RELEASE
Exhibit 99.7
RELEASE
This
RELEASE (the “Agreement”) is made
and entered into this April 13, 2010 by and between each of INTEGRATED
HEALTHCARE HOLDINGS, INC., a Nevada corporation, WMC-A, INC., a California
corporation, WMC-SA, INC., a California corporation, XXXXXXX MEDICAL CENTER,
INC., a California corporation, and COASTAL COMMUNITIES HOSPITAL, INC., a
California corporation (individually, a “Borrower” and
together, the “Borrowers”), on the
one hand, and Xxxxxx X. Xxxxxx, Receiver ("Receiver"), appointed
by the United States District Court for the Central District of California,
Southern Division on behalf of each of MEDICAL CAPITAL CORPORATION, a Nevada
corporation, MEDICAL CAPITAL HOLDINGS, INC., a Nevada corporation, MEDICAL
PROVIDER FINANCIAL CORPORATION I, a Nevada corporation (“MPFC I”), MEDICAL
PROVIDER FINANCIAL CORPORATION II, a Nevada corporation (“MPFC II”), MEDICAL
PROVIDER FINANCIAL CORPORATION III, a Nevada corporation (“MPFC III”), MEDICAL
PROVIDER FINANCIAL CORPORATION IV, a Nevada corporation (“MPFC IV”) and MEDICAL
PROVIDER FUNDING CORPORATION V, a Nevada corporation (“MPFC V”, and together
with MPFC I, MPFC II, MPFC III and MPFC IV, collectively, "MPFC") (individually,
a “Lender” and
together, the “Lenders”), on the
other hand.
BACKGROUND
A. The
Borrowers and MPFC I are parties to that certain $50 Million Revolving Credit
Agreement, dated October 9, 2007 (as amended or otherwise modified to date, the
“$50 Million
Agreement”). The $50 Million Agreement and the related
loan and loan documents may have been assigned to MPFC V and further
collaterally assigned to Xxxxx Fargo Bank, N.A. The Borrowers and
MPFC II are parties to that certain $80 Million Credit Agreement, dated October
9, 2007 (as amended or otherwise modified to date, the “$80 Million
Agreement”). The Borrowers and MPFC III are parties to that
certain $10.7 Million Revolving Credit Agreement, dated October 9, 2007 (as
amended or otherwise modified to date, the “$10.7 Million
Agreement”). The $10.7 Million Agreement and the related
loan and loan documents may have been assigned to MPFC IV and further
collaterally assigned to The Bank of New York Mellon (formerly known as The Bank
of New York).
B. The
obligations of the Borrowers under the $50 Million Agreement,
$80 Million Agreement and $10.7 Million Agreement are evidenced by
those certain notes, dated October 9, 2007, with such outstanding balances as
are set forth on Exhibit A to this
Agreement (collectively, the “Notes”).
C. As
security for the obligations under the $50 Million Agreement,
$80 Million Agreement and $10.7 Million Agreement, the Borrowers have
entered into those certain loan documents, dated October 9, 2007, pursuant to
which the Borrowers granted to the applicable Lenders liens and security
interests in certain collateral, all as set forth on Exhibit B to this
Agreement (collectively, the “Loan
Documents”).
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D. The
$50 Million Agreement, $80 Million Agreement and $10.7 Million
Agreement, together with the Notes and Loan Documents described above, are
collectively referred to herein as the “Credit
Facilities”.
E. The
Borrowers allege a credit balance of approximately $4,903,037 under the $50
Million Agreement (the “Credit
Balance”). Lenders have alleged a default by the Borrowers
under all of the Credit Facilities and the Borrowers have asserted certain
claims against the Lenders in connection with the Credit Facilities and the
alleged Credit Balance.
F. KPC
Resolution Company, LLC, a California limited liability company (“Purchaser”), an
entity wholly owned by Xx. Xxxx Xxxxxxxxx has entered into a Loan Purchase and
Sale Agreement with the Lenders, dated January 13, 2010, under which it will
purchase and the Lenders will sell to KPC Resolution Company the entire lender's
interest in all of the Credit Facilities and outstanding warrants to purchase
shares of Integrated Healthcare Holdings, Inc. held by Lenders and concurrently
terminate any collateral or other interests assigned to third party lenders (the
“Purchase
Agreement”).
G. Pursuant
to that certain Preliminary Injunction and Order Appointing a Permanent Receiver
(the "Order")
entered on August 17, 2009 by the Court in Case No. SACV 09-818 DOC (RNBx) (the
"Case"),
Receiver was appointed receiver of MEDICAL CAPITAL CORPORATION, a Nevada
corporation and certain of its affiliated entities.
NOW, THEREFORE, incorporating the
Background section herein, and in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, each of the Lenders and the Borrowers agree as follows:
AGREEMENT
1. Release by
Borrowers.
(a) Effective
immediately following the completion of the purchase and sale of the Credit
Facilities to Purchaser under the Purchase Agreement, each Borrower, on behalf
of itself, and any person or entity claiming by or through such Borrower
(collectively, the “Borrower Releasors”),
hereby unconditionally remises, releases, and forever discharges each Lender and
its respective past and present officers, directors, shareholders, agents,
employees, parent
corporations, subsidiaries, affiliates, trustees, administrators, attorneys,
predecessors, successors and assigns, including without limitation the Receiver,
and the heirs, executors, administrators, and successors and assigns of any such
person or entity, as releasees (collectively, the “Lender Releasees”),
of and from any and all manner of actions, causes of action, suits, debts, dues,
accounts, bonds, covenants, contracts, agreements, promises, warranties,
guaranties, representations, liens, judgments, claims, counterclaims,
crossclaims, defenses, and/or demands whatsoever, including claims for
contribution and/or indemnity, whether now known or unknown, past or present,
asserted or unasserted, contingent or liquidated, at law or in equity, or
resulting from any assignment, if any, which any of the Borrower Releasors ever
had, now have, or may have against any of the Lender Releasees, for or by reason
of any cause, matter, or thing whatsoever, whether direct or indirect, known or
unknown, foreseen or unforeseen, arising from the beginning of time to the date
hereof, relating to or arising under any of the Credit Facilities, the Case or
the Property (collectively, the “Borrower Claims”),
including, without limitation, any claims arising with respect to MPFC's alleged
failure to fund advances of the $50,000,000 Loan and MPFC's alleged
"oversweeping" of Borrowers' collections of Borrowers' accounts
receivable. Each of the Borrowers hereby expressly waives the
provisions of Section 1542 of the California Civil Code in connection with the
matters which are the subject of the foregoing waivers and releases, which
provides:
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"A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
and all
similar provisions or rules of law. Each of the Borrowers elects to
and does assume all risk for the Borrower Claims heretofore and hereafter
arising, whether now known or unknown by such party.
(b) Each
Borrower represents and warrants that it has not assigned, pledged,
hypothecated, and/or otherwise divested itself or encumbered all or any part of
the Borrower Claims being released hereby and that it hereby agrees to indemnify
and hold harmless any and all of Lender Releasees against whom any Borrower
Claim so assigned, pledged, hypothecated, divested, or encumbered is
asserted. Each Borrower covenants and agrees never to commence,
voluntarily aid in any way, foment, prosecute, or cause to be commenced or
prosecuted against the Lender Releasees any action or other proceeding based on
any of the Borrower Claims, which may have arisen from the beginning of time to
the date hereof, relating to or arising from the lending or any other
relationship between Lender and Borrowers under the Credit
Facilities.
2. Limited Release by
Lenders.
(a) Effective
immediately following the completion of the sale of the Credit Facilities to
Purchaser under the Purchase Agreement, each Lender, on behalf of itself, and
any person or entity claiming by or through such Lender, including the Receiver
(collectively, the “Lender Releasors”),
hereby releases, covenants not to xxx, and forever discharges each Borrower and
its respective past and present officers, directors, shareholders, agents,
employees, parent corporations, subsidiaries, affiliates, trustees,
administrators, attorneys, predecessors, successors and assigns, and the heirs,
executors, administrators, and successors and assigns of any such person or
entity, as releasees (the "Borrower Releasees"),
from rights, claims, cross-claims, counter-claims, demands, liabilities,
obligations, warranties, guaranties, representations, liens, judgments, actions
and causes of action which any of the Lender Releasors ever had, now have, or
may ever have, against any of the Borrower Releasees that arise solely in
connection with (i) any obligation to pay principal, interest on such
principal, fees, costs, penalties, charges, reimbursements or guaranties,
whether as obligor or guarantor, under any of the Loan Documents and
(ii) any difference between the amounts due and owing from
Borrowers to Lenders under the Loan Documents and the
purchase price payable to Lenders by Purchaser under the Purchase
Agreement (collectively, the “Lender Claims”);
provided, however, that, without limitation of any other claims that the Lender
Releasors may have against Borrower Releasees, the Lender Releasors are not
releasing the Borrower Releasees from any indemnity obligations under the Loan
Documents or to the extent any Borrower Releasees committed fraud,
misrepresentation, concealment of material fact, any torts or any criminal
activity in connection with the Credit Facilities.
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(b) Other
than pursuant to the Purchase Agreement, each Lender represents and warrants
that it has not assigned, pledged, hypothecated, and/or otherwise divested
itself or encumbered all or any part of the Lender Claims being released
hereby. Each Lender covenants and agrees never to commence,
voluntarily aid, prosecute, or cause to be commenced or prosecuted against the
Borrower Releasees any action or other proceeding based on any of the Lender
Claims, which may have arisen from the beginning of time to the date
hereof.
3. Conditions Precedent to
Enforceability of Amendment.
The
effectiveness of this Agreement shall be conditioned upon and subject to each of
the following:
(a) Purchaser
shall have consummated his purchase of all of the Credit Facilities under the
Purchase Agreement;
(b) The
Borrowers shall have executed and delivered this Agreement to the Lenders;
and
(c) The
Receiver shall have executed and delivered this Agreement to the Borrowers on
behalf of the Lenders, and as of the date of such execution and delivery the
Receiver shall have all requisite power and authority to enter into this
Agreement on behalf of each of the Lenders and bind each of the Lenders to all
provisions of this Agreement.
4. Successors and
Assigns.
This
Agreement (i) shall be binding on each of the Borrowers and the Lenders and
on their respective nominees, successors, and assigns, and (ii) shall inure
to the benefit of the Borrowers and the Lenders and to their respective
nominees, successors, and assigns.
5. Governing
Law.
This
Agreement shall be construed in accordance with and governed by the internal
laws of the State of California without reference to conflict of laws principles
and irrespective of the governing law clauses in the Credit
Facilities.
6. Non-Severability of
Provisions.
The
provisions of this Agreement must be read as a whole and are not severable
and/or separately enforceable by any party hereto. If any provision
of this Agreement is held to be inoperative, unenforceable, void or invalid,
then this Agreement shall be considered void ab initio and of no force or
effect.
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7. Integration.
This
Agreement and the documents referred to, comprising, or relating to this
Agreement constitute the sole agreement of the parties with respect to the
subject matter hereof and thereof and supersede all oral negotiations and prior
writings with respect to the subject matter hereof and thereof.
8. References to Credit
Facilities
The
Credit Facilities and any and all other agreements, documents, or instruments
now or hereafter executed and delivered pursuant to the terms hereof or pursuant
to the terms of the Credit Facilities, as amended or modified hereby, are hereby
amended and modified so that any reference to the Credit Facilities shall mean a
reference to the Credit Facilities, as amended or modified hereby.
9. No Third-Party
Beneficiaries.
Notwithstanding
anything to the contrary contained herein, no provision of this Agreement or any
other document executed in connection herewith is intended to benefit any party
other than the signatories hereto nor shall any such provision be enforceable by
any other party.
10. Headings.
The
headings and underscoring of articles, sections, and clauses have been included
herein for convenience only and shall not be considered in interpreting this
Agreement.
11. Amendment and
Waiver.
No
amendment of this Agreement and no waiver, discharge, or termination of any one
or more of the provisions hereof, shall be effective unless set
forth in writing and signed by all of the parties hereto.
12. Counterparts.
This
Agreement may be executed in any number of counterparts and by the different
parties on separate counterparts and each such counterpart shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same Agreement. This Agreement shall be deemed to have been executed
and delivered when the Secured Party has received counterparts hereof executed
by all parties listed on the signature pages below. Counterpart
signature pages received by telecopy or electronically by PDF attachment shall
be deemed original signature pages.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties to this
Agreement have caused this Agreement to be executed individually, or by their
duly authorized officers or members on the date first written
above.
BORROWERS:
|
INTEGRATED
HEALTHCARE
HOLDINGS,
INC., a Nevada corporation,
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx,
President
|
WMC-A,
INC., a California corporation,
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx,
President
|
|
WMC-SA,
INC., a California corporation,
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx,
President
|
COASTAL
COMMUNITIES
HOSPITAL,
INC., a California corporation,
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx,
President
|
|
XXXXXXX
MEDICAL CENTER, INC.,
a
California corporation,
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx,
President
|
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LENDERS:
|
/s/ Xxxxxx X.
Xxxxxx
Xxxxxx
X. Xxxxxx, as Receiver, appointed by the United States District Court for
the Central District of California, Southern Division for the
Lenders
|
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EXHIBIT
A
Notes and Outstanding
Balances
Principal balances
outstanding as of April 13, 2010
|
$10.7
Million Credit Agreement (convertible note)
|
$ | 5,968,268 | ||
|
$80.0
Million Credit Agreement (secured term note)
|
45,000,000 | |||
|
$80.0
Million Credit Agreement (secured non-revolving line of
credit)
|
29,999,633 | |||
|
$50.0
Million Credit Agreement (credit balance)
|
( 4,903,037 | ) 1 |
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EXHIBIT
B
Loan
Documents
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