Exhibit 10.39


 


Execution Copy


 


FIRST LIEN COLLATERAL ASSIGNMENT OF PROMED ACQUISITION 


DOCUMENTS AND ALTA ACQUISITION DOCUMENTS


 


THIS FIRST
LIEN COLLATERAL ASSIGNMENT OF PROMED ACQUISITION DOCUMENTS AND ALTA ACQUISITION
DOCUMENTS (this “Assignment”) has been executed and delivered as of August 8,
2007, by and among ALTA HOSPITALS SYSTEM LLC, a California limited liability
company (“ALTA LLC’) (for itself and as successor-in-interest to Prospect
Hospitals System LLC (“Prospect LLC”) and Alta Healthcare System, Inc. (“Alta
Inc.”), PROSPECT MEDICAL HOLDINGS, INC., a Delaware corporation (“Holdings”),
and PROSPECT MEDICAL GROUP, INC., a California professional corporation (“PMG”
and collectively with Holdings and Alta LLC, “Assignor”), and BANK OF AMERICA,
N.A., as administrative agent (“Administrative Agent”), with reference to the
following facts:


 


RECITALS


 


A.            Holdings
and PMG are parties to certain documents pursuant to which, among other things,
PMG acquired the stock and assets of Pomona Valley Medical Group, Inc.  (“Pomona Valley”) and Upland Medical Group, a
Professional Medical Corporation (“Upland”), and Holdings acquired the stock
and assets of ProMed Health Services Company (“PHSC’) and ProMed Health Care
Administrators (“PHCA” and together with Pomona Valley, Upland and PHSC, each a
“ProMed Corporation” and collectively, the “ProMed Corporations”).


 


B.            Holdings,
Prospect LLC, Alta Inc.  and Alta LLC are parties to certain documents pursuant to
which, among other things, Holdings acquired or will acquire (via the merger of
Alta Inc.  with
and into Prospect LLC, with the surviving entity being Alta LLC) the stock and
assets of Alta Healthcare System, Inc., Alta Hollywood Hospitals, Inc.  and Alta Los Angeles
Hospitals, Inc.  (each
an “Alta Corporation” and collectively, the “Alta Corporations” and together
with the ProMed Corporations, each an “Acquired Corporation” and collectively,
the “Acquired Corporations”).


 


C.            Pursuant
to that certain First Lien Credit Agreement, dated on or about the date hereof
(as the same may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), Administrative Agent and the Lenders
have agreed to extend credit and other financial accommodations to Assignor
and/or certain of Assignor’s affiliates, and Assignor and the other Loan
Parties (including, without limitation, the Acquired Corporations) have agreed
to guarantee the payment and performance of all of the Obligations and to grant
to Administrative Agent security interests in the Collateral to secure payment
and performance of all of the Obligations.


 


D.            Assignor
has agreed to execute and deliver this Assignment to Administrative Agent in
order to supplement the terms of the Credit Agreement and the Collateral
Agreement with respect to the ProMed Acquisition Documents (as hereinafter
defined) and the Alta Acquisition Documents (as hereinafter defined).


 


E.            Assignor acknowledges that Administrative Agent and the
Lenders would not enter into the Credit Agreement absent Assignor’s agreements
hereunder.


 

















 


AGREEMENT


 


In consideration of the premises and the
mutual agreements herein set forth, Assignor and Administrative Agent hereby
agree as follows:


 


1.            Defined Terms;
lntercreditor Agreement.


 


1.1           Defined
Terms.  All initially capitalized
terms used but not defined herein shall have the meanings assigned to such
terms in the Credit Agreement.


 


1.2           lntercreditor
Agreement. 
Notwithstanding anything contained herein to the contrary, the liens and
security interests granted to the Administrative Agent, for the benefit of the
Lenders, pursuant to this Assignment, and the exercise of any right or remedy
by the Administrative Agent, for the benefit of the Lenders, under this
Assignment, are subject to the provisions of the Intercreditor Agreement.  In the event of any conflict between the
terms of the Intercreditor Agreement and this Assignment, the terms of the
Intercreditor Agreement shall govern and control.


 


2.            Assignment. 
As additional security for· the Obligations, Assignor hereby
collaterally assigns and transfers to Administrative Agent, and acknowledges
that, pursuant to the Collateral Agreement, Assignor has granted to
Administrative Agent a security interest in:


 


2.1           ProMed
Acquisition Documents.  All of
Assignor’s right, title and interest in and to the documents set forth on Exhibit A
attached hereto (collectively, the “ProMed Acquisition Documents”).


 


2.2           Alta
Acquisition Documents.  All of
Assignor’s right, title and interest in and to the documents set forth of Exhibit B
attached hereto (collectively, the ‘‘Alta Acquisition Documents” and together
with the ProMed Acquisition Documents, the ‘‘Acquisition Documents”).


 


2.3           ProMed
Rights and Remedies.  All of the
rights, benefits, remedies, privileges and claims of Assignor with respect to
the ProMed Acquisition Documents (collectively, the “ProMed Rights And Remedies”),
including, without limitation, (i) all rights to monies or payments owing to
Assignor under the ProMed Acquisition Documents, and any and all security
therefor and for all other obligations owing to Assignor thereunder, (ii) all
rights that Assignor may have to indemnification under the ProMed Acquisition
Documents including, without limitation, enforcement rights and collection
rights, (iii) all Rights and Remedies of Assignor with respect to any
breach of the representations, warranties and covenants set forth in any of the
ProMed Acquisition Documents, and (iv) the proceeds thereof.


 


2.4           Alta
Rights and Remedies.  All of the rights,
benefits, remedies, privileges and claims of Assignor with respect to the Alta
Acquisition Documents (collectively, the ‘‘Alta Rights And Remedies” and
together with the ProMed Rights and Remedies, the “Rights and Remedies”),
including, without limitation, (i) all rights to monies or payments owing
to Assignor under the Alta Acquisition Documents, and any and all security
therefor and for all other obligations owing to Assignor thereunder, (ii) all
rights that Assignor may have to indemnification under the Alta Acquisition
Documents, (iii) all Rights and Remedies of Assignor with respect to any
breach of the representations, warranties and covenants set forth in any of the
Alta Acquisition Documents, including, without limitation, enforcement rights and
collection rights, and (iv) the proceeds thereof.


 

















 


3.             Rights
and Remedies Generally.  Prior to the
occurrence of an Event of Default under the Credit Agreement or any other Loan
Document (a “Default”), Assignor will enforce all of its Rights and Remedies
diligently and in good faith.  Effective
from and after the occurrence of a Default, Assignor hereby irrevocably
authorizes and empowers Administrative Agent, in Administrative Agent’s sole
discretion, to assert as Administrative Agent may deem proper, either directly
or on behalf of Assignor, any and all of the Rights and Remedies which Assignor
may from time to time have under the Acquisition Documents, and to receive and
collect all damages, awards and other monies resulting therefrom and to apply the
same on account of any of the Obligations.


 


4.             Termination.  This Assignment shall continue in effect
until all of the Obligations have been paid in full and the Credit Agreement
has been terminated in accordance with the terms thereof, at which time Administrative
Agent shall release to the Assignor Administrative Agent’s interests in the
Acquisition Documents and the Rights and Remedies and the other rights assigned
to Administrative Agent hereby.


 


5.             Further
Assurances.  At any time or from time
to time, upon Administrative Agent’s written request, Assignor will execute and
deliver to Administrative Agent such further documents and do such other acts
and things as Administrative Agent may request in order to further effect the
purposes of this Assignment or any schedule, amendment or supplement hereto, or
a financing or continuation statement with respect hereto, in accordance with
the laws of any applicable jurisdictions. 
Assignor hereby authorizes Administrative Agent to effect any such
filing or recording statements (or amendments thereto) without the signature of
Assignor, and Administrative Agent’s costs and expenses with respect thereto
shall be part of the Obligations and shall be payable by Assignor on demand.


 


6.             Acquisition
Documents.  Concurrent herewith,
Assignor is delivering to Administrative Agent possession of the original
Acquisition Documents, together with any and all amendments thereto, as in
effect on the date hereof, to hold in accordance with the terms of (a) the
Credit Agreement until such Credit Agreement is terminated in accordance with
its terms and (b) the Intercreditor Agreement.


 


7.             Attorney-in-Fact.  Assignor hereby irrevocably makes,
constitutes, and appoints Administrative Agent (and Administrative Agent’s
officers, employees, or agents) as Assignor’s true and lawful agent and
attorney-in-fact for the purposes of enabling Administrative Agent or its agent(s) after
the occurrence of a Default to (a) assert and enforce such Rights and
Remedies and to collect such damages, awards and other monies and to apply them
in the manner set forth hereinabove, and (b) to sign the name of Assignor
on any documents which need to be executed, recorded, or filed, and to do any
and all things necessary in the name and on behalf of Assignor in order to
protect Administrative Agent’s interests in the Acquisition Documents.  Assignor agrees that neither Administrative
Agent, nor any of its designees or attorneys-in-fact, will be liable for any
act of commission or omission, or for any error of judgment or mistake of fact
or law with respect to the exercise of the power of attorney granted under this
Section 7, other than as a result of its or their gross negligence or
willful misconduct.  The power of
attorney granted under this Section 7 is coupled with an interest and
shall be irrevocable until all of the Obligations have been paid in full, the
Credit Agreement and the other Loan Documents terminated, and Assignor’s duties
under this Assignment have been discharged in full.  Assignor will not assign, pledge or otherwise
encumber any of its rights, title or interest under, in or to any of the
Acquisition Documents except for the 


 

















 


assignment to Administrative Agent and its successors or assigns as set
forth herein and the grant of a Second Priority Lien (as defined in the Second
Lien Credit Agreement) in and to the Acquisition Documents.


 


8.             Modification
of Rights and Remedies.  Assignor
shall keep Administrative Agent informed of all circumstances bearing adversely
upon the Rights and Remedies.  Assignor
shall not waive, amend, alter or modify any of the Rights and Remedies in any
adverse manner without the prior written consent of Administrative Agent.  Assignor shall not, without Administrative
Agent’s prior written consent, amend, alter, modify or terminate any of the
Acquisition Documents, or waive any of the provisions hereof, or do or permit
any act in contravention thereof.


 


9.             Assignor
to Remain Liable.  Notwithstanding
the foregoing, Assignor expressly acknowledges and agrees that it shall remain
liable under the Acquisition Documents to observe and perform all of the
conditions and obligations in the Acquisition Documents which Assignor is bound
to observe and perform, and that neither this Assignment, nor any action taken
pursuant hereto, shall cause Administrative Agent to be under any obligation or
liability in any respect whatsoever to observe or perform any of the
representations, warranties, conditions, covenants, agreements or terms of the
Acquisition Documents.


 


10.           Counterparts;
Effectiveness.  This Assignment may
be executed in any number of counterparts, each of which, when executed and
delivered, shall be deemed to be an original. 
All of such counterparts, taken together, shall constitute but one and
the same agreement.  This Assignment
shall become effective upon the execution of a counterpart of this Assignment
by each of the parties hereto.


 


11.           Notices.  All notices, requests and other
communications to any party hereunder shall be sent in accordance with Section 10.02
of the Credit Agreement.


 


12.           Modifications
and Amendments.  This Assignment
shall not be changed orally but shall be changed only by agreement in writing
signed by Assignor and Administrative Agent. 
No course of dealing between the parties, no usage of trade and no
parole or extrinsic evidence of any nature shall be used to supplement or
modify any of the terms or provisions of this Assignment.


 


13.           Severability.  If any provision of this Assignment is held
to be illegal, invalid or unenforceable under present or future laws, the
legality, validity and enforceability of the remaining provisions of this
Assignment shall not be affected thereby, and this Assignment shall be
liberally construed so as to carry out the intent of the parties to it.


 


14.           Governing
Law; Venue; Successors and Assigns; Entire Agreement.  This Assignment (a) shall be construed
in accordance with and governed by the internal laws of the State of New York; (b) shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; and (c) together with the Intercreditor Agreement,
embodies the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings relating to such subject matter.  EACH ASSIGNOR UNCONDITIONALLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
BOROUGH OF 


 

















 


MANHATTAN AND
OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK.


 


15.           California
Judicial Reference; Jury Trial Waiver. 
If, notwithstanding the choice of law made in Section 14 of this
Assignment, any action or proceeding is filed in a court of the State of
California by or against any party hereto in connection with any of the
transactions contemplated by this Assignment, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or
retired judge) to hear and determine all of the issues in such action or
proceeding (whether of fact or of law) and to report a statement of decision,
provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil
Procedure Section 1281.8 shall be heard and determined by the court, and (b) Assignor
shall be solely responsible to pay all fees and expenses of any referee
appointed in such action or proceeding. 
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MA Y HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDlRECTLY ARISING OUT OF OR RELATING TO THIS
ASSIGNMENT.


 


[Signature Pages Follow]


 

















 


EXECUTED as of the date first above written.


 


	
   

  	
  ASSIGNOR: 

  
	
   

  	
   

  
	
   

  	
  PROSPECT HOSPITALS SYSTEM, LLC

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title: 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROSPECT MEDICAL HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name: Jacob Y. Terner, M.D.

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROSPECT MEDICAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name: Jacob Y. Terner, M.D.

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., 

  as administrative agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title: 

  	
   

  
					



 

















 


EXHIBIT A


 


PROMED ACQUISITION DOCUMENTS


 


On file with Kennedy Covington


 

















 


EXHIBIT B


 


ALTA ACQUISITION DOCUMENTS


 


On file with Kennedy Covington