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EXHIBIT 2.6
AMENDMENT NO. 1 TO ASSET SALE AGREEMENT
This Amendment No. 1 to Asset Sale Agreement (the "Amendment") is
made and entered into as of October 15, 1999, by and between Odessa Hospital,
Ltd., a Texas limited partnership ("Seller") and Iasis Healthcare Corporation, a
Delaware corporation ("Purchaser") as successor in interest to JLL Hospital,
LLC, a Delaware limited liability company.
RECITALS
A. Seller and JLL Hospital, LLC entered into that certain Asset
Sale Agreement dated as of August 15, 1999 (the "Agreement") pursuant to which
Purchaser's permitted designees or assignees are acquiring substantially all of
the assets with respect to the operation of the Hospital from Seller and the
Subsidiaries.
B. Seller and Purchaser desire to amend the Agreement to address
certain matters that have arisen since the effective date of the Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises and covenants contained in this Amendment, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Except to the extent it is specifically indicated
to the contrary in this Amendment, defined terms used in this Amendment shall
have the same meanings ascribed to them in the Agreement.
2. Transfer of Seller Assets. Section 1.9(f) of the Agreement is
hereby deleted in its entirety and is replaced with the following:
(f) all of such Subsidiary's interest in and to all contracts
and agreements (including, but not limited to, purchase orders)
with respect to the operation of the Hospital (the "Contracts")
including, without limitation, those Contracts described in
Schedule 1.9(f); provided, however, that, subject to Section
9.3, multi-hospital contracts as to which one or more of the
Acute Care Hospitals and one or more of Seller's other acute
care hospitals participate ("Multi-Facility Contracts") shall
not be transferred and conveyed at Closing and shall constitute
Assets and Contracts only to the extent attributable to the
Acute Care Hospitals.
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3. Excluded Assets.
(a) Section 1.10(p) of the Agreement is hereby deleted in its
entirety and replaced with the following:
(p) [Intentionally omitted];
(b) A new Section 1.10(q) of the Agreement is hereby added to
read as follows:
(q) those Contracts set forth in Schedule 1.10(q).
4. Assumed Obligations. Section 1.11(b) of the Agreement is hereby
deleted in its entirety and replaced with the following:
(b) the Contracts, but only to the extent of the
obligations arising thereunder with respect to events or periods
after the Closing Date; provided, however, that, subject to
Section 9.3, Multi-Facility Contracts shall give rise to Assumed
Obligations only to the extent attributable to the Acute Care
Hospitals.
5. Excluded Liabilities. A new Section 1.12(o) of the Agreement
is hereby added to read as follows:
(o) all liabilities or obligations arising at any time under
those Contracts set forth in Schedule 1.10(q);
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6. Title; Sufficiency.
(a) The phrase "which are not otherwise marked with two stars
and (iv) the UCC Liens" is hereby inserted immediately after the
phrase "(iii) other such encumbrances as are set forth in
Schedule 2.7(b)" contained in Section 2.7(b) of the Agreement.
(b) The phrase "and (v) the judgments as are set forth in
Schedule 2.7(b) which are marked with two stars therein" is
hereby inserted immediately after the phrase "(collectively,
"Permitted Liens")" contained in Section 2.7(b) of the
Agreement.
7. Representations and Warranties of Seller. A new Section 2.20 of
the Agreement is hereby added to the Agreement to read as follows:
2.20 Managed Care Contracts To the best knowledge of the Xxxxx
Representatives (as defined below), no payor under any managed
care Contract has notified or otherwise informed Seller or the
Subsidiaries that it does not intend to, or will not, consent to
the transfer of such Contract to Purchaser as a result of the
transactions contemplated by the Agreement, as amended. For
purposes hereof, the term "Xxxxx Representatives" shall mean
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx and Xxxx
X'Xxxxx.
8. UCC Termination Statements. A new Section 4.19 of the
Agreement is hereby added to read as follows:
4.19 UCC Terminations. After the Closing Date, Seller shall use
its reasonable commercial efforts to (a) obtain executed UCC
termination statements for the financing statements set forth on
Schedule 4.19 which are attached hereto (the "UCC Liens"), (b)
file such executed UCC termination statements with the
appropriate governmental agencies or authorities with respect to
the UCC Liens and (c) deliver such executed and filed UCC
termination statements to Purchaser. Seller's obligations under
this Section 4.19 shall continue to be fully effective and
enforceable with respect to any particular financing statement
until the expiration of such applicable financing statement set
forth on Schedule 4.19.
9. Cooperation in Obtaining Consents. A new Section 4.20 of the
Agreement is hereby added to read as follows:
4.20 Cooperation on Obtaining Consents. For two (2) years after
the Closing Date, Seller and Purchaser shall each use reasonable
commercial efforts to obtain the consent to assignment from the
applicable third parties to any Contract or Lease, or to enter
into new contracts with respect to Multi-Facility Contracts for
which such consent was not obtained as of the Closing Date.
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10. Misdirected Payments. A new Section 4.21 of the Agreement is
hereby added to read as follows:
4.21 Misdirected Payments. To the extent there are any
misdirected funds forwarded to Seller (or one of its
subsidiaries) by any third parties, which misdirected funds are
paid in respect of the performance of services by or on behalf
of the Hospital from and after the Closing, including without
limitation in respect of any services provided by any of the
physicians providing services at the Hospital, Seller shall
remit such misdirected funds to Iasis Healthcare Corporation
within ten (10) business days after receipt thereof, to the
account(s) designated by Purchaser. Each of Seller and Purchaser
further agree that, to the extent that Purchaser has not
obtained a provider number with respect to the Hospital on or
prior to the Closing Date, Purchaser (or a subsidiary of
Purchaser) shall be entitled to use the provider number obtained
by the Hospital (or a Subsidiary of Seller) prior to the Closing
Date with respect to the Hospital. Furthermore, Seller and
Purchaser understand and agree that all payments by third party
payors in respect of such Licensed Provider Numbers for goods
and services provided after the Closing Date ("Post-Closing
Payments") shall be solely for the account of Purchaser. Seller
(on its behalf and on behalf of its subsidiaries) hereby
irrevocably assigns to Purchaser all right, title and interest
it may have in respect of such Post-Closing Payments and hereby
agrees to remit to Purchaser such Post-Closing payments within
ten (10) business days after its receipt thereof.
11. Provision of Benefits. A new Section 9.3 of the Agreement is
hereby added to read as follows:
9.3 Provision of Benefits. If Seller is unable to obtain any
consent to the assignment of Seller's or any Subsidiary's
interest in a Contract or a Lease, or if Purchaser is unable to
enter into a new contract with respect to a Multi-Facility
Contract, until such consent or new contract is obtained, Seller
shall use reasonable commercial efforts to provide Purchaser the
benefits of any such Contract or Lease (including with respect
to the Acute Care Hospital portion of Multi-Facility Contracts),
cooperate in any reasonable and lawful arrangement designed to
provide such benefits to Purchaser, and allow Purchaser to
directly enforce such Contracts or Leases against third parties
thereto. Purchaser shall use reasonable commercial efforts to
perform, on behalf of Seller, the obligations of Seller
thereunder or in connection therewith, limited in the case of
Multi-Facility Contracts to the Acute Care Hospitals thereunder,
but only to the extent that such action would not result in a
material default thereunder or in connection therewith and such
obligation would have been (a) an obligation of Purchaser had it
entered into a new contract on substantially similar terms with
respect to a Multi-
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Facility Contract or (b) an Assumed Obligation but for the
failure to obtain a consent.
12. Indemnification of Purchaser by Seller. The following is hereby
inserted at the end of the first sentence of Section 10.2.1 of the Agreement:
and (viii) Seller's failure to comply with Section 4.19.
13. Schedules. Attached as Annex I hereto is Amendment No. 1 to the
Schedules to the Asset Sale Agreement dated as of the Closing Date. Except as
set forth therein, the Schedules attached to the Agreement remain in full force
and effect.
14. Effect on Agreement; General Provisions. Except as set forth in
this Amendment, the terms and provisions of the Agreement are hereby ratified
and declared to be in full force and effect. This Amendment shall be governed by
the provisions of the Agreement regarding choice of law, attorneys' fees, and
successors and assigns. This Amendment shall become effective upon its
execution, which may occur in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Captions and paragraph headings are used herein for convenience
only, are not a part of this Amendment or the Agreement as amended by this
Amendment and shall not be used in construing either document. Other than the
reference to the Agreement contained in the first recital of this Amendment,
each reference to the Agreement and any agreement contemplated thereby or
executed in connection therewith, whether or not accompanied by reference to
this Amendment, shall be deemed a reference to the Agreement as amended by this
Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed in multiple originals by their authorized officers, all as of the day
and year first above written.
PURCHASER:
IASIS HEALTHCARE CORPORATION, a
Delaware corporation, as successor in interest
to JLL Hospital, LLC
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Secretary
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SELLER:
ODESSA HOSPITAL, LTD., a
Texas limited partnership
By: Xxxxx Healthcare, Ltd.,
a Texas limited partnership, its General
Partner
By: Lifemark Hospitals, Inc., a Delaware
corporation, the General Partner of Xxxxx
Healthcare, Ltd.
By: /s/ Xxxx X'Xxxxx
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Name: Xxxx X'Xxxxx
Title: Vice President
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