Exhibit 99.3
GUARANTY AGREEMENT
(OC-PIN)
This Guaranty Agreement (as the same may be amended, modified,
or
supplemented from time to time, the
"GUARANTY") is made as of March 3, 2005, by
ORANGE COUNTY PHYSICIANS INVESTMENT
NETWORK, LLC, a Nevada limited liability
company ("GUARANTOR"), in favor of MEDICAL
PROVIDER FINANCIAL CORPORATION, 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 and the
Borrowers and certain other "Credit
Parties" (as defined therein). Initially
capitalized terms used herein and not
otherwise defined herein shall have the
respective meanings ascribed to such terms
in the Credit Agreement.
B.
AHM CGH,
Inc., a California corporation, HEALTH RESOURCES
CORPORATION OF AMERICA- CALIFORNIA, a
Delaware corporation, UWMC HOSPITAL
CORPORATION, a California corporation, and
SHL/O CORP., a Delaware corporation
(collectively, "SELLER") are in the
business of delivering acute care services
to the public through the acute care
hospital facilities identified in this
Guaranty, and incident thereto, are also in
the businesses of owning and
operating certain medical office buildings
("MOB'S") and other healthcare
businesses related thereto (the
"BUSINESSES").
C.
Pursuant
to a certain Asset Sale Agreement dated as of September 29,
2004 ("ASSET SALE AGREEMENT"), IHHI is
acquiring from Seller (a) the fee
interest in certain real property, hospital
facilities, MOB's and Businesses in
three (3) separate locations in Orange
County, California, and (b) the tenant's
interest in certain leases of real
property, hospital facility and an MOB also
located in Orange County, California
("LEASED HOSPITAL FACILITY") (each a
"HOSPITAL FACILITY" and together the
"HOSPITAL FACILITIES"), and the business
assets related to the same. To enable IHHI
to make these acquisitions, Borrowers
are borrowing the sum of Fifty Million
Dollars ($50,000,000) from Lender (the
"ACQUISITION LOAN").
D.
Immediately following IHHI's acquisition of the Hospital
Facilities,
IHHI will transfer three (3) of the
Hospital Facilities to Pacific Coast
Holdings Investment, LLC, a California
limited liability company ("PCHI").
Immediately after the transfer to PCHI,
IHHI will transfer its ownership
interest in PCHI to (a) West Coast
Holdings, LLC, a California limited liability
company ("WEST COAST") a fifty-one percent
(51%) membership interest, and (b)
Ganesha Realty, LLC, a California limited
liability company ("GANESHA") a
forty-nine percent (49%) interest. Then,
PCHI will lease the three (3) Hospital
Facilities back to IHHI pursuant to a
Triple Net Hospital and Medical Office
Building Lease dated March 3, 2005 (the
"TRIPLE NET LEASE"). Then, IHHI will (i)
sublease each of the three Hospital
Facilities to three (3) of its subsidiaries
(WMC-SA, WMC-A and Coastal), each of which
is identified above as a Borrower,
and (ii) sub-sublease the Leased Hospital
Facility to another of its
subsidiaries (Chapman), which is also
identified above as a Borrower.
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E.
Borrowers
have also requested that Lender extend a non-revolving
Line of Credit facility to Borrowers of up
to Thirty Million Dollars
($30,000,000) in the aggregate for the
purpose of providing (a) working capital
financing for Borrowers, (b) funds for
other general corporate purposes of
Borrowers, and (c) funds for other purposes
permitted hereunder (the "LINE OF
CREDIT LOAN").
F.
For the
purposes set forth above, Lender is willing to make the
Acquisition Loan and the Line of Credit
Loan and other extensions of credit to
or for the benefit of Borrowers of up to
such amount upon the terms and
conditions set forth herein.
G.
Among
other conditions for making the Acquisition Loan and the Line
of Credit Loan (collectively, the "LOAN"),
Lender has required, among other
conditions, that the Guarantor guaranty the
payment of the Loan and pledge its
assets as additional security for the
payment and performance of the
Obligations, including the Loan, under the
Credit Agreement.
H.
Guarantor
will derive substantial direct and indirect economic
benefits from the Loan.
I.
The
parties intend that these Recitals are made a part of this
Guaranty.
NOW,
THEREFORE, for and in consideration of the foregoing and of any
financial accommodations or extensions of
credit (including, without limitation,
any loan or advance by renewal, refinancing
or extension of the agreements
described hereinabove or otherwise)
heretofore, now or hereafter made to or for
the benefit of any Borrower pursuant to the
Credit Agreement or any other
agreement, instrument or document executed
pursuant to or in connection
therewith, and for other good and valuable
consideration, the receipt and
sufficiency of which are hereby
acknowledged, each Borrower and the Lender
hereby agree as follows:
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
or matters of construction defined or
established in the Credit Agreement shall
be applied herein as defined or established
therein, (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).
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"GUARANTY OBLIGATIONS" shall mean (a) the Obligations under the
Credit Agreement, including the 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. Guaranty.
2.1 Guaranty of the Obligations.
(a) In
consideration of the 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 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 any
Borrower, any Credit Party, or any
other Person, or with respect to any
collateral (provided by any Borrower or any
Credit Party) (collectively, "COLLATERAL"),
before or as a condition to the
obligations of Guarantor under this
Guaranty.
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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 Loan or the
Guaranty Obligations or any power, right,
or remedy with respect to any of the
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 Loan or the Guaranty Obligations,
or any other amendment to, or waiver of,
the Credit Agreement, any other Loan
Document, or any other agreement or
instrument governing or evidencing the 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 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 Loan Document, or any other
document evidencing the 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 any 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
Loan Document, including, without
limitation, this Guaranty, or with respect to
the 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 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;
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(g) any cancellation, renunciation or surrender of any pledge,
guaranty, or any debt instrument evidencing
the 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 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. 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 Loan or other
Obligations shall reduce the Guaranty
Obligations by the amount of such
payment.
2.4 Guarantor
Waivers. 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 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 any Borrower, any of the
properties or assets of any Borrower, the
Collateral or any other security,
guaranty or pledge that may now or
hereafter be held by Lender for the Loan or
for the Guaranty Obligations, or to apply
such security, guaranty, or pledge to
the Loan or to the Guaranty Obligations.
Guarantor shall remain liable for the
Guaranty Obligations, notwithstanding any
judgment Lender may obtain against any
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 Loan or the Guaranty
Obligations.
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(b) Guarantor
has entered into this Guaranty based solely
upon its independent knowledge of each
Borrower's financial condition, and
Guarantor assumes full responsibility for
obtaining any further information with
respect to Borrowers 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
Borrowers. 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 any Borrower or its
business or relating to the existence,
liability, or financial condition of any
other guarantor of the Obligations. G
