notes are paid plus the Make-Whole Amount, if any, on
the Notes.
SECTION 2.15. 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 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
14
16
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 2.16. 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 2.15 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 2.17. Immunity of Stockholders, Directors, Officers
and Agents of the Company.
The following Section 115 shall be added to Article One of the
Indenture:
SECTION 115. IMMUNITY OF STOCKHOLDERS, DIRECTORS, OFFICERS
AND AGENTS OF THE COMPANY. No recourse under or upon any obligation, covenant
or agreement contained in this Indenture, or in any Debt Security, or because
of any indebtedness evidenced thereby, shall be had against any past, present
or future stockholder, 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
15
17
by the acceptance of the Debt Securities by the Holders and as part of the
consideration for the issue of the Debt Securities.
SECTION 2.18. Make-Whole Amount. The Indenture shall be
amended such that in each instance where the payment of "premium" is mentioned
with respect to any Debt Security, such term shall also refer to the Make-Whole
Amount.
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.
16
18
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:
--------------------------------
Name:
Title:
NBD BANK
as Trustee
By:
--------------------------------
Name:
Title:
17
19
EXHIBIT A TO
SUPPLEMENTAL INDENTURE
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 00 XXXXX XXXXXX, XXX
XXXX, XXX XXXX, 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. ________ PRINCIPAL AMOUNT
CUSIP No.: ____________ $[__________]
OMEGA HEALTHCARE INVESTORS, INC.
6.95% NOTE DUE 2007
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
[____________] MILLION DOLLARS on August 1, 2007 and to pay interest on the
outstanding principal amount thereon from August 5, 1997, or from the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on February 1 and August 1 in each
year, commencing February 1, 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 on the Regular Record Date for
such interest which shall be the January 15 or July 15 (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
A-1
20
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 January 28, 1997,
as supplemented by Supplemental Indenture No. 1, dated as of August 5, 1997 (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
$100,000,000.
Securities of this series may be redeemed at any time at the
option of the Company, in whole or in part, upon notice of not more than 60 nor
less than 30 days prior to the Redemption Date, at a redemption price equal to
the sum of (i) the principal amount of the Securities being redeemed plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount,
if any, with respect to such Securities.
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 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
A-2
21
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
Make-Whole Amount, if any) 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 Make-Whole Amount, if any) 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 registered
form without 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
A-3
22
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 promoter, as
such, or against any past, present or future shareholder, 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 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.
A-4
23
IN WITNESS WHEREOF, OMEGA HEALTHCARE INVESTORS, INC. has
caused this instrument to be duly executed under its corporate seal.
Dated:
OMEGA HEALTHCARE INVESTORS, INC.
By:
----------------------------------
Name:
Title:
[Corporate Seal]
Attest:
---------------------------------
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:
----------------------------------
Authorized Signatory
A-5
24
================================================================================
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.
================================================================================
A-6
