1
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is made as of the 15th day of
July, 1998 between and among MHM Services, Inc. ("MHM"), Oakview Limited
Partnership ("Oakview"), Columbia Health Associates Limited Partnership
("Columbia") (MHM, Oakview, and Columbia are collectively referred to herein as
"Obligors"), Xxxxxxx Xxxxxxx ("Xxxxxxx"), and MEDIQ, Incorporated ("MEDIQ").
BACKGROUND
A. On or about February 10, 1997, MHM commenced an action in the Superior
Court of New Jersey (Law Division, Camden County) styled MHM Services, Inc. v.
MEDIQ, Inc., Case No. L-4026-97 (the "New Jersey Action") which, inter alia,
challenged the enforceability of indebtedness (the "Indebtedness") due to MEDIQ
by Obligors under a promissory note delivered by MHM in favor of MEDIQ dated
August 31, 1993 in the original principal amount of $11,500,000.00 (the "Note").
B. On April 17, 1998, the Court entered judgment (the "Judgment") against
Obligors in the amount of $11,783,423.31 (the "Judgment Amount") in the New
Jersey Action. On or about May 28, 1998, Obligors filed a notice of appeal with
the Superior Court of New Jersey Appellate Division, Docket No. A-484-97-T2 (the
"Appeal").
C. On or about May 7, 1998, the Judgment was transferred, filed and
docketed in the Circuit Court of Fairfax County, Virginia pursuant to the
Uniform Enforcement of Judgments Act, VA Code Section 8.01-465.1, et seq under
Miscellaneous Number 85602, Judgment No. 311372 (the "Virginia Judgment").
Notice of filing of foreign judgment was provided by MEDIQ to MHM on May 6, 1998
in accordance with applicable law.
D. A Garnishment Summons was served on NationsBank, N.A., and MHM on July
2, 1998, and July 6, 1998, respectively, in accordance with Va. Code Sections
8.01-511, et seq., which constitutes a garnishment and levy upon all accounts
maintained by MHM at NationsBank, N.A. (the "NationsBank Garnishment").
E. On or about July 6, 1998, a notice of lien was served on NationsBank,
N.A. and MHM in accordance with VA Code Sections 8.01-501 and 8.01-502 which
constitutes notice to NationsBank of MEDIQ's lien on all of MHM's property that
is not capable of being levied upon, including without limitation, all debts and
other monies owed by NationsBank to or which NationsBank is obligated to advance
to MHM (the "Xxxxxxxx Xxxx Notice").
F. On or about July 8, 1998, a Summons for Debtors Interrogatories was
served on MHM in accordance with Va. Code Sections 8.01-506. et seq., such
Summons commanding MHM to be examined under oath and to produce documents on
July 9, 1998, before a Commissioner in Chancery of Fairfax County, Virginia (the
"Virginia Interrogatories").
2
G. The Obligors assigned to MEDIQ, as collateral security for the
Indebtedness of Obligors to MEDIQ under the Note, certain rights, title, and
interest held by Obligors, including but not limited to indebtedness due to one
or more Obligors under a certain Promissory Note 1, dated April 5, 1996 in the
original principal amount of $1,875,000 (the "Glass Note") and collateral
pledged in connection with the Glass Note (including but not limited to the Deed
of Trust, also dated April 15, 1996 with respect to realty and improvements
located in Maryland), as more fully set forth in a Collateral Assignment of
Glass Purchase Agreements dated April 5, 1996 (the "Collateral Assignment").
H. In or about December, 1997, MEDIQ filed a complaint in the Superior
Court of Delaware for New Castle County styled MEDIQ, Inc. x. Xxxxxxx, Case No.
16528, alleging causes of action against Xxxxxxx including, inter alia, breach
of fiduciary duty (the "Xxxxxxx Action").
I. The parties have conducted discussions concerning resolution and
settlement of Obligors' Indebtedness under the Judgment, the claim asserted in
the Xxxxxxx Action, and other proceedings in connection therewith and related
thereto.
NOW THEREFORE, the parties hereto, incorporating the foregoing Background
by reference as if fully set forth below, hereby agree as follows:
AGREEMENT
1. Status of Indebtedness and Judgment. For purposes of this Agreement,
the status of the Indebtedness under the Note as of the date of this Agreement
is as follows:
(a) The amount of the Indebtedness under the Note as of April 28,
1998 was the Judgment Amount, together with all additional charges, interest and
other amounts which accrue and become due with the passage of time under the
Note, Judgment and applicable law.
(b) Obligors acknowledge and agree that the Judgment is valid,
legally binding, and enforceable pursuant to its terms, and constitutes valid
and binding obligations of Obligors.
(c) As security for the Indebtedness under the Note and Judgment,
Obligors acknowledge and agree that MEDIQ holds a valid and perfected first
priority security interest in and lien against the Glass Note and other property
identified in the Collateral Assignment (collectively, the "Collateral"), and
pursuant to the Collateral Assignment and applicable law, Obligors absolutely
and unconditionally assigned all of their respective rights and interests in the
Collateral to MEDIQ.
(d) Obligors additionally acknowledge and agree as follows:
(i) the Virginia Judgment was properly filed and notice of
filing thereof properly served upon Obligors in accordance with applicable law;
-2-
3
(ii) the NationsBank Garnishment and the Xxxxxxxx Xxxx Notice
were properly filed and served on MHM and NationsBank in accordance with
applicable law and are valid and enforceable;
(iii) the Virginia Interrogatories were properly filed and
served on MHM in accordance with applicable law and are valid and enforceable.
(iv) MEDIQ delivered all notices required by the Collateral
Assignment to MEDIQ and the obligors under the Glass Note, and MEDIQ is entitled
to receive all amounts due and owing under the Glass Note and the Collateral;
and
(v) Obligors acknowledge and agree that they hold no defense,
claim, counterclaim, setoff, recoupment, or cause of action against the
Judgment, the Virginia Judgment, the Indebtedness and/or MEDIQ, its agents,
representatives, employees and/or attorneys.
2. Settlement Amount. MEDIQ agrees that, conditioned upon Obligors' and
Xxxxxxx'x strict compliance with all terms and conditions of this Agreement,
MEDIQ shall accept the amount of Three Million ($3,000,000) Dollars or on before
July 15, 1998 (the "Closing Date") in full settlement of the Indebtedness under
the Note and Judgment, the Virginia Judgment, and claim asserted by MEDIQ in the
Xxxxxxx Action (the "Settlement Amount"). Payment of the Settlement Amount shall
be made by wire transfer of immediately available funds to MEDIQ, as designated
in writing by MEDIQ to MHM prior to the Closing Date. The date of delivery and
receipt of the Settlement Amount by Obligors and Xxxxxxx to MEDIQ and delivery
of the documents, instruments, and pleadings identified in Sections 4 and 5
below (collectively, the "Closing Documents") shall be referred to in this
Agreement as the "Closing Date."
3. Application of Settlement Amount. MEDIQ shall have complete and full
discretion in the application of the Settlement Amount paid by Obligors and
Xxxxxxx to MEDIQ under this Agreement against the Judgment Amount and claim
asserted in the Xxxxxxx Action.
4. Scheduling and Place of Closing.
(a) The Closing Date shall occur on or before July 15, 1998, time
being of the essence. The Closing will take place on July 15, 1998 at 11:00 at
the offices of Hunton & Xxxxxxxx, MEDIQ's counsel, 0000 Xxxxxxxx Xxxxx, Xxxxx
0000, XxXxxx, XX 00000, or other time and place agreed upon by MEDIQ in its sole
discretion.
(b) Delivery of Documents by MEDIQ Upon Receipt of Settlement Amount
at Closing. Upon receipt by MEDIQ of the Settlement Amount on the Closing Date,
MEDIQ shall deliver to Obligors the following documents, instruments, and
notices:
(i) Stipulation of Dismissal of the New Jersey Action, in the
form annexed hereto as Exhibit "A";
-3-
4
(ii) Stipulation releasing Judgment in the New Jersey Action
in the form annexed hereto as Exhibit "B";
(iii) Release of Judgment vacating the Virginia judgment, in
the form annexed hereto as Exhibit "C";
(iv) Praecipe of Dismissal of Garnishment filed in connection
with the Virginia Judgment, in the form annexed hereto as Exhibit "D";
(v) Original Note, marked "settled and paid";
(vi) Release by MEDIQ in favor of Obligors, in the form
annexed hereto as Exhibit "E";
(vii) Original Guaranty by Oakview and Columbia of the
Indebtedness marked "cancelled";
(viii) Release of Collateral Assignment, in the form annexed
hereto as Exhibit "F"; and
(ix) Notice to obligors under Glass Note rescinding prior
notices delivered by MEDIQ exercising MEDIQ's rights under the Collateral
Assignment, in the form annexed hereto as Exhibit "G".
(c) Delivery of Documents by Obligors to MEDIQ at Closing. At the
time of Closing, Obligors shall deliver to MEDIQ the following documents,
instruments, and notices:
(i) Release by Obligors in favor of MEDIQ in the form annexed
hereto as Exhibit "H"; and
(ii) Stipulation of Dismissal of the Appeal in the State Court
Action, in the form annexed hereto as Exhibit "I".
5. Additional Deliveries at Closing; Escrow Agreement and Escrow Documents
resolving Xxxxxxx Action. (a) Escrow and Escrow Documents. At the time of the
Closing, Xxxxxxx and MEDIQ shall deliver to MEDIQ's designee (the "Escrow
Agent") documents and pleadings which shall dismiss the Xxxxxxx Action and
release claims by and between MEDIQ and Xxxxxxx (collectively, the "Escrow
Documents"), to be held by the Escrow Agent in escrow pursuant to an escrow
agreement between MEDIQ and Xxxxxxx in the form annexed to this Agreement as
Exhibit "J" (the "Escrow Agreement"). The Escrow Documents shall include the
following:
(i) Stipulation of Dismissal of the Xxxxxxx Action, with
prejudice, in the form annexed hereto as Exhibit "K";
-4-
5
(ii) Release by MEDIQ in favor of Xxxxxxx, in the form annexed
hereto as Exhibit "L"; and
(iii) Release by Xxxxxxx in favor of MEDIQ, in the form
annexed hereto as Exhibit "M".
(b) Release of Escrow Documents by Escrow Agent. (a) The date for
release of the Escrow Documents from escrow by the Escrow Agent (the "Escrow
Document Release Date") shall be the date ninety-one (91) calendar days after
the date of receipt by MEDIQ of the Settlement Amount under this Agreement;
provided however, if prior to the expiration of the 91-day period, either an
Avoidance Action (as defined below) is commenced against MEDIQ or a case (an
"Insolvency Proceeding") is commenced by or against Obligors or Xxxxxxx or any
of them under any state or federal insolvency law, including but not limited to
the filing of a petition by or against Obligors or Xxxxxxx or any of them under
the United States Bankruptcy Code, 11 U.S.C. Sections 101, et seq. (the "Code"),
the Escrow Document Release Date shall not occur, if at all, until the date on
which the following occurs:
(i) The Insolvency Proceeding is dismissed and/or closed by
order of the court of competent jurisdiction over the Insolvency Proceeding,
such order dismissing or closing the Insolvency Proceeding is no longer subject
to reconsideration or appeal, and no adversary proceeding or action (an
"Avoidance Action") has been filed against MEDIQ asserting claims (the
"Avoidance Claims") for (i) avoidance, rescission, or return of the Settlement
Amount or any part thereof of the Settlement Amount under Sections 545, 546,
547, 548, 549, 550, and/or 553 of the Code, any state statutory or common law,
or otherwise, or (ii) rescission or rejection of the release of MEDIQ delivered
by Obligors to MEDIQ under this Agreement;
(ii) an Avoidance Action is filed and thereafter dismissed
with prejudice by order of the court of competent jurisdiction over the
Avoidance Action, and such order of dismissal is no longer subject to
reconsideration or appeal; or
(iii) the applicable statute of limitations, if any,
pertaining to such Avoidance Claims has passed and such Avoidance Action can no
longer be brought under applicable law without being barred by an applicable
statute of limitation.
(c) Forbearance in Xxxxxxx Action Pending Occurrence of Escrow
Document Release Date. MEDIQ and Xxxxxxx agree to forbear further prosecution
and defense of the Xxxxxxx Action pending the earlier to occur of the Escrow
Document Release Date or a Forbearance Event of Default (the "Forbearance Events
of Default") under this Agreement. For the purposes of this Agreement, a
Forbearance Event of Default shall include (i) the commencement of an Avoidance
Action against MEDIQ; or (ii) breach of the terms and conditions of this
Agreement by Xxxxxxx or Obligors. Upon the occurrence of a Forbearance Event of
Default, the parties' forbearance of prosecution of the Xxxxxxx Action shall
terminate without further notice or demand. The parties agree to file such
stipulations with the Court in the Xxxxxxx Action as are necessary to implement
the forbearance provided by the terms of this Agreement.
-5-
6
6. Reinstatement of Indebtedness. Obligors and Xxxxxxx acknowledge and
agree that the material inducement for MEDIQ to execute this Agreement is the
payment of the Settlement Amount. In the event (a) an Avoidance Action is
commenced against MEDIQ for the return, avoidance, rescission, or rejection of
the Settlement Amount and/or the release provided to MEDIQ under this Agreement
and (b) MEDIQ is compelled by court order or, in its sole discretion and in good
faith, MEDIQ enters into a settlement agreement with a trustee,
debtor-in-possession, or other party plaintiff to such Avoidance Action which
provides for a payment in settlement of any Avoidance Claim asserted against
MEDIQ in such Avoidance Action, the following shall occur: (i) the release by
MEDIQ of Obligors of the Indebtedness under the Note and Judgment shall be
rendered null and void ab initio without further notice or action by MEDIQ; (ii)
the entire Indebtedness will be reinstated and due and owing by Obligors to
MEDIQ; without setoff, demand, recoupment, defense, or counterclaim; and (iii)
MEDIQ shall have the right to assert a claim in any Insolvency Proceeding
against the Obligors in the full amount of the Indebtedness or against Xxxxxxx
for the alleged liability of Xxxxxxx, as applicable. Notwithstanding the
reinstatement of the Indebtedness of Obligors to MEDIQ, the release of claims by
Obligors in favor of MEDIQ shall survive and remain in full force and effect.
7. Understandings of the Parties. (a) This Agreement and other agreements
and instruments executed in connection with this Agreement herein, (i)
constitute the entire understanding between the parties hereto, (ii) without
limiting the generality of the foregoing, supersede all letters, agreements in
principle, outlines of terms or other oral or written communications between the
parties hereto, and (iii) may not be modified, amended or terminated, except by
a written agreement which is signed by each of the parties hereto.
(b) Each of the parties hereto stipulates and agrees that such party
has not relied upon any representations, statements, covenants or warranties in
entering into this Agreement and performing the respective actions contemplated
hereby other than those actually set forth in this Agreement, incorporated by
reference by this Agreement, or specifically referred to in this Agreement. All
representations and warranties contained herein shall be true and correct as of
the Closing Date.
(c) Each party represents that it has received independent advice
from legal counsel of its choosing with respect to the advisability of entering
into this Agreement and making the agreements and providing the releases,
waivers and expressions of intent contained in this Agreement.
(d) Each party represents that it has read this Agreement and
understands the contents hereof.
8. Representations and Warranties of Obligors. Obligors represent and
warrant as follows:
(a) Each Obligor (i) is duly organized and validly existing under
the laws of the state of its incorporation or organization; (ii) has the
requisite power and authority to
-6-
7
effect the transactions contemplated hereby; and (iii) has all requisite power
and authority and the legal right to own, pledge, mortgage and operate its
property, and to conduct its business.
(b) The execution, delivery and performance by each Obligor of this
Agreement, the Escrow Agreement, and all other agreements and instruments
executed in connection with this Agreement to which it is a party, (i) are
within the respective powers of such Obligor, and (ii) have been duly authorized
by all necessary corporate or partnership action, including the consent of
shareholders or partners where required.
(c) This Agreement has been duly executed and delivered by each
Obligor. This Agreement is, and each of the other agreements to which any
Obligor will be a party, when delivered hereunder or thereunder, will be a
legal, valid, and binding obligation of such Obligor, enforceable against it in
accordance with its terms.
9. Representations and Warranties of MEDIQ. MEDIQ represents and warrants
as follows:
(a) MEDIQ (i) is duly organized and validly existing under the laws
of the state of its incorporation or organization; (ii) has the requisite power
and authority to effect the transactions contemplated hereby; and (iii) has all
requisite power and authority and the legal right to conduct its business.
(b) The execution, delivery and performance by MEDIQ of this
Agreement, the Escrow Agreement, and all other agreements and instruments
executed in connection with this Agreement to which it is a party, (i) are
within the respective powers of MEDIQ, and (ii) have been duly authorized by all
necessary corporate action.
(c) This Agreement has been duly executed and delivered by MEDIQ.
This Agreement is, and each of the other agreements to which MEDIQ will be a
party, when delivered hereunder or thereunder, will be a legal, valid, and
binding obligation of MEDIQ, enforceable against it in accordance with its
terms.
10. No Third Party Beneficiaries. This Agreement is made for the sole
benefit of the parties hereto, except with respect to (a) sections above
pertaining to releases of additional parties referred to herein, who shall
receive the benefits of those releases even though they may not be parties to
this Agreement in their individual capacities, and (b) the representations,
warranties, agreements and attestations of Obligors as herein set forth, which
have been made for the protection and benefit of MEDIQ, its successors and
assigns.
11. TIME IS OF THE ESSENCE. TIME SHALL BE OF THE ESSENCE WITH RESPECT TO
EACH AND EVERY TERM OF THIS AGREEMENT.
12. Authority. Each person executing this Agreement represents and
warrants that such person is lawfully authorized and empowered to execute this
Agreement on behalf of
-7-
8
the entity on whose behalf such person is signing, and that upon execution, this
Agreement will be binding upon such entity, without any further approval,
ratification, or other action.
13. Binding on Successors and Assigns. This Agreement shall inure to the
benefit of, and shall be binding upon, Obligors, Xxxxxxx, MEDIQ, and each of
their respective successors and assigns.
14. No Waiver. No delay or omission by MEDIQ in exercising any right or
power arising under this Agreement reason of any default hereunder or thereunder
shall be construed as a waiver of such default or as an acquiescence therein,
nor shall any single or partial exercise thereof preclude any further exercise
thereof. No waiver of any default shall be construed as a waiver, acquiescence
or consent to any preceding or subsequent default.
15, Further Assurances. Obligors, Xxxxxxx and MEDIQ mutually covenant and
agree to execute any additional documents and to do all other acts reasonably
required to effect the intent and purposes of this Agreement.
16. Effective Date. This Agreement shall be effective as of the date set
forth above upon (i) receipt by MEDIQ of the Settlement Amount and (ii)
execution and delivery by the parties of the Closing Documents and execution and
delivery to the Escrow Agent of the Escrow Agreement and Escrow Documents
provided by Sections 4 and 5 herein.
17. Notice. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be given to each party hereto (i)
by U.S. First Class Mail and (ii) either overnight delivery service, telecopy,
or U.S. Certified Mail as follows:
If to Obligors and Xxxxxxx:
MHM Services, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxx Caligaro, Esquire
Telecopy No.: 703-749-4604
with a copy to:
Gins & Greenfield
0000 "X" Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy No. 000-000-0000
Att'n: Xxxxxxx X. Xxxx, Esquire
-8-
9
20. Counterparts. This Agreement may be executed by each party in
identical counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one agreement binding upon all
parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
MHM Services, Inc.
By: /s/ X. X. XXXXXXX
----------------------------------
Its: President
OAKVIEW LIMITED PARTNERSHIP
By: MHM Services, Inc.
Its General Partner
By: /s/ X. X. XXXXXXX
------------------------------
Its: President
COLUMBIA ASSOCIATES LIMITED PARTNERSHIP
By: MHM Services Inc.
Its General Partner
By: /s/ X. X. XXXXXXX
------------------------------
Its: President
/s/ XXXXXXX X. XXXXXXX
--------------------------------------
XXXXXXX X. XXXXXXX
MEDIQ, INCORPORATED
By: /s/ XXXX X. XXXXXXX
----------------------------------
Its: General Counsel
-9-
10
If to MEDIQ:
MEDIQ, Incorporated
Xxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esquire
Telecopy No.: 000-000-0000
with a copy to.
DRINKER XXXXXX & XXXXX
0000 Xxxxxxxx Xxxxxx
XXX Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Telecopy No.: 000-000-0000
Att'n: Xxxxxx X. Xxxxxxx, Esquire
(or at such other address as shall be designated by such party in a notice to
each other party complying with the terms of this Section).
18. Partnership. Nothing herein shall be deemed or construed to create a
partnership or joint venture between any of the parties hereto.
19. Governing Law. This Agreement and performance hereunder shall be
governed by the laws of the State of Delaware.
[THIS SPACE LEFT INTENTIONALLY BLANK]
-9-
11
20. Counterparts. This Agreement may be executed by each party in
identical counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one agreement binding upon all
parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
MHM Services, Inc.
By:___________________________________
Its:__________________________________
OAKVIEW LIMITED PARTNERSHIP
By:___________________________________
Its General Partner
By:________________________________
Its:_______________________________
COLUMBIA ASSOCIATES LIMITED PARTNERSHIP
By:___________________________________
Its General Partner
By:________________________________
Its:_______________________________
______________________________________
XXXXXXX XXXXXXX
MEDIQ, INC.
By:___________________________________
Its:__________________________________
-00-
00
XXXXXXX XXXXXXX
A Professional Corporation
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
Attorneys for Plaintiff MHM Services, Inc. and
Third-Party Defendants Columbia Health Associates
Limited Partnership and Oakview Limited Partnership
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION-CAMDEN COUNTY
DOCKET NO. CAM-L-004026-97
-------------------------
MHM SERVICES, INC., :
a Delaware corporation, :
:
Plaintiff, : Civil Action
:
v. : STIPULATION OF DISMISSAL
: WITHOUT COSTS
MEDIQ, INCORPORATED, :
a Delaware corporation, :
:
Defendant. :
-------------------------
The matter in difference in the above-entitled action having been amicably
settled and adjusted by and between the parties, it is hereby stipulated and
agreed that the same (inclusive of the complaint, counterclaim and third-party
complaint) be and is hereby dismissed with prejudice, subject to the terms and
conditions of that certain settlement Agreement between the parties, dated as of
July 15, 1998 without costs.
XXXXXX XXXXXXX, P.C. DRINKER XXXXXX & XXXXX, LLP
Attorneys for Plaintiff MHM Attorneys for Defendant
Services, Inc. and Third-Party MEDIQ, Incorporated
Defendants Columbia Health
Associates Limited Partnership
and Oakview Limited Partnership
By:______________________________ By:______________________________
Xxxxxx X. Xxxxxxxxxx Xxxx X. Xxxxxxx
13
XXXXXXX XXXXXXX
A Professional Corporation
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
Attorneys for Plaintiff MHM Services, Inc. and
Third-Party Defendants Columbia Health Associates
Limited Partnership and Oakview Limited Partnership
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION-CAMDEN COUNTY
DOCKET NO. CAM-L-004026-97
------------------------- Judgment No.
MHM SERVICES, INC., :
a Delaware corporation, : Book , Page
:
Plaintiff, : Civil Action
:
v. : WARRANT OF RELEASE
: OF JUDGMENT
MEDIQ, INCORPORATED, :
a Delaware corporation, :
:
Defendant. :
-------------------------
TO: THE CLERK OF THE ABOVE NAMED COURT
You are hereby directed to release of record the judgment docketed in the
office of the Clerk of the Superior Court of New Jersey on April 17, 1998, in
the above entitled action, in favor of defendant MEDIQ, Incorporated, judgment
creditor, and against plaintiff MHM Services, Inc. judgment debtor, in the
amount of $11,783,423.31, plus interest and costs.
DRINKER XXXXXX & XXXXX, LLP
Attorneys for Debtor
By:__________________________________
Xxxx X. Xxxxxxx
14
CERTIFICATION
I certify that the foregoing statements made by me are true. I am aware
that if any of the foregoing statements made by me are willfully false, I am
subject to punishment.
_____________________________________
Xxxx X. Xxxxxxx
-2-
15
RELEASE OF JUDGMENT
KNOW ALL MEN BY THESE PRESENTS that _______________, the duly authorized
________________ and agent for Mediq Incorporated, judgment creditor, hereby
directs the Clerk of the Circuit Court of Fairfax County, Virginia, to enter on
the judgment lien docket the release of the following judgment: the judgment
lien docket the release of the following judgment: the judgment rendered in the
Superior Court of New Jersey for Camden County on April 17, 1998, in favor of
Mediq Incorporated against MHM Services, Inc., in the suit styled MHM Services,
Inc. V. Mediq Incorporated, Docket No. CAM-L-004026-97, and docketed in the
Circuit Court of Fairfax County, Virginia, on May 8, 1998, in Judgment Book
______, page ___, in the amount of $11,783,423.31, plus interest calculated in
accordance with New Jersey Rule 4:42-11(a)(iii) (currently 5.5 percent per
annum) from April 17, 1998 until paid.
GIVEN under my hand this _______ day of July, 1998.
_______________________________
Name___________________________
Title__________________________
COMMONWEALTH OF VIRGINIA )
COUNTY OF FAIRFAX ) TO-WIT:
Personally appeared before me, the undersigned Notary Public, __________,
____________, of Mediq Incorporated, a _________________, corporation, whose
name is signed to the foregoing instrument and acknowledged the same before me
this ____ day of July, 1998, on behalf of the corporation.
____________________________
Notary Public
My commission expires:____________________________
16
IN THE CIRCUIT COURT OF FAIRFAX COUNTY
------------------------------
PLAINTIFF/JUDGMENT CREDITOR
AT LAW NO.
------------------------------ --------------------
DEFENDANT/DEBTOR
JUDGMENT NO.
--------------------
------------------------------
GARNISHEE
GARNISHMENT PRAECIPE
(check one only)
Plaintiff/Judgment Creditor requests that the following action be taken in this
garnishment action at this time:
1) Enter the attached Order For Payment
------
2) Dismiss this garnishment action
------
3)* Continue this matter to Friday, on the 9:00 a.m.
------ --------------------
without a Judge docket for service or for an answer from the
Co-Defendant.
4)* Enter the attached Rule to Show Cause against the Co-Defendant
------ returnable Friday, at 10:00 a.m.
-----------------
5)* Continue this matter to Friday, at 10:00 a.m.
------ -------------------
for further proceedings against the Co-Defendant.
*If you are requesting that this matter be placed on the Motions Day docket
pursuant to 3, 4 or 5 above you must also file the Court's Motions' Day
Praecipe Notice Form.
Dated:
----------------------------------------- ------------------------
Counsel for Plaintiff/Plaintiff
Va. State Bar #
--------------------------
-----------------------------------------
Address
-----------------------------------------
-----------------------------------------
Phone #
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was mailed postage prepaid
to all counsel of record or pro se parties this day of , 19 .
----- --------- --
Counsel for Plaintiff/Plaintiff:
------------------------
17
RELEASE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, MEDIQ, Incorporated (the "Releasor"), does hereby
absolutely and unconditionally forever release, discharge and acquit MHM
Services, Inc., Oakview Limited Partnership, and Columbia Health Associates
Limited Partnership and their respective affiliates, subsidiaries, officers,
directors, partners, employees, and respective successors and assigns
(collectively, the "Releasee" or the "Releasees"), of and from any and all
claims, demands, obligations, liabilities, indebtedness, breaches of contract,
breaches of duty or any relationship, acts, omissions, misfeasance, malfeasance,
cause or causes of action, debts, sums of money, accounts, compensation,
contracts, controversies, promises, damages, costs, losses and expenses, of
every type, kind, nature, description or character, and irrespective of how,
why, or by reason of what facts, whether heretofore or now existing, of whatever
kind or name, whether known or unknown, suspected or unsuspected, liquidated or
unliquidated, from the beginning of the world to the date hereof, that the
Releasor held against Releasees, including, without limitation, any claims
arising under or related to the action styled MHM Services, Inc. v. Mediq,
Incorporated, pending in the Superior Court of New Jersey, Case No.
CAM-L-004026-97.
As further consideration for this Release, the Releasor hereby agrees,
represents and warrants that the matters released herein are not limited to
matters which are known or disclosed, and the Releasor hereby waives any and all
rights and benefits which it has upon it, including, without limitation, claims
which the Releasor does not know or suspect to exist in its favor at the time of
executing this Release, which if known by it may have materially affected its
settlement with the Releasees; provided, however, that the release set forth
herein shall not include a release of claims arising from Releasees' breach of
their obligations under that certain Settlement Agreement by and among
Releasors, Releasees, and Xxxxxxx Xxxxxxx, dated as of July 15, 1998 (the
"Settlement Agreement"). Capitalized terms not defined in this Release shall
have the same meaning assigned to such terms in the Settlement Agreement.
This Release shall be null and void ab initio, and of no force and
effect in the event that (i) an Avoidance Action is commenced seeking avoidance,
rescission, or return of the Settlement Amount or any portion thereof or the
release of Releasor by Releasees under the Settlement Agreement and (ii) MEDIQ
(a) is compelled by court order to make payment on account of Avoidance Claims
asserted in such Avoidance Action or (b) in its sole discretion but in good
faith enters into a settlement agreement with the plaintiff to such Avoidance
Action which provides for a payment in settlement of such Avoidance Claims.
The acceptance of delivery of this Release by the parties released
hereby shall not be deemed or construed as an admission of liability by any
party released by the terms hereof, and each such party hereby expressly denies
liability of any nature whatsoever arising from or related to the subject of the
within Release.
The Releasor hereby agrees, represents and warrants that it has had
advice of counsel of its own choosing in negotiations for and the preparation of
this Release, that it has read this Release or has had the same read to it by
its counsel, that it has had this Release fully explained
18
by such counsel, and that it is fully aware of its contents and legal effect.
IN WITNESS WHEREOF, the undersigned has executed this Release on this
____ day of July 1998.
MEDIQ, INCORPORATED
By: __________________________________
Title:
In the presence of :
STATE OF NEW JERSEY :
ss
COUNTY OF ________________ :
On , 1998 before me personally came _____________, known to me to be the
individual described herein, and who executed the foregoing RELEASE, and duly
acknowledged to me that he executed the same and that such execution was his
free act and deed.
______________________________________
Notary Public
-2-
19
RELEASE
THIS RELEASE is made this ___ day of ___________________________, 1998 by
MEDIQ INCORPORATED.
RECITALS
R-1. Pursuant to the terms of that certain Collateral Assignment of Glass
Purchase Agreements dated April 5, 1996, from Oakview Limited Partnership
("Oakview") and Columbia Health Associates Limited Partnership ("CHALP"), the
following documents were collaterally assigned to MEDIQ, ("Lender") to secure
certain financing agreements between the Lender, Mental health Management,
Inc., Oakview and CHALP (collectively, the "Pledged Documents"):
(a) Purchase Money Note No. 1 from Glass Mental Health Foundation,
Inc., payable to the order of Oakview and CHALP dated April 5,
1996 in the original principal amount of $1,875,000 ("Note 1");
and
(b) Security Agreement dated April 5, 1996 from Glass Mental Health,
Inc. securing Oakview and CHALP; and
(c) Purchase Money Deed of Trust and Security Agreement from Glass
Mental Health, Inc., securing Oakview and CHALP and recorded in
Liber 3700 in folio 315 among the Land Records of Xxxxxx County,
Maryland.
R-2. The collateral assignment of the Pledged Documents was subject to the
prior rights of Congress Financial Corporation ("Congress").
R-3. As a result of the prior rights of Congress, Note 1 was delivered to
Congress and never delivered to Lender.
R-4. The indebtedness secured by the Pledged Documents has been resolved
by settlement and the Lender desires to terminate and release any security
interest it has in the Pledged Documents.
NOW, THEREFORE, in consideration of the mutual premises herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Lender agrees as follows:
1. The Recitals are incorporated herein by reference.
2. The indebtedness secured by the Pledged Documents has been resolved
by settlement. At the time of the resolution of such indebtedness, Lender
continued to be the holder of the security interest in the Pledged Documents.
1
20
3. Lender hereby releases any security interest it holds in the Pledged
Documents and agrees to execute any further documents reasonably necessary to
effectuate its release of such security interest, including UCC-3 terminations,
if necessary.
IN WITNESS WHEREOF, the Lender has executed this release as of the date
first above written.
ATTEST/WITNESS: LENDER:
MEDIQ INCORPORATED
______________________________ By:_____________________________
STATE OF MARYLAND :
: ss:
COUNTY OF ____________________ :
I HEREBY CERTIFY THAT on this ____ day of __________, 1998, before the
undersigned, a Notary Public of the State and County aforesaid personally
_____________________________, who acknowledged himself/herself to be the
__________________________ of MEDIQ Incorporated, a corporation, and that
he/she, as such officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(SEAL)
_______________________________
Notary Public
MY COMMISSION EXPIRES:
2
21
July__, 1998
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
Reference is made to a certain Purchase Money Deed of Trust and
Security Agreement from Glass Mental Health, Inc., securing the Oakview Limited
Partnership ("Oakview") and Columbia Health Associates Limited Partnership
("CHALP") indebtedness; a certain Security Agreement, dated April 5, 1996, from
Glass Mental Health, Inc. securing the Oakview and CHALP indebtedness; a
Purchase Money Note No. 1, dated April 5, 1996, in the face amount of
$1,875,000, and a Purchase Money Note No. 2, dated April 5, 1996, in the face
amount of $275,000 (collectively "Notes") each of which Notes have been executed
by Glass Mental Health Foundation, Inc. and assigned to Congress.
Recognizing that Congress has been paid in full, we hereby waive any
requirement that these Notes be transferred to us, as provided for at the time
of the assignment, and claim no rights in and to these Notes.
MEDIQ INCORPORATED
By:____________________________
Title:_________________________
22
RELEASE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, the undersigned MHM Services, Inc., Oakview Limited
Partnership and Columbia Health Associates Limited Partnership, and their
respective subsidiaries, affiliates, successors and assigns (collectively, the
"Releasors"), do hereby absolutely and unconditionally forever release,
discharge and acquit MEDIQ, Incorporated and its respective affiliates,
subsidiaries, officers, directors, attorneys, agents and employees
(collectively, the "Releasee" or the "Releasees"), of and from any and all
claims, demands, obligations, liabilities, indebtedness, acts, omissions,
misfeasance, malfeasance, cause or causes of action, debts, sums of money,
accounts, compensation, contracts, controversies, promises, damages, costs,
losses and expenses, of every type, kind, nature, description or character, and
irrespective of how, why, or by reason of what facts, whether heretofore or now
existing, of whatever kind or name, whether known or unknown, suspected or
unsuspected, liquidated or unliquidated, from the beginning of the world to the
date hereof.
As further consideration for this Release, the Releasors hereby agree,
represent and warrant that the matters released herein are not limited to
matters which are known or disclosed, and the Releasors hereby waive any and all
rights and benefits which now have conferred upon them, including, without
limitation, claims which the Releasors do not know or suspect to exist in favor
of Releasor at the time of executing this Release, which if known by them or any
of them may have materially affected their respective settlements with the
Releasee.
The acceptance of delivery of this Release by the parties released
hereby shall not be deemed or construed as an admission of liability by any
party released by the terms hereof, and each such party hereby expressly denies
liability of any nature whatsoever arising from or related to the subject of the
within Release.
The Releasors hereby agree, represent and warrant that they have had
advice of counsel of their own choosing in negotiations for and the preparation
of this Release, that they have read this Release or has had the same read to
them by their counsel, that they have had this Release fully explained by such
counsel, and that they are fully aware of its contents and legal effect.
23
IN WITNESS WHEREOF, the undersigned have executed this Release on
this____day of July, 1998.
MHM Services, Inc.
BY:____________________________
Its:___________________________
In the presence of
COMMONWEALTH OF VIRGINIA :
: ss
COUNTY OF :
On_____________, 1998 before me personally came ____________________________,who
has been proven to me to be the____________________________of MHM Services, Inc.
described herein, and who executed the foregoing RELEASE, and duly acknowledged
to me that he executed the same and that such execution was his free act and
deed.
______________________________________
Notary Public
OAKVIEW LIMITED PARTNERSHIP
By:__________________________________
Its General Partner
By:__________________________________
Its:_________________________________
In the presence of
COMMONWEALTH OF VIRGINIA :
: ss
COUNTY OF :
On _________, 1998 before me personally came ______________,who has been proven
to me to be the_____________of Oakview Limited Partnership, described herein,
and who executed the foregoing RELEASE, and duly acknowledged to me that he
executed the same and that such execution was his free act and deed.
____________________________________
Notary Public
2
24
COLUMBIA ASSOCIATES LIMITED PARTNERSHIP
By:_____________________________________
Its General Partner
By: ____________________________________
Its:
In the presence of
COMMONWEALTH OF VIRGINIA :
: ss
COUNTY OF :
On _________, 1998 before me personally came _________________________, who has
been proven to me to be the _______________________ of Columbia Associates
Limited Partnership, described herein, and who executed the foregoing RELEASE,
and duly acknowledged to me that he executed the same and that such execution
was his free act and deed.
________________________________________
Notary Public
3
25
XXXXXXX XXXXXXX
A Professional Corporation
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
Attorneys for Plaintiff MHM Services, Inc. and
Third-Party Defendants Columbia Health Associates
Limited Partnership and Oakview Limited Partnership
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4840-97-T2
--------------------------
MHM SERVICES, INC., :
a Delaware corporation, :
:
Plaintiff : Civil Action
:
v. : STIPULATION OF DISMISSAL
: WITHOUT COSTS
:
MEDIQ, INCORPORATED, :
a Delaware corporation, :
:
Defendant :
--------------------------
The matter in difference in the above-entitled action having been
amicably settled and adjusted by and between the parties, it is hereby
stipulated and agreed that the same (inclusive of the complaint, counterclaim
and third-party complaint) be and is hereby dismissed without costs.
XXXXXX XXXXXXX, P.C. DRINKER XXXXXX & XXXXX, LLP
Attorneys for Plaintiff MHM Attorneys for Defendant
Services, Inc. and Third-Party MEDIQ, Incorporated
Defendants Columbia Health
Associates Limited Partnership
and Oakview Limited Partnership
By: By:
--------------------- -----------------
Xxxxxx X. Xxxxxxxxxx Xxxx X. Xxxxxxx
26
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of this day of
July, 1998, by and between Xxxxxxx Xxxxxxx ("Xxxxxxx"), MEDIQ, Incorporated
("MEDIQ") and Hunton & Xxxxxxxx (the "Escrow Agent").
BACKGROUND
WHEREAS, Xxxxxxx, MEDIQ and other interested parties have entered into
a Settlement Agreement of even date herewith (the "Settlement Agreement"), which
Settlement Agreement is hereby incorporated herein by reference. Pursuant to the
terms of the Settlement Agreement, Xxxxxxx and MEDIQ have agreed to deliver the
Escrow Documents (as hereinafter defined) to the Escrow Agent. The parties
desire to provide for an escrow of the Escrow Documents as more fully set forth
below. All terms capitalized herein not otherwise defined shall have the
definitions given to them in the Settlement Agreement.
WITNESSETH:
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound, hereby covenant and agree as follows:
27
1. Incorporation by Reference. The recitals set forth above and the
exhibits attached thereto are hereby incorporated herein by reference as if set
forth in full in the body of this Agreement.
2. Appointment of Escrow Agent; Acceptance of Appointment. Xxxxxxx and
MEDIQ hereby appoint Escrow Agent to act as escrowee under this Agreement, and
Escrow Agent, by its execution of this Agreement, hereby accepts such
appointment and agrees to act in such capacity by holding, administering and
disbursing the Escrow Documents (as hereinafter defined) in accordance with the
terms and conditions of this Agreement. No fees shall be due to Escrow Agent for
acting in such capacity hereunder.
3. The Escrow Documents and the Release Document. The parties
acknowledge that the following documents (collectively the "Escrow Documents")
shall be delivered to the Escrow Agent at the time of the Closing, duly executed
by Xxxxxxx and MEDIQ, properly acknowledged, and otherwise in form and substance
satisfactory to MEDIQ:
(i) Stipulation of Dismissal of the Xxxxxxx Action, identified
as Exhibit K to the Settlement Agreement (the "Stipulation of Dismissal");
(ii) Release identified as Exhibit "L" to the Settlement
Agreement (the "Xxxxxxx Release"); and
(iii) Release identified as Exhibit "M" to the Settlement
Agreement (the "MEDIQ Release").
- 2 -
28
4. Release of the Escrow Documents. The Escrow Documents shall be
released from escrow upon receipt by Escrow Agent of a written request from
Xxxxxxx, which shall be simultaneously delivered to MEDIQ, demanding the release
of the Escrow Documents in accordance with the terms of the Settlement Agreement
(the "Xxxxxxx Demand"). Upon receipt by Escrow Agent of Xxxxxxx'x Demand, unless
Escrow Agent receives a written notice from MEDIQ within three (3) business days
after receipt of the Xxxxxxx Demand objecting to the Xxxxxxx Demand and stating
that the Escrow Document Release Date has not occurred under the Settlement
Agreement, Escrow Agent shall cause the (i) Xxxxxxx Release and Stipulation of
Dismissal to be delivered to Xxxxxxx at such address as Xxxxxxx may direct and
(ii) the MEDIQ Release to be delivered to MEDIQ at such address as MEDIQ may
direct. Delivery of the Escrow Documents shall be via certified mail, return
receipt requested or guaranteed overnight courier.
5. Status, Rights and Duties of Escrow Agent; Indemnification.
a. The parties hereto hereby confirm and agree that the
status, rights and duties of Escrow Agent hereunder shall be governed
by the following provisions:
(1) It is agreed that the duties of Escrow Agent
hereunder are only such as are herein specifically provided,
being purely ministerial in nature, and that Escrow Agent
shall incur no liability hereunder whatsoever except for its
willful misconduct or gross negligence, and Escrow Agent shall
not incur any liability hereunder with respect to any action
taken or omitted by Escrow Agent
- 3 -
29
(A) in good faith upon the advice of its legal counsel given with respect to any
questions relating to the duties and responsibilities of Escrow Agent hereunder,
(B) in reliance on any instrument, including any written notice or instruction
provided for in this Agreement, not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which Escrow Agent shall in good
faith believe to be genuine, to have been signed or presented by a person or
persons having authority to sign or present such instrument, and to conform to
the provisions of this Agreement, or (C) pursuant to any judgment, decree, or
order of a court adjudicating any dispute arising under this Agreement or with
respect to the Escrow Documents, Escrow Agent being hereby authorized and
directed to act in accordance with such judgment, decree or order regardless of
whether an appeal has been or may be taken therefrom by Xxxxxxx or MEDIQ.
(2) Escrow Agent shall be under no responsibility with respect to the
Escrow Documents other than faithfully to hold the same as herein provided and
thereafter to deliver the same in accordance with the provisions of this
Agreement and any subsequent instructions given in accordance with the
provisions of this Agreement.
(3) Escrow Agent assumes no liability under this Agreement except that
of a stakeholder.
- 4 -
30
(4) Following the release and delivery of the Escrow Documents
as provided in this Agreement, Escrow Agent shall have no further
duties or liabilities hereunder.
x. Xxxxxxx and MEDIQ hereby irrevocably waive and covenant not to
bring any suit, claim, demand or cause of action of any kind which either one or
both may have or assert against Escrow Agent arising out of or relating to the
execution or performance by Escrow Agent of this Agreement, unless such suit,
claim, demand or cause of action is based upon the Escrow Agent's willful
misconduct or gross negligence. Xxxxxxx and MEDIQ hereby indemnify Escrow Agent
against, and hold Escrow Agent harmless from, any and all claims, actions,
demands, losses, damages, expenses (including, without limitation, court costs
and reasonable attorneys' fees) and liabilities that may be imposed in
connection with the performance of Escrow Agent's duties hereunder, including,
without limitation, any litigation arising with respect to this Agreement or
involving the subject matter hereof, but excluding any such claims, actions,
demands, losses, damages, expenses and liabilities resulting from or arising out
of any willful misconduct or gross negligence by Escrow Agent hereunder. In the
event Xxxxxxx and MEDIQ are opposing parties in such litigation, the party
prevailing in such litigation shall be reimbursed promptly upon demand by the
other party in an amount equal to that amount which the prevailing party shall
have paid Escrow Agent with respect to such litigation and the subject matter
thereof and for its counsel fees and costs pertaining to such litigation. The
provisions of this subsection (b) shall survive the termination of this
Agreement.
- 5 -
31
c. Escrow Agent may resign at any time upon ten (10) days'
prior written notice to Xxxxxxx and MEDIQ, and may be removed by the
mutual consent of Xxxxxxx and MEDIQ upon ten (10) days' prior written
notice to Escrow Agent. Prior to the effective date of the resignation
or removal of Escrow Agent or any successor escrow agent, Xxxxxxx and
MEDIQ shall jointly appoint a successor escrow agent to hold the Escrow
Documents, and any such successor escrow agent shall execute and
deliver to the predecessor escrow agent an instrument accepting such
appointment, whereupon such successor escrow agent shall, without
further act, become vested with all of the rights, powers and duties of
the predecessor escrow agent as if originally named herein. Prior to
the appointment of such successor escrow agent and such successor
escrow agent's acceptance of such appointment, the escrow agent who is
resigning or being removed shall continue to serve in such capacity
and, upon such appointment and acceptance, the predecessor escrow agent
shall cooperate and take all necessary actions to transfer the Escrow
Documents to the successor escrow agent.
6. Notices. All notices, statements, demands, requests, consents,
communications and certificates from any party hereto to the others shall be in
writing sent by United States Registered or Certified Mail, return receipt
requested, postage prepaid, or by express courier service with guaranteed
overnight delivery, in either case addressed as follows:
a. If intended for MEDIQ:
MEDIQ, Incorporated
Xxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esquire
- 6 -
32
With a copy to:
Drinker Xxxxxx & Xxxxx
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esquire
b. If intended for Xxxxxxx:
Xx. Xxxxxxx Xxxxxxx
000 Xxxxxxx Xxxxxxxx Xxxxx
XxXxxx, XX 00000
With a copy to:
Gins & Greenfield
0000 "X" Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Att'n: Xxxxxxx X. Xxxx, Esquire
If intended for Escrow Agent:
Hunton & Xxxxxxxx
0000 Xxxxxxxx Xxxxx, Xxxxx 0000
XxXxxx, XX 00000
Att'n: Xxxxx Xxxxxx Najjoum, Esquire
or to such other addresses or entities any party hereto may from time to time
direct by service of notice on the other parties as provided above. Any such
notices, statements, demands, requests, consents, communications or certificates
shall be deemed received two (2) days after the same is deposited with the
United States Postal Service or one (1) day after the same is delivered to a
courier service with guaranteed overnight delivery.
- 7 -
33
7. Miscellaneous.
a. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
b. This Agreement:
(1) may only be amended by an instrument in writing
signed by each of the parties hereto;
(2) shall be governed by and construed in accordance
with the laws of the State of Virginia; and
[THIS SPACE LEFT INTENTIONALLY BLANK]
- 8 -
34
(3) may be executed in any number of counterparts,
each of which shall be an original and all of
which together shall constitute but one and the
same instrument.
THE PARTIES WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY
ACTION CONCERNING PERFORMANCE UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
MEDIQ, INCORPORATED
By _______________________
XXXXXXX XXXXXXX
HUNTON & XXXXXXXX
By: ______________________
- 9 -
35
RELEASE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are hereby acknowledged, MEDIQ, Incorporated (the "Releasor"), does hereby
absolutely and unconditionally forever release, discharge and acquit XXXXXXX
XXXXXXX and his successors and assigns (collectively, the "Releasee" or the
"Releasees"), of and from any and all claims, demands, obligations, liabilities,
indebtedness, breaches of contract, breaches of duty or any relationship, acts,
omissions, misfeasance, malfeasance, cause or causes of action, debts, sums of
money, accounts, compensation, contracts, controversies, promises, damages,
costs, losses and expenses, of every type, kind, nature, description or
character, and irrespective of how, why, or by reason of what facts, whether
heretofore or now existing, of whatever kind or name, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, from the beginning of the
world to the date hereof, that the Releasor held against Releasee, including,
without limitation, any claims arising under or related to the action styled
Mediq, Incorporated v. Xxxxxxx Xxxxxxx pending in the Superior Court of
Delaware, Case No.__________.
As further consideration for this Release, the Releasor hereby agrees,
represents and warrants that the matters released herein are not limited to
matters which are known or disclosed, and the Releasor hereby waives any and all
rights and benefits which it now has conferred upon them, including, without
limitation, claims which the Releasor does not know or suspect to exist in its
favor at the time of executing this Release, which if known by it may have
materially affected its settlement with the Releasees; provided, however, that
the release set forth herein shall not include a release of claims arising from
Releasee's breach of his obligation under that certain Settlement Agreement by
and among Releasors, Releasee, MHM Services, Inc., Oakview Limited Partnership,
and Columbia Health Associates Limited Partnership dated as of July 15, 1998
(the "Settlement Agreement"). Capitalized term not defined in this Release shall
have the same meaning assigned to such terms in the Settlement Agreement.
This Release shall be null and void ab initio, and of no force and
effect in the event that (i) an Avoidance Action is commenced seeking avoidance,
rescission, or return of the Settlement Amount of any portion thereof and (ii)
MEDIQ (a) is compelled by court order to make payment on account of Avoidance
Claims asserted in such Avoidance Action or (b) in its sole discretion but in
good faith enters into a settlement agreement with the plaintiff to such
Avoidance Action which provides for a payment in settlement of such Avoidance
Claims.
The acceptance of delivery of this Release by the parties released
hereby shall not be deemed or construed as an admission of liability by any
party released by the terms hereof, and each such party hereby expressly denies
liability of any nature whatsoever arising from or related to the subject of the
within Release.
The Releasor hereby agrees, represents and warrants that it has had
advice of counsel of its own choosing in negotiations for and the preparation of
this Release, that it has read this Release or has had the same read to it by
its counsel, that it has had this Release fully explained by such counsel, and
that it is fully aware of its contents and legal effect.
36
IN WITNESS WHEREOF, the undersigned has executed this Release on this
_____ day of July, 1998.
MEDIQ, Incorporated
By ______________________________
Title
In presence of
STATE OF NEW JERSEY :
: ss
COUNTY OF CAMDEN :
On ___________, 1998, before me personally came __________known to be the
individual described herein, and who executed the foregoing RELEASE, and duly
acknowledged to me that he executed the same and that such execution was his
free act and deed.
______________________________
Notary Public
- 2 -
