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Exhibit 10.52
SHARING AGREEMENT
THIS SHARING AGREEMENT is made this 31st day of January, 1999 by and
between NORWEST BANK MINNESOTA, National Association, as Trustee (the "Trustee")
under the Indenture relating to the 11% Senior Secured Notes due 2003 dated as
of January 31, 1999 for up to $26 million, subject to adjustment, RAINTREE
HEALTHCARE CORPORATION ("RainTree Healthcare"), both as Issuer of the New Senior
Notes, and together with BritWill Healthcare Company, a Delaware corporation
("BHC"), a guarantor of the Indiana Returned Facility Note, BritWill Indiana
Partnership, an Arizona general partnership, the maker of the Indiana Returned
Facility Note ("Maker"), BHC (RainTree Healthcare, BHC and Maker collectively
"RainTree"), and OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation
("Omega").
RECITAL:
On January 29, 1999 the Debtors' First Amended Joint Plan of
Reorganization Dated October 15, 1998, as further amended (the "Plan"), filed in
the United States Bankruptcy Court for the District of Arizona and styled, In re
Unison HealthCare Corporation, Case Nos. B-98-06583-PHX-GBN through
B-98-06612-PHX-GBN, and In re BritWill Investments-I, Inc., Case Nos.
B-98-0173-PHX-GBN through B-98-0175-PHX-GBN, (Jointly Administered), was
confirmed. Pursuant to Section 6.1.2(c) of the Plan, a sharing arrangement is
required by and between the Trustee, RainTree and Omega. This Sharing Agreement
sets forth the terms and conditions of the sharing arrangement. Capitalized
terms used herein without definition have the meanings set forth in the Plan.
NOW, THEREFORE, the Trustee, RainTree and Omega hereby agree as follows:
1. DEFINITIONS: Unless defined otherwise in this Sharing Agreement, the
terms used herein are as defined in the Plan. In addition, the following
definitions are used herein:
"BLOCKAGE PERIOD" shall mean any period of time during which a continuing
Default exists. If a Default is cured or waived, the Blockage Period shall end.
There may be one or more Blockage Periods.
"DEFAULT" shall mean the occurrence of an Event of Default as defined in
the Indiana Returned Facility Note, issued by Maker and dated as of January 31,
1999, as such may be amended (the "IRF Note").
"ORIGINAL PLAN PAYMENT" shall mean the sum of (x) the principal of the
Senior Notes issued as of the Effective Date plus (y) the Effective Date Excess
Cash paid to creditors entitled to receive New Senior Notes.
"PARAGRAPH 2 SHARING PAYMENTS" shall mean the sharing of certain principal
payments required to be made as set forth in Paragraph 2 of this Sharing
Agreement.
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"SHARING CONDITIONS" shall mean that the following shall have occurred:
(i) on the second anniversary of the Effective Date principal payments made
between the Effective Date and the second anniversary of the Effective Date have
not reduced the Original Plan Payment by at least 50%, which reductions shall
include, without limitation, payments of Effective Date Excess Cash, and (ii) a
Blockage Period does not exist.
2. AGREEMENT TO SHARE CERTAIN PRINCIPAL PAYMENTS: If on or after the
second anniversary of the Effective Date of the Plan, the Sharing Conditions are
met, payments of principal by RainTree with regard to the IRF Note shall be
shared pari passu among Omega and the holders of the New Senior Notes, provided,
however, no sharing shall occur with regard to the proceeds of any collateral
held as security by Omega with regard to the IRF Note. RainTree agrees to make
Paragraph 2 Sharing Payments due to Omega in the place of any periodic payment
terms set forth in the IRF Note. RainTree shall make the Paragraph 2 Sharing
Payments due to holders of the New Senior Notes to the Trustee for application
pursuant to the Indenture. If a Blockage Period occurs, Paragraph 2 Sharing
Payments shall cease during such period and, during the Blockage Period,
payments shall be made to Omega on the IRF Note as though this Sharing Agreement
did not exist. Payments made during a Blockage Period shall not be shared even
if subsequent to such payment the Blockage Period is ended. Once a Blockage
Period ends, subsequent Paragraph 2 Sharing Payments with regard to the IRF Note
shall be shared pari passu among Omega and the holders of the New Senior Notes.
Regardless of whether or not a Blockage Period exists, RainTree shall pay
interest on the Omega Returned Facility Note as required by such note.
3. NO DEFAULT UNDER OMEGA RETURNED FACILITY NOTE: Omega hereby agrees that
Paragraph 2 Sharing Payments will not constitute an Event of Default under the
IRF Note on account of the failure to pay the full periodic principal payments
required under such Note nor a default with respect to any of the Company's
other obligations to Omega. All payments deferred on account of this Sharing
Agreement shall be repaid pursuant to the terms of the IRF Note. All principal
that is deferred because of this Sharing Agreement shall bear interest at the
rate of ten percent (10%) per annum from the date it would otherwise have been
paid.
4. NO COLLATERAL SHARING: This Sharing Agreement is not a sharing or
assignment of collateral securing the IRF Note.
5. NOTICES: Upon Default, Omega shall commence the Blockage Period by
notifying the Maker, BHC, RainTree Healthcare and Trustee. All notices, demands,
requests, consents, approvals and other communications ("Notice" or "Notices")
hereunder shall be in writing and personally served upon an Executive Officer of
the party being served or mailed (by registered or certified mail, return
receipt requested and postage prepaid), or delivered by national overnight
delivery service such as Federal Express or D.H.L., or sent by facsimile
transmission addressed to the respective parties, as follows:
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(i) If to RainTree Healthcare, Maker or BHC:
RainTree HealthCare Corporation
00000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
ATTN: Xxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(ii) If to Omega:
Omega Healthcare Investors, Inc.
000 Xxxxxxx Xxx
Xxxxx 000
Xxx Xxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxx, Xx.
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx
ATTN: Xxxx X. Xxxxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
(iii) If to the Trustee:
Norwest Bank Minnesota, National Association
Sixth & Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
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6. COUNTERPARTS: This Sharing Agreement may be executed in separate
counterparts, each of which shall be considered an original when each party has
executed and delivered to the other one or more copies of this Sharing
Agreement.
7. CHOICE OF LAW: This Sharing Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan without regard to
Michigan's conflict of interest rules.
8. ENTIRE AGREEMENT: Except for the Plan and the IRF Note, this Sharing
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof, and no representation, understanding, promise or
condition concerning the subject matter shall be binding upon either party
unless expressed herein.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
NORWEST BANK MINNESOTA,
National Association, Trustee
By: _____________________________________
Its:_________________________________
RAINTREE HEALTHCARE CORPORATION,
By: _____________________________________
Its:_________________________________
OMEGA HEALTHCARE INVESTORS, INC.,
a Maryland corporation
By: _____________________________________
F. Xxxxx Xxxxxxx
Its: Executive Vice President
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BRITWILL INDIANA PARTNERSHIP,
an Arizona general partnership
By: Britwill Investments-I, Inc.
By: _____________________________________
Its:_________________________________
BRITWILL HEALTHCARE COMPANY,
a Delaware company
By: _____________________________________
Its:_________________________________
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