EXHIBIT 10.25
(FORM OF FORBEARANCE AND TOLLING AGREEMENT)
FORBEARANCE AND TOLLING AGREEMENT
This Forbearance and Tolling Agreement (this "AGREEMENT"), is made and
entered into this 14th day of August, 2002, by and among Med Diversified, a
Nevada corporation, ("MED"); Xxxxx X. Xxxxxxxxxxxx, Xx. an individual
("XXXXXXXXXXXX", and together with Med, the "MED PARTIES"); National Century
Financial Enterprises, Inc., an Ohio corporation (the "NCFE PARTY"); on the one
hand, and Private Investment Bank Limited, a Bahamian bank and trust company,
("PIBL"); PIB Trust Company Limited, a Bahamian trust company ("PIB"); and
Banque de Patrimoines Prives Geneve BPG SA, a Swiss banking company ("BPG",
together with PIBL and PIB, the "PIBL PARTIES"); on the other hand (the Med
Parties, the NCFE Party, and the PIBL Parties are collectively referred to as
the "PARTIES", and each individually as a "PARTY"), with reference to the facts
recited below:
RECITALS
WHEREAS, on June 14, 2002, Med commenced a civil action against PIBL and
certain other parties identified therein in the Superior Court for the County of
Los Angeles, as Case No. BC275773, entitled MED DIVERSIFIED, INC., A NEVADA
CORPORATION, VS. PRIVATE INVESTMENT BANK LIMITED, AN ENTITY OF UNKNOWN FORM; PIB
TRUST COMPANY LIMITED, AN ENTITY OF UNKNOWN FORM; BANQUE DE PATRIMOINES PRIVES
GENEVE BPG SA, AN ENTITY OF UNKNOWN FORM; SOCIETE FINANCIERE DU SEUJET LTD., A
BRITISH VIRGIN ISLANDS CORPORATION; XXXXXX X. XXXXXXXXX AND DOES 1 THROUGH 100,
INCLUSIVE, which has been amended and removed to the United States District
Court for the Central District of California, as Case No. 02-05046, and in
response to such removal, Med has filed a Notice of Motion and Motion for Remand
of said action to State Court (such litigation, the "MED LITIGATION");
WHEREAS, on June 18, 2002, PIBL commenced a civil action against Med, the
NCFE Party and Xxxxxxxxxxxx in the United States District Court for the Central
District of California, as Case No. 02-04802, entitled PRIVATE INVESTMENT BANK
LIMITED, A BAHAMIAN BANK AND TRUST COMPANY V. MED DIVERSIFIED, INC., A NEVADA
CORPORATION; NATIONAL CENTURY FINANCIAL ENTERPRISES, INC., AN OHIO CORPORATION;
AND XXXXX XXXXXXXXXXXX, XX., AN INDIVIDUAL, and in response to such action,
Xxxxxxxxxxxx has filed a Motion to Dismiss for Lack of Personal Jurisdiction
(such litigation, the "PIBL LITIGATION");
WHEREAS, the Parties acknowledge that the "ACTIONS" shall refer to Case No.
BC275773, Case No. 02-05046, Case No. 02-04802 and any other case number
hereafter assigned that maintains an action or actions against substantially the
same parties identified in the Med Litigation and/or the PIBL Litigation and
concerning substantially the same issues as set forth therein;
WHEREAS, notwithstanding the above referenced Actions, certain of the
Parties identified herein have entered into, among other settlement documents,
that certain Amendment Agreement, dated as of June 28, 2002 (the "AMENDMENT
AGREEMENT"; capitalized terms used herein and without definition shall have the
meanings ascribed to them in the Amendment
Agreement), by and among Med; American Reimbursement, LLC, a Delaware limited
liability company ("ARL"); PIBL; TEGCO Investments, LLC, a Delaware limited
liability company and each of the Med Subsidiaries;
WHEREAS, it is a condition to the obligations of PIBL to consummate the
Closing under the Amendment Agreement, that the Med Parties and the NCFE Party
enter into this Agreement;
WHEREAS, it is a condition to the obligations of Med to consummate the
Closing under the Amendment Agreement, that the PIBL Parties enter into this
Agreement; and
WHEREAS, it is a condition of certain financial and other accommodations
being provided by the NCFE Party to Med in connection with the Closing under the
Amendment Agreement, that the PIBL Parties enter into this Agreement.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. CLAIMS.
(A) Each of the PIBL Parties, on the one hand, and the Med Parties,
on the other hand, recognize that they may have claims, against each other or
against the respective officers, shareholders, attorneys, agents, or
representatives of the other (collectively, the "CLAIM AFFILIATES" of the
respective Parties), for damages, settlement amounts, costs, or attorneys' fees
or other liabilities they have incurred or will incur arising out of or relating
to (i) the Original Debentures, (ii) the transactions covered by that certain
Acknowledgment and Agreement of Rescission, executed as of June 14, 2002 and
effective as of December 28, 2001 (the "RESCISSION AGREEMENT"), by and between
Med and PIBL, (iii) the Actions, or (iv) the transactions and events relating to
any of the foregoing prior to the Closing (any such claims, the "COVERED
CLAIMS", and any single such claim the "COVERED CLAIM"). Covered Claims may be
legal or equitable, arise under statute, common law, by virtue of contract or
otherwise, and shall include not only lawsuits but other proceedings, including
any arbitrations or mediations that may be permitted or required by other
applicable agreements between the affected Parties. Notwithstanding anything to
the contrary herein, "Covered Claims" shall not include any claims arising out
of or relating to the Amendment Agreement, the Amended Debentures or the other
Modification Document (as defined in the Amendment Agreement).
(B) Each of the PIBL Parties, on the one hand, and the NCFE Party, on
the other hand, recognize that they may have claims each other or against the
respective officers, shareholders, attorneys, agents, or representatives of the
other (collectively, the "PIBL/NCFE CLAIM AFFILIATES" of the respective Parties;
PROVIDED that PIBL/NCFE Claim Affiliates shall not include any entity, officer,
shareholder, attorney, agent, or representative of the NCFE Party who or which
is also Med or a Claim Affiliate of Med as defined in the foregoing clause (A)),
for damages, settlement amounts, costs, or attorneys' fees or other liabilities
they have incurred or will incur arising out of or relating to (i) the Original
Debentures, (ii) the transactions covered by the Rescission Agreement, (iii) the
Actions, or (iv) the transactions and events relating to any of
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the foregoing prior to the Closing (any such claims, the "PIBL/NCFE CLAIMS", and
any single such claim the "PIBL/NCFE CLAIM"). PIBL/NCFE Claims may be legal or
equitable, arise under statute, common law, by virtue of contract or otherwise,
and shall include not only lawsuits but other proceedings, including any
arbitrations or mediations that may be permitted or required by other applicable
agreements between the affected parties.
2. AGREEMENT TO FORBEAR, DISMISS AND TOLL. Effective upon the Effective
Date (as defined in Section 3 below), each of the PIBL Parties, on the one hand,
and each of the Med Parties and the NCFE Party, on the other hand, hereby
covenant and agree that (A) none of them shall file, and neither of them has,
nor shall they, sell, assign or otherwise transfer to any other Party, or
otherwise pursue any Covered Claims or PIBL/NCFE Claims, as the case may be,
that they may have against any Claim Affiliates or PIBL/NCFE Claim Affiliates,
as the case may be; (B) within five (5) days following the Effective Date, they
shall each stipulate for or request the dismissal of, without prejudice, any and
all lawsuits or similar actions that any of the Med Parties or the NCFE Party,
on the one hand, or any of the PIBL Parties, on the other hand, may have filed
against the other in any and all jurisdictions; (C) any and all statutes of
limitations and/or equitable defenses (including, but not limited to, laches,
waiver and estoppel) applicable to any Covered Claim or PIBL/NCFE Claim shall be
suspended and tolled such that no periods of limitation and/or equitable
defenses applicable to such Covered Claim or PIBL/NCFE Claim shall run, and no
statutes of limitations shall expire, during the period of time that the tolling
provisions of this Section 2 are in effect; and (D) none of the Med Parties, the
NCFE Party or the PIBL Parties shall put forward or otherwise rely on the period
of time that the tolling provisions of this Section 2 are in effect to support
any statute of limitations or other equitable defense to any claims asserted by
the other.
3. EFFECTIVE DATE/ PERIOD OF TOLLING. This Agreement shall be effective
only if and when the Closing under the Amendment Agreement occurs, and shall be
deemed effective as of the date of any such Closing (the "EFFECTIVE DATE"). If
the Closing under the Amendment Agreement does not occur on or before August 15,
2002, this Agreement shall be null and void AB INITIO, and shall be of no
further force and effect. The tolling period shall commence as of the Effective
Date and shall end on the ninety-first (91st) day following payment in full of
all amounts owing to the Holders under the Amendment Agreement, the Amended
Debentures and the other Modification Documents (the "TOLLING END DATE").
4. EFFECT OF TOLLING. As a result of such tolling, any Party who
commences a Covered Claim against any Claim Affiliates, or a PIBL/NCFE Claim
against any PIBL/NCFE Claim Affiliates, before the Tolling End Date occurs,
shall be deemed to have commenced its Covered Claim or its PIBL/NCFE Claim, as
the case may be, as of the Effective Date of this Agreement; and any Party who
commences a Covered Claim against any Claim Affiliates, or a PIBL/NCFE Claim
against any PIBL/NCFE Claim Affiliates after the Tolling End Date (if it
occurs), shall be deemed to have commenced its Covered Claim or PIBL/NCFE Claim,
as the case may be, that number of days after the Effective Date of this
Agreement equal to the number of days after the Tolling End Date (if it occurs)
such Party actually commenced such claim. Notwithstanding any of the foregoing
provisions, this Agreement is not intended by the Parties to cover, and does not
cover, any claim that any Party may have had or may now have upon which
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the applicable statute of limitations, doctrine of laches or any other
time-based defense, if any, had run as of the Effective Date. This Agreement is
without prejudice to the assertion of any right or defense other than rights or
defenses arising from a statute of limitations, doctrine of laches, and all
other defenses based upon the passage of time, as specified herein.
5. AGREEMENT TO RELEASE.
(A) Each of the Med Parties, on the one hand, and each of the PIBL
Parties, on the other hand, hereby covenant and agree that, effective upon the
Tolling End Date (and effective only if such Tolling End Date occurs): (i) each
hereby releases the other and their respective Claim Affiliates from any and all
claims, liabilities and obligations each of them may owe to the other, or to
their respective Claim Affiliates, of whatever kind or nature, arising under or
related to the Covered Claims, the Amended Debentures and all other agreements,
instruments, transactions, and documents related to the Covered Claims or the
Amended Debentures, except as otherwise provided in any Amended Debentures or in
any of the Modification Documents; and (ii) any Debenture Collateral and any and
all amounts remaining in the ARL Collection Account and the Med Collection
Account shall be released from the Holders' lien thereon and shall be free from
Amended Debenture restriction against return to Med, ARL or any owner thereof.
In the event that there shall occur one or more Event of Default under the
Amendment Agreement, then, unless the Med Parties and the PIBL Parties expressly
agree otherwise in writing, the above described forbearance with respect to
Covered Claims shall become null and void, and of no further force and effect,
and each of the Med Parties and the PIBL Parties shall be free to pursue any
Covered Claims that they may have against the other or their respective Claim
Affiliates.
(B) Effective upon the Effective Date, the NCFE Party and each of the
PIBL Parties, each for itself and behalf of its own PIBL/NCFE Claim Affiliates,
hereby covenant and agree that (i) each provisionally releases the other and the
other's PIBL/NCFE Claim Affiliates from any PIBL/NCFE Claims; and (ii) in the
event that there shall occur one or more Event of Default under the Amendment
Agreement, then, unless the NCFE Party and each of the PIBL Parties expressly
agree otherwise in writing, such provisional release shall be null and void and
of no further force and effect, and the NCFE Party and each of the PIBL Parties
shall be free to pursue any PIBL/NCFE Claims that they may have against the
other or their respective PIBL/NCFE Claim Affiliates; and (iii) if no such Event
of Default shall have occurred, such provisional release shall become final and
cease to be provisional in nature upon the Tolling End Date (if such date
occurs).
6. NO PROHIBITION OF CLAIMS. Nothing in this Agreement shall in any
manner preclude or restrict a Party from commencing a Covered Claim or a
PIBL/NCFE Claim, as the case may be, against any other person or entity not a
Party and not a Claim Affiliate or a PIBL/NCFE Claim Affiliate of a Party to
this Agreement, that, in its sole discretion, at any time, the Party determines
to do so.
7. ADDITIONAL PARTIES. All the current Parties to this Agreement
acknowledge that it may be desirable for other defendants, persons, or entities
to join in this Agreement. The Parties
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therefore agree that any other person or entity who now is or who later becomes
a defendant in the Actions may become a party to this Agreement, vested with all
the rights and obligations as if an original signatory, by executing a joinder
(a "JOINDER") to this Agreement in substantially the form attached as Exhibit A;
PROVIDED, that: (a) no such defendant shall be joined to this Agreement as one
of the PIBL Parties, an NCFE Party, or as one of the Med Parties, without
obtaining the written acknowledgment on such Joinder, respectively, of each of
the PIBL Parties, the NCFE Party or the Med Parties, as the case may be; and (b)
no such defendant shall be entitled to enforce this Agreement against
(including, without limitation, by asserting this Agreement as a defense to any
action) any of the PIBL Parties, any of the NCFE Parties, or any of the Med
Parties, unless, as the case may be, PIBL, NCFE or Med, respectively, has
consented to such defendant joining this Agreement as a Party.
8. ADDITIONAL DOCUMENTATION AND COOPERATION WITH FURTHER PROCEEDINGS.
The Parties agree to execute any additional documentation and cooperate in any
further proceedings necessary to effectuate the terms of this Agreement.
9. NO DEEMED ADMISSIONS OR CONCESSIONS. Nothing about this Agreement
shall be deemed or construed as an express or implied admission by any Party
hereto as to any fact or concession as to any legal issue in connection with the
Actions.
10. INTEGRATION AND REPRESENTATIONS. This document constitutes the entire
agreement and understanding between the Parties concerning the subject matter
hereof, and supersedes and replaces all prior negotiations, proposed agreements
and agreements, written and oral, relating to the subject matter. The Parties
hereto acknowledge that no other Party, and no agent or attorney of any other
Party, has made any promise, representation or warranty whatsoever, express or
implied, not contained in this Agreement concerning the subject matter hereof,
to induce them to execute this document, and acknowledge that they have not
executed this instrument in reliance on any such promise, representation or
warranty not contained herein. Each of the Parties has read this Agreement and
understands its contents. Each of the Parties has made such an investigation of
the facts pertinent to this Agreement and of all the matters pertaining to it as
the Party deemed necessary. Each of the Parties acknowledges that it has been
represented by legal counsel of its own choice throughout all negotiations which
preceded the execution of this Agreement and that it has executed this Agreement
with the advice of such legal counsel.
11. CONFIDENTIALITY. The Parties each agree that the terms of this
Agreement are to remain confidential and that they shall not disclose such terms
to any other person; PROVIDED, HOWEVER, that this Section 11 shall not prohibit:
(A) disclosures by a Party of this Agreement or any terms hereof to
the extent such information has already been made public through no wrongful act
by or on behalf of such Party;
(B) disclosures to the following persons or entities: (i) those whose
knowledge is necessary to carry out the provisions of this Agreement, including,
accountants, auditors, legal
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counsel or financial advisers to or of the respective Parties, and (iii) the
holders of a beneficial interest in the Original Debentures or the Amended
Debentures, and such holders' respective accountants, auditors, legal counsel or
financial advisers; PROVIDED in the case of the foregoing clauses (i) or (ii),
the Party making the disclosure shall inform the recipient of the disclosure of
the confidential nature of this Agreement and request that such recipient honor
and abide by the provisions of this Section 11; and
(C) disclosures (i) required for the enforcement of this Agreement,
(ii) required in response to a lawful subpoena or document request, or (iii) as
otherwise required by applicable law or order of a court, arbitrator,
governmental agency, regulatory authority or other tribunal or governmental
authority of competent jurisdiction; PROVIDED in the case of the foregoing
clauses (ii) or (iii), the Party making the disclosure shall, within five (5)
business days upon notification that disclosures are required under the
foregoing clauses (ii) or (iii), provide each of NCFE, Med and PIBL a written
notice (at the address or fax number set forth underneath their respective
signatures hereto) of such Party's intent to make such disclosure, including in
such notice the identity of the court, arbitrator governmental agency or other
tribunal or governmental authority to which or pursuant to the order of which
such disclosure is to be made, so as to allow another Party hereto to attempt to
take actions to quash or limit such subpoena, document request or other such
disclosure requirement solely for the purpose of protecting this Agreement's
confidentiality; provided that there shall be no liability for any Party failing
to provide such notice except to the extent that any other Party is actually
prejudiced by such failure.
12. HEADINGS. Section and paragraph headings contained in this Agreement
are for convenience and shall not be considered for any purpose in construing
it.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but which together
shall be deemed to constitute a single document. Copies of the Agreement shall
have the same effect and enforceability as the original.
14. SEVERABILITY. In the event that any covenant, condition or other
provision of this Agreement is held to be invalid, void or illegal by any court
of competent jurisdiction, it shall be deemed severable from the remainder and
shall in no way affect, impair or invalidate any other covenant, condition or
provision of this Agreement.
15. BINDING ON SIGNATORIES, SUCCESSORS AND ASSIGNS. This Agreement shall
bind and inure to the benefit of the signatories and their agents, successors,
and assigns.
16. MODIFICATION. Modifications to this Agreement must be in writing,
signed by representatives of all Parties.
17. GOVERNING LAW. Disputes among the Parties concerning the terms of
this Agreement or any interpretation of it, including actions to enforce the
terms of this Agreement, shall be governed by the laws of the State of New York
without regard to its choice of law provisions.
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18. WAIVER OF TERMS. A waiver of any term or condition of this Agreement
will not be deemed to be, and may not be construed as, a waiver of any other
term or condition hereof. Moreover, a waiver by one Party to this Agreement will
not be deemed to be, and may not be construed as, a waiver by any other Party.
19. NO IMPLIED WAIVER OF RIGHTS. Nothing in this Agreement is intended to
waive any claims, rights or remedies between the Parties except as specifically
provided herein. This Agreement shall not create any agency or similar
relationship among the Parties.
20. NEUTRAL CONSTRUCTION. Each Party has cooperated in the drafting and
preparation of this Agreement. Hence, this Agreement will be construed
neutrally, and will not be applied more strictly against one Party than another.
21. DENIAL OF LIABILITY. Each of the Parties expressly denies liability
in the Actions. Nothing in this Agreement should be construed as any admission
of liability.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
MED DIVERSIFIED, INC.
By:
-------------------------------------------
Name:
Title:
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn:
-----------------------------------------
NATIONAL CENTURY FINANCIAL ENTERPRISES, INC.
By:
-------------------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Telecopy: (000) 000-0000
Attn:
-----------------------------------------
XXXXX X. XXXXXXXXXXXX, XX.
By:
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx, Xx.
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
PRIVATE INVESTMENT BANK LIMITED
By:
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Name:
Title:
Address:
Telecopy:
Attn:
-----------------------------------------
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BANQUE DE PATRIMOINES PRIVES GENEVE BPG SA
By:
-------------------------------------------
Name:
Title:
Address:
Telecopy:
Attn:
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PIB TRUST COMPANY LIMITED
By:
-------------------------------------------
Name:
Title:
Address:
Telecopy:
Attn:
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EXHIBIT A
AGREEMENT TO JOIN FORBEARANCE AND TOLLING AGREEMENT
___________________ is a defendant in any and all of the "Actions" as
defined in the Recitals of that certain Forbearance and Tolling Agreement, dated
as of ____________, 2002, and effective as of ______________, 2002 (the
"AGREEMENT"), initially by and among Med Diversified, a Nevada corporation
("MED"); Xxxxx X. Xxxxxxxxxxxx, Xx., an individual ("XXXXXXXXXXXX", and together
with Med, the "MED PARTIES"), National Century Financial Enterprises, Inc., an
Ohio corporation (the "NCFE PARTY"), on the one hand, and Private Investment
Bank Limited, a Bahamian bank and trust company ("PIBL"); PIB Trust Company
Limited, a Bahamian trust company ("PIB"); and Banque de Patrimoines Prives
Geneve BPG SA, a Swiss banking company ("BPG", and together with PIBL and PIB,
the "PIBL PARTIES"), on the other hand.
___________________ hereby agrees to become a party to the Agreement as
[one of the "Med Parties"] [an "NCFE Party"] [one of the "PIBL Parties"], as
acknowledged and accepted by the ["Med Parties"] ["NCFE Party"] ["PIBL Parties"]
identified below, and to share in all its rights and obligations, pursuant to
Section 7 of the Agreement, as if it were an original signatory to the
Agreement.
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By:
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Name:
Title:
Address:
Telecopy:
Attn:
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ACKNOWLEDGED AND ACCEPTED BY:
["Med Parties"] ["NCFE Party"] ["PIBL Parties"]
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Name:
Title:
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