EIGHTH SUPPLEMENTAL INDENTURE (Senior Notes due 2016)

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THIS EIGHTH SUPPLEMENTAL INDENTURE (this “Eighth Supplemental Indenture”), is dated as of March 19, 2012, among OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation (the “Issuer”), each of the SUBSIDIARY GUARANTORS listed on Schedule I hereto (collectively, the “Subsidiary Guarantors”), 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”).

WHEREAS, the Issuer and the Subsidiary Guarantors have heretofore executed and delivered to the Trustee an Indenture, dated as of December 30, 2005 (as amended and supplemented by the First Supplemental Indenture dated as of January 7, 2010, the Second Supplemental Indenture dated as of January 29, 2010, the Third Supplemental Indenture dated as of February 2, 1010, the Fourth Supplemental Indenture dated as of June 23, 2010, the Fifth Supplemental Indenture dated as of September 2, 2010, the Sixth Supplemental Indenture dated as of January 13, 2011, and the Seventh Supplemental Indenture, dated as of June 10, 2011, the “Indenture”), providing for the issuance of the Issuer’s 7% Senior Notes due 2016 (the “Notes”);

WHEREAS, $175,000,000 in aggregate principal amount of the Notes are currently outstanding;

WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, the Issuer, the Subsidiary Guarantors and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of amending or supplementing the Indenture or the Notes (subject to certain exceptions);

 

WHEREAS, the Issuer desires to enter into, and has requested the Trustee to join with it and the Subsidiary Guarantors in entering into, this Eighth Supplemental Indenture for the purpose of amending the Indenture and the Notes in certain respects as permitted by Section 9.02 of the Indenture;

 

WHEREAS, the Issuer has been soliciting consents to this Eighth Supplemental Indenture upon the terms and subject to the conditions set forth in its Offer to Purchase and Consent Solicitation Statement dated March 5, 2012 and the Consent and Letter of Transmittal (which together, including any amendments, modifications or supplements thereto, constitute the “Tender Offer”);

 

WHEREAS, (a) the Issuer has received the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes (excluding any Notes owned by the Issuer or any of its Affiliates), all as certified by an Officers’ Certificate delivered to the Trustee simultaneously with the execution and delivery of this Eighth Supplemental Indenture, (b) the Issuer has delivered to the Trustee simultaneously with the execution and delivery of this Eighth Supplemental Indenture an Officers’ Certificate and Opinion of Counsel relating to this Eighth Supplemental Indenture as contemplated by Section 9.06 of the Indenture and (c) the Issuer and the Subsidiary Guarantors have satisfied all other conditions required under Article Nine of the Indenture to enable the Issuer, the Subsidiary Guarantors and the Trustee to enter into this Eighth Supplemental Indenture.

 

 

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 and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

  

 

 

Section 1.1   AMENDMENTS TO ARTICLES THREE, FOUR, FIVE AND SIX OF INDENTURE.

 

(a)   The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto in their entirety:

 

Section 4.03 (Corporate Existence);

Section 4.04 (Payment of Taxes);

Section 4.05(b) (Compliance Certificate; Notice of Default);

Section 4.06 (Waiver of Stay, Extension or Usury Laws);

Section 4.07 (Change of Control);

Section 4.08 (Limitations on Additional Indebtedness);

Section 4.09 (Limitations on Restricted Payments);

Section 4.10 (Maintenance of Total Unencumbered Assets);

Section 4.11 (Limitations on Asset Sales);

Section 4.12 (Limitations on Transactions with Affiliates);

Section 4.13 (Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries); and

Section 4.14 (Limitation on Issuances of Guarantees by Restricted Subsidiaries).

 

All such deleted Sections are replaced with “[Intentionally Omitted].”

(b)           Clauses (2) and (3) of Section 5.01(a) and clause (2) of Section 5.01(b) (Consolidation, Merger and Sale of Assets), are hereby deleted in their entirety and replaced with “[Intentionally Omitted],” and all references in the Indenture to the clauses so eliminated are deleted in their entirety.

(c)           Clauses (5), (6), (7) and (8) of Section 6.01 (Events of Default), are hereby deleted in their entirety and replaced with “[Intentionally Omitted],” and all references in the Indenture to the clauses so eliminated are deleted in their entirety.

 

 

(d)           The first sentence of the first unnumbered paragraph of Section 3.03 (Notice of Redemption) is hereby deleted in its entirety and replaced with the following:

 

“At least 3 but not more than 25 days before a Redemption Date, the Issuer shall mail a notice of redemption by first class mail, postage prepaid, to each Holder whose Notes are to be redeemed at its registered address (except that a notice issued in connection with a redemption referred to in Section 8.01 may be sent more than 25 days before such Redemption Date).”

 

(e)           Section 4.15 (Reports to Holders) of the Indenture is hereby amended by deleting Section 4.15 (Reports to Holders) in its entirety and replacing it with the following:

 

“Section 4.15.  Reports to Holders.

 

The Issuer shall comply with the provisions of TIA Section 314(a), as applicable.”

 

Section 1.2   AMENDMENTS TO NOTES.  The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Eighth Supplemental Indenture.

 

 

 

Section 2.1   CAPITALIZED TERMS.  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

Section 2.2   INDENTURE.  Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. This Eighth Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Eighth Supplemental Indenture shall control.

 

Section 2.3   NEW YORK LAW TO GOVERN.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS EIGHTH SUPPLEMENTAL INDENTURE.

 

Section 2.4   SUCCESSORS.  All agreements of the Issuer and the Subsidiary Guarantors in this Eighth Supplemental Indenture and the Notes shall bind their respective successors.  All agreements of the Trustee in this Eighth Supplemental Indenture shall bind its successors.

 

Section 2.5   COUNTERPARTS.  The parties may sign any number of copies of this Eighth Supplemental Indenture.  Each signed copy shall be an original, but all of them together shall represent the same agreement.

 

Section 2.6   SEVERABILITY.  In case any one or more of the provisions in this Eighth Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

 

Section 2.7   THE TRUSTEE.  The Trustee accepts the amendments of the Indenture effected by this Eighth Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Eighth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuer and the Subsidiary Guarantors.

 

Section 2.8   EFFECTIVENESS.  The provisions of this Eighth Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto.  Notwithstanding the foregoing sentence, the provisions of this Eighth Supplemental Indenture shall become operative only upon the purchase by the Issuer, pursuant to the Tender Offer, of at least a majority in aggregate principal amount of the outstanding Notes (excluding any Notes owned by the Issuer or any of its Affiliates), with the result that the amendments to the Indenture effected by this Eighth Supplemental Indenture shall be deemed to be revoked retroactive to the date hereof if such purchase shall not occur.  The Issuer shall notify the Trustee promptly after the occurrence of such purchase or promptly after the Issuer shall determine that such purchase will not occur.

 

Section 2.9   ENDORSEMENT AND CHANGE OF FORM OF NOTES.  Any Notes authenticated and delivered after the close of business on the date that this Eighth Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Issuer, with a notation as follows:

 

“Effective as of March 19, 2012, certain restrictive covenants of the Issuer and certain Events of Default have been eliminated or limited, as provided in the Eighth Supplemental Indenture, dated as of March 19, 2012, by and among the Issuer, the Subsidiary Guarantors and the Trustee.  Reference is hereby made to such Eighth Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.”

 

Section 2.10   EFFECT OF HEADINGS.  The Section headings herein are for convenience only and shall not affect the construction hereof.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be duly executed as of the day and year written above.

 

 

[Eighth Supplemental Indenture (Senior Notes due 2016)]

 

1.

Arizona Lessor - Infinia, Inc.

2.

Baldwin Health Center, Inc.

3.

Bayside Alabama Healthcare Second, Inc.

4.

Bayside Arizona Healthcare Associates, Inc.

5.

Bayside Arizona Healthcare Second, Inc.

6.

Bayside Colorado Healthcare Associates, Inc.

7.

Bayside Colorado Healthcare Second, Inc.

8.

Bayside Indiana Healthcare Associates, Inc.

9.

Bayside Street II, Inc.

10.

Bayside Street, Inc.

11.

Canton Health Care Land, Inc.

12.

Carnegie Gardens LLC

13.

Center Healthcare Associates, Inc.

14.

Cherry Street – Skilled Nursing, Inc.

15.

Colonial Gardens, LLC

16.

Colorado Lessor - Conifer, Inc.

17.

Copley Health Center, Inc.

18.

CSE Albany LLC

19.

CSE Amarillo LLC

20.

CSE Anchorage LLC

21.

CSE Arden L.P.

22.

CSE Augusta LLC

23.

CSE Bedford LLC

24.

CSE Blountville LLC

25.

CSE Bolivar LLC

26.

CSE Cambridge LLC

27.

CSE Cambridge Realty LLC

28.

CSE Camden LLC

29.

CSE Canton LLC

30.

CSE Casablanca Holdings II LLC

31.

CSE Casablanca Holdings LLC

32.

CSE Cedar Rapids LLC

33.

CSE Centennial Village

34.

CSE Chelmsford LLC

35.

CSE Chesterton LLC

36.

CSE Claremont LLC

37.

CSE Corpus North LLC

38.

CSE Crane LLC

39.

CSE Denver Iliff LLC

40.

CSE Denver LLC

41.

CSE Douglas LLC

42.

CSE Dumas LLC

 

 

43.

CSE Elkton LLC

44.

CSE Elkton Realty LLC

45.

CSE Fairhaven LLC

46.

CSE Fort Wayne LLC

47.

CSE Frankston LLC

48.

CSE Georgetown LLC

49.

CSE Green Bay LLC

50.

CSE Hilliard LLC

51.

CSE Huntingdon LLC

52.

CSE Huntsville LLC

53.

CSE Indianapolis-Continental LLC

54.

CSE Indianapolis-Greenbriar LLC

55.

CSE Jacinto City LLC

56.

CSE Jefferson City LLC

57.

CSE Jeffersonville-Hillcrest Center LLC

58.

CSE Jeffersonville-Jennings House LLC

59.

CSE Kerrville LLC

60.

CSE King L.P.

61.

CSE Kingsport LLC

62.

CSE Knightdale L.P.

63.

CSE Lake City LLC

64.

CSE Lake Worth LLC

65.

CSE Lakewood LLC

66.

CSE Las Vegas LLC

67.

CSE Lawrenceburg LLC

68.

CSE Lenoir L.P.

69.

CSE Lexington Park LLC

70.

CSE Lexington Park Realty LLC

71.

CSE Ligonier LLC

72.

CSE Live Oak LLC

73.

CSE Logansport LLC

74.

CSE Lowell LLC

75.

CSE Marianna Holdings LLC

76.

CSE Memphis LLC

77.

CSE Mobile LLC

78.

CSE Moore LLC

79.

CSE North Carolina Holdings I LLC

80.

CSE North Carolina Holdings II LLC

81.

CSE Omro LLC

82.

CSE Orange Park LLC

83.

CSE Orlando-Pinar Terrace Manor LLC

84.

CSE Orlando-Terra Vista Rehab LLC

85.

CSE Pennsylvania Holdings

86.

CSE Piggott LLC

87.

CSE Pilot Point LLC

88.

CSE Ponca City LLC

 

 

89.

CSE Port St. Lucie LLC

90.

CSE Richmond LLC

91.

CSE Ripley LLC

92.

CSE Ripon LLC

93.

CSE Safford LLC

94.

CSE Salina LLC

95.

CSE Seminole LLC

96.

CSE Shawnee LLC

97.

CSE Spring Branch LLC

98.

CSE Stillwater LLC

99.

CSE Taylorsville LLC

100.

CSE Texarkana LLC

101.

CSE Texas City LLC

102.

CSE The Village LLC

103.

CSE Upland LLC

104.

CSE Walnut Cove L.P.

105.

CSE West Point LLC

106.

CSE Whitehouse LLC

107.

CSE Williamsport LLC

108.

CSE Winter Haven LLC

109.

CSE Woodfin L.P.

110.

CSE Yorktown LLC

111.

Dallas – Skilled Nursing, Inc.

112.

Delta Investors I, LLC

113.

Delta Investors II, LLC

114.

Desert Lane LLC

115.

Dixon Health Care Center, Inc.

116.

Florida Lessor – Crystal Springs, Inc.

117.

Florida Lessor – Emerald, Inc.

118.

Florida Lessor – Lakeland, Inc.

119.

Florida Lessor – Meadowview, Inc.

120.

Florida Real Estate Company, LLC

121.

Georgia Lessor - Bonterra/Parkview, Inc.

122.

Greenbough, LLC

123.

Hanover House, Inc.

124.

Heritage Texarkana Healthcare Associates, Inc.

125.

House of Hanover, Ltd

126.

Hutton I Land, Inc.

127.

Hutton II Land, Inc.

128.

Hutton III Land, Inc.

129.

Indiana Lessor – Jeffersonville, Inc.

130.

Indiana Lessor – Wellington Manor, Inc.

131.

Jefferson Clark, Inc.

132.

LAD I Real Estate Company, LLC

133.

Lake Park – Skilled Nursing, Inc.

134.

Leatherman 90-1, Inc.

 

 

135.

Leatherman Partnership 89-1, Inc.

136.

Leatherman Partnership 89-2, Inc.

137.

Long Term Care – Michigan, Inc.

138.

Long Term Care – North Carolina, Inc.

139.

Long Term Care Associates – Illinois, Inc.

140.

Long Term Care Associates – Indiana, Inc.

141.

Long Term Care Associates – Texas, Inc.

142.

Meridian Arms Land, Inc.

143.

North Las Vegas LLC

144.

NRS Ventures, L.L.C.

145.

OHI (Connecticut), Inc.

146.

OHI (Florida), Inc.

147.

OHI (Illinois), Inc.

148.

OHI (Indiana), Inc.

149.

OHI (Iowa), Inc.

150.

OHI (Kansas), Inc.

151.

OHI Asset (CA), LLC

152.

OHI Asset (CO), LLC

153.

OHI Asset (CT) Lender, LLC

154.

OHI Asset (FL) Lender, LLC

155.

OHI Asset (FL), LLC

156.

OHI Asset (ID), LLC

157.

OHI Asset (IL), LLC

158.

OHI Asset (IN), LLC

159.

OHI Asset (LA), LLC

160.

OHI Asset (MD), LLC

161.

OHI Asset (MI), LLC

162.

OHI Asset (MI/NC), LLC

163.

OHI Asset (MO), LLC

164.

OHI Asset (OH) Lender, LLC

165.

OHI Asset (OH) New Philadelphia, LLC

166.

OHI Asset (OH), LLC

167.

OHI Asset (PA) Trust

168.

OHI Asset (PA), LLC

169.

OHI Asset (SMS) Lender, Inc.

170.

OHI Asset (TX), LLC

171.

OHI Asset CSB LLC

172.

OHI Asset CSE – E, LLC

173.

OHI Asset CSE – U, LLC

174.

OHI Asset Essex (OH), LLC

175.

OHI Asset HUD WO, LLC

176.

OHI Asset II (CA), LLC

177.

OHI Asset II (FL), LLC

178.

OHI Asset II (PA) Trust

179.

OHI Asset III (PA) Trust

180.

OHI Asset IV (PA) Silver Lake Trust

 

 

181.

OHI Asset, LLC

182.

OHI of Texas, Inc.

183.

OHI Sunshine, Inc.

184.

OHI Tennessee, Inc.

185.

OHIMA, Inc.

186.

Omega (Kansas), Inc.

187.

Omega TRS I, Inc.

188.

Orange Village Care Center, Inc.

189.

OS Leasing Company

190.

Panama City Nursing Center LLC

191.

Parkview – Skilled Nursing, Inc.

192.

Pavillion North Partners, Inc.

193.

Pavillion North, LLP

194.

Pavillion Nursing Center North, Inc.

195.

Pine Texarkana Healthcare Associates, Inc.

196.

Reunion Texarkana Healthcare Associates, Inc.

197.

San Augustine Healthcare Associates, Inc.

198.

Skilled Nursing – Gaston, Inc.

199.

Skilled Nursing – Herrin, Inc.

200.

Skilled Nursing – Hicksville, Inc.

201.

Skilled Nursing – Paris, Inc.

202.

Skyler Maitland LLC

203.

South Athens Healthcare Associates, Inc.

204.

St. Mary’s Properties, Inc.

205.

Sterling Acquisition Corp.

206.

Sterling Acquisition Corp. II

207.

Suwanee, LLC

208.

Texas Lessor – Stonegate GP, Inc.

209.

Texas Lessor – Stonegate, Limited, Inc.

210.

Texas Lessor – Stonegate, LP

211.

Texas Lessor – Treemont, Inc.

212.

The Suburban Pavilion, Inc.

213.

Washington Lessor – Silverdale, Inc.

214.

Waxahachie Healthcare Associates, Inc.

215.

West Athens Healthcare Associates, Inc.

216.

Wilcare, LLC