GUARANTY AGREEMENT (OC-PIN) [$10,700,000 NEW LOAN]
EXHIBIT
99.7
(OC-PIN)
[$10,700,000
NEW LOAN]
This
Guaranty Agreement (as the same may be amended, modified, or supplemented from
time to time, the “Guaranty”)
is
made as of December 12, 2005, by ORANGE COUNTY PHYSICIANS INVESTMENT NETWORK,
LLC, a Nevada limited liability company (“Guarantor”),
in
favor of MEDICAL PROVIDER FINANCIAL CORPORATION III, a Nevada corporation
(“Lender”),
with
reference to the following facts:
RECITALS:
A. This
Guaranty is made in connection with a certain Credit Agreement dated as of
the
date hereof (as amended, restated, supplemented or otherwise modified from
time
to time, the “Credit
Agreement”)
by and
among Lender, Borrower and certain other Credit Parties defined in the Credit
Agreement.
B. Integrated
Healthcare Holdings, Inc., a Nevada corporation (“Borrower”)
is in
the business of delivering acute care services to the public through four (4)
separate acute care hospital facilities located in Orange County, California
(“Hospital
Facilities”)
identified in Annex
D
to the
Credit Agreement; and, along with one or more of the Credit Parties, is also
in
the business of owning and operating certain medical office buildings and other
healthcare businesses related thereto.
C. Pursuant
to that certain Credit Agreement dated as of March 3, 2005, as amended
(“Original
Credit Agreement”)
by and
between Borrower, the Credit Parties and Medical Provider Financial Corporation
II, a Nevada corporation, an affiliate of Lender (“Original
Lender”),
Original Lender loaned $50,000,000 to IHHI, WMC-SA, WMC-A, Xxxxxxx and Coastal
(the “Acquisition
Loan”)
for the
purpose of acquiring the Hospital Facilities, and made available to IHHI,
WMC-SA, WMC-A, Xxxxxxx and Coastal a $30,000,000 line of credit (the
“Line
of Credit Loan”)
for the
purpose of operating the Hospital Facilities (the Acquisition Loan and the
Line
of Credit Loan are hereinafter referred to as the “Original
Loan”).
D. Borrower
under the Credit Agreement has requested that Lender make a new loan in the
amount of $10,700,000 (“New
Loan”)
for the
purpose of operating the Hospital Facilities. Lender has agreed, on the terms
and conditions set forth in this Agreement and in the other documents and
instruments evidencing the New Loan (the “New
Loan Documents”).
E. For
the
purposes set forth above, Lender is willing to make the New Loan and other
extensions of credit to or for the benefit of Borrower of up to such amount
upon
the terms and conditions set forth in the Credit Agreement.
F. Among
other conditions for making the New Loan, Lender has required, among other
conditions, that the Guarantor guaranty the payment of the New Loan and pledge
its assets as additional security for the payment and performance of the
Obligations, including the New Loan, under the Credit Agreement.
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G. Guarantor
will derive substantial direct and indirect economic benefits from the New
Loan.
H. The
parties intend that these Recitals are made a part of this
Guaranty.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
in
this Guaranty, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Lender and Guarantor agree as
follows:
1. Definitions;
Certain Matters of Construction.
Unless
otherwise set forth herein, (a) initially capitalized terms used in this
Agreement shall have the meanings ascribed to them in Annex
A
(Definitions) of the Credit Agreement, (b) any reference to a “Section” shall
refer to the relevant section of this Guaranty, and (c) the following terms
shall have, unless otherwise provided elsewhere in this Guaranty, the meanings
set forth below:
“Equity
Interest”
means
all shares of capital stock, options and warrants to purchase equity securities
or other forms of equity, membership interests, general or limited partnership
interests or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity whether
voting or nonvoting, including common stock, preferred stock or any other
“equity security” (as such term is defined in Rule 3a11-1 of the General Rules
and Regulations promulgated by the Securities and Exchange Commission under
the
Securities Exchange Act).
“Guaranty
Obligations”
shall
mean (a) the Obligations under the Credit Agreement, including the New Loan
and
(b) all indebtedness, liabilities, and obligations of Guarantor to Lender
whether now existing or hereafter arising under this Guaranty.
“Guaranty
Termination Date”shall
mean the date on which Borrower shall have no further right to receive any
financial accommodations under the Credit Agreement and all Obligations under
the Credit Agreement and the Guaranty Obligations shall have been completely
satisfied.
“Obligations”
has the
meaning assigned to it in the Credit Agreement.
“Solvent”
shall
mean, with respect to Guarantor on a particular date, that on such date (a)
the
fair value of the property of Guarantor is greater than the total amount of
its
liabilities, including contingent liabilities; (b) the present fair salable
value of the assets of Guarantor is not less than the amount that will be
required to pay the probable liability of Guarantor on its debts as they become
absolute and matured; (c) Guarantor does not intend to, and does not reasonably
believe that it will, incur debts or liabilities beyond its ability to pay
as
such debts and liabilities mature; and (d) Guarantor is not engaged in a
business or transaction, and is not about to engage in a business or
transaction, for which its property would constitute an unreasonably small
capital. The amount of contingent liabilities (such as litigation, guarantees
and pension plan liabilities) at any time shall be computed as the amount that,
in light of all the facts and circumstances existing at the time, represents
the
amount that can be reasonably be expected to become an actual or matured
liability.
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2. Guaranty.
2.1 Guaranty
of the Obligations.
(a) In
consideration of the New Loan, all other financial accommodations to or for
the
benefit of Borrower and Guarantor, and for other valuable consideration, the
receipt and sufficiency of which Guarantor hereby acknowledges, Guarantor hereby
unconditionally, irrevocably and absolutely guarantees to Lender, and its
respective successors, endorsees, transferees, and assigns, the prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance
of
the New Loan, together with all other Obligations, whether now or hereafter
existing, and whether for principal, interest, fees, expenses, or otherwise,
howsoever created, arising or evidenced, whether direct or indirect, absolute
or
contingent or now or hereafter existing or due or to become due (including
in
all cases all such amounts which would become due but for the operation of
the
provisions of Title 11 of the United States Code or any other similar
statutes).
(b) This
Guaranty constitutes a guaranty of payment and performance when due and not
of
collection, and Guarantor specifically agrees that it shall not be necessary
or
required that Lender, or any of its successors, endorsees, transferees, or
assigns assert any claim or demand or enforce any remedy whatsoever against
Borrower, any Credit Party, or any other Person, or with respect to any
collateral (provided by Borrower or any Credit Party) (collectively,
“Collateral”),
before or as a condition to the obligations of Guarantor under this
Guaranty.
2.2 Absolute
Guaranty.
The
Guaranty Obligations shall remain in full force and effect without regard to,
and shall not be impaired or affected by, or be deemed to be satisfied by,
and
Guarantor shall not be exonerated, discharged or released by, any of the
following events:
(a) Lender's
exercise or enforcement of, or failure or delay in exercising or enforcing,
legal proceedings to collect the New Loan or the Guaranty Obligations or any
power, right, or remedy with respect to any of the New Loan, the Guaranty
Obligations, or the Collateral, including without limitation: (i) any action
or
inaction of Lender to perfect, protect, or enforce any lien upon any Collateral;
or (ii) any change in the time, manner, or place of payment of, or in any other
term of, any or all of the New Loan or the Guaranty Obligations, or any other
amendment to, or waiver of, the Credit Agreement, any other New Loan Document,
or any other agreement or instrument governing or evidencing the New Loan or
any
of the Guaranty Obligations;
(b) insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition, assignment
for
the benefit of creditors, appointment of a receiver or trustee for all or any
part of Borrower's or Guarantor's assets or of the assets of any other guarantor
of the Obligations, liquidation, winding-up, or dissolution of Borrower or
Guarantor, or any other guarantor of the Obligations;
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(c) any
limitation, discharge, cessation, or partial satisfaction of the New Loan,
the
Guaranty Obligations, or the obligations of any other guarantor of the
Obligations, or any invalidity, voidability, unenforceability, in whole or
in
part, of the Credit Agreement, this Guaranty, any other New Loan Document,
or
any other document evidencing the New Loan or Guaranty Obligations;
(d) any
merger, acquisition, consolidation or change in structure of Borrower or
Guarantor or any other guarantor of the Obligations; or any sale, lease,
transfer, or other disposition of any or all of the assets or Equity Interests
of Borrowers or Guarantor or any other guarantor of the Obligations, including,
without limitation, any transfer by Borrower of all or any part of any
Collateral, or termination of Borrower's existence for any reason;
(e) any
assignment or other transfer, in whole or in part, of Lender's interest in
or
rights in or under the Credit Agreement, or any other New Loan Document,
including, without limitation, this Guaranty, or with respect to the New Loan,
the Guaranty Obligations, or the Collateral;
(f) any
claim, defense, counterclaim, or setoff that Borrower or Guarantor or any other
guarantor of the Obligations may have or assert, including, without limitation,
any defense of incapacity, disability, or lack of corporate, organizational
or
other authority to execute any document relating to the New Loan, the Guaranty
Obligations, the Collateral, or any other Guaranty, other than (i) upon the
occurrence of the Guaranty Termination Date, the defense of prior performance,
or (ii) any defense based on any applicable provision of the Uniform Commercial
Code requiring that Collateral be disposed of in a commercially reasonable
manner;
(g) any
cancellation, renunciation or surrender of any pledge, guaranty, or any debt
instrument evidencing the New Loan or the Guaranty Obligations;
(h) the
vote,
claim, distribution, election, acceptance, action, or inaction of Lender in
any
bankruptcy or reorganization case related to the New Loan, the Guaranty
Obligations, or the Collateral; or
(i) any
other
action or circumstances that might otherwise constitute a defense available
to,
or a legal or equitable discharge of, any surety, guarantor or
Guarantor;
it
being
agreed that the Guaranty Obligations shall not be discharged until the Guaranty
Termination Date.
2.3 Demand
by Lender; Exhaust Warrant Shares.
a. Demand
by Lender.
Subject
to compliance with the provisions of Section
2.3(b)
below,
in addition to the terms set forth herein, and in no manner imposing any
limitation on such terms, if any of the Obligations under the Credit Agreement
are declared to be or otherwise becomes immediately due and payable, then
Guarantor, upon demand in writing therefor by Lender, shall immediately pay
the
Guaranty Obligations to Lender. Payment by Guarantor shall be made to Lender
to
be credited and applied to the Obligations, in immediately available funds
in
lawful money of the United States of America to an account designated by Lender
or at the address set forth below the signature of Lender hereto or at any
other
address that may be specified in writing from time to time by Lender as provided
herein. Any payment received by Lender with respect to the New Loan or other
Obligations shall reduce the Guaranty Obligations by the amount of such
payment.
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b. Warrant;
Exhaust Warrant Shares.
Notwithstanding the foregoing:
(i) Healthcare
Financial Management & Acquisitions, Inc., a Nevada corporation and an
affiliate of Lender (“HFMA”)
and
Borrower are parties to that certain Warrant To Purchase Shares of Common Stock
of even date herewith (“Warrant”).
Pursuant to the Warrant: (A) Borrower granted HFMA the right to purchase the
number of fully paid and nonassessable shares of Borrower’s common stock
(“Common
Stock”)
necessary or required to pay in full all indebtedness, accrued interest, fees,
expenses and all other obligations of Borrower and the other Credit Parties
under the Credit Agreement and the other New Loan Documents; and (B) Borrower
covenanted and agreed to file a registration statement under the Securities
Act
of 1933, covering the resale of the Common Stock by HFMA, no later than ninety
(90) days prior to the Maturity Date of the New Loan (as defined in the Credit
Agreement), and to use its reasonable best efforts to have such registration
statement declared effective by the Securities Exchange Commission as soon
as
practicable but no later than the Maturity Date for distribution of the Common
Stock by means of an underwriting.
(b) If,
by
the Maturity Date of the New Loan, a registration statement under the Securities
Act of 1933 has been filed and declared effective by the Securities Exchange
Commission which permits the immediate sale of the Common Stock by HFMA, then
prior to Lender making a demand upon Guarantor to pay the Guaranty Obligations
pursuant to this Guaranty, Lender shall first cause HFMA to: (i) exercise its
right under the Warrant to purchase all of the Common Stock necessary or
required to pay the indebtedness, accrued interest, fees, expenses and all
other
obligations of Borrower and the other Credit Parties under the Credit Agreement
and the other New Loan Documents; (ii) sell said Common Stock by means of an
underwriting or as otherwise allowed by law; and (iii) deliver the proceeds
of
the sale of said Common Stock to Lender in reduction of the indebtedness,
accrued interest, fees, expenses and all other obligations of Borrower and
the
other Credit Parties under the Credit Agreement and the other New Loan
Documents.
(c) If,
after
the sale of Common Stock and payment of proceeds to Lender, any portion of
the
indebtedness, accrued interest, fees, expenses and all other obligations of
Borrower and the other Credit Parties under the Credit Agreement and the other
New Loan Documents remains unpaid, then in said event Lender shall have the
right to demand in writing that Guaranty immediately pay the Guaranty
Obligations (or remaining balance thereof, as applicable) to Lender as provided
by Section
2.3(a)
above.
2.4 Guarantor
Waivers.
Subject
to compliance with the provisions of Section
2.3
above,
in addition to any other waivers contained herein, Guarantor waives, agrees
and
acknowledges as follows and waives any defense based upon or arising from the
following:
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(a) The
Guaranty Obligations are the immediate, direct, primary and absolute liabilities
of Guarantor, and are independent of, and not co-extensive with, the New Loan,
the other Obligations or the obligations of any other guarantor of the
Obligations. Guarantor expressly waives any right it may have now or in the
future to direct or affect the manner or timing of Lender's enforcement of
its
rights or remedies. Guarantor expressly waives any right it may have now or
in
the future to require Lender to, and Lender shall not have any liability to,
pursue or enforce first against Borrower, any of the properties or assets of
Borrower, the Collateral or any other security, guaranty or pledge that may
now
or hereafter be held by Lender for the New Loan or for the Guaranty Obligations,
or to apply such security, guaranty, or pledge to the New Loan or to the
Guaranty Obligations. Guarantor shall remain liable for the Guaranty
Obligations, notwithstanding any judgment Lender may obtain against Borrower
or
Guarantor, any other guarantor of the Obligations, or any other person or
entity, or any modification, extension or renewal with respect thereto. Lender
shall not be under any liability to marshal any assets in favor of Guarantor
or
in payment of any or all of the New Loan or the Guaranty
Obligations.
(b) Guarantor
has entered into this Guaranty based solely upon its independent knowledge
of
Borrower's financial condition, and Guarantor assumes full responsibility for
obtaining any further information with respect to Borrower or the conduct of
its
business. Guarantor represents that it is now, and during the terms of this
Guaranty will be, responsible for ascertaining the financial condition of
Borrower. Guarantor hereby waives any duty on the part of Lender to disclose
to
Guarantor, and agrees that it is not relying upon or expecting Lender to
disclose to it, any fact known or hereafter known by Lender relating to the
operation or condition of Borrower or its business or relating to the existence,
liability, or financial condition of any other guarantor of the Obligations.
Guarantor knowingly accepts the full range of risk encompassed in a contract
of
continuing guaranty, which risk includes the possibility that Borrower may
incur
further indebtedness after Borrower's financial condition or its ability to
pay
debts as they mature has deteriorated.
(c) Except
as
specifically provided in this Guaranty or applicable law, Guarantor waives,
to
the fullest extent permitted by applicable law: (i) notice of the acceptance
by
Lender of this Guaranty, (ii) notice of the existence, creation, payment,
nonpayment, performance or nonperformance of all or any of the Guaranty
Obligations, (iii) presentment, demand and protest and notice of presentment,
dishonor, intent to accelerate, acceleration, protest, default, nonpayment,
maturity, release, compromise, settlement, extension or renewal of any or all
of
the New Loan Documents, notes, commercial paper, accounts, contract rights,
documents, instruments, chattel paper and guaranties at any time held by Lender
on which Guarantor may be liable in any way, and hereby ratifies and confirms
whatever Lender may do in this regard; (iv) all rights to notice and a hearing
prior to Lender's taking possession or control of, or to Lender's replevy,
attachment or levy upon, the Collateral or any bond or security which might
be
required by any court prior to allowing Lender to exercise any of its remedies;
(v) all rights to receive notices from Lender with respect to, or otherwise
sent
to, Guarantor or any other guarantor of the Obligations, (vi) the benefit of
all
valuation, appraisal, stay, extension, redemption and exemption laws, (vii)
the
benefit of any law purporting to reduce Guarantor's obligation in proportion
to
the principal obligation hereby guarantied, (viii) the benefit of any law
purporting to exonerate Guarantor's obligation upon performance or an offer
of
performance of the principal obligation, (ix) notice of any extension,
modification, renewal, or amendment of any of the terms of the Credit Agreement
or any other New Loan Document relating to the New Loan or the Guaranty
Obligations; (x) notice of the occurrence of any Default or Event of Default
with respect to the New Loan, the Guaranty Obligations, the Collateral or
otherwise; and (xi) notice of any exercise or non-exercise by Lender of any
right, power, or remedy with respect to the New Loan, the Guaranty Obligations
or the Collateral; provided, however, that the Lender shall provide Guarantor
with written notice of an Event of Default when and if Lender is required to
provide such notice to Borrower under the Credit Agreement.
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(d) If
Lender, under applicable law, may proceed to realize its benefits under any
New
Loan Document providing for a lien upon any Collateral, whether owned by
Borrower or by any other person or entity, either by judicial foreclosure or
by
nonjudicial sale or enforcement, Lender, at its sole option, may determine
which
of its remedies or rights it may pursue without affecting any of its rights
and
remedies under this Guaranty.
(e) Guarantor
represents that the New Loan and Guaranty Obligations are and shall be incurred
by Borrower for business and commercial purposes only. Any claim of Lender
against Guarantor arising out of this Guaranty arises out of the conduct by
Guarantor of its trade, business, or profession. Guarantor undertakes all the
risks encompassed in the Credit Agreement and the other New Loan Documents
as
they may be now or are hereafter agreed upon by Lender and Borrower. Prior
to
the Guaranty Termination Date, Lender, in such manner and upon such terms and
at
such time as it deems best, and with or without notice to Guarantor, may
release, add, subordinate or substitute security for the New Loan or other
Obligations.
(f) A
separate action or actions may be brought and prosecuted against Guarantor
whether or not an action is brought against Borrower, or whether Borrower is
joined in any such action or actions.
2.5 Waivers.
(a) Guarantor
waives any and all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become available
to Guarantor by reason of California Civil Code Sections 2787 to 2855,
inclusive, Sections 2899 and 3433, or other statutory or decisional law. This
means, among other things, that:
(i) Guarantor
waives and will be unable to raise any defense based upon any statute or rule
of
law which provides that the obligation of a surety must be neither larger in
amount nor in any other respects more burdensome than that of a principal;
(ii) Guarantor
waives and will be unable to raise any defense based upon any statute or rule
of
law which provides that a creditor may be required to pursue the principal
obligor or the security for the principal obligation before seeking enforcement
against a guarantor or security pledged by the guarantor;
(iii) Guarantor
waives and will be unable to raise any defense based upon any statute or rule
of
law which provides that a guarantor's obligations may be limited or exonerated
by reason of the creditor's alteration of the principal obligation or of another
guaranty, or by reason of the impairment or suspension of the creditor's rights
or remedies against the principal, another guarantor, or any security given
for
the principal obligation or given for other guaranties;
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(iv) Guarantor
waives and will be unable to claim any right to participate in, or the benefit
of, any security given for the principal obligation now or hereafter held by
Lender; and
(v) Guarantor
waives and will be unable to claim any right of subrogation and any right to
enforce any remedy which Lender may have against Borrower.
(b) Guarantor
waives any defense based upon any lack of authority of the officers, directors,
partners, members, managers, or agents acting or purporting to act on behalf
of
Borrower or any principal of Borrower or any legal disability or defect in
the
formation of Borrower.
(c) Guarantor
waives any defense based upon the application by Borrower of the proceeds of
the
New Loan for purposes other than the purposes represented by Borrower to Lender
or intended or understood by Lender or Guarantor.
(d) Guarantor
waives the benefit of any statute of limitations affecting the liability of
Guarantor hereunder or the enforcement hereof, and Guarantor further agrees
that
any act or event which tolls any statute of limitations applicable to the
obligations of Borrower shall similarly operate to toll the statute of
limitations applicable to Guarantor's liability hereunder.
(e) Guarantor
further waives any and all defenses which are comparable to the waivers set
forth in this Guaranty which would otherwise be available to Guarantor under
Nevada law (whether based on a statute or decisional law) and any other defenses
available to guarantors under Nevada law, whether based on a statute or
decisional law.
2.6 Benefits
of Guaranty.
The
provisions of this Guaranty are for the benefit of Lender and its successors,
transferees, endorsees, and assigns, and nothing herein shall impair the New
Loan or other Obligations, as between Borrower, Guarantor and Lender. No such
transfer, endorsement, or assignment shall increase or diminish any of the
Guaranty Obligations hereunder. This Guaranty binds Guarantor, and Guarantor
may
not assign, transfer or endorse this Guaranty. In the event all or any part
of
the New Loan or other Obligations are transferred, endorsed or assigned by
Lender to any Person or Persons, any reference to “Lender” herein shall be
deemed to refer equally to such Person or Persons.
2.7 Continuing
Guaranty.
(a)
This is a continuing guaranty, (b) this Guaranty shall remain in full force
and
effect until the Guaranty Termination Date, and (c) the Guaranty Obligations
hereunder shall extend to each and every extension or renewal, if any, of the
Credit Agreement, regardless of whether the New Loan or other Obligations,
in
successive transactions, may be paid, repaid, advanced or renewed from time
to
time.
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2.8 Subordination.
Any and
all present and future debts and obligations of Borrower to Guarantor are hereby
fully and absolutely subordinated to the right and time of payment in full
of
the Obligations to Lender under the Credit Agreement and the other New Loan
Documents. Any Lien, now existing or hereafter arising, on or in any of the
assets of Borrower in favor of Guarantor, whether created by contract,
assignment, subrogation, reimbursement, indemnity, operation of law, principles
of equity or otherwise is hereby subordinated in priority to the liens and
security interests of Lender, now existing or hereafter arising. The
subordination provisions of this Section
2.9
shall be
effective regardless of whether demand has been made by Lender and shall remain
in effect until the Guaranty Termination Date.
3. Representations
and Warranties.
To
induce Lender to provide the consideration to Borrower and Guarantor described
above, Guarantor hereby makes the following representations and warranties,
and
each and all of which survive the execution and delivery of this
Guaranty:
3.1 Organization.
Guarantor is duly formed and validly existing under the laws of the state of
its
organization and has full power and authority to enter into and perform its
obligations under this Guaranty. Guarantor’s jurisdiction of organization and
exact legal name are as set forth in the first paragraph of this
Guaranty.
3.2 Due
Authorization.
The
execution, delivery and performance by Guarantor of this Guaranty have been
duly
authorized by all necessary action of Guarantor.
3.3 Binding
Obligation.
This
Guaranty constitutes the legal, valid and binding obligations of Guarantor,
enforceable against Guarantor in accordance with its terms.
3.4 No
Conflicts.
The
execution, delivery, and performance by Guarantor of this Guaranty does not
contravene any law, organizational documents of Guarantor or any contractual
restriction binding on or affecting Guarantor, and does not result in or require
the creation of any Lien upon or with respect to any of its
properties.
3.5 Consents.
No
authorization or approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by Guarantor of this Guaranty.
3.6 Articles
of Organization and Operating Agreement.
Guarantor has furnished to Lender a true and correct copy of the Articles of
Organization and the Operating Agreement and all amendments thereto, and the
Operating Agreement constitutes the valid, binding and enforceable obligation
of
all parties thereto, sets froth the entire agreement of the parties thereto
with
respect to the subject matter thereof, has not been further amended or modified,
and remains in full force and effect.
3.7 Address
and Location of Records.
The
address of Guarantor’s principal place of business and chief executive office
(or residence, if Guarantor is an individual) is accurately set forth on the
signature page to this Guaranty.
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3.8 Solvency.
Guarantor is now, and will be upon the consummation of the transactions
contemplated by this Guaranty and the other New Loan Documents,
Solvent.
3.9 No
Setoff, Defense, or Counterclaim.
As of
the date of this Guaranty, the Guaranty Obligations are not subject to any
setoff or defense of any kind against Lender or any Borrower, and Guarantor
specifically waives its right to assert any such defense or right of setoff.
The
Guaranty Obligations shall not be subject to any counterclaims, setoffs, or
defenses against Lender or any Borrower that may arise in the future, except
for
(a) any defense of prior performance or payment, or (b) any defense based on
any
applicable provision of the Uniform Commercial Code requiring that Collateral
be
disposed of in a commercially reasonable manner, which any Borrower, Guarantor,
or other guarantor of the Obligations may have or assert.
4. Covenants.
Guarantor covenants and agrees that until the Guaranty Termination Date,
Guarantor shall give prompt written notice to Lender (in any event not later
than 10 days prior to any change described below) of (a) any change in the
location of Guarantor’s principal place of business, (b) any change in the
location of books and records pertaining to its business, (c) any change in
its
jurisdiction of organization, (d) any change in its name, identity, or structure
in any manner which might make any financing statement filed hereunder incorrect
or misleading.
5. Further
Assurances.
Guarantor agrees that, at its expense, upon the written request of Lender,
it
will promptly execute and deliver to Lender any additional instruments or
documents reasonably considered necessary by Lender to cause this Guaranty
to
be, become, or remain valid and effective in accordance with its terms.
Guarantor will provide Lender in writing such financial and other information
with respect to its assets and liabilities as Lender shall request, in form
reasonably satisfactory to Lender.
6. Reinstatement.
This
Guaranty shall remain in full force and effect and continue to be effective,
as
the case may be, if at any time payment or performance of the New Loan or the
Guaranty Obligations, or any part thereof, pursuant to applicable law, is
avoided, rescinded, or reduced in amount, or must otherwise be restored or
returned by Lender, or any other obligee of the New Loan or the Guaranty
Obligations, whether as a “voidable preference,”“fraudulent conveyance” or
otherwise, all as though such payment or performance had not been made. In
the
event that any payment, or any part thereof, is avoided, rescinded, reduced,
restored or returned, the New Loan or the Guaranty Obligations, as the case
may
be, shall be reinstated and deemed reduced only by such amount paid and not
so
avoided, rescinded, reduced, restored or returned.
7. Defaults
and Remedies.
Upon
the occurrence and during the continuance of an Event of Default under the
Credit Agreement, Lender may declare any or all of the Guaranty Obligations,
immediately and without demand, notice or legal process of any kind, to be,
and
such Guaranty Obligations shall immediately become, due and payable, and then,
or at any subsequent time, Lender may exercise any or all of its rights and
remedies under this Guaranty, the Credit Agreement, and any other New Loan
Documents, including the exercise of any rights and remedies of Lender as a
secured party against the Collateral, and under applicable law, and in addition
may make demand upon Guarantor for the payment of the Guaranty Obligations;
provided,
that
upon the occurrence of an Event of Default specified in Sections 10.1(a) and
(b)
of the Credit Agreement, the Guaranty Obligations shall become immediately
due
and payable without declaration, notice or demand by Lender. All Guaranty
Obligations shall bear interest at the Default Rate from and after the date
an
Event of Default occurs under the Credit Agreement.
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8. Application
of Payments.
Any
payment made by Guarantor under this Guaranty shall be applied by Lender first,
to the satisfaction of the indemnification liabilities pursuant to Section
9 of
this Guaranty and then, as set forth in the Credit Agreement.
9. Indemnification.
Guarantor shall indemnify and hold Lender, and its respective officers,
directors, employees, agents and representatives harmless from and against
any
liabilities, claims and damages, including, without limitation, reasonable
costs, attorneys' fees, disbursements and other expenses incurred or arising
by
reason of the taking or the failure to take action by Lender, in good faith,
in
respect of any transaction effected under this Guaranty, including, without
limitation, any action to enforce payment of the Guaranty Obligations. The
liabilities of Guarantor under this Section 9 shall survive the termination
of
this Guaranty.
10. Notices.
Except
as otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall
or
may be given to or served upon any of the parties by any other parties, or
whenever any of the parties desires to give or serve upon any other parties
any
communication with respect to this Guaranty, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be deemed to have been validly served, given or delivered (a) upon the
earlier of actual receipt and three (3) Business Days after deposit in the
United States Mail registered or certified mail, return receipt requested,
with
proper postage prepaid, (b) upon confirmation of transmission, when sent by
telecopy or other similar facsimile transmission (with such telecopy or
facsimile promptly confirmed by delivery of a copy by personal delivery or
United States Mail as otherwise provided in this Section 10), (c) one (1)
Business Day after deposit with a reputable overnight courier with all charges
prepaid or (d) when delivered, if hand-delivered by messenger, all of which
shall be addressed to the party to be notified and sent to the address or
facsimile number indicated below such party's signature to this Guaranty or
to
such other address (or facsimile number) as may be substituted by notice given
as herein provided. The giving of any notice required hereunder may be waived
in
writing by the party entitled to receive such notice.
11. Entire
Agreement.
This
Guaranty, together with the other New Loan Documents constitutes the entire
agreement, and supersedes all prior and contemporaneous oral and written
communications and agreements, between the parties with respect to the subject
matter hereof.
12. Limitation
of Liability.
Neither
Lender nor any of its officers, directors, employees, agents, or counsel, shall
be liable for any action lawfully taken or omitted to be taken by it or them
hereunder or in connection herewith, except for its or their own respective
gross negligence or willful misconduct.
13. Advice
of Counsel.
Guarantor represents and warrants that it has either obtained the advice of
counsel or has had the opportunity to obtain such advice in connection with
the
terms and provisions of this Guaranty.
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14. Amendments.
No
amendment or waiver of any provisions of this Guaranty, or consent to any
departure by Guarantor therefrom, shall be effective in any event unless the
same shall be in writing and signed by Lender and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
15. Consent
to New Loan Documents.
Guarantor hereby acknowledges it has received copies of, and consents to, the
Credit Agreement and all of the New Loan Documents.
16. No
Waiver.
No
failure on the part of Lender or Lender to exercise, and no delay in exercising,
any right under any New Loan Document shall operate as a waiver thereof; and
no
single or partial exercise of any right under any New Loan Document shall
preclude any other or further exercise thereof or the exercise of any other
right. The remedies provided in the New Loan Documents are cumulative and not
exclusive of any remedies provided by law.
17. Binding
Effect.
This
Guaranty shall be binding upon and inure to respective benefits of Lender and
Guarantor and their respective successors and assigns, except that Guarantor
shall not have the right to assign its rights hereunder or any interest herein
without Lender's prior written consent.
18. Severability.
In the
event that any one or more of the provisions contained in any of the New Loan
Documents shall be determined to be invalid, illegal, or unenforceable in any
respect for any reason, the validity, legality, and enforceability of any such
provision or provisions in every other respect, and the remaining provisions
of
such New Loan Document, shall not be in any way impaired.
19. Governing
Law.
IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
THE
NEW LOAN DOCUMENTS AND THE OBLIGATIONS SHALL BE GOVERNED BY, AND CONSTRUED
AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. GUARANTOR AND LENDER HEREBY CONSENT AND AGREE THAT THE STATE
OR FEDERAL COURTS LOCATED IN THE STATE OF NEVADA, XXXXX COUNTY, CITY OF LAS
VEGAS, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN GUARANTOR AND LENDER PERTAINING TO THIS AGREEMENT OR ANY OF
THE
OTHER NEW LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER NEW LOAN DOCUMENTS; PROVIDED, THAT LENDER AND
GUARANTOR ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD
BY
A COURT LOCATED OUTSIDE OF XXXXX COUNTY, NEVADA; PROVIDED FURTHER, THAT NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE LENDER FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF LENDER. GUARANTOR AND LENDER EXPRESSLY SUBMIT
AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED
IN
ANY SUCH COURT, AND GUARANTOR AND LENDER HEREBY WAIVE ANY OBJECTION THAT SUCH
GUARANTOR OR LENDER MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. GUARANTOR AND LENDER
HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED
IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS
AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
GUARANTOR OR TO LENDER AT THE ADDRESS SET FORTH BELOW AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF GUARANTOR’S OR LENDER’S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS,
PROPER POSTAGE PREPAID.
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20. Waiver
of Trial By Jury.
Guarantor and Lender each hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim arising out of or relating to this
Guaranty, any other New Loan Document, or any of the transactions contemplated
thereby.
21. Counterparts.
This
Guaranty may be executed in any number of identical counterparts, which shall
constitute an original and collectively and separately constitute a single
instrument or agreement.
22. Compliance
With Original Loan Documents.
Lender
agrees that Guarantor shall not be deemed to be in breach of any provisions
of
this Guaranty based on Guarantor’s compliance with the terms of the Original
Loan Documents or requests of the Original Lender pursuant thereto.
IN
WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the
date first above written.
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ORANGE
COUNTY PHYSICIANS INVESTMENT NETWORK, LLC
a Nevada limited liability company
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| By: | /s/ Xxxx X. Xxxx | |
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Xxxx X. Xxxx [Printed
Name]
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Manager
[Title]
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