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EXHIBIT 99.2
AGREEMENT TO FORBEAR
This AGREEMENT TO FORBEAR ("FORBEARANCE AGREEMENT") is made to
be
effective as of December 18, 2006 (the "EFFECTIVE DATE") by and
among INTEGRATED
HEALTHCARE HOLDINGS, INC., a Nevada corporation ("IHHI"), WMC-SA,
INC., a
California corporation ("WMC-SA"), WMC-A, INC., a California
corporation
("WMC-A"), CHAPMAN MEDICAL CENTER, INC., a California corporation
("CHAPMAN"),
COASTAL COMMUNITIES HOSPITAL, INC., a California corporation
("Coastal"),
PACIFIC COAST HOLDINGS INVESTMENT, LLC, a California limited
liability company
("PCHI"), ORANGE COUNTY PHYSICIANS INVESTMENT NETWORK, LLC, a
Nevada limited
liability company ("OC-PIN"), GANESHA REALTY, LLC, a California
limited
liability company ("GANESHA"), WEST COAST HOLDINGS, LLC, a
California limited
liability company ("WEST COAST"), MEDICAL PROVIDER FINANCIAL
COMPANY II, a
Nevada corporation ("LENDER"), and HEALTHCARE FINANCIAL MANAGEMENT
&
ACQUISITIONS, INC., a Nevada corporation ("HOLDER") . IHHI, WMC-SA,
WMC-A,
Coastal and Chapman are hereinafter together sometimes referred to
as the
"BORROWERS"; PCHI, Ganesha, and West Coast are hereinafter together
sometimes
referred to as the "CREDIT PARTIES"; and PCHI and OC-PIN are
hereinafter
together sometimes referred to as the "GUARANTORS."
RECITALS
A. Lender, Borrowers and the Credit Parties are parties to that
certain
Credit Agreement dated as of December 12, 2005 ("CREDIT
AGREEMENT"); IHHI and
Lender are parties to that certain Security Agreement dated as of
December 12,
2005 ("SECURITY AGREEMENT"); PCHI executed and delivered to Lender
that certain
Guaranty Agreement dated as of December 12, 2005 ("PCHI GUARANTY");
OC-PIN
executed and delivered to Lender that certain Guaranty Agreement
dated as of
December 12, 2005 ("OC-PIN GUARANTY"); Lender and West Coast are
parties to that
certain Pledge Agreement dated as of December 12, 2005 ("WEST COAST
PLEDGE
AGREEMENT"); Lender and certain individual members of West Coast
are parties to
that certain Pledge Agreement dated as of December 12, 2005
("MEMBERS OF WEST
COAST PLEDGE AGREEMENT"); Lender and IHHI are parties to that
certain Pledge
Agreement dated as of December 12, 2005 ("IHHI PLEDGE AGREEMENT");
Lender and
Ganesha are parties to that certain Pledge Agreement dated as of
December 12,
2005 ("GANESHA PLEDGE AGREEMENT"); and IHHI executed and delivered
to Holder
that certain Common Stock Warrant dated as of December 12, 2005
("WARRANT"). The
Credit Agreement, the Security Agreement, the PCHI Guaranty, the
OC-PIN
Guaranty, the West Coast Pledge Agreement, the Members of West
Coast Pledge
Agreement, the IHHI Pledge Agreement, the Ganesha Pledge Agreement,
the Warrant,
and each of the other documents and instruments executed in
connection with the
Credit Agreement are hereinafter collectively referred to as the
"$10.7 MILLION
LOAN DOCUMENTS." The terms and condition set forth in the $10.7
Million Loan
Documents are incorporated herein by reference even though not
physically
attached hereto. Capitalized terms not defined in this Forbearance
Agreement
shall have the same meaning as set forth in the $10.7 Million Loan
Documents.
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B. Pursuant to the $10.7 Million Loan Documents, Lender extended
to
Borrowers a loan in the amount of $10,700,000 ("$10.7 MILLION LOAN
") for the
purpose of operating and managing the Hospital Facilities defined
in the Credit
Agreement. In consideration for making the $10.7 Million Loan to
the Borrowers,
IHHI executed and delivered the Warrant to Holder. Borrowers,
Credit Parties and
Guarantors acknowledge and agree that the aggregate total of
principal and
interest due and owing under the $10.7 Million Loan as of September
30, 2006 is
$10,805,534.25.
C. The Credit Agreement provides that the $10.7 Million Loan is due
and
payable in full on December 12, 2006 ("MATURITY DATE"). Section
9(a) of the
Warrant provides that IHHI (as the Company) shall file a
registration statement
under the Securities Act of 1933 covering the resale of all Shares
of Holder
(the "REGISTRATION STATEMENT") no later than ninety (90) calendar
days prior to
the Maturity Date of the $10.7 Million Loan (which date is
September 13, 2006)
(the "FILING DATE").
D. IHHI did not file the Registration Statement by September 13,
2006
(the "DEFICIENCY"), and has requested that Lender and Holder extend
the Filing
Date to May 15, 2007 and forbear from exercising their respective
rights and
remedies under the $10.7 Million Loan Documents and Warrant with
respect to the
Deficiency. Lender and Holder each desire to extend the Filing Date
and forbear
from exercising their respective rights and remedies under the
$10.7 Million
Loan Documents and Warrant with respect to the Deficiency.
AGREEMENTS
NOW, THEREFORE, in consideration of the covenants and conditions
set
forth in this Forbearance Agreement, and for other good and
valuable
consideration the receipt and sufficiency of which is hereby
acknowledged,
Borrowers, Credit Parties, Guarantors, Lender and Holder agree as
follows:
1. INCORPORATION OF RECITALS. The foregoing Recitals are
incorporated by
reference as if fully set forth herein.
2. AGREEMENTS
2.1 FORBEARANCE PERIOD; AGREEMENT TO FORBEAR. The period commencing
on
the Effective Date of this Forbearance Agreement and ending on May
15, 2007 is
hereinafter referred to as the "FORBEARANCE PERIOD." So long as
Borrowers,
Credit Parties and Guarantors timely comply with their respective
obligations
under the $10.7 Million Loan Documents and under the Deeds of
Trust, and so long
as IHHI (as the Company) timely complies with its obligations under
the Warrant
(as amended below), and so long as no Event(s) of Default occurs
under the $10.7
Million Loan Documents or the Warrant or the Deeds of Trust or this
Forbearance
Agreement, then Lender and Holder each agree as follows ("AGREEMENT
TO
FORBEAR"):
(a) The first sentence of Section 9(a) of the Warrant shall be
amended
and restated in its entirety to read as follows:
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"The Company shall file a registration statement (the
"REGISTRATION
STATEMENT") under the Securities Act of 1933, as amended and the
rules and
regulations promulgated thereunder (the "SECURITIES ACT"), covering
the resale
of all Shares of the Holder no later than May 15, 2007 (the "FILING
DATE"), and
use its reasonable best efforts to have the registration statement
declared
effective by the Securities and Exchange Commission ("SEC") as soon
as
practicable but no later than 90 days after the Filing Date (or 120
days if the
Registration Statement is reviewed by the SEC), for distribution
thereof by
means of an underwriting."
(b) During the Forbearance Period, Holder will forbear from filing
a
lawsuit against IHHI to enforce its obligations under the Warrant
with respect
to the Deficiency.
(c) During the Forbearance Period, Lender will forbear from
charging
interest at the Default Rate.
2.2 EXPRESS RESERVATION OF OTHER REMEDIES. Lender's and
Holder's
Agreement to Forbear is the exclusive and only forbearance to which
Lender and
Holder have agreed. Lender and Holder expressly reserve the right
to exercise
each and every of their other rights and remedies under the $10.7
Million Loan
Documents, the Warrant and the Deeds of Trust not specifically
included within
Lender's and Holder's Agreement to Forbear.
2.3 NEGATIVE COVENANTS DURING THE FORBEARANCE PERIOD. Borrowers,
Credit
Parties and Guarantors each promise, covenant and agree as
follows:
(a) During the Forbearance Period, Borrowers, Credit Parties
and
Guarantors will not directly or indirectly file, serve, take,
initiate,
prosecute, participate or cooperate in the filing, serving, taking,
initiating
or prosecuting of, any legal action or proceeding against Lender or
Holder.
(b) During the Forbearance Period, Borrowers, Credit Parties
and
Guarantors (other than Ganesha) will not directly or indirectly (i)
sell,
transfer, assign, convey, lease, sublease, or otherwise transfer,
or agree to
sell, transfer, assign, convey, lease or sublease, or otherwise
transfer, any
interest in any real property or improvements (together "REAL
PROPERTY ASSETS")
owned, controlled, leased or subleased by Borrowers, or Credit
Parties or
Guarantors as of the Effective Date hereof; (ii) grant a lien or
security
interest in, or otherwise pledge, encumber or hypothecate, or agree
to grant a
lien or security interest in, or agree to pledge, encumber or
hypothecate, any
interest in any portion of the Real Property Assets or otherwise
use any of the
Real Property Assets as collateral or security for any debt,
obligation or
liability of any of the Borrowers, Credit Parties or Guarantors;
(iii) amend,
modify or change its articles of incorporation, bylaws, articles of
organization
or operating agreement, as applicable, without first receiving the
prior written
consent of Lender, which consent will not be unreasonably withheld;
(iv)
increase, decrease, change, amend, modify, expand or contract on
the power or
authority of any officer, director, manager, member or managing
member of the
entity of which any Borrower, Credit Party or Guarantor is
comprised, without
first receiving the prior written consent of Lender, which consent
will not be
unreasonably withheld; (v) amend, modify, alter or change any
shareholders
agreement or voting trust; (vi) change its name as it appears in
official
filings in the state of its incorporation or other organization;
(vii) change
its chief executive office, principal place of business, corporate
office or
location at which the location of its business records are
currently located;
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(viii) change the type of entity that it is; (ix) change its
organization
identification number, if any, issued by its state of incorporation
or other
organization; (x) change its state of incorporation or organization
or
incorporate or organize in any additional jurisdictions; (xi)
appoint a new
person as an officer, director, member or manager, without first
receiving the
prior written consent of Lender, which consent will not be
unreasonably
withheld; or (xii) terminate any person as an officer, director,
member or
manager.
2.4 REQUIREMENTS TO CURE EVENT OF DEFAULT. If by expiration of
the
Forbearance Period (a) the Deficiency has been fully cured, and (b)
there exists
no breach or default under this Forbearance Agreement or under the
$10.7 Million
Loan Documents which remains uncured or continuing, and (c) all of
Lenders' and
Holder's attorneys' fees, costs, charges, expenses, foreclosure
fees, trustee
fees, recording charges and other costs or expenses paid or
incurred by Lender
and/or Holder with respect to the Deficiency and this Forbearance
Agreement have
been paid in full by Borrowers, then in said event Lender and
Holder agree to
and shall within five (5) Business Days from receipt of written
demand therefore
from IHHI declare as cured and satisfied the Deficiency.
2.5 TERMINATION OF LENDER'S AGREEMENT TO FORBEAR. If by expiration
if
the Forbearance Period (a) the Deficiency has not been fully cured,
or (b) there
exists one or more breaches or defaults under this Forbearance
Agreement or
under the $10.7 Million Loan Documents which remain uncured or
continuing, or
(c) Lenders' and Holder's attorneys' fees, costs, charges,
expenses, foreclosure
fees, trustee fees, recording charges and other costs or expenses
paid or
incurred by Lender and/or Holder with respect to the Deficiency or
this
Forbearance Agreement have not been paid in full, then upon the
occurrence of
any one or more of the foregoing Lender's and Holder's Agreement to
Forbear
shall automatically terminate, expire and have no further force or
effect. In
said event, Borrowers, Credit Parties and Guarantors acknowledge
and agree that
Lender and/or Holder, as applicable, shall have the right but not
the obligation
to take any one or more of the following acts: (i) record a Notice
of Default
and Election to Sell with respect to that certain Fee Deed of
Trust, Security
Agreement, Fixture Filing and Assignment of Rents dated as of March
3, 2005 and
recorded in the Official Records on March 8, 2005 as document no.
2005000169280,
and a Notice of Default and Election to Sell with respect to that
certain
Leasehold Deed of Trust, Security Agreement, Fixture Filing and
Assignment of
Rents dated as of March 3, 2005 and recorded in the Official
Records on March 8,
2005 as document no. 2005000169281 (respectively, the "NOTICES OF
DEFAULT" and
the "DEEDS OF TRUST"); (ii) file a judicial foreclosure lawsuit
against the
Borrowers and the Credit Parties with respect to the Deeds of
Trust; (iii) file
a lawsuit against PCHI to enforce its obligations under the PCHI
Guaranty; (iv)
file a lawsuit against OC-PIN to enforce its obligations under the
OC-PIN
Guaranty; (v) file a lawsuit against West Coast to enforce its
obligations under
the West Coast Pledge Agreement; (vi) file a lawsuit against the
members of West
Coast to enforce their obligations under the Members of West Coast
Pledge
Agreement; (vii) file a lawsuit against IHHI to enforce its
obligations under
the IHHI Pledge Agreement; (viii) file a lawsuit against Ganesha to
enforce its
obligations under the Ganesha Pledge Agreement; (ix) file a lawsuit
against IHHI
(as the Company) to enforce its obligations under the Warrant; and
(x) process,
file, serve, take or initiate any other legal action or proceeding
against any
one or more of the Borrowers or Credit Parties or Guarantors that
Lender and/or
Holder is permitted to take under the $10.7 Million Loan Documents
and
applicable law.
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2.6 RELEASES AND WAIVERS. In consideration for Lender's and
Holder's
Agreement to Forbear, and effective as of the Effective Date of
this Forbearance
Agreement:
(a) Subject to the last sentence of this SECTION 2.6(A), each
Borrower,
each Credit Party and each Guarantor, together with their
respective officers,
directors, shareholders, members, managers, employees, agents,
representatives
and assigns (collectively the "RELEASING PARTIES") hereby fully,
forever and
irrevocably release, waive and relinquish their right to file or
record in the
Official Records a lis pendens against any of the Hospital
Facilities, or file
in any court in any venue any legal action or proceeding (including
but not
limited to a complaint to enjoin foreclosure, or an order to show
cause, or a
complaint to set aside foreclosure sale, or an action to quiet
title, or an
action to cancel one or more of the $10.7 Million Loan Documents)
against Lender
or Holder or any trustee under any of the Deeds of Trust, the
purpose of which
is to directly or indirectly procure from any court or tribunal
issuance of a
temporary restraining order, or a preliminary injunction, or a
permanent
injunction, or any other equitable relief (collectively,
"INJUNCTIVE RELIEF")
which seeks to prohibit or prevent Lender or Holder or any trustee
under any
Deed of Trust (i) from recording a Notice of Sale with respect to
any of the
Deeds of Trust, or (ii) from conducting a sale of any of the
Hospital Facilities
at a public auction as permitted by the power of sale provisions in
the Deeds of
Trust, or (iii) from conveying title to any one or more of the
Hospital
Facilities via trustee's deed to a purchaser at foreclosure, or
(iv) from
conducting a sale of the personal property Collateral pursuant to
the California
Uniform Commercial Code, or (v) from conducting a
"mixed-collateral" sale of any
one or more of the Hospital Facilities and any or all of the
personal property
Collateral, or (vi) from attaching or garnishing or seeking any
other
provisional remedy against any real or personal property of any
Borrower, Credit
Party or Guarantor, or (vii) from taking any other action or
pursuing any other
right or remedy that Lender is permitted to pursue under the $10.7
Million Loan
Documents, or in law or equity. Notwithstanding the foregoing, the
releases and
waivers set forth in this SECTION 2.6(a) shall apply only to
Injunctive Relief
based on alleged acts or omissions of Lender which occurred prior
to the
Effective Date of this Forbearance Agreement.
(b) Each of the Releasing Parties hereby fully, forever and
irrevocably
release, waive and relinquish any claim or cause of action
(collectively,
"LENDER LIABILITY CLAIMS") that the Releasing Parties now have or
in the future
may have against Lender and/or Holder to the effect that, prior to
the Effective
Date of this Forbearance Agreement: (i) Lender or Holder committed
a breach or
default under any of the $10.7 Million Loan Documents, or (ii)
Lender or Holder
conspired with the executive officers of IHHI to deprive OC-PIN of
its stock
ownership in IHHI or otherwise inflicted any actionable damage on
OC-PIN, or
(iii) Lender or Holder committed an act not permitted by the $10.7
Million Loan
Documents or applicable law, or (iv) Lender or Holder omitted to
take an act
required by the $10.7 Million Loan Documents or under applicable
law, or (v) any
of the $10.7 Million Loan Documents (including, but not limited to,
the PCHI
Guaranty and the OC-PIN Guaranty) or this Forbearance Agreement
is/are invalid
or unenforceable in whole or in part for any reason, or (vi) Lender
or Holder
suggested, implied, induced, cajoled or required that IHHI include
any terms or
conditions in any agreements between IHHI and OC-PIN, or (vii)
Lender or Holder
suggested, implied, induced, cajoled or required that IHHI not
include any terms
or conditions in any agreements between IHHI and OCPIN, or (viii)
Lender or
Holder improperly interfered with or improperly exercised any
control over the
Borrowers or Credit Parties or Guarantors, or (ix) that Lender or
Holder
breached in any way any alleged duty of good faith or fair dealing,
or any
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alleged duty of commercial reasonableness, or any quasi-duty, or
any implied
duty, or (x) that Lender or Holder committed any unlawful, unfair
or fraudulent
business act or practice, or (xi) that Lender or Holder engaged in
any unfair,
deceptive, untrue or misleading advertising, or (xii) that Lender
or Holder
committed any act prohibited by California Business and Professions
Code Section
17500, or (xiii) that Lender or Holder engaged in predatory lending
practices,
or (xiv) that Lender or Holder engaged in or committed any act or
omission which
constitutes fraud, duress, negligence, conversion, defamation or
infliction of
emotional distress, or (xv) that Lender or Holder interfered with
an Borrower's
or any Credit Party's or any Guarantor's prospective business
advantage, or
(xvi) that Lender or Holder interfered with any Borrower's or any
Credit Party's
or any Guarantor's contractual relations.
(c) In order to induce Lender and Holder to enter into this
Forbearance
Agreement and to agree to the Agreement to Forbear, effective upon
the Effective
Date of this Forbearance Agreement, each of the Releasing Parties
fully, forever
and irrevocably releases, waives, relinquishes and discharges
Lender and Holder
and their respective successors and assigns, predecessors, related
or affiliated
companies or entities, and their respective officers, directors,
shareholders,
agents, employees, attorneys and representatives (collectively,
the
"LENDER/HOLDER RELEASED PARTIES") from any and all claims, rights,
demands,
debts, causes of action, charges, expenses, damages, attorneys'
fees and costs,
obligations or liabilities of any and every kind, nature and
character
whatsoever, whether or not now known, suspected or unsuspected,
which any of the
Releasing Parties may have had, may now have or may in the future
claim to have
against the Lender/Holder Released Parties arising out of, or
related in any
manner to any alleged act or omission to act which occurred prior
to the
Effective Date of this Forbearance Agreement.
The Releasing Parties hereto have been fully advised by their
respective attorneys of the contents and effect of Section 1542 of
the Civil
Code of California and of any comparable statutes in the State of
Nevada upon
the rights of each of them. By way of example, Section 1542 of the
Civil Code of
California provides as follows:
A general release does not extend to claims which the creditor does
not
know or suspect to exist in his favor at the time of executing
the
release, which if known by him must have materially affected
his
settlement with the debtor.
EACH OF THE RELEASING PARTIES ACKNOWLEDGES THAT THEY MAY HAVE
SUSTAINED DAMAGES,
LOSSES, FEES, COSTS OR EXPENSES WHICH ARE PRESENTLY UNKNOWN AND
UNSUSPECTED,
AND, NOTWITHSTANDING THE PROVISIONS OF SECTION 1542 AND OF ANY
COMPARABLE NEVADA
STATUTE, AND ARE EXPRESSLY WAIVING THE SAME. EACH OF THE RELEASING
PARTIES
AGREES THAT IT INTENDS TO RELEASE EVEN UNKNOWN OR UNSUSPECTED
CLAIMS. EACH OF
THE RELEASING PARTIES REPRESENTS THAT IT HAS CONSULTED WITH ITS
LEGAL COUNSEL
REGARDING ITS CLAIMS AND POTENTIAL CLAIMS AGAINST LENDER AND/OR
HOLDER, AND HAS
CAREFULLY READ AND UNDERSTAND ALL THE PROVISIONS OF THIS
FORBEARANCE AGREEMENT,
AND HAS VOLUNTARILY ENTERED INTO THIS FORBEARANCE AGREEMENT.
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2.7 COVENANTS NOT TO SUE. Each of the Releasing Parties hereby
promises, covenants and agrees not to sue Lender or Holder, and not
to bring any
legal action or proceeding of any kind against Lender or Holder, in
any court or
administrative proceeding, in any venue, which legal action or
proceeding
directly or indirectly seeks to (a) obtain or procure issuance of
any temporary
restraining order, or a preliminary injunction, or a permanent
injunction, or
any other equitable or provisional relief against Lender or Holder
based on acts
or omissions which occurred prior to the Effective Date of this
Forbearance
Agreement, or (b) impose any Lender Liability Claims on or against
Lender or
Holder based on acts or omissions which occurred prior to the
Effective Date of
this Forbearance Agreement, or (c) obtain or impose on Lender or
Holder any
Injunctive Relief based on acts or omissions which occurred prior
to the
Effective Date of this Forbearance Agreement, or (d) which legal
action or
proceeding violates any covenant, condition, representation or
warranty made by
the Releasing Parties in this Forbearance Agreement.
2.8 INDEMNITY. Each Borrower, each Credit Party and each
Guarantor
hereby jointly and severally agrees to and shall indemnify, defend,
protect and
hold Lender and Holder and each of their respective Affiliates and
their
respective officers, directors, members, employees, attorneys,
agents, and
representatives (each, an "INDEMNIFIED PERSON") free and harmless
from and
against any and all legal actions, suits, proceedings or claims
brought or
asserted against any Indemnified Person for damages, losses,
liabilities and
expenses (including reasonable attorneys' fees, witness and expert
witness fees,
court fees and charges, and disbursements and other costs of
investigation or
defense, including those incurred upon any appeal or in any
Bankruptcy
Proceeding defined below) (collectively the "INDEMNIFIED
LIABILITIES") directly
or indirectly arising out of or relating to (a) the execution and
delivery of
this Forbearance Agreement by an Indemnified Person, or (b) the
execution and
delivery of any $10.7 Million Loan Document by an Indemnified
Person, or (c) the
making of the $10.7 Million Loan by an Indemnified Person, or (d)
any Lender
Liability Claim brought or asserted against an Indemnified Person;
provided,
that neither Borrowers nor any Credit Party nor any Guarantor shall
be liable
for an
