THIRD SUPPLEMENTAL INDENTURE
THIRD
SUPPLEMENTAL INDENTURE
THIS
THIRD SUPPLEMENTAL INDENTURE
(this
“Third
Supplemental Indenture”)
is
dated as of December 1, 2005, among OMEGA HEALTHCARE INVESTORS, INC., a Maryland
corporation (the “Issuer”),
each
of the SUBSIDIARY GUARANTORS listed on Schedule I hereto (collectively, the
“Subsidiary
Guarantors”),
each
of the NEW SUBSIDIARIES listed on Schedule II hereto (collectively, the
“New
Subsidiaries”),
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association organized
and
existing under the laws of the United States of America, as trustee (the
“Trustee”).
W
I T N E S S E T H :
WHEREAS,
the
Issuer and the Subsidiary Guarantors have heretofore executed and delivered
to
the Trustee an Indenture, dated as of March 22, 2004 (as amended by the First
Supplemental Indenture dated as of July 20, 2004 and as further amended by
the
Second Supplemental Indenture dated as of November 5, 2004, the “Indenture”),
providing for the issuance of the Issuer’s 7% Senior Notes due 2014 (the
“Notes”);
WHEREAS,
Section
9.01 of the Indenture authorizes the Issuer, the Subsidiary Guarantors and
the
Trustee, together, to amend or supplement the Indenture, without notice to
or
consent of any Holder of the Notes, for the purpose of making any change
that
would not materially adversely affect the rights of any Holder of the
Notes;
WHEREAS,
the
Issuer has recently created or acquired, as appropriate, the New
Subsidiaries;
WHEREAS,
in
Section 1.01 of the Indenture the term “Subsidiary Guarantor” is defined to
include all Persons that become a Subsidiary Guarantor by the terms of the
Indenture after the Closing Date;
WHEREAS,
Section
10.01 of the Indenture provides that each Subsidiary Guarantor shall be a
guarantor of the Issuer’s obligations under the Notes, subject to the terms and
conditions described in the Indenture;
WHEREAS,
Section
10.04 of the Indenture provides that nothing contained in the Indenture shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into
another Subsidiary Guarantor;
WHEREAS, Florida
Lessor - Five Facilities, Inc. (“FL
Lessor”)
merged
with and into OHI Asset (FL), LLC (“OHI
(FL)”)
on
February 28, 2005 and OHIO Lessor - Waterford & Crestwood, Inc. (together
with FL Lessor, the “Merged
Subsidiaries”)
merged
with and into OHI Asset III (PA) Trust (together with OHI (FL), the
“Surviving
Subsidiaries”)
on
June 28, 2005;
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Issuer, the Subsidiary
Guarantors, the New Subsidiaries and the Trustee mutually covenant and agree
for
the equal and ratable benefit of the Holders of the Notes as
follows:
1. CAPITALIZED
TERMS. Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. ACKNOWLEDGMENT
OF MERGED SUBSIDIARIES. The parties hereto hereby acknowledge the merger
of the
Merged Subsidiaries into the respective Surviving Subsidiaries and the
assumption of the obligations of the Merged Subsidiaries as Subsidiary
Guarantors under the Indenture by the respective Surviving
Subsidiaries.
3. AGREEMENT
TO GUARANTEE. The New Subsidiaries hereby agree, jointly and severally with
all
other Subsidiary Guarantors, to guarantee the Issuer’s obligations under the
Notes on the terms and subject to the conditions set forth in the Indenture,
and
to be bound by, and to receive the benefit of, all other applicable provisions
of the Indenture as a Subsidiary Guarantor. Such guarantees shall be evidenced
by the respective New Subsidiaries’ execution of Subsidiary Guarantees, the form
of which is attached as Exhibit E to the Indenture, and shall be effective
as of
the date hereof.
4. NO
RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee,
partner, affiliate, beneficiary or stockholder of the New Subsidiaries, as
such,
shall have any liability for any obligations of the Issuer or any Subsidiary
Guarantor under the Notes, any Guarantees, the Indenture or this Third
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting
and holding a Note waives and releases all such liability. Such waiver and
release are part of the consideration for issuance of the Notes.
5. NEW
YORK
LAW TO GOVERN. The laws of the State of New York shall govern and be used
to
construe this Third Supplemental Indenture.
6. COUNTERPARTS.
The parties may sign any number of copies of this Third Supplemental Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
7. EFFECT
OF
HEADINGS. The Section headings herein are for convenience only and shall
not
affect the construction hereof.
8. THE
TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for
or in
respect of the validity or sufficiency of this Third Supplemental Indenture
or
for or in respect of the recitals contained herein, all of which recitals
are
made solely by the Issuer, the Subsidiary Guarantors and the New
Subsidiaries.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
OMEGA
HEALTHCARE INVESTORS, INC.
By:
/s/
Xxxxxx X. Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Chief Financial Officer
On
behalf
of each Subsidiary Guarantor, or its sole member, general partner or trustee,
named on the attached Schedule I
By:
/s/
Xxxxxx X. Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Chief Financial Officer and Treasurer
On
behalf
of each New Subsidiary, or its sole member, general partner or trustee, named
on
the attached Schedule II
By:
/s/
Xxxxxx X. Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Chief Financial Officer and Treasurer
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By: /s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Vice President
Schedule
I
SUBSIDIARY
GUARANTORS
|
Omega
Healthcare Investors, Inc.
|
|
Arizona
Lessor - Infinia, Inc.
|
|
Bayside
Alabama Healthcare Second, Inc.
|
|
Bayside
Arizona Healthcare Associates, Inc.
|
|
Bayside
Arizona Healthcare Second, Inc.
|
|
Bayside
Colorado Healthcare Associates, Inc.
|
|
Bayside
Colorado Healthcare Second, Inc.
|
|
Bayside
Indiana Healthcare Associates, Inc.
|
|
Bayside
Street II, Inc.
|
|
Bayside
Street, Inc.
|
|
Center
Healthcare Associates, Inc.
|
|
Cherry
Street - Skilled Nursing, Inc.
|
|
Colorado
Lessor - Conifer, Inc.
|
|
Dallas
Skilled Nursing, Inc.
|
|
Delta
Investors I, LLC
|
|
Delta
Investors II, LLC
|
|
Florida
Lessor - Crystal Springs, Inc.
|
|
Florida
Lessor - Emerald, Inc.
|
|
Florida
Lessor - Five Facilities, Inc.*
|
|
Florida
Lessor - Lakeland, Inc.
|
|
Florida
Lessor - Meadowview, Inc.
|
|
Florida
Lessor - West Palm Beach and
Southpoint,
Inc.
|
|
Xxxxxxx
Xxxxxx - Bonterra/Parkview, Inc.
|
|
Heritage
Texarkana Healthcare Associates, Inc.
|
|
Indiana
Lessor - Jeffersonville, Inc.
|
|
Indiana
Lessor - Wellington Manor, Inc.
|
|
Xxxxxxxxx
Xxxxx, Inc.
|
|
Lake
Park Skilled Nursing, Inc.
|
|
Long
Term Care - Michigan, Inc.
|
|
Long
Term Care - North Carolina, Inc.
|
|
Long
Term Care Associates - Illinois, Inc.
|
|
Long
Term Care Associates - Indiana, Inc.
|
|
Long
Term Care Associates - Texas, Inc.
|
|
NRS
Ventures, LLC
|
|
OHI
(Connecticut), Inc.
|
|
OHI
(Florida), Inc.
|
|
OHI
(Illinois), Inc.
|
|
OHI
(Indiana), Inc.
|
|
OHI
(Iowa), Inc.
|
|
OHI
(Kansas), Inc.
|
|
OHI
Asset (CA), LLC
|
|
OHI
Asset (PA), LLC (f/k/a OHI Asset (FL) Tarpon Springs, Pinellas
Park &
Gainesville, LLC)
|
|
OHI
Asset (FL), LLC
|
|
OHI
Asset (ID), LLC
|
|
OHI
Asset (IN), LLC
|
|
OHI
Asset (LA), LLC
|
|
OHI
Asset (MI/NC), LLC
|
|
OHI
Asset (MO), LLC
|
|
OHI
Asset (OH), LLC
|
|
OHI
Asset (TX), LLC
|
|
OHI
Asset II (CA), LLC
|
|
OHI
Asset II (TX), LLC
|
|
OHI
Asset, LLC
|
|
Ohio
Lessor Waterford & Crestwood, Inc.*
|
|
OHI
of Kentucky, Inc.
|
|
OHI
of Texas, Inc.
|
|
OHI
Sunshine, Inc.
|
|
OHIMA,
Inc.
|
|
Omega
(Kansas), Inc.
|
|
Omega
Acquisition Facility I, LLC
|
|
Omega
TRS I, Inc.
|
|
OS
Leasing Company
|
|
Parkview
- Skilled Nursing, Inc.
|
|
Pine
Texarkana Healthcare Associates, Inc.
|
|
Reunion
Texarkana Healthcare Associates, Inc.
|
|
San
Augustine Healthcare Associates, Inc.
|
|
Skilled
Nursing - Xxxxxx, Inc.
|
|
Skilled
Nursing - Xxxxxx, Inc.
|
|
Skilled
Nursing - Hicksville, Inc.
|
|
Skilled
Nursing - Paris, Inc.
|
|
South
Athens Healthcare Associates, Inc.
|
|
Sterling
Acquisition Corp.
|
|
Sterling
Acquisition Corp. II
|
|
Texas
Lessor - Stonegate GP, Inc.
|
|
Texas
Lessor - Stonegate Limited, Inc.
|
|
Texas
Lessor - Stonegate, L.P.
|
|
Texas
Lessor - Treemont, Inc.
|
|
Washington
Lessor - Silverdale, Inc.
|
|
Waxahachie
Healthcare Associates, Inc.
|
|
West
Athens Healthcare Associates, Inc.
|
|
OHI
Asset (OH) New Philadelphia, LLC
|
|
OHI
Asset (OH) Lender, LLC
|
|
OHI
Asset (PA) Trust
|
*Subsidiary
was merged with and into another subsidiary wholly owned by Omega Healthcare
Investors, Inc.
Schedule
II
NEW
SUBSIDIARIES
Xxxxxxx
Health Center, Inc., a Pennsylvania corporation
Canton
Health Care Land, Inc., an Ohio corporation
Xxxxx
Health Care Center, Inc., an Ohio corporation
Hanover
House, Inc., an Ohio corporation
House
of
Hanover, Ltd., an Ohio limited liability company
Xxxxxx
I
Land, Inc., an Ohio corporation
Xxxxxx
II
Land, Inc., an Ohio corporation
Xxxxxx
III Land, Inc., an Ohio corporation
Leatherman
90-1, Inc., an Ohio corporation
Leatherman
Partnership 89-1, Inc., an Ohio corporation
Leatherman
Partnership 89-2, Inc., an Ohio corporation
Meridian
Arms Land, Inc., an Ohio corporation
OHI
Asset
(CT) Lender, LLC, a Delaware limited liability company
OHI
Asset
II (PA) Trust, a Maryland trust
OHI
Asset
III (PA) Trust, a Maryland trust
Orange
Village Care Center, Inc., an Ohio corporation
Pavillion
North, LLP, a Pennsylvania limited partnership
Pavillion
North Partners, Inc., a Pennsylvania corporation
Pavillion
Nursing Center North, Inc., a Pennsylvania corporation
St.
Mary’s Properties, Inc., an Ohio corporation
Wilcare,
LLC, an Ohio limited liability company
Colonial
Gardens, LLC, an Ohio limited liability company
Xxxxxx
Health Center, Inc., an Ohio corporation
The
Suburban Pavilion, Inc., an Ohio corporation
