exv10w1



 




Exhibit 10.1


LIMITED GUARANTY AGREEMENT




     THIS
LIMITED GUARANTY AGREEMENT is made effective as of the 29th day of October, 2007, by
TRI-ISTHMUS GROUP, INC., a Delaware corporation, having a notice address at 149 South Barrington
Avenue, Suite 808, Los Angeles, California 90049 (whether one or more, “Guarantor”), in favor of
VALLIANCE BANK (“Lender”), having a notice address at 1601 N.W. Expressway, Oklahoma City, Oklahoma
73118.



W I T N E S S E T H:




     WHEREAS, Lender is the holder of a certain $4,400,000.00 promissory note of even date herewith
(the “Note”) executed and delivered by Rural Hospital Acquisition, L.L.C., an Oklahoma limited
liability company (“Borrower”), and secured, without limitation, by the collateral documents as
described in the Note (collectively, the “Security Instruments”);



     WHEREAS, the Note, Security Instruments and all other documents or instruments executed in
connection with or to evidence or secure the Note, as all of such documents may be amended,
modified or replaced, are herein referred to collectively as the “Loan Documents”;



     WHEREAS, it is a condition precedent to Lender’s acceptance of the Loan Documents that
Guarantor execute and deliver this Guaranty; and



     WHEREAS, except as otherwise provided in this Guaranty, capitalized terms used in this
Guaranty shall have the same meanings as set forth in the Note.



     NOW, THEREFORE, in consideration of Lender’s acceptance of the Loan Documents, in
consideration of the benefits to accrue to Guarantor therefrom, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby
covenants and agrees with Lender as follows:



     1. The Guaranty. Subject to the limitations set forth in paragraph 15,
Guarantor hereby absolutely, irrevocably, and unconditionally guarantees to Lender the performance
and payment when due (whether at a stated maturity or earlier by reason of acceleration or
otherwise) of all liabilities and obligations, if any, now or hereafter owing by Borrower to Lender
under the Note and the other Loan Documents, and all renewals, modifications, consolidations,
replacements, extensions and amendments thereof, including, without limitation, principal,
interest, late charges, after-default interest, reasonable attorneys’ fees and collection costs,
and all other liabilities and obligations of Borrower to Lender which become due, if ever, under
the Note and the other Loan Documents (the foregoing being hereinafter referred to as the
“Guaranteed Obligations”). Guarantor agrees that Guarantor’s liability under this Guaranty shall be
primary and direct, and that Lender shall not be required to pursue any right or remedy it may have
against Borrower under the Note or otherwise (and shall not be required to first commence any
action or obtain any judgment against Borrower or against property of Borrower in which Lender
holds a security interest) before enforcing this Guaranty against Guarantor with respect to the
Guaranteed Obligations.



 









 





     2. Continuing Guaranty. Subject to the limitations set forth in paragraph 15,
this Guaranty is an absolute, unconditional and continuing guaranty of performance and payment of
the Guaranteed Obligations and shall continue to be in force and to be binding upon Guarantor until
the Guaranteed Obligations have been paid in full. No notice of the Guaranteed Obligations as to
which this Guaranty may apply, or of any renewal, modification, consolidation, repayment, extension
or amendment thereof need be given to Guarantor and none of the foregoing acts shall release
Guarantor from liability hereunder. Guarantor hereby expressly waives (a) demand for payment or
performance, presentment, protest, notice of dishonor, nonpayment or nonperformance of any and all
forms of the Guaranteed Obligations; (b) notice of acceptance of this Guaranty and notice of any
liability to which it may apply; (c) all other notices and demands of any kind and description
relating to the Guaranteed Obligations now or hereafter provided by any statute, law, rule or
regulation; (d) all claims and/or rights of counterclaim, recoupment, setoff or offset; (e) any and
all rights or defenses arising by reason of election of remedies by Lender which destroys or
otherwise adversely affects Guarantor’s subrogation rights or Guarantor’s rights to proceed against
Borrower for reimbursement, including, without limitation, loss of rights Guarantor may suffer by
reason of any law limiting, qualifying or discharging the Guaranteed Obligations; (f) any
disability of Borrower of any other guarantor, or of any other person, or by reason of the
cessation of Borrower’s liability from any cause whatsoever, other than payment in full in legal
tender of the Guaranteed Obligations; (g) any right to claim discharge of the Guaranteed
Obligations on the basis of impairment of any collateral for the Guaranteed Obligations; (h) any
statute of limitations; (i) any defenses given to guarantors at law or in equity other than actual
payment and performance of the Guaranteed Obligations; (j) any defenses given to Guarantor by any
failure, neglect or omission by Lender to perfect in any manner the collection of the Guaranteed
Obligations or the security given therefor, including the failure or omission to seek a deficiency
judgment against Borrower; (k) any benefits and rights that Guarantor may have under 15 Okla.
Stats. §§ 323, 334, 335, 337 and 338 (2001), as may be amended from time to time, and to the extent
the Guaranteed Obligations are secured by a mortgage on interests in real property, 12 Okla. Stats.
§ 686 (2001), as the same may be amended from time to time; and (l) any and all other defenses of
Borrower pertaining to the Guaranteed Obligations, except the defense of discharge by payment.
Guarantor shall not be exonerated with respect to Guarantor’s liability under this Guaranty by any
act or thing except payment or performance of the Guaranteed Obligations. Guarantor warrants and
agrees that each of the waivers set forth above is made with Guarantor’s full knowledge of its
significance and consequences and that, under the circumstances, the waivers are reasonable and not
contrary to public policy or law. If such waiver is determined to be contrary to any applicable law
or public policy, such waiver shall be effective only to the extent permitted by law or public
policy.



     3. Other Transactions. Lender is expressly authorized (a) to exchange, surrender or
release with or without consideration any or all collateral and security which may at any time be
placed with it by Borrower or by any other person, or to forward or deliver any or all such
collateral and security directly to Borrower for collection and remittance or for credit, or to
collect the same in any other manner without notice to Guarantor; (b) to amend, modify, extend or
supplement the Note (other than an increase in the face amount thereof by a written amendment or
modification of the Note executed by Borrower), or other agreement with respect



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to the Guaranteed Obligations, to waive compliance by Borrower with the respective terms
thereof and to settle or compromise any of the Guaranteed Obligations without notice to Guarantor
and without in any manner affecting the absolute liability of Guarantor hereunder; and (c) to
assign from time to time all or any part of Lender’s interest in the Note, this Guaranty and all
other documents securing performance and payment of the Loan. The liability of Guarantor hereunder
shall not be affected or impaired by any failure, neglect or omission on the part of Lender to
realize upon any of the Guaranteed Obligations of Borrower to Lender, or upon any collateral or
security for any or all of the Guaranteed Obligations, nor by the taking by Lender of (or the
failure to take) any other guaranty or guaranties to secure the Guaranteed Obligations, nor by the
taking by Lender of (or the failure to take or the failure to perfect its security in) collateral
or security of any kind. Guarantor acknowledges that this Guaranty is in effect and binding as to
Guarantor without reference to whether this Guaranty is signed by any other person or persons, and
agrees that as to Guarantor, this Guaranty shall continue in full force and effect, both as to the
Guaranteed Obligations then existing and/or thereafter created, notwithstanding the release of or
extension of time to any other guarantor of the Guaranteed Obligations or any part thereof.



     4. Rights Against Borrower. So long as any Guaranteed Obligations remain unpaid,
performance by Guarantor under this Guaranty will not entitle Guarantor to any payment by Borrower
under any claim for contribution, indemnification, subrogation or otherwise. In any event,
Guarantor hereby subordinates to Lender any claim against Borrower for contribution,
indemnification, subrogation or otherwise arising from performance by Guarantor under this
Guaranty. The provisions of this paragraph shall survive termination of this Guaranty pursuant to
clause (b) in paragraph 10.



     5. Application of Payments. Any and all payments upon the Guaranteed Obligations made
by Guarantor or by any other person, and/or the proceeds of any or all collateral or security for
any of the Guaranteed Obligations may be applied by Lender on such items of the Guaranteed
Obligations as Lender may elect. Any payment made by Guarantor under this Guaranty shall be
effective to reduce or discharge the liability of Guarantor hereunder only if accompanied by
written advice received by Lender advising Lender that such payment is made under this Guaranty for
such purpose.



     6. Guarantor’s Warranties. Guarantor warrants and represents to Lender that this
Guaranty has been duly executed and delivered by Guarantor and constitutes a legal, valid and
binding obligation of Guarantor, enforceable in accordance with its terms, except as enforcement
may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting creditors’
rights generally. Guarantor warrants to Lender that Guarantor has a substantial economic interest
in Borrower, and that Guarantor expects to derive direct and substantial economic benefits from
transactions resulting in the creation of the Guaranteed Obligations. Lender may rely conclusively
on a continuing warranty hereby made that Guarantor continues to be benefited by Lender’s extension
of credit to Borrower and Lender shall have no duty to inquire into or confirm the receipt of any
such benefits, and this Guaranty shall be effective and enforceable by Lender without regard to the
receipt, nature or value of any such benefits.



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     7. Recovery of Payment. If any payment received by Lender from Borrower or any other
obligor and applied to the Guaranteed Obligations is subsequently set aside, recovered, rescinded
or required to be returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of Borrower or any other obligor), the Guaranteed Obligations to which
such payment was applied shall for the purposes of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be enforceable against
Guarantor as to such Guaranteed Obligations as fully as if such application had never been made.



     8. New Promise. Any acknowledgment or new promise, whether supported by payment of
principal or interest or otherwise and whether made by Borrower or others (including Guarantor)
with respect to any of the Guaranteed Obligations shall, if the statute of limitations in favor of
Guarantor against Lender shall have commenced to run, toll the running of such statute of
limitations and, if the period of such statute of limitations shall have expired, prevent the
operation of such statute of limitations with respect to such promise.



     9. Discharge. Subject to the limitations set forth in paragraph 15, until
each and every one of the Guaranteed Obligations are performed in full, the obligations of
Guarantor hereunder shall not be released, in whole or in part, by any action or thing which might,
but for this provision of this Guaranty, be deemed a legal or equitable discharge of a surety or
guarantor, or by reason of any waiver, extension, modification, forbearance or delay or other act
or omission of Lender or its failure to proceed promptly or otherwise, or by reason of any action
taken or omitted by Lender whether or not such action or failure to act varies or increases the
risk of, or affects the rights or remedies of Guarantor, nor shall any modification of any of the
obligations of Borrower or the release of any security therefor by operation of law or by the
action of any third party affect in any way the obligations of Guarantor hereunder, and Guarantor
hereby expressly waives and surrenders any defense to Guarantor’s liability hereunder based upon
any of the foregoing acts, omissions, things, agreements or waivers or any of them, it being the
purpose and intent of the parties hereto that the Guaranteed Obligations of Borrower constitute the
direct and primary obligations of Guarantor and that the covenants, agreements and all obligations
of Guarantor hereunder be absolute, unconditional and irrevocable.



     10. Termination. Any provision hereof to the contrary notwithstanding, this Guaranty
shall terminate and will be released by Lender upon request of Guarantor on the earlier of (a) the
date on which all of the Guaranteed Obligations have been performed in full, all in accordance with
the provisions of the Note and other Loan Documents, or (b) the date on which Guarantor’s
obligations under paragraph 15 of this Guaranty have been performed in full.



     11. Remedies. All remedies afforded to Lender by reason of this Guaranty are separate
and cumulative remedies and it is agreed that no one of such remedies, whether or not exercised by
Lender, shall be deemed to be in exclusion of any of the other remedies available to Lender and
shall in no way limit or prejudice any other legal or equitable remedy which Lender may have
hereunder and with respect to the Guaranteed Obligations. Guarantor agrees that included within the
equitable remedies available to Lender hereunder is the right of Lender to



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elect to have any and all of the obligations and agreements of Guarantor hereunder
specifically performed.



     12. Judicial Actions. Guarantor hereby waives any and all right to cause a marshaling
of the assets of Borrower, or to cause Lender to proceed against any security for the Guaranteed
Obligations or any other recourse which Lender may have with respect thereto or to set off the
value of any such security, and further waives any and all requirements that Lender institute any
action or proceeding at law or in equity against Borrower or anyone else, or with respect to the
Note, or any collateral security therefor, as a condition precedent to making a demand on, or
bringing any action or obtaining and/or enforcing a judgment against, Guarantor upon this Guaranty,
it being agreed that upon the occurrence of an Event of Default, failure to cure same within the
applicable time and acceleration of the Guaranteed Obligations, the obligations of Guarantor
hereunder shall without further act mature immediately and automatically, without further notice or
demand or any other action by Lender. Guarantor further acknowledges that time is of the essence
with respect to Guarantor’s obligations under this Guaranty. Any remedy or right hereby granted
which shall be found to be unenforceable as to any person or under any circumstance, for any
reason, shall in no way limit or prevent the enforcement of such remedy or right as to any other
person or circumstances, nor shall such unenforceability limit or prevent enforcement of any other
remedy or right hereby granted.



     13. Bankruptcy of Borrower. Guarantor expressly agrees that Guarantor’s liability and
obligations under this Guaranty shall not in any way be affected by the institution by or against
Borrower or any other person or entity of any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or any other similar proceedings for relief under any bankruptcy law or
similar law for the relief of debtors and that any discharge of any of the Guaranteed Obligations
pursuant to any such bankruptcy or similar laws or other law shall not discharge or otherwise
affect in any way the liabilities and obligations of Guarantor under this Guaranty, and that upon
the institution of any of the above actions, at the sole discretion of Lender, such liabilities and
obligations shall be enforceable against Guarantor.



     14. Financial Information. Guarantor shall provide Lender with annual financial
statements within one hundred twenty (120) days of the end of each fiscal year of Borrower, and
copies of its Federal income tax return within fifteen (15) days of filing.



     15. Limitation on Guaranty Obligation. Notwithstanding any other provision hereof,
Guarantor’s maximum liability and obligation under this Guaranty shall not exceed $750,000.00 of
the Guaranteed Obligations, plus the costs of collection and enforcement incurred by Lender in
connection with enforcement of its rights under this Guaranty pursuant to clause (a) of
paragraph 16.



     16. General.




     a. Guarantor agrees to reimburse Lender upon demand for all reasonable out-of-pocket
expenses (including reasonable attorneys’ fees and legal expenses) incurred by Lender
arising out of or in connection with



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any failure of Guarantor
to fully and timely perform Guarantor’s liabilities and obligations hereunder.




     b. No delay on the part of Lender in the exercise of any power or right shall operate
as a waiver thereof, nor shall any single or partial exercise of any power or right preclude
other or further exercise thereof or the exercise of any other power or right.




     c. No invalidity, irregularity or unenforceability of all or any part of the Guaranteed
Obligations or of any security therefor or other recourse with respect thereto shall affect,
impair or be a defense to this Guaranty, and this Guaranty is a primary obligation of
Guarantor.




     d. All notices, requests and demands required under this Guaranty will be sent by
facsimile, served personally or by registered or certified mail to the respective addresses
of Guarantor and Lender set forth in this Guaranty or at such other address as given to the
other party in writing; if sent by facsimile or served personally, such notices, requests
and demands shall be deemed given when actually delivered to the other party and if sent by
registered or certified mail, they shall be deemed given three (3) business days after the
date on which they are deposited in the United States mail.




     e. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE
OF OKLAHOMA FROM TIME TO TIME IN EFFECT EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.




     f. GUARANTOR WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS GUARANTY. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT NEITHER
LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT. GUARANTOR FURTHER ACKNOWLEDGES THAT HE/SHE/IT HAS BEEN REPRESENTED (OR
HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING
OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL. GUARANTOR ACKNOWLEDGES THAT HE/SHE/IT HAS READ
AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION. THIS GUARANTY
CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY, AND LENDER IS AUTHORIZED AND
EMPOWERED TO FILE THIS GUARANTY WITH THE CLERK OR JUDGE OF ANY COURT OF COMPETENT
JURISDICTION AS A STATUTORY WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY.




     g. Paragraph headings herein are for convenience only and shall not be deemed part of
this Guaranty.



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     h. When the context or circumstances herein so require, the singular shall be construed
as the plural and the masculine, feminine and neuter shall be construed interchangeably.




     i. This Guaranty shall be binding upon Guarantor and Guarantor’s successors and assigns
and shall inure to the benefit of Lender and the successors and assigns of Lender.




     j. If this Guaranty is one of two or more guaranty agreements executed by more than one
guarantor, each term contained in each guaranty agreement will be jointly and severally
binding on each such guarantor unless stated otherwise.



     IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as of the date first
above written.



	 	 	 	 	 
	“GUARANTOR”:

	 	TRI-
	 	ISTHMUS GROUP, INC., a Delaware corporation
	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Dennis M. Smith,
Chief Financial Officer






STATE OF                                          )

                                                            )

COUNTY OF                                     )




     This instrument was acknowledged before me this                     day of October, 2007, by Dennis M. Smith, Chief Financial Officer of Tri-Isthmus Group, Inc., a Delaware corporation.




	 	 	 
	 

	 	 
	 

	 	Notary Public, Commission No.:                    






	 	 	 
	My commission expires:

	 	 
	 
	 	 
	 

(SEAL)

	 	  







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