Exhibit 99.19(e)(7)
DATE AUGUST 1, 2002
OMEGA WORLDWIDE, INC.
AS LENDER
PRINCIPAL HEALTHCARE FINANCE INVESTMENTS (GUERNSEY) LIMITED
BARCLAYS BANK PLC
AS FACILITY AGENT
STANDSTILL AGREEMENT
RE OWI FACILITIES
DATE August 1, 2002
PARTIES
1 OMEGA WORLDWIDE, INC a Maryland Corporation whose principal business
office is at 000 Xxxxxxx Xxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx, 00000,
Xxxxxx Xxxxxx of America in its capacity as Lender (the "Lender");
2 PRINCIPAL HEALTHCARE FINANCE INVESTMENTS (GUERNSEY) LIMITED
(registered in the Island of Guernsey, Channel Islands under
Company Number 39730) having its registered address at
Xxxxxxxx House, St. Julian's Avenue, St. Xxxxx Port, Guernsey
(the "Jersey Bidder"); and
3 BARCLAYS BANK PLC (registered in England and Wales under Company
Number 1026167) having its registered address at 00 Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (the "Facility Agent").
RECITALS
A Principal Healthcare Finance Limited (the "Borrower") and
Omega Healthcare Investors, Inc. ("OHI") entered into the
First Loan Agreement on 21 July 1995, pursuant to which OHI
made a L20,000,000 facility available to the Borrower (the
"First Loan"). OHI transferred L5,000,000 of the First Loan
to Electra Private Equity Partners 1995 (formerly known as
Electra Xxxxxxx Private Equity Partners) ("Electra") on 31
October 1996. OHI then transferred all of the remainder of
its right, title and interest in the First Loan to the Lender.
B The Borrower and the Lender entered into the Second Loan Agreement
on 23 April 2001, pursuant to which the Lender made a L7,000,000
facility available to the Borrower, of which L4,168,764.66 has been
drawn as at the date of this Agreement.
C Defaults have occurred under the Loan Agreements.
D The Jersey Bidder proposes to make an offer to acquire the
whole of the ordinary share capital of the Borrower not
already owned by the Lender ("the Jersey Offer") upon
substantially the terms set out in a draft offer document
which has been initialled by or on behalf of the parties for
the purpose of identification, and Delta 1 Acquisition, Inc.
("the US Bidder") proposes to make an offer to purchase all
outstanding shares in Omega Worldwide, Inc. ("OWI"), a
shareholder in the Borrower ("the US Offer") upon the terms
set out in the Agreement and Plan of Merger by and among Four
Seasons Health Care Limited, the US Bidder and OWI, dated as
of the same date as this Agreement ("the Merger Agreement")
(the Jersey Offer and the US Offer, which are
inter-conditional, being collectively referred to herein as
"the Offers" and either of them as an "Offer"). The funds for
the Offers are ultimately to be provided by the Facility
Agent pursuant to a senior credit agreement made between,
amongst others, Four Seasons Health Care Limited (1), Four
Seasons Health Care Holdings Plc (2) and Barclays Bank (3)
(the "Senior Credit Agreement").
IT IS AGREED as follows:-
1 INTERPRETATION
1.1 In this Agreement (including the Parties and Recitals),
unless the context otherwise requires:-
BUSINESS DAYS: means a week day when banks are generally open
for business in London;
ENFORCEMENT EVENT: means the occurrence of any of the
following events:
(a) a petition or application is presented for the making of an
administration order in respect of any Obligor (other than
pursuant to the Loan Agreements) other than a petition or
application which the Agent is satisfied is vexatious or
frivolous and which is discharged within 2 days;
(b) a petition or application is presented for the making of a
winding-up order in respect of any Obligor (other than
pursuant to the Loan Agreements) other than a petition or
application which the Agent is satisfied is vexatious or
frivolous and which is discharged within 10 days;
(c) an order for the winding-up or administration of any
Obligor is made or an administrator is appointed to any
Obligor (other than pursuant to the Loan Agreements);
(d) a receiver, manager, administrative receiver or like person is
appointed in respect of any Obligor (other than pursuant to
the Loan Agreements);
(e) any Obligor (or its directors) requests the appointment of a
receiver, manager, administrative receiver or like person
(other than pursuant to the Loan Agreements);
(f) any attachment, sequestration, distress or execution affects
any asset of any Obligor so as to materially affect any
Property or so as to interrupt the carrying out of any
business at any Property (other than pursuant to the Loan
Agreements); or
(g) there occurs, in relation to any Obligor, any event in any
country or territory where it has material assets which
corresponds with any of those mentioned in paragraphs (a) to
(f) above (inclusive) (other than pursuant to the Loan
Agreements).
FACILITIES: means all of the loans and facilities currently agreed
to be provided under the Loan Agreements (disregarding any actual or
potential right not to make such facilities available in accordance
with the Loan Agreements which has arisen prior to the date of this
Agreement);
FIRST LOAN AGREEMENT: means the loan agreement dated 21 July 1995
made between OHI and the Borrower (as amended by an amendment
agreement
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dated 29 September 2000 made between the Borrower, the Lender and
Electra) as may be further amended, supplemented and novated from
time to time;
LOAN AGREEMENTS: means the First Loan Agreement and the
Second Loan Agreement;
LONGSTOP DATE: means 100 days after the date of this
Agreement;
OBLIGOR: means all companies which are borrowers, guarantors
or have granted security under the Loan Agreements;
SECOND LOAN AGREEMENT: means the loan agreement dated 23
April 2001 made between the Borrower and the Lender as may be
amended, supplemented and novated from time to time;
STANDSTILL PERIOD: means the period from the date of this
Agreement until the Termination Time;
TERMINATION TIME: means the earliest of: (i) 5 Business Days after
the Offer Completion Date (as defined in the Merger Agreement); (ii)
the date of expiration of the US Offer without the US Bidder
becoming obliged to purchase any OWI shares tendered pursuant to the
US Offer; (iii) the date of termination of the Merger Agreement;
(iv) the occurrence of an Enforcement Event and (v) the Longstop
Date;
1.2 Expressions defined in the Second Loan Agreement shall, unless the
context requires otherwise, have the same meanings when used in this
Agreement.
2 STANDSTILL
2.1 With effect from the date of this Agreement, the Lender agrees with
the Jersey Bidder and the Facility Agent (on behalf of the Senior
Finance Parties (as defined in the Senior Credit Agreement)) that
until the Termination Time they will continue to make available the
sums previously advanced under the Loan Agreements.
2.2 The Lender agrees with the Jersey Bidder and the Facility Agent (on
behalf of the Senior Finance Parties) that until the Termination
Time it will not:
2.2.1 accelerate the maturity of, or make any demand for payment or
provision of cash cover in respect of, any indebtedness of the
Borrower or interest accrued under the Loan Agreements;
2.2.2 take any proceedings or formal steps to enforce payment or discharge
of or to recover, or exercise any right of set-off or counterclaim
in respect of, any indebtedness of the Borrower under the Loan
Agreements;
2.2.3 take any steps to enforce or call in any guarantee or security
interest held by it in respect of any of the Facilities (other than
any threats to enforce before 1 January 2002 which for the avoidance
of doubt have not been and will not be actioned during the
Standstill Period);
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2.2.4 take any formal steps to wind up or dissolve, or to appoint a
receiver, administrative receiver, receiver and manager, liquidator,
administrator or similar officer in respect of (or in respect of any
assets of), the Borrower;
2.2.5 amend the terms of the Loan Agreements (except with the prior
written consent of the Borrower and the Jersey Bidder); or
2.2.6 assign, transfer or novate all or any part of its rights or
obligations under the Loan Agreements unless the transferee agrees
to be bound by the terms of this Agreement.
2.3 The Lender confirms that it has not, prior to the date of this
Agreement, taken any of the actions referred to in Clause 2.2 other
than those actions referred to in Clause 2.2.5 above which are for
the avoidance of doubt are those amendments made on 29 September
2000 in respect of the First Loan Agreement.
3 SUSPENSION OF RIGHTS
From the date of this Agreement until the Termination Time, the
Lender hereby suspends:
3.1 any rights or remedies it may have by reason of any breach, default
or event of default under the Loan Agreements which has occurred
prior to the date of this Agreement; and
3.2 all of its rights and remedies in respect of any default or
breach of the terms of the Loan Agreements whenever such
default or breach occurs,
(other than with respect to the right to receive default interest
under the Loan Agreements) provided that, if the Termination Time
occurs and the Lender and the Jersey bidder have not reached an
agreement in respect of the Loan Agreements, this Agreement is
without prejudice to any rights that would otherwise have accrued as
at the date of this Agreement and during the Standstill Period if
this Agreement had not been entered into.
but without prejudice to any rights that may have accrued as at the
date of this Agreement and may accrue during the Standstill Period
if the Termination Time occurs and the Lender and Jersey Bidder have
not reached an agreement in respect of the Loan Agreements.
4 NO THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce the terms of
this Agreement.
5 GOVERNING LAW AND JURISDICTION
5.1 This Agreement shall be governed by, and construed in all
respects in accordance with, English law.
5.2 For the benefit of each other party, each party hereto not
incorporated in England and Wales irrevocably submits to the
jurisdiction of the courts in
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England for the purpose of hearing and determining any dispute
arising out of this Agreement and for the purpose of enforcement of
any judgement against its assets.
5.3 Without prejudice to any other valid mode of service, the Jersey
Bidder irrevocably appoints Four Seasons Health Care Limited (which
is incorporated in England and Wales under Company Number 3782935)
to be its agent to receive service of any process in the English
courts on its behalf and undertakes not to cancel or revoke the
authority of such agent unless it has first appointed another person
resident in England to be its agent for such purpose and notified
the other parties hereto of the name and address of such person.
6 COUNTERPARTS
This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute
one and the same instrument.
IN WITNESS whereof the parties have executed this Agreement as of the day and
year first before written.
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SIGNED on behalf of OMEGA ) /s/ XXXX XXXXXX
WORLDWIDE, INC by its ) VICE PRESIDENT AND SECRETARY
by its duly authorised signatory )
SIGNED on behalf of )
PRINCIPAL HEALTHCARE )
FINANCE INVESTMENTS )/s/ XXXX XXXXXXXX
(GUERNSEY) LIMITED )DIRECTOR
by its duly authorised signatory )
SIGNED on behalf of )
BARCLAYS BANK PLC )/s/ XXXXXX XXXXXXX
by its duly authorised signatory )
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