EXHIBIT 99.7
GUARANTY
AGREEMENT
(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, Chapman and Coastal (the
“Acquisition Loan” ) for the purpose
of acquiring the Hospital Facilities, and made available to IHHI,
WMC-SA, WMC-A, Chapman 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.
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.
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;
(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.
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:
(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
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