EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
SURGERY CENTER OF XXXXXXX, L.L.C.
AND
XXXXXXX SURGICAL CARE CENTER, L.C.
AND
AMEDISYS, INC.
AND
AMEDISYS SURGERY CENTERS, L.C.
DATED AS OF SEPTEMBER 7, 2001
-i-
ASSET PURCHASE AGREEMENT
AGREEMENT, made as of the 7th day of September, 2001, by and between
Surgery Center of Xxxxxxx, L.L.C. (the "Purchaser"), Hammond Surgical Care
Center, L.C. (the "Seller"), Amedisys Surgery Centers, L.C. ("ASC") and
Amedisys, Inc. ("Amedisys").
WITNESSETH:
WHEREAS, the Seller is the operator of an ambulatory surgery facility
(the "Center") located in Hammond, Louisiana which provides treatment for
ambulatory surgical patients and subleases the real property on which the Center
is located (the "Real Property"); and
WHEREAS, ASC is the lessee of the Real Property and is a party to this
Agreement to assign its leasehold interest in the Real Property to the
Purchaser, and
WHEREAS, Purchaser desires to purchase and the Seller desires to sell
certain assets of the Seller, upon the terms and subject to the conditions set
forth in this Agreement, and
WHEREAS, Amedisys or its affiliates is the owner of certain equipment
utilized by the Seller at the Center (the "Xxxxxxx Xxxxx Equipment") and such
equipment is encumbered by indebtedness owed to Xxxxxxx Xxxxx, pursuant to that
certain financing agreement by and between Amedisys and its affiliates and
Xxxxxxx Xxxxx (the "Xxxxxxx Xxxxx Indebtedness"), and
WHEREAS, the Xxxxxxx Xxxxx Indebtedness shall be repaid out of the
proceeds received from this transaction and Amedisys shall convey, transfer, and
assigns its rights and interest in the Xxxxxxx Xxxxx Equipment to the Purchaser,
and
WHEREAS, as a material inducement to Purchaser entering into and
consummating this transaction, Amedisys has agreed to guarantee the obligations
of the Seller as set forth in Section 15 herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter contained, the parties hereto agree as follows:
1. Purchase and Sale of Assets.
1.1 Assets Conveyed. At the closing of the
transactions contemplated hereby (the "Closing") on the Closing Date (as
hereinafter defined), and upon the basis of the representations, warranties,
covenants and agreements contained herein, the Seller, ASC and Amedisys shall
sell, transfer, assign, convey and deliver to the Purchaser, and the Purchaser
shall purchase on the terms set forth herein, all of the their respective
rights, title and interest in and to the Assets. The "Assets" shall mean those
personal, tangible and intangible properties of the Seller, ASC and Amedisys as
set forth below and as more particularly described in the Schedules to this
Section 1.1:
(a) Accounts Receivables: all patient accounts
receivables of the Seller existing on the Closing Date, including without
limitation the receivables set forth on Schedule 1.1(a) which shall be a true
and accurate listing of all patient accounts receivables.
(b) Contractual Rights: all rights and benefits of
the Seller under all contracts set forth on Schedule 1.1(b) hereto (which also
recites those contracts, the assignment of which by their terms requires third
party consent), which shall include the Seller's Medicare and Medicaid provider
agreements;
(c) Equipment: all machinery, equipment, fixtures,
computers, computer hardware and software, tools, supplies, furniture, and other
tangible personal property and assets of the Seller and all of the Xxxxxxx Xxxxx
Equipment owned by Amedisys, as specifically described in Schedule 1.1(c)
hereto;
(d) Leases: all the interest of and the rights and
benefits accruing to the Seller as lessee/sublessee and ASC as lessee under (i)
all leases of Real Property used by the Seller in the operation of the Center,
and all leasehold improvements and fixtures relating thereto, including without
limitation those described in Schedule 1.1(d) hereto and (ii) those leases or
rental agreements covering machinery, equipment, computers, computer hardware
and software, tools, supplies, furniture and fixtures, vehicles and other
tangible personal property and assets used in the operation of the Center, as
specifically described in Schedule 1.1(d) hereto.
(e) Records: all operating data and records of the
Seller relating to the Center, including without limitation, client lists and
records (including treatment records), referral sources, research and
development reports and records, production reports and records, equipment logs,
operating guides and manuals (other than business and policy manuals),
projections, copies of financial, accounting and personnel records,
correspondence and other similar documents and records; and
(f) Licenses and Permits to the extent legally
transferable, all licenses, authorizations, permits and hospital tax exemptions
held or used by the Seller in connection with the ownership of the Assets and
the conduct of the operations of the Center, as specifically described in
Schedule 1.1 (f) hereto.
(g) Names: all rights and interest to the name "St.
Luke's Surgicenter" and the telephone numbers of the Center.
(h) Supplies, Prepaid Expenses and Inventory. all
supplies and inventory of the Center including but not limited to all medical
supplies and all prepaid items and expense.
(i) Other Assets: all other personal properties and
assets of every kind and nature, tangible or intangible (including warranties
and performance guaranties with respect to such assets) owned by the Seller,
including, without limitation, any fixtures, installations, machinery,
equipment, vehicles, furniture, tools, spare parts, supplies, office and
laboratory equipment, research facilities, materials, fuel or other personal
property.
1.2 Excluded Assets. Notwithstanding anything to the
contrary the Assets do not include any (i) cash, or cash equivalents, or (ii)
all rights and interest that the Seller and its members have in and to the
Seller's current litigation with North Oaks Hospital (collectively, the
"Excluded Assets").
2. Payment of the Purchase Price and Assumption of
Liabilities.
2.1 Purchase Price.
2.1.1 Payment at Closing The purchase price for the
Assets shall be Two Million, Eight Hundred and Fifty Thousand Dollars
($2,850,000) (the "Purchase Price") payable as follows: (i) Two Million Seven
Hundred and Fifty Thousand Dollars ($2,750,000) in cash or otherwise immediate
available funds at Closing (the "Closing Payment"), and (ii) $100,000 in cash
upon the determination of the Closing Payment Adjustment (the "Working Capital
Withhold"), provided that if the Closing Payment Adjustment as determined
pursuant to Section 2.1.2, requires the
Seller to pay monies to the Purchaser and the Seller fails to pay such monies to
the Purchaser as required pursuant to Section 2.1.2, the Purchaser shall be
permitted to offset the Working Capital Withhold against any monies owed by
Seller as a Closing Payment Adjustment. The offset rights set forth herein are
in addition to any other remedy the Purchaser may have against the Seller. In
the event any portion of the Working Capital Withhold is repaid by Purchaser to
the Seller, such repayment will include accrued interest at 15% compounded
annually and such repayment shall be made within ten (10) business days of the
Final Working Capital Calculation, as defined herein.
2.1.2 Working Capital Adjustment. Within sixty (60)
days after the Closing Date, the Purchaser and Seller shall reconcile and
determine the amount of Working Capital (as defined below) transferred to the
Purchaser on the Closing Date. As promptly as practicable, but no later than 90
days after the Closing Date, Purchaser shall prepare and deliver to Seller a
calculation which shall set forth Purchaser's good faith determination of the
Working Capital actually transferred to the Purchaser by the Seller, such
calculation shall be consistent with the Interim Financial Statements (the
"Working Capital Calculation"). In the event the Seller disagrees with the
Working Capital Calculation, the parties shall make a good faith effort to
resolve the dispute and reach an agreement regarding the Working Capital
Calculation. If after thirty (30) days the parties have not reached an agreement
regarding the Working Capital Calculation, either party may require the dispute
to be resolved by a mutually acceptable independent, third party certified
public accounting firm (the "Accounting Firm"), which has been designated in
writing by the parties. The Accounting Firm shall perform such computations and
verifications in accordance with the provisions of this Agreement and otherwise
where applicable with GAAP. The foregoing provisions for the Accounting Firm
review
shall be specifically enforceable by the parties, and the parties agree to be
bound by the determination of the Accounting Firm (the agreed upon Working
Capital Calculation or a final determination by the Accounting Firm shall be
referred to as the "Final Working Capital Calculation") in resolving this issue.
There shall be no right of appeal from such decision, and the cost of such
Accounting Firm's determination shall be borne by both parties equally. The
Purchase Price shall be reduced to the extent that the Final Working Capital
Calculation is less than $430,000. The Purchase Price shall be increased to the
extent that the Final Working Capital Calculation exceeds $430,000 (each a
"Closing Payment Adjustment"). The Closing Payment Adjustment shall be made by
Purchaser or Seller, as appropriate, to the other party within ten (10) business
days of the Final Working Capital Calculation. "Working Capital" shall mean net
accounts receivables less trade accounts payable.
2.2 Prorations. Within sixty (60) days after the
Closing Date (as hereinafter defined) and to the extent such prorated amounts
have not been assumed by the Purchaser pursuant to Section 2.3, the Seller and
Purchaser shall prorate as of such Closing Date, any amounts which become due
and payable after such Closing Date with respect to (i) the contracts and
agreements set forth on Schedules 1.1(b) hereto, (ii) property taxes on the
Assets, (iii) ad valorem taxes, if any, on the Assets, (iv) all utilities
servicing any of the Assets including without limitation water, sewer,
telephone, electricity and gas service, and (v) all other charges and fees
customarily prorated and adjusted in similar transactions (collectively the
"Prorations"). Seller shall be liable for the prorated amounts accruing or
related to the period through the Closing Date, including any ad valorem, sales
or use taxes related to this transaction, and Purchaser shall be liable for the
prorated amounts accruing and related to the period after the Closing Date.
2.3 Liabilities Assumed by Purchaser. On and as of
the Closing Date, Purchaser shall assume and agree to pay, perform and
discharge: (i) those obligations of the Seller relating to the Assets (other
than those excluded in Section 1.2) accruing from and after the Closing Date
under those contracts and agreements set forth on Schedules 1.1(b) and 1.1(d)
hereto and (ii) those trade account payables as set forth in Schedule 2.3 (the
"Assumed Liabilities").
2.4 Liabilities Retained by the Seller. The Purchaser
shall not assume any liability other than the "Assumed Liabilities, and
therefore the Seller shall remain liable for all other debts and obligations of
the Seller and hold Purchaser harmless from such debts and obligations including
but not limited to:
(i) any and all obligations for the payment
of any long term indebtedness of the Seller,
(ii) any current liabilities of the Seller,
including, without limitation, accrued employee vacation, sick
and holiday pay and paid time off and associated payroll
taxes;
(iii) any and all liabilities of the Seller
relating to acts or omissions, including medical malpractice;
(iv) any and all claims of the United States
Government under the Medicare program, the State of Louisiana
under Medicaid programs, or any other third party payors;
(v) federal and state income taxes, if any,
payable with respect to any activities of the Seller;
(vi) sales and other taxes (including,
without limitation, use taxes) payable with respect to the
business or operations of the Seller;
(vii) any other debt, obligation or
liability of the Seller (other than the Assumed Liabilities)
whether or not such debt, obligation or liability is disclosed
on the financial statements as hereinafter defined;
(viii) any liability or obligation to any
employee or former employee of the Seller or to any third
party, under any pension, insurance, bonus, profit-sharing or
other employee benefit plan or arrangement or any obligation
relating to salaries, bonuses, vacation or severance pay, or
any obligation under ERISA as hereinafter defined; and
(ix) the Seller's obligations and
liabilities arising under this Agreement.
2.5 Instruments of Conveyance and Transfer of Books
and Records. At the Closing, the Seller shall deliver to the Purchaser such
deeds, bills of sale, endorsements, assignments and other instruments of sale,
conveyance, transfer and assignment, reasonably satisfactory in form and
substance to the Purchaser and its counsel as may be reasonably requested by the
Purchaser in order to convey to the Purchaser good title to the Assets, which
the Seller is hereby conveying free and clear of all claims, charges, liens
(including tax liens other than liens for city, county and state ad valorem
taxes and assessments not yet due and payable), security interests and
encumbrances. The Seller shall also deliver at the Closing copies of all records
to be transferred to the Purchaser.
3. Representations and Warranties of the Seller.
In order to induce the Purchaser to enter into and perform
this Agreement, the Seller represents, warrants and agree as follows (ASC and
Amedisys shall make certain representations and warranties as specifically set
forth herein):
3.1 Organization, Capitalization, Authorization, Etc.
3.1.1 Organization. The Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of Louisiana with all the requisite power and authority to execute,
deliver and perform this Agreement and to hold the properties, rights and assets
and to carry on the businesses now conducted by it. 3.1.2 Governing Documents.
Copies of the Articles of Organization and the Operating Agreement of the Seller
have heretofore been delivered to the Purchaser and are true, complete and
correct.
3.2 Ownership of Assets. The Seller has good and
marketable title to the Assets described in Section 1.1 hereto and Amedisys has
good and marketable title to the Xxxxxxx Xxxxx Equipment, free and clear of any
claims, charges, liens (including tax liens), security interests and
encumbrances whatsoever, and the Seller has the right, power and authority to
sell, transfer, assign, convey and deliver all of the Assets to Purchaser, free
and clear of any claims, charges, equities, liens (including tax liens),
security interests and encumbrances whatsoever.
3.3 The Seller's Authority and No Conflict. The
Seller, Amedisys and ASC have the right, power and authority to execute, deliver
and carry out their obligations under this Agreement and all documents and
agreements contemplated hereby, and this Agreement has been duly
authorized, executed and delivered by the Seller, Amedisys and ASC. Except as
disclosed on Schedule 3.3, (i) Seller is not in default under, and no event has
occurred which, with the lapse of time or action by a third party, would result
in a material default under, any outstanding mortgage, contract or agreement to
which Seller is a party; (ii) neither the execution and delivery by Seller of
this Agreement nor the performance by Seller of its obligations hereunder nor
Seller's consummation of the transactions contemplated hereby will (a) violate
any provision of the organizational documents of Seller; (b) violate, be in
conflict with, constitute a default under or permit the termination of any
contract to which Seller is a party, or cause the acceleration of the maturity
of any debt or obligation of Seller; (c) require the consent of any other party
to, or result in the creation or imposition of any lien upon any of the Assets,
any agreement or commitment to which Seller is a party; or (d) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority to which Seller is subject.
3.4 Compliance with Laws. In connection with the
conduct of the operation of the Center and the conduct of its business and
ownership of the Assets, except as set forth on Schedule 3.4, to the best of
Seller's knowledge, Seller is in compliance with all requirements of law,
federal, state and local, and all requirements of all governmental bodies or
agencies having jurisdiction over Seller, the conduct of its business, the use
of its properties and assets, and all premises occupied by it (including without
limitation, any that relate to the ownership and operation of the Center,
consumer protection, health and safety, products and services, proprietary
rights, anti-competitive practices, labor, equal opportunity and improper
payments). Seller has all required licenses, permits, certificates, and
authorizations needed for the
current conduct of its business and the use of its properties and the premises
occupied by it. Seller: (a) has not received any notice, not previously complied
with, from any federal, state or other governmental authority or agency having
jurisdiction over its properties or activities, or any insurance or inspection
body, that its operations or any of its properties, facilities, equipment, or
business procedures or practices fail to comply with any applicable law,
ordinance, regulation, building or zoning law, or requirement of any public or
quasi-public authority or body; (b) is in compliance with all material terms,
conditions and provisions of contracts with payors with whom it has contracts.
(c) and its respective, employees, officers and directors acting in such
capacity of the Seller, are not engaging in any of the following activities: (i)
knowingly and willfully making or causing to be made a false statement or
representation of a material fact in any application for any benefit or payment
from Medicare, Medicaid, or other State of Louisiana healthcare programs on
behalf of the Seller; (ii) knowingly and willfully making or causing to be made
any false statement or representation of a material fact for use in determining
rights to any benefit or payment from Medicare, Medicaid, or other State of
Louisiana healthcare programs on behalf of the Seller; (iii) presenting or
causing to be presented a claim for reimbursement for services under Medicare,
Medicaid, or other State of Louisiana healthcare programs that is for an item or
service that is known or should be known to be (a) not provided as claimed, or
(b) false or fraudulent; (iv) failing to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right to any benefit
or payment on its own behalf or on behalf of another, with intent to
fraudulently secure such benefit or payment from Medicare, Medicaid, or other
State of Louisiana healthcare programs; (v) knowingly and willfully offering,
paying,
soliciting or receiving any remuneration (including any kickback, bribe, or
rebate), directly or indirectly, overtly or covertly, in cash or in kind (a) in
return for referring an individual to a person for the furnishing or arranging
for the furnishing of any item or service for which payment may be made in whole
or in part by Medicare or Medicaid, or other State of Louisiana healthcare
program or (b) in return for purchasing, leasing, or ordering or arranging for
or recommending purchasing, leasing, or ordering any good, facility, service, or
item for which payment may be made in whole or in part by Medicare or Medicaid
or other State of Louisiana healthcare program; (vi) knowingly making a payment,
directly or indirectly, to a physician as an inducement to reduce or limit
services to individuals who are under the direct care of the physician and who
are entitled to benefits under Medicare, Medicaid, or other State of Louisiana
healthcare programs; (vii) providing to any person information that is known or
should be known to be false or misleading that could reasonably be expected to
influence the decision regarding the treatment of a patient; (viii) knowingly
and willfully making or causing to be made or inducing or seeking to induce the
making of any false statement or representation (or omitting to state a fact
required to be stated therein or necessary to make the statements contained
therein not misleading) of a material fact with respect to (a) the conditions or
operations of the Center in order that the Center may qualify for Medicare,
Medicaid or other State of Louisiana healthcare program certification, or (b)
information required to be provided under Section 1124A of the Social Security
Act (42 U.S.C. Section 1320a-3); and (ix) knowingly and willfully other than
co-payments or deductibles, (a) charging for any Medicaid service money or other
consideration at a rate in excess of the rates established by the State of
Louisiana, or (b) charging, soliciting, accepting or receiving, in addition to
amounts paid by Medicaid, any gift money, donation or other consideration (other
than a charitable, religious or other philanthropic contribution from an
organization or from a person unrelated to the patient) as a precondition of
admitting the patient.
3.5 Financial Statements, Books and Records, and
Change in Condition.
3.5.1 Financial Statements Provided. Copies of
the financial statements of the Seller for years ended December 31, 1998 and
December 31, 1999, December 31, 2000 (the "Annual Financial Statements") and the
unaudited financial statements for the period of January 1, 2001 through July
31, 2001 (the "Interim Financial Statements") have been delivered to the
Purchaser. The Annual Financial Statements and the Interim Financial Statements
have been prepared in accordance with generally accepted accounting principles
("GAAP") consistently followed by the Seller throughout the periods indicated,
and fairly present its financial position as at the respective dates of the
balance sheets included in the financial statements and the results of its
operations for the respective periods indicated.
3.5.2 Absence of Changes. Except as disclosed on
Schedule 3.5.2 hereto, since December 31, 2000, there has not been any (a)
transaction by the Seller except in the ordinary course of business as conducted
during the twelve-month period ending on that date; (b) capital expenditure
exceeding $4,000; (c) material adverse change in the condition (financial or
otherwise), business, liabilities or Assets of the Seller; (d) destruction,
damage to, or loss of the Assets owned, leased or used by the Seller (whether or
not covered by insurance) that materially and adversely affects the assets;
condition, financial or otherwise, or business of the Seller; (e) labor trouble
or other event or condition relating to employment or labor matters of any
character materially and adversely
affecting the condition, financial or otherwise, or assets, of the Seller; (f)
change in accounting methods or practices (including, without limitation,
changes in depreciation or amortization policies or rates) by the Seller; (g)
revaluation of the Assets; (h) sale or transfer of the Assets except in the
ordinary course of business; (i) amendment or termination of any material
contract, agreement, or license to which the Seller is a party, except in the
ordinary course of business; (j) loan by the Seller to any person or entity, or
guaranty of any loan; (k) mortgage, pledge, or other encumbrance of the Assets;
(l) any change in the capitalization of the Seller; or (m) any material
obligation or liability (absolute or contingent) incurred by the Seller or to
which it has become subject except current liabilities incurred in the ordinary
course of business and obligations under contracts entered into in the ordinary
course of business.
3.6 Absence of Undisclosed Liabilities. The Seller
does not have any debt, liability or obligation of any nature, whether accrued,
absolute, contingent or otherwise, and whether due or to become due, which is
not reflected or reserved against in the Annual Financial Statements or the
Interim Financial Statement of the Seller except for (a) those which are not
required by generally accepted accounting principles to be so reflected, and (b)
those which were incurred in the ordinary course of business and are usual and
normal in amount both individually and in the aggregate.
3.7 Real Property.
3.7.1 Real Property Schedule. Schedule 3.7.1
contains a complete and accurate description of the real estate leased by the
Seller and ASC (the "Real Property").
3.7.2 Compliance With Environmental Laws. Except
as set forth in Schedule 3.7.2.
(a) Seller and ASC are currently in material compliance with
all Environmental Laws.
(b) Neither the Seller nor ASC has stored, disposed of or
arranged for disposal of any Materials of Environmental Concern, except in
material compliance with the Environmental Laws;
(c) To the best of Seller's and ASC's knowledge, there have
been no actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the generation, transportation, treatment,
storage, release, emission, discharge, presence or disposal of any Materials of
Environmental Concern on or at the Real Property.
As used herein, the following terms have the following
meanings:
Environmental Claim. The term "Environmental Claim" means any
claim, action or cause of action, alleging liability (including, without
limitation, liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages, personal injuries,
or penalties) arising out of, based on or resulting from, in part or in whole,
(a) the presence, or release into the environment, of any Materials of
Environmental Concern, or (b) circumstances forming the basis of any violation,
or alleged violation, of the Environmental Laws.
Environmental Laws. The term "Environmental Laws" means the
federal, state, and local environmental laws, regulations and rules relating to
the generation, treatment, storage, transportation, disposal, emissions,
discharges or releases of Materials of Environmental Concern, or otherwise
relating to protection of the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata), as
the same may be amended or modified until
the date of closing, including, without limitation, the following statutes:
Federal Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. 6901, et seq.; Federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601,
et seq.; Federal Clean Air Act, 42 U.S.C. 7401, et seq.; Federal Water Pollution
Control Act, Federal Clean Water Act of 1977, 33 U.S.C. 1251, et seq.; Federal
Insecticide, Fungicide, and Rodenticide Act, Federal Pesticide Act of 1978, 7
U.S.C. 136, et seq.; Federal Hazardous Materials Transportation Act, 48 U.S.C.
1801, et seq.; Federal Toxic Substances Control Act, 15 U.S.C. 2601, et seq.;
Federal Safe Drinking Xxxxx Xxx, 00 X.X.X. 000x, et seq.
Materials of Environmental Concern. The term "Environmental Concern"
means any toxic or hazardous waste, pollutants or substances, including, without
limitations, asbestos, PCBs, petroleum products and byproducts, substances
defined or listed as "hazardous substances", "hazardous waste", "toxic
substances", "toxic pollutant", or similarly identified substances or mixtures,
in or pursuant to the Environmental Laws.
3.7.3 Compliance with Building Codes, Zoning
Laws, Etc. To the best of Seller's and ASC's knowledge, the Seller and ASC are
in compliance with all Legal Requirements materially and adversely affecting the
Real Property or any construction, use or occupancy of the improvements to the
Real Property, other than as shown on Schedule 3.7.3 hereto. As used herein, the
term "Legal Requirements" means all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of any Federal, state or local
governmental authority, ordinary or extraordinary, which now are applicable
to the Real Property or any part thereof, or any of the adjoining sidewalks, or
any use or condition of the Real Property or any part thereof.
3.8 Insurance Policies. Schedule 3.8 contains a
description of all insurance policies held by the Seller and ASC concerning its
business and the Real Property. All such policies have the respective limits set
forth in Schedule 3.8. The Seller represents and warrants that there have not
been any awards under any insurance policies since December 31, 2000, except as
disclosed on Schedule 3.8.
3.9 Litigation. Except as disclosed in Schedule 3.9,
there is no suit, action, arbitration, or legal, administrative, or other
proceeding, or governmental investigation pending or to the best of Seller's
knowledge threatened against or affecting the Seller, any of the, Assets, or any
of the transactions contemplated by this Agreement. The Seller is not in default
of any order, writ, injunction or decree of any federal, state, local, or
foreign court, department, agency or instrumentality.
3.10 Contracts, Obligations and Commitments. Except
as set forth on Schedule 3.10 hereto, the Seller is not a party to any existing
material contract, obligation or commitment (written or oral) of any nature,
including, without limitation, the following: (a) any loan or other agreements,
notes, indentures, or instruments relating to or evidencing indebtedness for
borrowed money or mortgaging, pledging or granting or creating a lien or
security interest or other encumbrance on any of its assets or any agreement or
instrument evidencing any guaranty by the Seller of payment or performance by
any other person; (b) any contract or series of contracts with the same person
for the furnishing or purchase of equipment, goods or services; (c) any joint
venture contract or arrangement or other agreement involving a sharing of
profits or expenses to which it is a party or by
which it is bound; (d) any agreement which will limit the freedom of Purchaser
to compete in any line of business or in any geographic area or with any person;
or (e) any agreement providing for disposition of the Assets or agreements of
merger or consolidation to which it is a party or by which it is bound.
The Seller has complied in all material respects with
all the provisions of its contracts and commitments listed on Schedule 3.10
hereto, and is not in default under any thereof except as set forth on Schedule
3.10.
3.11 No Broker. Except as set forth on Schedule 3.11,
the Seller represents and warrants it has not dealt with any broker or finder in
connection with any of the transactions contemplated by this Agreement and,
insofar as it knows, no other broker or other person is entitled to any
commission or finder's fee in connection with any of such transactions.
3.12 Compliance with Applicable Law Relating to
Benefit Plans. The Seller has complied with all applicable provisions of ERISA
and all applicable federal, state and local laws relating to the employment of
labor, including but not limited to the provisions thereof relative to wage,
hours, collective bargaining, contributions to pension or benefit plans, and
payment of Social Security Taxes, and the Seller is not liable for any arrears
of wages, contributions or any taxes or penalties for failure to comply with any
of the foregoing except where the failure to comply would not have a material
adverse effect on the Assets.
3.13 Managed Care Contracts: Schedule 3.13 lists all
contracts, arrangements or agreements with managed care or preferred provider
entities. The Seller has not received any written notice of (i) a material
dispute under any of its contracts, arrangements or
agreements with managed care or preferred provider entities; (ii) the intent of
any party to any such agreement to materially decrease the level of service
subscribed for under any agreement or to substantially modify the terms of any
such agreement; or (iii) the intent of any party to any such agreement to
terminate such agreement, and, to the knowledge of the Seller, no such written
notice has been threatened or is pending.
3.14 Taxes: For purposes of this Agreement, "Taxes"
shall include all U.S Federal, State of Louisiana, state, local and foreign
income, profit, franchise, unincorporated business, capital, general corporate,
sales, use, occupation, personal and real property, excise tax imposed by
Subtitle B of the Code, municipal license or gross receipt tax and any and all
other taxes. Within the times and in the manner prescribed by law, the Seller
has filed all returns and reports of Taxes and has paid all taxes, assessments,
and penalties due and payable. There are no present disputes as to Taxes of any
nature payable by the Seller. The Seller has not received notice of, nor is it
otherwise aware of, an audit or examination; nor is it a party to any action or
proceeding by any governmental authority for assessment or collection of Taxes,
charges, penalties or interest; nor has any claim for assessment and collection
been asserted against it, except as set forth on Schedule 3.14 hereto. The
Seller has accrued or paid or will have caused to be paid on or prior to the
Closing Date, all applicable Taxes, except for Taxes which are not yet due and
subject to a proration in accordance with Section 2.2 hereof.
3.15 Warranties and Representations True and Correct.
No representation or warranty by the Seller in this Agreement nor any
certificate, schedule, statement, exhibit, document or instrument furnished or
to be furnished to Purchaser at Closing pursuant hereto or in connection
with the negotiation, execution or performance of this Agreement, contains any
untrue statement of a material fact or omits or shall omit material facts to be
stated herein or therein or necessary to make any statement herein or therein
not misleading.
4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into and perform this Agreement, the Purchaser
represents and warrants as follows:
4.1.1 Organization. The Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware, and has all requisite power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby. The Purchaser is duly qualified to transact business as a
foreign corporation in each state in which the nature of the business conducted
by it or its ownership or leasing of property make such qualification necessary.
4.1.2 Governing Documents. Copies of the Articles
of Organization and the Operating Agreement of the Purchaser have heretofore
been made available to the Seller and are true, complete and correct.
4.2 Authority and No Conflict. The Purchaser has the
full power and authority to execute, deliver and carry out its obligations under
this Agreement and all documents and agreements necessary to give effect to the
provisions of this Agreement. This Agreement has been duly authorized, executed
and delivered by the Purchaser, and the execution of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
conflict, breach or violation of, or default under, any statute, judgment,
order, decree, mortgage, agreement, deed of trust, indenture or other instrument
to which the Purchaser is a party or by which it is bound. All action and
other authorizations prerequisite to the execution of this Agreement and the
consummation of the transactions contemplated by this Agreement have been taken
or prior to the Closing Date will have been obtained by the Purchaser. This
Agreement is a valid and binding obligation of the Purchaser enforceable in
accordance with its terms.
4.3 Defaults, Consents, Etc. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby will not result in a material violation by the Purchaser of, or
constitute a default by the Purchaser under, any contractual obligation of the
Purchaser or any legal requirement applicable to the Purchaser. No approval,
consent, authorization or other order of, and no declaration, filing,
registration, qualification or recording with, any governmental authority or any
other person, including, without limitation, any party to any contractual
obligation of the Purchaser, is required to be made by or on behalf of the
Purchaser for the execution, delivery or performance of this Agreement by the
Purchaser except for those contemplated hereby or which have been or will be
obtained or for which waivers will be obtained prior to the Closing.
4.4 No Broker. Except as set forth on Schedule 4.4,
the Purchaser represents and warrants that it has dealt with no broker or finder
in connection with any of the transactions contemplated by this Agreement and,
insofar as it knows, no broker or other person is entitled to any commission or
finder's fee in connection with any of such transactions.
4.5 Warranties and Representations True and Correct.
No representation or warranty by the Purchaser in this Agreement nor any
certificate, schedule, statement, exhibit, document or instrument furnished or
to be furnished to Seller pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement, contains any untrue statement of a
material
fact or omits or shall omit material facts to be stated herein or therein or
necessary to make any statement herein or therein not misleading.
5. Conditions Precedent to the Purchaser's Performance.
The obligations of the Purchaser under this Agreement is
subject to the satisfaction, at or before the Closing, of all the conditions set
out below. The Purchaser may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by the Purchaser of any of the Purchaser's other
rights or remedies, at law or in equity, if the Seller is in default of any of
the representations, warranties, or covenants contained in this Agreement,
except to the extent that such defaults are expressly waived.
5.1 Accuracy of Representations and Warranties.
Except as otherwise permitted by this Agreement, all representations and
warranties by the Sellers in this Agreement or in any agreement or in any
written statement that is delivered to the Purchaser pursuant to this Agreement
will be true in all material respects on and as of the Closing Date as though
made on that date.
5.2 Performance. The Seller will have performed,
satisfied, and complied with all covenants, agreements, and conditions required
by this Agreement to be performed or complied with by it on or before the
Closing Date.
5.3 No Material Adverse Change. There shall have been
no change since the date hereof in the Assets, or Real Property, which in the
aggregate have a material adverse effect on the Seller.
5.4 Certification by the Seller. The Purchaser will
have received certificates, dated the Closing Date, signed by the president or
vice president and secretary or assistant
secretary of the Seller, respectively, certifying, in such detail as the
Purchaser and its counsel may reasonably request, that the conditions specified
in Sections 5.1, 5.2 and 5.3 hereof have been fulfilled, including, but not
limited to, certified copies of all resolutions of the Seller pertaining to
corporate authorization of the execution, delivery and performance of this
Agreement.
5.5 Opinion of the Seller's Counsel. The Purchaser
shall have received from counsel to the Seller its favorable opinion dated the
Closing Date in substantially the form of Exhibit A.
5.6 Absence of Litigation. No action, suit, or
proceeding before any court or any governmental body or authority, pertaining to
the transactions contemplated by this Agreement or to their consummation, will
have been instituted or threatened on or before the Closing Date.
5.7 Legal Prohibition. On the Closing Date, no
injunction or order shall be in effect prohibiting consummation of the
transactions contemplated hereby or which would make the consummation of such
transactions unlawful and no action or proceeding shall have been instituted and
remain pending before a court, governmental body or regulatory authority to
restrain or prohibit the transactions contemplated by this Agreement and no
adverse decision shall have been made by any such court, governmental body or
regulatory authority which could materially decrease the value of the revenues
expected to be generated by the Center or materially increase the liabilities of
the Center. No federal, state or local statute, rule or regulation shall have
been enacted the effect of which would be to prohibit, restrict, impair or delay
the consummation of the transactions contemplated hereby or restrict or impair
the ability of Purchaser to own or conduct the Center.
5.8 Consents, Approvals, Permits, Licenses, etc. All
authorizations, consents, waivers, approvals, orders, registrations,
qualifications, designations, declarations, filings or other action required
with or from any federal, state or local governmental or other regulatory
authority or third party (including without limitation all parties to each of
the assumed contracts) in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby shall have been duly obtained and shall be reasonably
satisfactory to Purchaser and its counsel, and copies thereof shall be delivered
to the Purchaser no later than three (3) days prior to the Closing. No such
consent or approval (a) shall be conditioned on the modification, cancellation
or termination of any assumed contract, or (b) shall impose on Purchaser any
material condition or provision or requirement with respect to the Center or its
operation that is more restrictive than or different from the conditions imposed
upon such operation prior to Closing, unless Purchaser gives its prior written
approval. With respect to any assumed contract, the assignment of which by its
terms requires prior consent of the parties thereto, if such consent is not
obtained prior to the Closing Date, and, if Purchaser waives, in its sole
discretion, the requirement that such consent be obtained prior to the Closing
Date, Seller shall deliver to Purchaser written documentation setting forth
arrangements for the transfer of the economic benefits of such assumed contracts
to Purchaser as of the Closing Date under terms and conditions acceptable to
Purchaser.
5.9 Real Property Lease Agreement. The Purchaser and
the Seller shall have entered into an assignment of the lease of the Real
Property consented to by the owner of the Real Property. The terms of the lease
shall be in substantially the form attached hereto as Exhibit B.
5.10 Non-Competition Agreements. The Seller and each
shareholder/owner of the Seller shall have executed and delivered to the
Purchaser a Non-Competition Agreement, substantially in the form of Exhibit C.
hereto.
5.11 Licensure. Consents (if any) in form and
substance reasonably satisfactory to the Purchaser and its counsel to the
assignment and transfer of any licenses and permits related to the ownership of
the Assets or the operation of the Center shall have been obtained by the
Purchaser.
5.12 Tail Insurance. Seller shall purchase "tail
insurance" in a minimum amount of $3,000,000 in the aggregate, covering the
Seller for any professional liability claims which relate to the activities, or
the services provided by the Seller prior to the Closing Date. The tail period
shall be no less than four-years after the Closing Date.
5.13. Bulk Sales Law: Purchaser hereby waives
compliance by Seller with all applicable bulk sales laws; provided, however,
that this waiver shall not relieve the Seller of its indemnification obligations
to Purchaser as a result of the Seller's non-compliance with any applicable bulk
sales or similar laws
5.14 Release Payment. The Release Payment (as
hereinafter defined) shall have been paid by Amedisys as required by Section 16
herein.
6. Conditions Precedent to the Seller's Performance.
The obligations of the Seller under this Agreement are subject
to the satisfaction, at or before the Closing, of all the following conditions.
The Seller may waive any or all of these conditions in whole of in part without
prior notice; provided, however, that no such waiver of a condition shall
constitute a waiver of any of the Seller's other rights or remedies, at law or
in equity, if the Purchaser is in default of any of the representations,
warranties or covenants contained in this Agreement, except to the extent that
such defaults are expressly waived.
6.1 Accuracy of the Purchaser's Representations and
Warranties. All representations and warranties by the Purchaser contained in
this Agreement or in any written statement delivered by the Purchaser under this
Agreement will be true in all material respects on and as of the Closing Date as
though such representations and warranties were made on and as of that date.
6.2 Performance; The Purchaser will have performed,
satisfied and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it on or before the Closing
Date.
6.3 Certificates. The Seller will have received
certificates, dated the Closing Date, signed by the president or vice president
and secretary or assistant secretary of the Managing Member of the Purchaser
certifying, in such detail as the Seller may reasonably request, that the
conditions specified in Sections 6.1 and 6.2 hereof have been fulfilled,
including, but not limited to, certified copies of all resolutions of the
Purchaser pertaining to authorization of the execution, delivery and performance
of this Agreement by the Purchaser.
6.4 Absence of Litigation. No action, suit, or
proceeding before any court or any governmental body or authority pertaining to
the transactions contemplated by this Agreement or to their consummation, will
have been instituted or threatened on or before the Closing Date.
6.5 Consents. All agreements, authorizations,
consents, waivers, approvals, orders, registrations, qualifications,
designations, declarations, filings or other actions
required with or from any Federal, State or local governmental or other
regulators or third party necessary to permit the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby shall have been obtained by the Seller, and the Purchaser,
respectively, and delivered to the Seller, and the Purchaser, respectively. No
Federal, state or other authority having jurisdiction over the transactions
contemplated hereby shall have taken any action to enjoin or prevent the
consummation of such transactions. As to any assumed contract the assignment of
which by its terms requires prior consent of the parties thereto, if such
consent is not obtained prior to or on the Closing Date, the Seller shall
deliver to Purchaser written documentation setting forth arrangements for the
transfer of the economic benefit of such assumed contracts to Purchaser as of
the Closing Date under terms and conditions acceptable to all the parties
hereto.
6.6 Delivery of Documents. The Purchaser shall have
delivered to the Seller the Purchase Price and such other documents and
instruments as may be reasonably deemed necessary or appropriate by the Seller.
6.7 Opinion of the Purchaser's Counsel. The Seller
shall have received from counsel to the Purchaser its favorable opinion dated
the Closing Date in substantially the form of Exhibit D.
6.8 Assignment of Lease ASC shall have received the
consent of the owner of the Real Property to assign the Center's Real Property
lease to the Purchaser. Such assignment shall (i) release the Seller of all
prospective obligations under the lease and (ii) release Amedisys from its
guaranty of the prospective obligations under the lease as set forth that
certain guaranty agreement dated __________ (the "Guaranty Agreement").
7. Joint Covenants.
7.1 Access to Books and Records.
(a) Access. Following the Closing, the Purchaser
shall permit the Seller and its affiliates and representatives and
representatives of Medicare and taxing authorities, (including, without
limitation, their counsel and auditors), during normal business hours, to have
reasonable access to, and examine and make copies of, all books and records of
the Center, including all medical records and medical charts of any patient
admitted to the Center, which related to events occurring prior to the Closing
or events required in order to audit cost reports or maintain or defend
positions in connection with any investigation, liquidation or proceeding. For a
period of seven years after the Closing, the Purchaser agrees that, prior to the
destruction or disposition of any such books or records, the Purchaser shall
provide not less than forty-five (45) days', nor more than ninety (90) days',
prior written notice to the Seller of such proposed destruction or disposal. If
the Seller desires to obtain any of such documents, it may do so by notifying
the Purchaser in writing at any time prior to the date scheduled for such
destruction or disposal. In such event, the Purchaser shall not destroy such
documents and the parties shall then promptly arrange for the delivery of such
documents to the Seller, its successors or assigns. All out-of-pocket costs
associated with the delivery of the requested documents shall be paid by the
Seller. The Purchaser shall cooperate with the Seller in the defense of any
litigation related to the Center including the provisions of witnesses and
records in a timely manner as reasonably requested by the Seller.
(b) Confidentiality. The Seller and the Purchaser
shall hold, and shall cause their respective affiliates, employees, auditors,
attorneys, representatives and other advisors and agents to hold, in strict
confidence, unless compelled to disclose by judicial or administrative process,
or, in the opinion of their respective counsel, by other requirements of law,
Post-Closing Information (as defined below) concerning the other party and shall
not release or disclose such information to any other person, except to their
respective employees, auditors, attorneys, representatives and other advisors
and agents, provided such person shall have first been advised of, and agreed to
be bound by, the confidentiality provision of this Section 7.1(b). For purposes
hereof, "Post-Closing Information" shall mean all information concerning the
Seller, the Purchaser or their respective affiliates, wherever obtained except
information (i) generally available to the public other than as a result of a
disclosure in violation of this Section 7.1(b); (ii) available to the party
receiving such information on a non-confidential basis prior to disclosure; or
(iii) available to the party receiving such information on a non-confidential
basis from a source other than the Seller, the Purchaser or their respective
affiliates or representatives, as the case may be, provided that such source is
not known, and by reasonable effort could not be known, to be bound by a
confidentiality agreement with the Seller or the Purchaser, as the case may be,
or otherwise prohibited from transmitting the information by a contractual,
legal or fiduciary obligation.
7.2 Allocation of Purchase Price. The Purchase Price
shall be allocated in its entirety among the Assets in accordance with Schedule
7.2 hereto and as required by Section 1060 of the Code and Treasury Regulations
promulgated thereunder. The Seller and Purchaser shall file all information and
tax returns (and any amendments thereto) in a manner consistent with this
Section 7.2
and comply with the applicable information reporting requirements of Section
1060 of the Code and Treasury Regulations promulgated thereunder. If, contrary
to the intent of the parties hereto as expressed in this Section 7.2, any taxing
authority makes or proposes an allocation different from that contained in this
Section 7.2, the Seller and Purchaser shall cooperate with each other in good
faith to contest such taxing authority's allocation (or proposed allocation),
provided, however, that, after consultation with the party adversely affected by
such allocation (or proposed allocation), the other party hereto may file such
protective claims or returns as may reasonably be required to protect its
interests.
8. The Closing.
Assuming the satisfaction or the waiver of satisfaction of the
conditions contained herein, the Closing will take place at the offices of
Amedisys, Inc. at 00000 Xxxx Xx., Xxxxx 000, Xxxxx Xxxxx, XX on September 7,
2001 (the "Closing Date"), at such other time and place as the parties hereto
may mutually agree but in no event later than September 7, 2001.
9. Survival of Representations; Indemnification.
9.1 Survival of Representations, Etc. The several
representations, warranties, covenants, and agreements of the parties contained
in this Agreement (or in any document delivered in connection herewith) shall be
deemed to have been made on the Closing Date, shall be deemed to be material and
to have been relied upon by the Purchaser and the Seller, as the case may be,
notwithstanding any investigation made by the Purchaser or the Seller, shall
survive the Closing Date for a period of two (2) years.
9.2 Indemnification by the Seller, ASC and Amedisys.
The Seller, ASC and Amedisys shall defend and indemnify the Purchaser and hold
the Purchaser wholly harmless from and against any and all losses, liabilities,
damages, costs (including, without limitation, court costs and costs of appeal)
and expenses (including, without limitation, reasonable attorneys' fees) that
the Purchaser incurs as a result of, or with respect to:
(a) any inaccuracy in or breach of any representation
or warranty of the Seller, ASC or Amedisys contained in this Agreement to the
extent Purchaser suffers damage by reason of such breach;
(b) any claim, cause of action, liability or
obligation (actual or alleged), of any nature whatsoever of the Purchaser
arising out of or relating to the operation of the business of the Seller
through to the Closing Date, or any act or omission of the Seller, or any of
their agents, employees, or officers, occurring prior to the Closing Date,
including, without limitation, any claim or cause of action arising out of or
relating to any act of medical malpractice or battery, occurring prior to or on
the Closing Date.
(c) the indemnity obligation of ASC shall be limited
to those representations, warranties and covenants made by ASC related to the
Real Property and the lease and any liabilities related to the Real Property
through the Closing Date. The indemnity obligation of Amedisys shall be limited
to those representations, warranties and covenants made by Amedisys related to
the Xxxxxxx Xxxxx Equipment. Nothing set forth herein related to the indemnity
obligation of Amedisys shall in any way limit, alter, amend or reduce the
guaranty obligation of Amedisys as set forth in Section 15 herein.
9.3 Indemnification by the Purchaser. The Purchaser
shall defend, indemnify and hold harmless the Sellers, their respective
controlling persons and each employee or agent thereof and their respective
estates, successors and assignee from and against any and all losses,
liabilities, damages, costs (including, without limitation, court costs and cost
of appeal) and expenses (including, without limitation, reasonable attorneys'
fees) that the Seller reasonably incurs as a result of, or with respect to:
(a) any inaccuracy in or breach of any
representation, warranty, covenant or agreement of the Purchaser contained in
this Agreement to the extent the Seller suffers damage by reason of such breach;
or
(b) any claim, cause of action, liability or
obligation (actual or alleged), of any nature whatsoever of the Seller arising
out of or relating to the operation of the business of the Purchaser after the
Closing Date, or any act or omission of the Purchaser, or any of its agents,
employees, or officers, occurring after the Closing Date, including, without
limitation, any claim or cause of action arising out of or relating to any act
of medical malpractice or battery, occurring after the Closing Date.
9.4 Procedure for Indemnification. The following
procedure shall apply with respect to any claims or proceedings covered by the
foregoing agreements to indemnify and hold harmless:
(i) The party who is seeking indemnification
(the "Claimant") shall give written notice to the party from
whom indemnification is sought (the
"Indemnitor") promptly after the Claimant learns of the claim
or proceeding; provided that the failure to give such notice
shall not relieve the Indemnitor of its obligations hereunder
if the Claimant uses its best efforts to mitigate Claimant's
damages, except to the extent it is actually damaged thereby.
(ii) With respect to any third-party claims
or proceedings as to which the Claimant is entitled to
indemnification, the Indemnitor shall have the right to select
and employ counsel of its own choosing to defend against any
such claim or proceeding, to assume control of the defense of
such claim or proceeding, and to compromise, settle or
otherwise dispose of the same, if the Indemnitor deems it
advisable to do so, all at the expense of the Indemnitor;
provided, however that the Claimant may employ counsel, of its
own choosing, at its sole expense. The parties will fully
cooperate in any such action, and shall make available to each
other any books or records useful for the defense of any such
claim or proceeding. The Claimant may elect to participate in
the defense of any such third party claim, and may, at its
sole expense, retain separate counsel in connection therewith.
Subject to the foregoing the Claimant shall not settle or
compromise any such third party claim without the prior
consent of the Indemnitor, which consent shall not be
unreasonably withheld.
9.5 Payment. All indemnification shall be effected by
payment of cash or delivery of a certified or official bank check in the amount
of the indemnification liability.
9.6 Limitation. Notwithstanding any provisions of
this Agreement to
the contrary, any and all claims for indemnification or otherwise relating to or
arising in connection with the matters referred to in 9.2 (a) or 9.3 (a) must be
brought on or before the expiration of two (2) years after the Closing Date.
Indemnification shall be due only to the extent of the loss or damage actually
suffered (i.e., reduced by any offsetting or related asset or service received
and by any recovery from any third party, such as an insurer).
10. Entire Agreement; Modification, Waiver.
This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement will be
binding unless executed in writing by all of the parties. No waiver of any of
the provisions of this Agreement will be deemed, or will constitute, a waiver of
any other provisions, whether or not similar, nor will any waiver constitute a
continuing waiver. No waiver will be binding unless executed in writing by the
party making the waiver.
11. Further Assurances.
The parties from time to time will execute and deliver such
additional documents and instruments and take such additional actions as may be
necessary to carry out the transactions contemplated by the Agreement.
12. Successors and Assigns; Assignment.
This Agreement will be binding on, and inure to the benefit
of, the parties hereto and their respective heirs, legal representatives,
successors and assigns.
13. Notices.
All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement will be in
writing and will be delivered personally or will be sent postage prepaid by
United States registered or certified mail, return receipt requested or by
overnight courier service as follows:
(a) To Seller at: Hammond Surgical Care Center, L.C.
00000 Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
(b) To Purchaser at: Surgery Center of Xxxxxxx, L.L.C.
c/o Universal Surgery Centers
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Senior V.P., USC Division
with a copy to: Universal Health Services, Inc.
000 Xxxxx Xxxxx Xxxx
X.X. Xxx 00000
Xxxx xx Xxxxxxx XX 00000-0000
Attn: General Counsel
14. Governing Law.
This Agreement will be construed in accordance with,
and governed by, the laws of the State of Louisiana.
15. Guarantee.
Amedisys agrees to unconditionally guaranty the obligations of
the Seller as set forth in this Agreement, including but not limited to, the
indemnity obligation as set forth in Section 9.
Amedisys agrees that Purchaser shall be entitled to pursue all rights directly
against Amedisys without first exhausting its rights against the Sellers. This
guaranty obligation shall not be extinguished, modified or reduced, for any
reason including Seller's dissolution, liquidation, insolvency or bankruptcy.
Notwithstanding any other provision of this Agreement, the maximum amount that
Amedisys shall be required to pay pursuant to the guaranty obligation set forth
in this Section 15 is $1,500,000.
16. Release Payment.
On the Closing Date, Amedisys shall pay to Universal Health
Services, Inc. (the parent company of the Managing Member of the Purchaser) a
one time fee of $100,000 as payment for the assumption of the Real Property
lease guaranty (the "Release Payment"). Amedisys acknowledges that the
assumption of the guaranty obligation was the sole reason the owner of the Real
Property agreed to release Amedisys from the obligations set forth in the
Guaranty Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of September 7, 2001.
SURGERY CENTER OF XXXXXXX, L.L.C., BY ITS
MANAGING MEMBER, ASC OF XXXXXXX, INC.
/s/ Xxxx X. Xxxx 9/7/01
------------------------------------
Signature Date
Name: Xxxx X. Xxxx
Title: Vice President
XXXXXXX SURGICAL CARE CENTER, L. C., BY ITS
MANAGING MEMBER, Amedisys Surgery Centers, L.C.
/s/ Xxxx X. Xxxxxxxx 9/7/01
------------------------------------
Signature Date
Name: Xxxx X. Xxxxxxxx
Title: CFO
AMEDISYS, INC.
/s/ Xxxx X. Xxxxxxxx 9/7/01
------------------------------------
Signature Date
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice-President - Finance
AMEDISYS SURGERY CENTERS, L. C., BY ITS
MANAGING MEMBER, Amedisys, Inc.
/s/ Xxxx X. Xxxxxxxx 9/7/01
------------------------------------
Signature Date
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice-President - Finance
EXHIBITS
A - Opinion of Seller's Counsel
B - Form of Lease
C - Form of Non-Competition Agreement
D - Opinion of Purchaser's Counsel
SCHEDULES
