8-K: Current report filing
Published on January 4, 2006
REGISTRATION
RIGHTS AGREEMENT
Dated
as
of December 30, 2005
Among
OMEGA
HEALTHCARE INVESTORS, INC.
and
THE
GUARANTORS NAMED HEREIN
as
Issuers,
and
DEUTSCHE
BANK SECURITIES INC.,
BANC
OF
AMERICA SECURITIES LLC, AND
UBS
SECURITIES LLC
as
Initial Purchasers
7%
Senior
Notes due 2016
TABLE
OF
CONTENTS
Page
|
1.Definitions
|
1
|
|
2.Exchange
Offer
|
5
|
|
3.Shelf
Registration
|
9
|
|
4.Additional
Interest
|
10
|
|
5.Registration
Procedures
|
12
|
|
6.Registration
Expenses
|
22
|
|
7.Indemnification
and Contribution.
|
23
|
|
8.Rules
144 and 144A
|
27
|
|
9.Underwritten
Registrations
|
27
|
|
10.Miscellaneous
|
27 |
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is
dated as of December 30, 2005, among OMEGA
HEALTHCARE INVESTORS, INC.,
a
Maryland corporation (the “Company”),
the
subsidiaries of the Company listed on the signature pages hereto (collectively,
and together with any entity that in the future executes a supplemental
indenture pursuant to which such entity agrees to guarantee the Notes (as
hereinafter defined), the “Guarantors,”
and
together with the Company, the “Issuers”)
and
DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES LLC
and
UBS
SECURITIES LLC as initial purchasers (the “Initial
Purchasers”).
This
Agreement is entered into in connection with the Purchase Agreement by and
among
the Issuers and the Initial Purchasers, dated as of December 20, 2005 (the
“Purchase
Agreement”),
which
provides for, among other things, the sale by the Company to the Initial
Purchasers of $175,000,000 aggregate principal amount of the Company’s
7%
Senior
Notes due 2016 (the “Notes”)
guaranteed on a senior basis by the Guarantors (the “Guarantees”).
In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
the
Issuers have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and any subsequent holder
or
holders of the Notes. The execution and delivery of this Agreement is a
condition to the Initial Purchasers’ obligation to purchase the Notes under the
Purchase Agreement.
The
parties hereby agree as follows:
1. Definitions
As
used
in this Agreement, the following terms shall have the following
meanings:
Additional
Interest:
See
Section 4(a) hereof.
Advice:
See the
last paragraph of Section 5 hereof.
Agreement:
See the
introductory paragraphs hereto.
Applicable
Period:
See
Section 2(b) hereof.
Business
Day:
Any day
that is not a Saturday, Sunday or a day on which banking institutions in New
York or Maryland are authorized or required by law to be closed.
Company:
See the
introductory paragraphs hereto.
Effectiveness
Date:
With
respect to (i) the Exchange Offer Registration Statement, the 180th
day
after the Issue Date and (ii) any Shelf Registration Statement, the
60th
day after the Filing Date with respect thereto; provided,
however,
that if
the Effectiveness Date would otherwise fall on a day that is not a Business
Day,
then the Effectiveness Date shall be the next succeeding Business
Day.
Effectiveness
Period:
See
Section 3(a) hereof.
Event
Date:
See
Section 4(b) hereof.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the SEC promulgated thereunder.
Exchange
Notes:
See
Section 2(a) hereof.
Exchange
Offer:
See
Section 2(a) hereof.
Exchange
Offer Registration Statement:
See
Section 2(a) hereof.
Filing
Date:
(A) If no Registration Statement has been filed by the Company pursuant
to
this Agreement, the 90th day after the Issue Date; and (B) in any other
case (which may be applicable notwithstanding the consummation of the Exchange
Offer), the 60th day after the delivery of a Shelf Notice as required pursuant
to Section 2(c) hereof; provided,
however,
that if
the Filing Date would otherwise fall on a day that is not a Business Day, then
the Filing Date shall be the next succeeding Business Day.
Guarantees:
See the
introductory paragraphs hereto.
Guarantors:
See the
introductory paragraphs hereto.
Holder:
Any
holder of a Registrable Note or Registrable Notes.
Indenture:
The
Indenture, dated as of December 30, 2005, by and among the Company, the
Guarantors, and U.S. Bank National Association, as Trustee, pursuant to which
the Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Information:
See
Section 5(o) hereof.
Initial
Purchasers:
See the
introductory paragraphs hereto.
Initial
Shelf Registration:
See
Section 3(a) hereof.
Inspectors:
See
Section 5(o) hereof.
Issue
Date:
December 30, 2005, the date of original issuance of the Notes.
Issuers:
See the
introductory paragraphs hereto.
NASD:
See
Section 5(s) hereof.
Notes:
See the
introductory paragraphs hereto.
Participant:
See
Section 7(a) hereof.
Participating
Broker-Dealer:
See
Section 2(b) hereof.
Person:
An
individual, trustee, corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union, business association,
firm or other legal entity.
Private
Exchange:
See
Section 2(b) hereof.
Private
Exchange Notes:
See
Section 2(b) hereof.
Prospectus:
The
prospectus included in any Registration Statement (including, without
limitation, any prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase
Agreement:
See the
introductory paragraphs hereof.
Records:
See
Section 5(o) hereof.
Registrable
Notes:
Each
Note (and the related Guarantees) upon its original issuance and at all times
subsequent thereto, each Exchange Note (and the related Guarantees) as to which
Section 2(c)(iv) hereof is applicable upon original issuance and at
all
times subsequent thereto and each Private Exchange Note (and the related
Guarantees) upon original issuance thereof and at all times subsequent thereto,
until, in each case, the earliest to occur of (i) a Registration Statement
(other than, with respect to any Exchange Note as to which Section 2(c)(iv)
hereof is applicable, the Exchange Offer Registration Statement) covering such
Note, Exchange Note or Private Exchange Note has been declared effective by
the
SEC, (ii) such Note has been exchanged pursuant to the Exchange Offer
for
an Exchange Note or Exchange Notes (and the related Guarantees) that may be
resold without restriction under state and federal securities laws,
(iii) such Note, Exchange Note or Private Exchange Note (and the related
Guarantees), as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note
(and
the related Guarantees), as the case may be, may be resold without restriction
pursuant to Rule 144(k) (as amended or replaced) under the Securities
Act.
Registration
Statement:
Any
registration statement of the Company that covers any of the Notes, the Exchange
Notes or the Private Exchange Notes (and the related Guarantees) filed with
the
SEC under the Securities Act, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule
144:
Rule 144 under the Securities Act.
Rule
144A:
Rule 144A under the Securities Act.
Rule
405:
Rule 405 under the Securities Act.
Rule
415:
Rule 415 under the Securities Act.
Rule
424:
Rule 424 under the Securities Act.
SEC:
The
U.S. Securities and Exchange Commission.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
Shelf
Notice:
See
Section 2(c) hereof.
Shelf
Registration:
See
Section 3(b) hereof.
Shelf
Registration Statement:
Any
Registration Statement relating to a Shelf Registration.
Shelf
Suspension Period:
See
Section 3(a) hereof.
Subsequent
Shelf Registration:
See
Section 3(b) hereof.
TIA:
The
Trust Indenture Act of 1939, as amended.
Trustee:
The
trustee under the Indenture and the trustee (if any) under any indenture
governing the Exchange Notes and Private Exchange Notes (and the related
Guarantees).
Underwritten
registration or underwritten offering:
A
registration in which securities of the Company are sold to an underwriter
for
reoffering to the public.
Except
as
otherwise specifically provided, all references in this Agreement to acts,
laws,
statutes, rules, regulations, releases, forms, no-action letters and other
regulatory requirements (collectively, “Regulatory
Requirements”)
shall
be deemed to refer also to any amendments thereto and all subsequent Regulatory
Requirements adopted as a replacement thereto having substantially the same
effect therewith; provided
that
Rule 144 shall not be deemed to amend or replace
Rule 144A.
2. Exchange
Offer
(a) Unless
the Exchange Offer would violate applicable law or any applicable interpretation
of the staff of the SEC, the Issuers shall use their reasonable best efforts
to
file with the SEC, no later than the Filing Date, a Registration Statement
(the
“Exchange
Offer Registration Statement”)
on an
appropriate registration form with respect to a registered offer (the
“Exchange
Offer”)
to
exchange any and all of the Registrable Notes for a like aggregate principal
amount of debt securities of the Company (the “Exchange
Notes”),
guaranteed on a senior basis by the Guarantors, that are identical in all
material respects to the Notes, except that (i) the Exchange Notes shall
contain no restrictive legend thereon and (ii) interest thereon shall
accrue from the last date on which interest was paid on the Notes or, if no
such
interest has been paid, from the Issue Date, and which are entitled to the
benefits of the Indenture or a trust indenture which is identical in all
material respects to the Indenture (other than such changes to the Indenture
or
any such identical trust indenture as are necessary to comply with the TIA)
and
which, in either case, has been qualified under the TIA. The Exchange Offer
shall comply with all applicable tender offer rules and regulations under the
Exchange Act and other applicable laws. The Issuers shall (x) use their
respective reasonable best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 30
days
(or longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange
Offer
on or prior to the 210th day following the Issue Date.
Each
Holder (including, without limitation, each Participating Broker-Dealer) who
participates in the Exchange Offer will be required to represent to the Issuers
in writing (which may be contained in the applicable letter of transmittal)
that: (i) any Exchange Notes acquired in exchange for Registrable Notes
tendered are being acquired in the ordinary course of business of the Person
receiving such Exchange Notes, whether or not such recipient is such Holder
itself; (ii) at the time of the commencement or consummation of the
Exchange Offer neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement
or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act; (iii) neither
the Holder nor, to the actual knowledge of such Holder, any other Person
receiving Exchange Notes from such Holder is an “affiliate” (as defined in
Rule 405) of the Company or, if it is an affiliate of the Company, it
will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable and will provide information to be
included in the Shelf Registration Statement in accordance with Section 5 hereof
in order to have their Notes included in the Shelf Registration Statement and
benefit from the provisions regarding Additional Interest in Section 4 hereof;
(iv) neither such Holder nor, to the actual knowledge of such Holder,
any
other Person receiving Exchange Notes from such Holder is engaging in or intends
to engage in a distribution of the Exchange Notes; and (v) if such Holder
is a Participating Broker-Dealer, such Holder has acquired the Registrable
Notes
as a result of market-making activities or other trading activities and that
it
will comply with the applicable provisions of the Securities Act (including,
but
not limited to, the prospectus delivery requirements thereunder).
Upon
consummation of the Exchange Offer in accordance with this Section 2,
the
provisions of this Agreement shall continue to apply, mutatis mutandis,
solely
with respect to Registrable Notes that are Private Exchange Notes, Exchange
Notes as to which Section 2(c)(iv) is applicable and Exchange Notes
held by
Participating Broker-Dealers, and the Company shall have no further obligation
to register Registrable Notes (other than Private Exchange Notes and Exchange
Notes as to which clause 2(c)(iv) hereof applies) pursuant to
Section 3 hereof.
No
securities other than the Exchange Notes shall be included in the Exchange
Offer
Registration Statement.
(b) The
Issuers shall include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” reasonably
acceptable to the Initial Purchasers, which shall contain a summary statement
of
the positions taken or policies made by the staff of the SEC with respect to
the
potential “underwriter” status of any broker-dealer that is the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes
received by such broker-dealer in the Exchange Offer (a “Participating
Broker-Dealer”),
whether such positions or policies have been publicly disseminated by the staff
of the SEC or such positions or policies represent the prevailing views of
the
staff of the SEC. Such “Plan of Distribution” section shall also expressly
permit, to the extent permitted by applicable policies and regulations of the
SEC, the use of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent permitted by
applicable policies and regulations of the SEC, all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes in compliance with
the Securities Act.
The
Issuers shall use their respective reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of
the
Securities Act for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; provided,
however,
that
such period shall not be required to exceed 90 days or such longer period if
extended pursuant to the last paragraph of Section 5 hereof (the
“Applicable
Period”).
If,
prior
to consummation of the Exchange Offer, the Initial Purchasers hold any Notes
acquired by them that have the status of an unsold allotment in the initial
distribution, the Issuers, upon the request of the Initial Purchasers, shall
simultaneously with the delivery of the Exchange Notes issue and deliver to
the
Initial Purchasers, in exchange (the “Private
Exchange”)
for
such Notes held by any such Holder, a like principal amount of notes (the
“Private
Exchange Notes”)
of the
Company, guaranteed by the Guarantors, that are identical in all material
respects to the Exchange Notes except for the placement of a restrictive legend
on such Private Exchange Notes. The Private Exchange Notes shall be issued
pursuant to the same indenture as the Exchange Notes and bear the same CUSIP
number as the Exchange Notes if permitted by the CUSIP Service
Bureau.
In
connection with the Exchange Offer, the Issuers shall:
(1) mail,
or
cause to be mailed, to each Holder of record entitled to participate in the
Exchange Offer a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal
and
related documents;
(2) use
their
respective reasonable best efforts to keep the Exchange Offer open for not
less
than 30 days after the date that notice of the Exchange Offer is mailed to
Holders (or longer if required by applicable law);
(3) utilize
the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York;
(4) permit
Holders to withdraw tendered Notes at any time prior to the close of business,
New York time, on the last Business Day on which the Exchange Offer remains
open; and
(5) otherwise
comply in all material respects with all applicable laws, rules and
regulations.
As
soon
as practicable after the close of the Exchange Offer and the Private Exchange,
if any, the Issuers shall:
(1) accept
for exchange all Registrable Notes validly tendered and not validly withdrawn
pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver
to the Trustee for cancellation all Registrable Notes so accepted for exchange;
and
(3) cause
the
Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange
Notes or Private Exchange Notes, as the case may be, equal in principal amount
to the Notes of such Holder so accepted for exchange; provided
that, in
the case of any Notes held in global form by a depositary, authentication and
delivery to such depositary of one or more replacement Notes in global form
in
an equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and delivery
requirement.
The
Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than that (i) the Exchange Offer or Private Exchange, as the case
may
be, does not violate applicable law or any applicable interpretation of the
staff of the SEC; (ii) no action or proceeding shall have been instituted
or threatened in any court or by any governmental agency which might materially
impair the ability of the Issuers to proceed with the Exchange Offer or the
Private Exchange, and no material adverse development shall have occurred in
any
existing action or proceeding with respect to the Issuers; and (iii) all
governmental approvals shall have been obtained, which approvals the Issuers
deem necessary for the consummation of the Exchange Offer or Private
Exchange.
The
Exchange Notes and the Private Exchange Notes shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to
the
Indenture and which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Notes shall
not be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters
as
one class and that none of the Exchange Notes, the Private Exchange Notes or
the
Notes will have the right to vote or consent as a separate class on any
matter.
(c) If,
(i) because of any change in law or in currently prevailing interpretations
of the staff of the SEC, the Issuers are not permitted to effect the Exchange
Offer, (ii) the Exchange Offer is not consummated within 210 days of
the
Issue Date, (iii) the Initial Purchasers or any other holder of Private
Exchange Notes so requests in writing to the Company at any time after the
consummation of the Exchange Offer, or (iv) in the case of any Holder
that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under state
and
federal securities laws (other than due solely to the status of such Holder
as
an affiliate of the Company within the meaning of the Securities Act) and so
notifies the Company within 30 days after such Holder first becomes aware of
such restrictions, in the case of each of clauses (i) to and including (iv)
of
this sentence, then the Issuers shall promptly deliver to the Holders and the
Trustee written notice thereof (the “Shelf
Notice”)
and
shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf
Registration
If
at any
time a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf
Registration.
The
Issuers shall as promptly as practicable file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule
415
covering all of the Registrable Notes (the “Initial
Shelf Registration”).
The
Issuers shall use their respective reasonable best efforts to file with the
SEC
the Initial Shelf Registration on or prior to the applicable Filing Date. The
Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Notes for resale by Holders in
the
manner or manners designated by them (including, without limitation, one or
more
underwritten offerings). The Issuers shall not permit any securities other
than
the Registrable Notes and the Guarantees to be included in the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined
below).
The
Issuers shall use their respective reasonable best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior
to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is two years from the
Issue Date or such shorter period ending when all Registrable Notes covered
by
the Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or, if applicable, a Subsequent
Shelf Registration (the “Effectiveness
Period”);
provided,
however,
that
the Effectiveness Period in respect of the Initial Shelf Registration shall
be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act and as
otherwise provided herein and shall be subject to reduction to the extent that
the applicable provisions of Rule 144(k) are amended or revised to reduce the
two year holding period set forth therein. Notwithstanding anything to the
contrary in this Agreement, at any time, the Company may delay the filing of
any
Initial Shelf Registration Statement or delay or suspend the effectiveness
thereof, for a reasonable period of time, but not in excess of an aggregate
of
90 days in any calendar year (a “Shelf
Suspension Period”),
if
the Board of Directors of the Company determines reasonably and in good faith
that the filing of any such Initial Shelf Registration Statement or the
continuing effectiveness thereof would require the disclosure of non-public
material information that, in the reasonable judgment of the Board of Directors
of the Company, would be detrimental to the Company if so disclosed or would
otherwise materially adversely affect a financing, acquisition, disposition,
merger or other material transaction.
(b) Withdrawal
of Stop Orders; Subsequent Shelf Registrations.
If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other
than
because of the sale of all of the Notes registered thereunder), the Issuers
shall use their respective reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend such Shelf
Registration Statement in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes covered
by
and not sold under the Initial Shelf Registration or an earlier Subsequent
Shelf
Registration (each, a “Subsequent
Shelf Registration”).
If a
Subsequent Shelf Registration is filed, the Issuers shall use their respective
reasonable best efforts to cause the Subsequent Shelf Registration to be
declared effective under the Securities Act as soon as practicable after such
filing and to keep such subsequent Shelf Registration continuously effective
for
a period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As used
herein the term “Shelf
Registration”
means
the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements
and Amendments.
The
Issuers shall promptly supplement and amend the Shelf Registration if required
by the rules, regulations or instructions applicable to the registration form
used for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes (or their counsel) covered by such Registration
Statement with respect to the information included therein with respect to
one
or more of such Holders, or by any underwriter of such Registrable Notes with
respect to the information included therein with respect to such
underwriter.
4. Additional
Interest
(a) The
Issuers and the Initial Purchasers agree that the Holders will suffer damages
if
the Issuers fail to fulfill their obligations under Section 2 or
Section 3 hereof and that it would not be feasible to ascertain the
extent
of such damages with precision. Accordingly, the Issuers agree to pay, jointly
and severally, as liquidated damages, additional interest on the Notes
(“Additional
Interest”)
under
the circumstances and to the extent set forth below (each of which shall be
given independent effect):
(i) if
(A)
neither the Exchange Offer Registration Statement nor the Initial Shelf
Registration has been filed on or prior to the Filing Date applicable thereto
or
(B) notwithstanding that the Issuers have consummated or will consummate the
Exchange Offer, the Issuers are required to file a Shelf Registration and such
Shelf Registration is not filed on or prior to the Filing Date applicable
thereto, then, commencing on the day after any such Filing Date, Additional
Interest shall accrue on the principal amount of the Registrable Notes at a
rate
of 0.50% per annum for the first 90 days immediately following such applicable
Filing Date, and such Additional Interest rate shall increase by an additional
0.50% per annum at the beginning of each subsequent 90-day period;
or
(ii) if
(A)
neither the Exchange Offer Registration Statement nor the Initial Shelf
Registration is declared effective by the SEC on or prior to the Effectiveness
Date applicable thereto or (B) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the Issuers are required
to
file a Shelf Registration and such Shelf Registration is not declared effective
by the SEC on or prior to the Effectiveness Date applicable to such Shelf
Registration, then, commencing on the day after such Effectiveness Date,
Additional Interest shall accrue on the principal amount of the Registrable
Notes at a rate of 0.50% per annum for the first 90 days immediately following
the day after such Effectiveness Date, and such Additional Interest rate shall
increase by an additional 0.50% per annum at the beginning of each subsequent
90-day period; or
(iii) if
(A) the Issuers have not exchanged Exchange Notes for all Notes validly
tendered in accordance with the terms of the Exchange Offer on or prior to
the
45th day after the applicable Effectiveness Date or (B) if applicable,
a
Shelf Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period, then
Additional Interest shall accrue on the principal amount of the Notes not so
exchanged in the case of (A) or the Registrable Notes in the case of (B) at
a
rate of 0.50% per annum for the first 90 days commencing on the (x) 46th
day after applicable Effectiveness Date, in the case of (A) above, or (y) the
day such Shelf Registration ceases to be effective in the case of (B) above,
and
such Additional Interest rate shall increase by an additional 0.50% per annum
at
the beginning of each such subsequent 90-day period;
provided,
however,
that
the Additional Interest rate on the Notes may not accrue under more than one
of
the foregoing clauses (i) - (iii) at any one time and at no time shall the
aggregate amount of Additional Interest accruing exceed in the aggregate 2.0%
per annum; provided,
further,
however,
that
(1) upon the filing of the applicable Exchange Offer Registration Statement
or the applicable Shelf Registration as required hereunder (in the case of
clause (i) above of this Section 4), (2) upon the effectiveness
of the
Exchange Offer Registration Statement or the applicable Shelf Registration
Statement as required hereunder (in the case of clause (ii) of this
Section 4), or (3) upon the exchange of the Exchange Notes for
all
Notes tendered (in the case of clause (iii)(A) of this Section 4), or
upon
the effectiveness of the applicable Shelf Registration Statement which had
ceased to remain effective (in the case of (iii)(B) of this Section 4),
Additional Interest on the Notes in respect of which such events relate as
a
result of such clause (or the relevant subclause thereof), as the case may
be,
shall cease to accrue. Notwithstanding any other provision of this Section
4,
the Issuer shall not be obligated to pay Additional Interest provided in
Sections 4(a)(i)(B), 4(a)(ii)(B) or 4(a)(iii)(B) during a Shelf Suspension
Period permitted by Section 3(a) hereof.
(b) The
Issuers shall notify the Trustee within one Business Day after each and every
date on which an event occurs in respect of which Additional Interest is
required to be paid (an “Event
Date”).
Any
amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii)
of
this Section 4 will be payable in cash semiannually on each January
15 and
July 15 (to the holders of record on the January 1 and July 1 immediately
preceding such dates), commencing with the first such date occurring after
any
such Additional Interest commences to accrue. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest rate by
the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day
year
comprised of twelve 30 day months and, in the case of a partial month,
the
actual number of days elapsed), and the denominator of which is
360.
5. Registration
Procedures
In
connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to
permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and
in
connection with any Registration Statement filed by the Company hereunder each
of the Issuers shall:
(a) Prepare
and file with the SEC prior to the applicable Filing Date a Registration
Statement or Registration Statements as prescribed by Section 2 or 3
hereof, and use their respective reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided,
however,
that if
(1) such filing is pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities
Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto from whom the Company has received prior
written notice that it will be a Participating Broker-Dealer in the Exchange
Offer, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Issuers shall furnish to and afford the Holders
of
the Registrable Notes covered by such Registration Statement (with respect
to a
Registration Statement filed pursuant to Section 3 hereof) or each such
Participating Broker-Dealer (with respect to any such Registration Statement),
as the case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five Business Days prior
to
such filing). The Issuers shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement, their counsel, or the managing underwriters, if any,
shall reasonably object on a timely basis.
(b) Use
its
reasonable best efforts to prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period,
the
Applicable Period or until consummation of the Exchange Offer, as the case
may
be; cause the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424; and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus
as so
supplemented and with respect to the subsequent resale of any securities being
sold by an Participating Broker-Dealer covered by any such Prospectus. The
Company shall be deemed not to have used its reasonable best efforts to keep
a
Registration Statement effective if such Issuer voluntarily takes any action
that would result in selling Holders of the Registrable Notes covered thereby
or
Participating Broker-Dealers seeking to sell Exchange Notes not being able
to
sell such Registrable Notes or such Exchange Notes during that period unless
such action is required by applicable law or permitted by this
Agreement.
(c) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under
the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto from whom the Company has
received written notice that it will be a Participating Broker-Dealer in the
Exchange Offer, notify the selling Holders of Registrable Notes (with respect
to
a Registration Statement filed pursuant to Section 3 hereof), or each
such
Participating Broker-Dealer (with respect to any such Registration Statement),
as the case may be, their counsel and the managing underwriters, if any,
promptly (but in any event within one business day), and confirm such notice
in
writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written statement that
any
Holder may, upon request, obtain, at the sole expense of the Company, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance
by the
SEC of any stop order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) if at any
time
when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes
by
Participating Broker-Dealers the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(n) hereof cease to be true and correct, (iv) of
the
receipt by any Issuer of any notification with respect to the suspension of
the
qualification or exemption from qualification of a Registration Statement or
any
of the Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening
of any
event, the existence of any condition or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus
or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in
or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain
any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and
(vi) of the Issuers’ determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use
their
respective reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their respective
reasonable best efforts to obtain the withdrawal of any such order at the
earliest practicable date.
(e) If
a
Shelf Registration is filed pursuant to Section 3 and if requested in
writing during the Effectiveness Period by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal amount
of the Registrable Notes being sold in connection with an underwritten offering
or any Participating Broker-Dealer, (i) as promptly as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such Holders,
any Participating Broker-Dealer or counsel for any of them reasonably request
to
be included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment, and (iii) supplement
or
make amendments to such Registration Statement; provided,
however,
the
Issuers shall not be required to take any action pursuant to this Section 5(e)
that would, in the opinion of counsel for the Company, reasonably satisfactory
to the Initial Purchasers, violate applicable law.
(f) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under
the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of
Registrable Notes (with respect to a Registration Statement filed pursuant
to
Section 3 hereof) and to each such Participating Broker-Dealer who so
requests (with respect to any such Registration Statement) and to their
respective counsel and each managing underwriter, if any, at the sole expense
of
the Company, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under
the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each selling Holder of
Registrable Notes (with respect to a Registration Statement filed pursuant
to
Section 3 hereof), or each such Participating Broker-Dealer (with respect
to any such Registration Statement), as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the Company,
as
many copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuers
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or agents,
if any, and dealers, if any, in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers of
the
Exchange Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior
to
any public offering of Registrable Notes or any delivery of a Prospectus
contained in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
use
their respective reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or underwriters
reasonably request in writing; provided,
however,
that
where Exchange Notes held by Participating Broker-Dealers or Registrable Notes
are offered other than through an underwritten offering, the Issuers agree
to
cause their counsel to perform Blue Sky investigations and file registrations
and qualifications required to be filed pursuant to this Section 5(h),
keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable Registration
Statement; provided,
however,
that no
Issuer shall be required to (A) qualify generally to do business in
any
jurisdiction where it is not then so qualified, (B) take any action
that
would subject it to general service of process in any such jurisdiction where
it
is not then so subject or (C) subject itself to taxation in excess of
a
nominal dollar amount in any such jurisdiction where it is not then so
subject.
(i) If
a
Shelf Registration is filed pursuant to Section 3 hereof, cooperate
with
the selling Holders of Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold, which certificates
shall
not bear any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company; and enable such Registrable Notes to be
in
such denominations (subject to applicable requirements contained in the
Indenture) and registered in such names as the managing underwriter or
underwriters, if any, or Holders may request.
(j) Use
their
respective reasonable best efforts to cause the Registrable Notes covered by
the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or
sellers thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes, except as may be required solely as
a
consequence of the nature of such selling Holder’s business, in which case the
Issuers will cooperate in all respects with the filing of such Registration
Statement and the granting of such approvals; provided
that no
Issuer shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any jurisdiction where it is not
then so subject or (C) subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction it is not then so subject.
(k) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under
the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the
SEC,
at the sole expense of the Company, a supplement or post-effective amendment
to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder (with respect to a Registration
Statement filed pursuant to Section 3 hereof) or to the purchasers of
the
Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer (with respect to any such Registration Statement), any such
Prospectus will not contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(l) Use
their
respective reasonable best efforts to cause the Registrable Notes covered by
a
Registration Statement or the Exchange Notes, as the case may be, to be rated
with the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriter or underwriters, if any.
(m) Prior
to
the effective date of the first Registration Statement relating to the
Registrable Notes, (i) provide the Trustee with certificates for the
Registrable Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable
Notes.
(n) In
connection with any underwritten offering of Registrable Notes pursuant to
a
Shelf Registration, enter into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the Notes, and take all
such other actions as are reasonably requested by the managing underwriter
or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuers (including any acquired business,
properties or entity, if applicable), and the Registration Statement, Prospectus
and documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes substantially
similar to those included in the Purchase Agreement, and confirm the same in
writing if and when requested; (ii) obtain the written opinions of counsel
to the Issuers, and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters, addressed
to the underwriters covering the matters customarily covered in opinions
reasonably requested in underwritten offerings of debt securities similar to
the
Notes; (iii) obtain “cold comfort” letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuers
(and, if necessary, any other independent certified public accountants of the
Issuers, or of any business acquired by the Issuers, for which financial
statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each
of
the underwriters, such letters to be in customary form and covering matters
of
the type customarily covered in “cold comfort” letters in connection with
underwritten offerings of debt securities similar to the Notes; and (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the sellers
and
underwriters, if any, than those set forth in Section 7 hereof (or such
other provisions and procedures reasonably acceptable to Holders of a majority
in aggregate principal amount of Registrable Notes covered by such Registration
Statement and the managing underwriter or underwriters or agents, if any).
The
above shall be done at each closing under such underwriting agreement, or as
and
to the extent required thereunder. Notwithstanding the foregoing, the Issuers
may delay entering into such agreement in the event that and for a period of
time not to exceed an aggregate of 60 days if (1) the Board of Directors of
the
Company determines in good faith that the disclosure of an event at such time
could reasonably be expected to have a material adverse effect on the business,
operations or prospects of the Issuers or (2) the disclosure otherwise relates
to a material business transaction which has not been publicly disclosed and
the
Board of Directors of the Company determines that any such disclosure would
jeopardize the success of such transaction.
(o) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under
the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by any Initial
Purchaser, any selling Holder of such Registrable Notes being sold (with respect
to a Registration Statement filed pursuant to Section 3 hereof), or
each
such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each
such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, or underwriter (any such Initial Purchasers,
Holders, Participating Broker-Dealers, underwriters, attorneys, accountants
or
agents, collectively, the “Inspectors”),
upon
written request, at the offices where normally kept, during reasonable business
hours, all pertinent financial and other records, pertinent corporate documents
and instruments of the Company and subsidiaries of the Company (collectively,
the “Records”),
as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees
of
the Company and any of its subsidiaries to supply all information (“Information”)
reasonably requested by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will keep the
Records and Information confidential and that it will not disclose any of the
Records or Information that the Company determines, in good faith, to be
confidential and notifies the Inspectors in writing are confidential, and that
such information will be treated as confidential by it so as not to give rise
to
disclosure obligations on the part of the Issuer under SEC Regulation FD, unless
(i) the disclosure of such Records or Information is necessary to avoid
or
correct a misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records or Information is ordered pursuant
to a
subpoena or other order from a court of competent jurisdiction,
(iii) disclosure of such Records or Information is necessary or advisable,
in the opinion of counsel for any Inspector, in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, relating to, or
involving this Agreement or the Purchase Agreement, or any transactions
contemplated hereby or thereby or arising hereunder or thereunder, or
(iv) the information in such Records or Information has been made generally
available to the public other than by an Inspector or an “affiliate” (as defined
in Rule 405) thereof; provided,
however,
that
prior notice shall be provided as soon as practicable to the Company of the
potential disclosure of any information by such Inspector pursuant to
clauses (i) or (ii) of this sentence to permit the Company to obtain
a
protective order (or waive the provisions of this paragraph (o)) and
that
such Inspector shall take such actions as are reasonably necessary to protect
the confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in derogation
of
the rights and interests of the Holder or any Inspector.
(p) Provide
an indenture trustee for the Registrable Notes or the Exchange Notes, as the
case may be, and cause the Indenture or the trust indenture provided for in
Section 2(a) hereof, as the case may be, to be qualified under the TIA
not
later than the effective date of the first Registration Statement relating
to
the Registrable Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable Notes, to effect
such changes (if any) to such indenture as may be required for such indenture
to
be so qualified in accordance with the terms of the TIA; and execute, and use
their respective reasonable best efforts to cause such trustee to execute,
all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture to be
so
qualified in a timely manner.
(q) Comply
with all applicable rules and regulations of the SEC and make generally
available to its securityholders with regard to any applicable Registration
Statement, a consolidated earning statement satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or
any
similar rule promulgated under the Securities Act) no later than 45 days
after the end of any fiscal quarter (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the
end
of any fiscal quarter in which Registrable Notes are sold to underwriters in
a
firm commitment or best efforts underwritten offering and (ii) if not
sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company, after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(r) Upon
consummation of the Exchange Offer or a Private Exchange, obtain an opinion
of
counsel to the Issuers, in a form customary for underwritten transactions,
addressed to the Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as the case may
be,
that the Exchange Notes or Private Exchange Notes, as the case may be, the
related guarantee and the related indenture constitute legal, valid and binding
obligations of the Issuers, enforceable against the Issuers in accordance with
their respective terms, subject to customary exceptions and qualifications.
If
the Exchange Offer or a Private Exchange is to be consummated, upon delivery
of
the Registrable Notes by Holders to the Company (or to such other Person as
directed by the Company), in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Issuers shall mark, or cause to be
marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes,
as
the case may be; in no event shall such Registrable Notes be marked as paid
or
otherwise satisfied.
(s) Cooperate
with each seller of Registrable Notes covered by any Registration Statement
and
each underwriter, if any, participating in the disposition of such Registrable
Notes and their respective counsel in connection with any filings required
to be
made with the National Association of Securities Dealers, Inc. (the
“NASD”).
(t) Use
their
respective reasonable best efforts to take all other steps necessary to effect
the registration of the Exchange Notes and/or Registrable Notes covered by
a
Registration Statement contemplated hereby.
The
Company may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Registrable Notes as the
Company may, from time to time, reasonably request. The Company may exclude
from
such registration the Registrable Notes of any seller so long as such seller
fails to furnish such information within a reasonable time after receiving
such
request. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Company all information required to be disclosed
in
order to make the information previously furnished to the Company by such seller
not materially misleading.
If
any
such Registration Statement refers to any Holder by name or otherwise as the
holder of any securities of any Issuer, then such Holder shall have the right
to
require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such Holder, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation by such
Holder of the investment quality of the securities covered thereby and that
such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuers, or (ii) in the event that such
reference to such Holder by name or otherwise is not required by the Securities
Act or any similar federal statute then in force, the deletion of the reference
to such Holder in any amendment or supplement to the Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each
Holder of Registrable Notes and each Participating Broker-Dealer agrees by
its
acquisition of such Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon actual receipt
of
any notice from the Company of the happening of any event of the kind described
in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder
will forthwith discontinue disposition of such Registrable Notes covered by
such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, and in each case,
dissemination of such Prospectus, until such Holder’s or Participating
Broker-Dealer’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing
(the
“Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event that
the
Issuers shall give any such notice, each of the Applicable Period and the
Effectiveness Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Notes covered by such Registration
Statement or Exchange Notes to be sold by such Participating Broker-Dealer,
as
the case may be, shall have received (x) the copies of the supplemented
or
amended Prospectus contemplated by Section 5(k) hereof or (y) the
Advice.
6. Registration
Expenses
All
fees
and expenses incident to the performance of or compliance with this Agreement
by
the Issuers shall be borne by the Company, whether or not the Exchange Offer
Registration Statement or any Shelf Registration Statement is filed or becomes
effective or the Exchange Offer is consummated, including, without limitation,
(i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in
connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws where required (including,
without limitation, fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Notes or Exchange Notes and determination
of the eligibility of the Registrable Notes or Exchange Notes for investment
under the laws of such jurisdictions (x) where the holders of Registrable
Notes are located, in the case of the Exchange Notes, or (y) as provided
in
Section 5(h) hereof, in the case of Registrable Notes or Exchange Notes
to
be sold by a Participating Broker-Dealer during the Applicable Period)),
(ii) printing expenses, including, without limitation, expenses of printing
certificates for Registrable Notes or Exchange Notes in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in respect
of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and, in the case of a Shelf
Registration, reasonable fees and disbursements of one special counsel for
all
of the sellers of Registrable Notes selected by the Holder of a majority in
aggregate principal amount of Registrable Notes covered by such Shelf
Registration (exclusive of any counsel retained pursuant to Section 7 hereof),
(v) fees and disbursements of all independent certified public accountants
referred to in Section 5(n)(iii) hereof (including, without limitation, the
expenses of any “cold comfort” letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Issuers
desire such insurance, (vii) fees and expenses of all other Persons
retained by the Issuers, (viii) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties), (ix) the
expense of any annual audit, (x) any fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable and (xi) the expenses relating to printing, word processing
and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing, the Issuers shall not pay underwriting or
brokerage discounts or commissions.
7. Indemnification
and Contribution.
(a) Each
of
the Issuers agree jointly and severally, to indemnify and hold harmless each
Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, and each Person, if any, who
controls such Person or its affiliates within the meaning of Section 15 of
the
Act or Section 20 of the Exchange Act (each, a “Participant”) against any
losses, claims, damages or liabilities to which any Participant may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
any
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any
untrue statement or alleged untrue statement made by any Issuer contained in
any
application or any other document or any amendment or supplement thereto
executed by any Issuer based upon written information furnished by or on behalf
of any Issuer filed in any jurisdiction in order to qualify the Notes under
the
securities or “Blue Sky” laws thereof or filed with the SEC or any securities
association or securities exchange (each, an “Application”);
(ii) any
untrue statement or alleged untrue statement of any material fact contained
in
any Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus; or
(iii) the
omission or alleged omission to state, in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or any Application or any other document or any amendment
or supplement thereto, a material fact required to be stated therein or
necessary to make the statements therein not misleading;
and
will
reimburse, as incurred, the Participant for any legal or other expenses incurred
by the Participant in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided,
however,
none of
the Issuers will be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Registration Statement (or any amendment thereto) or Prospectus (as amended
or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or Application or any
amendment or supplement thereto in reliance upon and in conformity with
information relating to any Participant furnished to the Issuers by such
Participant specifically for use therein; provided
further,
however,
that
the Issuers shall not be liable if such untrue statement or omission or alleged
untrue statement or omission was contained or made in any preliminary prospectus
and corrected in the Prospectus or any amendment or supplement thereto and
the
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject matter
of
the related proceeding and any such loss, liability, claim, damage or expense
suffered or incurred by the Participants resulted from any action, claim or
suit
by any Person who purchased Registrable Notes or Exchange Notes which are the
subject thereof from such Participant and it is established in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result
of
noncompliance by the Issuers with Section 5 of this Agreement. The indemnity
provided for in this Section 7 will be in addition to any liability
that
the Issuers may otherwise have to the indemnified parties. The Issuers shall
not
be liable under this Section 7 for any settlement of any claim or action
effected without their prior written consent, which shall not be unreasonably
withheld.
(b) Each
Participant, severally and not jointly, agrees to indemnify and hold harmless
the Issuers, their directors, their officers and each person, if any, who
controls the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material
fact necessary to make the statements therein not misleading, in each case
to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished
to
the Issuers by the Participant, specifically for use therein; and subject to
the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any reasonable legal or other expenses incurred by the Issuers or
any
such director, officer or controlling person in connection with investigating
or
defending against or appearing as a third party witness in connection with
any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 7 will be in addition to any liability
that
the Participants may otherwise have to the indemnified parties. The Participants
shall not be liable under this Section 7 for any settlement of any claim
or
action effected without their consent, which shall not be unreasonably withheld.
The Issuers shall not, without the prior written consent of such Participant,
effect any settlement or compromise of any pending or threatened proceeding
in
respect of which such Participant is or could have been a party, or indemnity
could have been sought hereunder by such Participant, unless such settlement
(A) includes an unconditional written release of such Participant, in
form
and substance reasonably satisfactory to such Participant, from all liability
on
claims that are the subject matter of such proceeding and (B) does not include
any statement as to an admission of fault, culpability or failure to act by
or
on behalf of such Participant.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice
of the
commencement of any action for which such indemnified party is entitled to
indemnification under this Section 7, such indemnified party will, if a claim
in
respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party of the commencement thereof in writing; but
the
omission to so notify the indemnifying party (i) will not relieve it
from
any liability under paragraph (a) or (b) above unless and to the extent such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the
indemnification obligation provided in paragraphs (a) and (b) above. In case
any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided,
however,
that if
(i) the use of counsel chosen by the indemnifying party to represent
the
indemnified party would present such counsel with a conflict of interest,
(ii) the defendants in any such action include both the indemnified
party
and the indemnifying party and the indemnified party shall have been advised
by
counsel that there may be one or more legal defenses available to it and/or
other indemnified parties that are different from or additional to those
available to the indemnifying party, or (iii) the indemnifying party
shall
not have employed counsel reasonably satisfactory to the indemnified party
to
represent the indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, then, in each
such case, the indemnifying party shall not have the right to direct the defense
of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel
to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable
to
such indemnified party under this Section 7 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred
by
such indemnified party in connection with the defense thereof, unless
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority
in
interest of the Registrable Notes and Exchange Notes sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers
in
the case of paragraph (b) of this Section 7, representing the
indemnified parties under such paragraph (a) or paragraph (b),
as the
case may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses reimbursed
pursuant to this paragraph (c) shall be reimbursed as they are incurred. After
such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 7, in which case the indemnified party may
effect
such a settlement without such consent.
(d) In
circumstances in which the indemnity agreement provided for in the preceding
paragraphs of this Section 7 is unavailable to, or insufficient to hold
harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as
is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from
the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but
also
the relative fault of the indemnifying party or parties on the one hand and
the
indemnified party on the other in connection with the statements or omissions
or
alleged statements or omissions that resulted in such losses, claims, damages
or
liabilities (or actions in respect thereof). The relative benefits received
by
the Company on the one hand and such Participant on the other shall be deemed
to
be in the same proportion as the total proceeds from the offering (before
deducting expenses) of the Notes received by the Company bear to the total
net
profit received by such Participant in connection with the sale of the Notes.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand, or the Participants on
the
other, the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in
the
circumstances. The parties agree that it would not be equitable if the amount
of
such contribution were determined by pro rata or per capita allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Participant shall
be obligated to make contributions hereunder that in the aggregate exceed the
total net profit received by such Participant in connection with the sale of
the
Notes, less the aggregate amount of any damages that such Participant has
otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact,
and
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person
who was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each person, if any, who controls a Participant within the
meaning of Section 15 of the Act or Section 20 of the Exchange
Act
shall have the same rights to contribution as the Participants, and each
director of the Issuers, each officer of the Issuers and each person, if any,
who controls the Issuers within the meaning of Section 15 of the Act
or
Section 20 of the Exchange Act, shall have the same rights to contribution
as the Issuers.
8. Rules
144 and 144A
The
Issuers covenant and agree that they will file the reports required to be filed
by them under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance
with
the requirements of the Securities Act and the Exchange Act and, if at any
time
the Company or any Guarantor is not required to file such reports, the Company
or such Guarantor, as the case may be, will, upon the request of any Holder
or
beneficial owner of Registrable Notes, make available such information necessary
to permit sales pursuant to Rule 144A. The Issuers further covenant
and
agree, for so long as any Registrable Notes remain outstanding that they will
take such further action as any Holder of Registrable Notes may reasonably
request, all to the extent required from time to time to enable such holder
to
sell Registrable Notes without registration under the Securities Act within
the
limitation of the exemptions provided by Rule 144(k) under the Securities
Act and Rule 144A.
9. Underwritten
Registrations
If
any of
the Registrable Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Holders of
a
majority in aggregate principal amount of such Registrable Notes included in
such offering and shall be reasonably acceptable to the Company.
No
Holder
of Registrable Notes may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder’s Registrable Notes on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
(a) No
Inconsistent Agreements.
None of
the Issuers has, as of the date hereof, and none of the Issuers shall, after
the
date of this Agreement, enter into any agreement with respect to any of its
securities that conflicts with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with the provisions hereof.
The
rights granted to the Holders hereunder do not in any way conflict with and
are
not inconsistent with the rights granted to the holders of the Issuers’ other
issued and outstanding securities under any such agreements. None of the Issuers
will enter into any agreement with respect to any of their securities that
will
grant to any Person piggy-back registration rights with respect to any
Registration Statement.
(b) Adjustments
Affecting Registrable Notes.
The
Issuers shall not, directly or indirectly, take any action with respect to
the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments
and Waivers.
The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to departures from the provisions hereof may not be given,
otherwise than with the prior written consent of (I) the Issuers, and
(II) (A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes and (B) in
circumstances that would adversely affect the Participating Broker-Dealers,
the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided,
however,
that
Section 7 and this Section 10(c) may not be amended, modified
or
supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the
case
may be, disposed of pursuant to any Registration Statement) affected by any
such
amendment, modification or supplement. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does
not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority
in
aggregate principal amount of the Registrable Notes being sold pursuant to
such
Registration Statement.
(d) Notices.
All
notices and other communications (including, without limitation, any notices
or
other communications to the Trustee) provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, next-day
air
courier or facsimile:
(i) if
to a
Holder of the Registrable Notes or any Participating Broker-Dealer, at the
most
current address of such Holder or Participating Broker-Dealer, as the case
may
be, set forth on the records of the registrar under the Indenture, with a copy
in like manner to the Initial Purchasers as follows:
Deutsche
Bank Securities Inc.
60
Wall
Street
New
York, New York
10005
Facsimile
No.: (212)
797-4867
Attention:
High Yield
Capital Markets
with
a
copy to:
Cahill
Gordon & Reindel LLP
80
Pine
Street
New
York, New York
10005
Facsimile
No.: (212)
269-5420
Attention:
William M.
Hartnett, Esq.
(ii) if
to the
Initial Purchasers, at the address specified in Section 10(d)(i);
(iii) if
to the
Issuers, at the address as follows:
Omega
Healthcare
Investors, Inc.
9690
Deereco Road, Suite 100
Timonium,
Maryland 21093
Facsimile
No.: (410) 427-8822
Attention:
Robert O. Stephenson
with
a
copy to:
Powell
Goldstein LLP
One
Atlantic Center, Fourteenth Floor
1201
W.
Peachtree Street, NW,
Atlanta,
Georgia 30309-3488
Facsimile
No.: (404) 572-6999
Attention:
Richard H. Miller
All
such
notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; one Business Day after being
timely delivered to a next-day air courier; and upon written confirmation,
if
sent by facsimile.
Copies
of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address and in
the
manner specified in such Indenture.
(e) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties hereto, the Holders and the Participating
Broker-Dealers; provided,
however,
that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
(f) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
(g) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(h) Governing
Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW
THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW.
(i) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their best efforts to find
and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(j) Notes
Held by the Issuers or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuers
or their affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party
Beneficiaries.
Holders
of Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons.
(l) Entire
Agreement.
This
Agreement, together with the Purchase Agreement and the Indenture, is intended
by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Holders on the one hand and the Issuers
on the other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in interest
with respect to the subject matter hereof and thereof are merged herein and
replaced hereby.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
OMEGA
HEALTHCARE INVESTORS, INC.
By:
Name:
Title:
By:
Name:
Title:
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.
OHI
(CONNECTICUT), INC.
BAYSIDE
STREET II, INC.
OHI
ASSET
(CA), LLC
OHI
ASSET
(FL), LLC
OHI
ASSET
(ID), LLC
OHI
ASSET
(IN), LLC
OHI
ASSET
(LA), LLC
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
OHI
ASSET
(MI/NC), LLC
OHI
ASSET
(MO), LLC
OHI
ASSET
(OH), LLC
OHI
ASSET
(PA), LLC
OHI
ASSET
(TX), LLC
OHI
ASSET
II (CA), LLC
OHI
ASSET, LLC
OMEGA
ACQUISITION FACILITY I, LLC
OHI
(FLORIDA), INC.
OHI
SUNSHINE, INC.
LONG
TERM
CARE ASSOCIATES - ILLINOIS, INC.
OHI
(ILLINOIS), INC.
SKILLED
NURSING - HERRIN, INC.
SKILLED
NURSING - PARIS, INC.
BAYSIDE
INDIANA HEALTHCARE ASSOCIATES, INC.
LONG
TERM
CARE ASSOCIATES - INDIANA, INC.
OHI
(INDIANA), INC.
SKILLED
NURSING - GASTON, INC.
OHI
(IOWA), INC.
OHI
(KANSAS), INC.
OMEGA
(KANSAS), INC.
NRS
VENTURES, LLC
OS
LEASING COMPANY
STERLING
ACQUISITION CORP.
STERLING
ACQUISITION CORP. II
ARIZONA
LESSOR - INFINIA, INC.
BAYSIDE
STREET, INC.
COLORADO
LESSOR - CONIFER, INC.
DELTA
INVESTORS I, LLC
DELTA
INVESTORS II, LLC
FLORIDA
LESSOR - CRYSTAL SPRINGS, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
FLORIDA
LESSOR - EMERALD, INC.
FLORIDA
LESSOR - LAKELAND, INC.
FLORIDA
LESSOR - MEADOWVIEW, INC.
FLORIDA
LESSOR - WEST PALM BEACH AND SOUTHPOINT, INC.
GEORGIA
LESSOR - BONTERRA/PARKVIEW, INC.
INDIANA
LESSOR - JEFFERSONVILLE, INC.
INDIANA
LESSOR - WELLINGTON MANOR, INC.
JEFFERSON
CLARK, INC.
OHI
OF
KENTUCKY, INC.
OHI
OF
TEXAS, INC.
OMEGA
TRS
I, INC.
TEXAS
LESSOR - STONEGATE GP, INC.
TEXAS
LESSOR - STONEGATE LIMITED, INC.
TEXAS
LESSOR - STONEGATE, L.P.
TEXAS
LESSOR - TREEMONT, INC.
WASHINGTON
LESSOR - SILVERDALE, INC.
OHIMA,
INC.
LONG
TERM
CARE - MICHIGAN, INC.
LONG
TERM
CARE - NORTH CAROLINA, INC.
SKILLED
NURSING - HICKSVILLE, INC.
CENTER
HEALTHCARE ASSOCIATES, INC.
CHERRY
STREET - SKILLED NURSING, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
DALLAS
SKILLED NURSING, INC.
HERITAGE
TEXARKANA HEALTHCARE ASSOCIATES, INC.
LAKE
PARK
SKILLED NURSING, INC.
LONG
TERM
CARE ASSOCIATES - TEXAS, INC.
PARKVIEW
- SKILLED NURSING, INC.
PINE
TEXARKANA HEALTHCARE ASSOCIATES, INC.
REUNION
TEXARKANA HEALTHCARE ASSOCIATES, INC.
SAN
AUGUSTINE HEALTHCARE ASSOCIATES, INC.
SOUTH
ATHENS HEALTHCARE ASSOCIATES, INC.
WAXAHACHIE
HEALTHCARE ASSOCIATES, INC.
WEST
ATHENS HEALTHCARE ASSOCIATES, INC.
OHI
ASSET
II (TX), LLC
OHI
ASSET
(OH) LENDER, LLC
OHI
ASSET
(OH) NEW PHILADELPHIA, LLC
OHI
ASSET
(PA) TRUST
BALDWIN
HEALTH CENTER, INC.
CANTON
HEALTH CARE LAND, INC.
DICON
HEALTH CARE CENTER, INC.
HANOVER
HOUSE, INC.
HOUSE
OF
HANOVER, LTD.
HUTTON
I
LAND, INC.
HUTTON
II
LAND, INC.
HUTTON
III LAND, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
LEATHERMAN
90-1, INC.
LEATHERMAN
PARTNERSHIP 89-1, IN.C
LEATHERMAN
PARTNERSHIP 89-2, INC.
MERIDIAN
ARMS LAND, INC.
OHI
ASSET
II (PA) TRUST
OHI
ASSET
III (PA) TRUST
ORANGE
VILLAGE CARE CENTER, INC.
PAVILLION
NORTH, LLP
PAVILLION
NORTH PARTNES, INC.
PAVILLION
NURSING CENTER NORTH, INC.
ST.
MARY’S PROPERTIES, INC.
WILCARE,
LLC
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
OHI
ASSET
(CT) LENDER, LLC
OHI
ASSET
II (OH), LLC
COLONIAL
GARDENS, LLC
COPLEY
HEALTH CENTER, INC.
THE
SUBURBAN PAVILION, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
The
foregoing Agreement is hereby confirmed and accepted as of the date
first
above written.
DEUTSCHE
BANK SECURITIES INC.,
By:/s/
Andrew Bhak
Name:
Andrew
Bhak
Title:
Director
By:/s/
A.J. Murphy
Name:
A.J.
Murphy
Title:
Director
BANC
OF
AMERICA SECURITIES LLC
By:/s/
R. Sean Snipes
Name:
R. Sean
Snipes
Title:
Managing Director
UBS
SECURITIES LLC
By:/s/
Christian W. Hilliard
Name:
Christian W. Hilliard
Title:
Director
By:/s/
Keith A. Lockwood
Name:
Keith
A. Lockwood
Title:
Director