Exhibit 2.1
[BRACKETED TEXT IN THE ATTACHED AMENDMENT TO ACQUISITION AGREEMENT HAS BEEN
SUBSTITUTED FOR STRIKE-THROUGH TEXT AND INDICATES THAT SUCH TEXT WAS INCLUDED
IN THE ACQUISITION AGREEMENT BUT HAS BEEN DELETED THEREFROM PURSUANT TO THE
AMENDMENT TO ACQUISITION AGREEMENT.]
AMENDMENT TO ACQUISITION AGREEMENT
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THIS AMENDMENT TO ACQUISITION AGREEMENT, dated as of November 6, 2002
(this "AMENDMENT"), is made by and between (i) US Diagnostic Inc., a Delaware
corporation (the "SELLER"), (ii) USD Payment Corporation, Inc., a Florida
corporation ("USD Payment Corp."), (iii) Medical Imaging Centers of America,
Inc., a California corporation, Meditek Industries, Inc., a Florida corporation,
MICA Pacific, Inc., a California corporation, MICA Cal I, Inc., a California
corporation, and MICA Flo I, Inc., a California corporation (collectively, the
"SELLING SUBSIDIARIES"), (iv) DVI Financial Services Inc., a Delaware
corporation ("DVIFS") and/or its designated wholly-owned subsidiaries or
Affiliates (the "PURCHASER"), and (v) PresGar Diagnostic Imaging, LLC, a Florida
limited liability company, and/or its designated wholly-owned subsidiaries or
Affiliates ("PDI LLC"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in ARTICLE IX of the Acquisition
Agreement as defined below.
WHEREAS, the parties to this Amendment to the Acquisition Agreement
other than PDI LLC entered into an Acquisition Agreement dated as of September
12, 2002 (the "Acquisition Agreement");
WHEREAS, the Acquisition Agreement provided for Purchaser or its
designee to acquire certain assets of the Seller and the Selling Subsidiaries in
exchange for the payment of Fourteen Million Dollars ($14,000,000.00) by
Purchaser to Seller and certain other consideration to be provided by Purchaser
to Seller and the Selling Subsidiaries;
WHEREAS, the Acquisition Agreement provided that a portion of the $14
million purchase price to be paid by Purchaser in the Escrow Amount of Five
Hundred Thousand Dollars ($500,000.00) would be set aside in an Escrow Account
for a specified period of time to satisfy certain claims of Purchaser against
the Seller and the Selling Subsidiaries and against their assets;
WHEREAS, Purchaser and Seller have agreed, subsequent to September 12,
2002, that the Acquisition Agreement should be amended to provide that the
Purchase Price will increased by Two Hundred Thousand Dollars ($200,000) to a
total of Fourteen Million Two Hundred Thousand Dollars ($14,200,000.00);
WHEREAS, Purchaser and Seller and the Selling Subsidiaries have also
agreed to amend the Acquisition Agreement to provide for the elimination of the
Escrow Account and the Escrow Amount altogether and for Purchaser to retain the
full $14,200,000 million to be paid by Purchaser (subject to Purchaser's right
to reduce such amount by certain adjustments to the Purchase Price provided for
in the Acquisition Agreement) and, in connection with the elimination of the
Escrow Account, to eliminate the indemnities between the parties and to
terminate the representations and warranties of Seller at Closing;
WHEREAS, Purchaser and Seller have further agreed to amend the
Acquisition Agreement to clarify that Purchaser may exercise elections under
Section 338(h)(10) of the
Internal Revenue Code of 1986 as amended with respect to some or all of the
Acquired Subsidiaries; and
WHEREAS, Purchaser and Seller have agreed that Purchaser, not Seller,
will be responsible for preparation and approval of the Purchase Price
Allocation; and
WHEREAS, Purchaser and Seller have agreed upon the amounts of any
additional tax liability that will be borne by Seller and Purchaser respectively
to the extent such additional liability arises from Purchaser's adoption and
approval of a Purchase Price Allocation different than the Purchase Price
Allocation originally proposed by Seller; and
WHEREAS, pursuant to an Assignment and Assumption Agreement, entered
into as of October 21, 2002, DVIFS assigned certain of its rights and
obligations under the Acquisition Agreement to PDI LLC and its designees;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, and agreements set forth herein, the
parties hereto agree that the Acquisition Agreement shall be amended as follows:
(any language contained in the Acquisition Agreement that has been deleted
therefrom by this Amendment is indicated by strike-throughs):
1. Section 1.5 of the Acquisition Agreement relating to Purchase
Price is amended in its entirety to read as follows:
Section 1.5 PURCHASE PRICE.
(a) In consideration for the Acquired Assets, the
Purchaser shall, in addition to (1) the assumption of the
Assumed Liabilities, (2) the DVI Distribution Waiver, (3) the
payment of the Allocation Differential (as hereinafter
defined) (such obligation shall not be subject to offset,
defense, deduction, recoupment, or any claims in the nature
thereof and Purchaser hereby waives any such claims of offset,
defense, deduction, recoupment, or any other claims in the
nature thereof); and (4) such other non-cash consideration
specified in the Bid Procedures Order or other undertaking
approved by the Bankruptcy Court, pay to the Seller at the
Closing in cash by wire transfer of immediately available
funds to one or more accounts designated by the Seller,
Fourteen Million Two Hundred Thousand Dollars ($14,200,000.00)
(the "PURCHASE PRICE").
(b) The "Allocation Differential" shall mean (1) the
excess of (A) all State and Local Taxes payable by the Seller
Debtor Entities pursuant to an allocation of the Purchase
Price among the Acquired Assets made by Purchaser on or before
the Closing pursuant to Section 1.7 of this Agreement that
varies from the Seller Proposed Allocation over (B) all State
and Local Taxes that would be payable by the Seller Debtor
Entities pursuant to the Seller Proposed Allocation minus (2)
$200,000. State and Local Taxes shall mean all state and local
capital gain, income taxes, franchise taxes and similar taxes
(i.e., any taxes based on income). Seller Proposed Allocation
shall mean the proposed allocation of the Purchase
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Price among the Debtor Seller Entities dated October 21, 2002,
attached to the letter, dated October 25, 2002, from Xxxxxx
Xxxx to Xxxx Xxxxxx.
(c) In the event the Purchaser reasonably determines
that material inaccuracies are contained in the Seller
Proposed Allocation, Purchaser shall have the right to
terminate the Acquisition Agreement on or before November 8,
2002. The Seller Debtor Entities shall use commercially
reasonable efforts to provide information reasonably requested
by Purchaser to verify that the Seller Proposed Allocation
does not contain materially inaccurate information.
(d) The Purchaser shall pay all State and Local Taxes
constituting part of the Allocation Differential directly to
the relevant Taxing Authorities promptly upon written notice
from the Seller.
2. Section 1.7 of the Acquisition Agreement relating to Purchase
Price is amended in its entirety to read as follows:
Section 1.7. ALLOCATION OF PURCHASE PRICE FOR TAX PURPOSES.
On or prior to the Closing Purchaser shall, in its
sole and reasonable discretion, determine the allocation,
pursuant to the rules of Sections 338 and 1060 of the Code and
the Treasury regulations promulgated thereunder, (without
regard to whether either or both of those provisions apply),
of the Purchase Price and the Assumed Liabilities among the
Acquired Assets and Interests, and among the assets of the
Acquired Subsidiaries. The Seller and the Purchaser shall be
bound by such allocation (and if necessary, any adjusted
allocation) as determined by Purchaser, and shall file, or
cause to be filed, a Form 8594 and all applicable federal,
state, local and foreign income, franchise and excise Tax
Returns in a manner that is consistent with such allocation.
If the allocation is disputed by any Taxing Authority, the
party receiving notice of such dispute shall promptly notify
the other party hereto concerning the existence of such
dispute and the parties shall consult with each other with
respect to all issues related to the allocation in connection
with such dispute. If a different allocation proposed by the
Internal Revenue Service (the "IRS") is finally determined,
either party may file amended returns based on such allocation
or any other allocation. An allocation shall be considered to
be finally determined when such allocation cannot be contested
in any court of competent jurisdiction (or on or before any
earlier date by which action must be taken to preserve rights
or benefits, including, without limitation, the expiration of
the statute of limitations with respect to any taxable
period).
3. Section 8.3(b) of the Acquisition Agreement relating to
Section 338 elections is amended in its entirety to read as
follows:
(b) At Purchaser's option, Purchaser and each Seller Entity
shall join with Purchaser in making elections with respect to
any one or more of the Acquired Subsidiaries under Code
ss.338(h)(10) (and, to the extent permitted by applicable
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law, any corresponding elections under state, local, and
foreign tax law) with respect to the purchase and sale of
Interests hereunder. The Seller Entities shall include any
income, gain, loss, deduction, or other tax item resulting
from such election under Code ss.338(h)(10) on their Tax
Returns to the extent required by applicable law. Purchaser
and each Seller Entity will (i) cooperate in the preparation
and filing of such election under Code ss.338(h)(10) and (ii)
take all such action as is required in order to give effect to
the election for state, local, and foreign Tax purposes to the
greatest extent permitted by law.
4. Subsection 2.2 (a)(vi) of the Acquisition Agreement relating
to delivery of the executed Escrow Agreement at Closing shall
be deleted in its entirety and all of the subsequent
subsections of Subsection 2.2(a) relating to Closing
Deliveries by Seller shall be renumbered sequentially.
[(vi) the Escrow Agreement, duly executed by the Seller and
the Selling Subsidiaries;]
5. Subsection 2.2 (b)(i) of the Acquisition Agreement relating to
payment of the Adjusted Purchase Price by Purchaser at Closing
is amended in its entirety to read as follows:
(i) the Adjusted Purchase Price by wire transfer in
immediately available funds to an account or accounts
designated by the Seller, [less the Escrow Amount;]
6. Subsection 2.2(b)(v) of the Acquisition Agreement relating to
Purchaser's delivery of the signed Escrow Agreement at Closing
shall be deleted in its entirety and the subsequent
subsections of subsection 2.2(b) relating to Purchaser
deliveries at Closing shall be renumbered sequentially. Any
references within the Acquisition Agreement to any of the
sections of subsection 2.2(b) subsequent to deleted Section
2.2(b)(v) that are sequentially renumbered shall be amended to
refer to the subsections as sequentially renumbered.
(v) [the Escrow Agreement, duly executed by the Purchaser;]
7. Subsection 2.2(c) of the Acquisition Agreement relating to
delivery of the Escrow Amount to the Escrow Agent at Closing
shall be deleted in its entirety.
(c) [At the Closing, in addition to the other obligations of
the Purchaser set forth herein, the Purchaser shall deliver
the Escrow Amount to the Escrow Agent.]
8. Section 4.6 of the Acquisition Agreement is amended in its
entirety to read as follows:
FINANCIAL RESOURCES. The Purchaser has sufficient financial
resources to enable it to pay to the Seller at the Closing the
Adjusted Purchase Price [and to deliver the Escrow Amount to
the Escrow Agent.]
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9. Section 5.4 (c) of the Acquisition Agreement relating to
payment of Non-Reimbursed Expenses is amended in its entirety
to read as follows:
(c) Conditioned upon and subject to entry of the Cash
Collateral Orders, the Purchaser shall satisfy or make
sufficient cash available to the Seller at Closing to permit
the Seller Entities to satisfy ordinary course obligations
related to the operation of the Business set forth in the
Budget accruing before the Closing Date; PROVIDED, HOWEVER,
that such obligations shall not include Chapter 11 Expenses
related to the administration of the Bankruptcy Cases and
other expenses unrelated to the operation of the Business
(such expenses are referred to as the "NON-REIMBURSED
EXPENSES"). To the extent that the Non-Reimbursed Expenses are
included in the Budget as approved by the Purchaser and paid
by Seller from Purchaser's Cash Collateral, such amounts shall
be allowed as a super-priority expense of administration in
favor of the Purchaser, and either (i) deducted in their
entirety from the Purchase Price at the time of Closing or
paid to Purchaser from the purchase price paid to Seller in a
Competing Transaction at the time of closing of such Competing
Transaction; or (ii) paid in full in the event that the
Closing does not occur or a closing of a Competing Transaction
does not occur, to the Purchaser as a super-priority expense
of administration in the Bankruptcy Cases under a plan of
reorganization or otherwise. [To the extent any Non-Reimbursed
Expenses are not paid in full or deducted as contemplated
above, the Purchaser shall have a claim against the Escrow
Account for any unpaid super-priority expenses of
administration.]
10. Section 5.10 (g) of the Acquisition Agreement relating to
Purchaser's covenant not to xxx Seller is amended in its
entirety to read as follows:
(g) COVENANT NOT TO XXX SELLER. At the Closing, the Purchaser
shall agree and cause DVIFS and DVIBC to agree, not to xxx,
obtain judgment, or otherwise exercise rights and remedies
held by DVIFS and DVIBC against the Seller Debtor Entities
under the DVI Finance Agreements against the Seller Debtor
Entities, or to enforce or collect indebtedness due to DVIBC
and DVIFS by Seller under the DVI Finance Agreements (the
"COVENANT NOT TO XXX SELLER DEBTOR ENTITIES"); PROVIDED,
HOWEVER, the Covenant Not to Xxx Seller Debtor Entities shall
expressly exclude the following: (i)(A) any judicial or
non-judicial action required by DVI under the Bankruptcy Code
or other applicable laws in the Bankruptcy Case or otherwise
to enforce and execute upon property of the Seller Debtor
Entities which is encumbered by the DVI Liens other than the
Purchase Price paid under this Agreement or avoidance actions
of the bankruptcy estates of the Seller Debtor Entities; (B)
any judicial or non-judicial action required by DVI to enforce
this Agreement or any of the terms hereof; (C) any rights or
remedies otherwise available to Purchaser against Seller in
respect of any actual fraud committed by any Seller Entity; or
(D) any claim, right, or action which Purchaser may assert
[against the Escrow or otherwise] under this Agreement, Bid
Procedures Order, Approval Order, Cash Collateral Stipulation,
and other rights granted to DVIFS and DVIBC by orders of the
Bankruptcy Court in the Bankruptcy Case; and,
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FURTHER PROVIDED, that the Covenant Not to Xxx Seller Debtor
Entities shall terminate as to the Seller and the Seller
Debtor Entities, without further notice or demand by DVIFS or
DVIBC, in which case, except as otherwise expressly provided
for in this Agreement, DVIBC and DVIFS shall be free to
exercise any and all rights and remedies available to one or
both of them under the DVI Finance Agreements or otherwise,
including but not limited to, any applicable law, upon the
commencement of any judicial or non-judicial action by any
Seller Entity, Other Subsidiary, or any party acting by, on
behalf of, or through any of them or their respective estates,
successors, or assigns against a DVI Party concerning or
related to the DVI Finance Agreements, the Acquisition, this
Agreement and the transactions contemplated hereunder, or the
extension by any DVI Party of loans or financing to the Seller
Entities, including but not limited to, the Other Subsidiaries
and the Selling Subsidiaries.
11. Section 7.5(a) of the Acquisition Agreement is amended in its
entirety to read as follows:
(a) In the event of termination of this Agreement pursuant to
this Article VII, written notice thereof shall be given as
promptly as practicable to the other party to this Agreement
and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action
by any of the parties hereto. If this Agreement is terminated
as provided herein (i) there shall be no liability or
obligation on the part of the Seller, the Selling
Subsidiaries, the Purchaser, or their respective officers,
directors and Affiliates, and all obligations of the parties
shall terminate, except that (A) the obligations of the
parties pursuant to SECTIONS 5.2, 7.5, and 8.7 shall survive
the termination hereof (B) that a party that is in material
breach of its representations, warranties, covenants, or
agreements set forth in this Agreement shall be liable for
damages occasioned by such breach, including without
limitation, any expenses, including the reasonable fees and
expenses of attorneys, accountants and other agents incurred
by the other party in connection with this Agreement and the
transactions contemplated hereby, and (ii) all filings,
applications and other submissions made pursuant to the
transactions contemplated by this Agreement shall, to the
extent practicable, be withdrawn from the agency or person to
which made.
12. Section 8.1 of the Acquisition Agreement relating to
indemnification and survival of representations and warranties
is amended in its entirety to read as follows.
8.1 Survival of Representations and Warranties, Covenants and
Agreements.
(a) SELLER'S REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. The representations and warranties of the Seller
and Selling Subsidiaries contained in this Agreement shall not
survive the Closing. The covenants and agreements of the
Seller and the Selling Subsidiaries set forth in this
Agreement shall survive in accordance with their terms. All
claims for breaches by the Seller or any the Selling
Subsidiaries of any covenants and/or agreements under this
Agreement must be asserted in a written notice to the Seller
not later than 180 days following the Closing Date.
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(b) PURCHASER'S REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. The representations and warranties of the
Purchaser contained in this Agreement shall not survive
Closing. The covenants and agreements of the Purchaser set
forth in this Agreement shall survive in accordance with their
terms.
[8.1 Indemnification.]
[(a) By the Seller and Selling Subsidiaries. The Seller and
the Selling Subsidiaries, jointly and severally, covenant and
agree to defend, indemnify and hold harmless the Purchaser,
its Affiliates and the officers, directors, employees, agents,
advisers and representatives of each such Person
(collectively, the "Purchaser Indemnitees") from and against,
and pay or reimburse the Purchaser Indemnitees for, any and
all claims, liabilities, obligations, losses, fines, costs,
royalties, proceedings, deficiencies or damages (whether
absolute, accrued, conditional or otherwise and whether or not
resulting from third party claims), including out-of-pocket
expenses and reasonable attorneys' and accountants' fees
incurred in the investigation or defense of any of the same or
in asserting any of their respective right hereunder
(collectively, "Losses") resulting from or arising out of:
(i) any inaccuracy of any representation or warranty
made by the Seller or the Selling Subsidiaries;
(ii) any breach by the Seller or the Selling
Subsidiaries of any covenant or agreement hereunder;
and
(iii) all Excluded Liabilities.
(iv) Notwithstanding anything to the contrary
contained in this Agreement, the Purchaser and the
Seller acknowledge and agree (A) that the Escrow
Account is the sole source of funding for any claims
for indemnification by any Purchaser Indemnitee
pursuant to this Agreement or otherwise as set forth
in Section 8.1(d) and (B) that once any funds have
been released out of the Escrow Account to the Seller
as expressly contemplated by this Agreement, such
funds shall cease to be subject to any claims for
indemnification by any Purchaser Indemnitee pursuant
to this Agreement or the Escrow Agreement.]
[(b) By the Purchaser. The Purchaser covenants and agrees to
defend, indemnify and hold harmless the Seller, its Affiliates
and the officers, directors, employees, agents, advisers and
representatives of each such Person (collectively, the "Seller
Indemnitees") from and against any and all Losses resulting
from or arising out of:
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(i) any inaccuracy of any representation or warranty
made by the Purchaser hereunder;
(ii) any breach by the Purchaser of any covenant or
agreement hereunder;
(iii) the Assumed Liabilities; and
(iv) the operation of the Business at the Acquired
Centers by the Purchaser or the Purchaser's
ownership, operation or use of the Acquired Assets
following the Closing Date, except, in the case of
this clause (iv), to the extent such Losses result
from the Excluded Liabilities or constitute Losses
for which the Seller is required to indemnify the
Purchaser Indemnitees under Section 8.1(a) with such
requirement to indemnify the Purchaser Indemnitees
being determined (solely for purposes of this clause
(iv)) without regard to the limitations on such
indemnification set forth in this Section 8.1.]
[(c) Indemnification Procedures. In the case of any claim
asserted by a third party against a party entitled to
indemnification under this Agreement (the "Indemnified
Party"), written notice shall be given by the Indemnified
Party to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be
sought, and the Indemnified Party shall permit the
Indemnifying Party (at the expense of such Indemnifying Party)
to assume the defense of any claim or any litigation resulting
therefrom, provided that (i) the counsel for the Indemnifying
Party who shall conduct the defense of such claim or
litigation shall be reasonably satisfactory to the Indemnified
Party, (ii) the Indemnified Party may participate in such
defense at such Indemnified Party's expense, and (iii) the
omission by any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its
indemnification obligation under this Agreement except to the
extent that such omission results in a failure of actual
notice to the Indemnifying Party and such Indemnifying Party
is prejudiced as a result of such failure to give notice.
Without the prior written consent of the Indemnified Party, no
Indemnifying Party, in the defense of any such claim or
litigation, shall consent to entry of any judgment or order,
interim or otherwise, or enter into any settlement that
provides for injunctive or other nonmonetary relief affecting
the Indemnified Party or that does not include as an
unconditional term thereof the giving by each claimant or
plaintiff to such Indemnified Party of a release from all
liability with respect to such claim or litigation. In the
event that the Indemnified Party shall in good faith determine
that the conduct of the defense of any claim subject to
indemnification hereunder or any proposed settlement of any
such claim by the Indemnifying Party might be expected to
affect adversely the Indemnified Party or the ability of the
Purchaser to conduct its business, or that the Indemnified
Party may have available to it one or more defenses or
counterclaims that are inconsistent with one or more of those
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that may be available to the Indemnifying Party in respect of
such claim or any litigation relating thereto, the Indemnified
Party shall have the right at all times to take over and
assume control over the defense, settlement, negotiations or
litigation relating to any such claim at the sole cost of the
Indemnifying Party, provided, that if the Indemnified Party
does so take over and assume control, the Indemnified Party
shall not settle such claim or litigation without the written
consent of the Indemnifying Party, such consent not to be
unreasonably withheld. In the event that the Indemnifying
Party does not accept the defense of any matter as above
provided, the Indemnified Party shall have the full right to
defend against any such claim or demand and shall be entitled
to settle or agree to pay in full such claim or demand with
the consent of the Indemnifying Party, such consent not to be
unreasonably withheld or delayed. In any event, the
Indemnifying Party and the Indemnified Party shall cooperate
in the defense of any claim or litigation subject to this
Section 8.1 and the records of each shall be available to the
other with respect to such defense.]
[(d) Remedies Exclusive; Limitations on Remedies in this
Agreement. Except with respect to the obligations of each
party under Section 5.2(e) in respect of the payment of the
Cost Reimbursement and Breakup Fee, the rights and remedies
provided in this Section 8.1 and Article VII shall be the sole
and exclusive remedies for any breach of or inaccuracy in any
representation or warranty contained in this Agreement.]
[(e) Written Notice of Breaches. Neither the Seller nor any
Selling Subsidiary shall be liable under this Section 8.1 or
otherwise after the Closing Date for any Losses (to the extent
that such Losses are described in the notice referred to in
this sentence) arising from the misrepresentation or breach of
any representation or warranty or the breach or nonperformance
of any covenant of Seller or any Selling Subsidiary hereunder
if the Purchaser receives from Seller, on or prior to the
Closing Date, written notice of the misrepresentation or
breach of warranty or the nonperformance or breach of covenant
giving rise to such Losses.]
[(f) Survival of Representations, Warranties, Covenants and
Agreements.
(i) Seller's Representations, Warranties, Covenants
and Agreements. The representations and warranties of
the Seller and Selling Subsidiaries contained in this
Agreement shall not survive the Closing; provided,
however, that the representations and warranties of
the Seller and the Selling Subsidiaries set forth in
Sections 3.3, 3.11(b), 3.15, 3.20(b)(iii),
3.20(c)(iii) and 3.22 shall survive the Closing, any
examination by or on behalf of the parties hereto and
the completion of the transactions contemplated
herein indefinitely. The covenants and agreements of
the Seller and the Selling Subsidiaries set forth in
this Agreement shall survive in accordance with their
terms. All claims for indemnification for breaches by
the Seller or any the Selling Subsidiaries of any
representations, warranties, covenants and/or
agreements under this
9
Agreement must be asserted in a written notice to the
Seller prior to the Expiration Date. So long as a
Purchaser Indemnitee asserts a claim for
indemnification before the Expiration Date, such
Purchaser Indemnitee shall be deemed to have
preserved its rights to indemnification pursuant to
this Section 8.1 regardless of when such claim is
ultimately liquidated. (ii) Purchaser's
Representations, Warranties, Covenants and
Agreements. The representations and warranties of the
Purchaser contained in this Agreement shall not
survive Closing; provided, however, that the
representations and warranties of the Purchaser set
forth in Section 4.2 shall survive the Closing
indefinitely. The covenants and agreements of the
Purchaser set forth in this Agreement shall survive
in accordance with their terms.]
[(g) Escrow Agent Notices.
(i) The Purchaser and the Seller agree that if the
Purchaser, or another Purchaser Indemnitee, submits a claim
for indemnification pursuant to this Section 8.1 that the
Seller does not dispute by delivering written notice to the
Purchaser within 20 Business Days of the date it receives
written notice of such claim, the Purchaser and the Seller
shall promptly prepare and deliver a written notice to the
Escrow Agent, in accordance with the terms and conditions of
the Escrow Agreement, which states the identity of the
appropriate Purchaser Indemnitee and the amount of Losses
suffered by such Purchaser Indemnitee that are subject to
indemnification pursuant to this Section 8.1.
(ii) The Purchaser and the Seller agree that if the
Seller disputes any matter with respect to a claim for
indemnification pursuant to this Section 8.1, whether or not
such claim is based on a third party claim, then the Purchaser
and the Seller shall, once there has been a Final
Determination (as defined in the Escrow Agreement) of such
claim, promptly prepare and deliver a written notice to the
Escrow Agent, in accordance with the terms and conditions of
the Escrow Agreement, which states the identity of the
appropriate Purchaser Indemnitee and the amount of Losses, if
any, suffered by such Purchaser Indemnitee that are subject to
indemnification pursuant to this Section 8.1.]
13. Section 8.2 of the Acquisition Agreement relating to claims
against the Escrow Account other than for indemnities is
deleted in its entirety and the subsequent sections of Article
VIII beginning with Section 8.3 are renumbered sequentially.
Any references within the Acquisition Agreement to any of the
sections of Article VIII beginning with Section 8.3 that are
sequentially renumbered shall be amended to refer to the
sections as sequentially renumbered.
[8.2 Claims Against Escrow Account Other Than for
Indemnification
In addition to disbursements from the Escrow Account
for indemnification claims by the Purchaser Indemnitees
pursuant to Section 8.1, the Escrow Amount
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shall be disbursed to the Purchaser for the following claims:
(a) any undischarged obligations of the Seller with respect to
the adjustments to the Purchase Price set forth in Section
1.6, and (b) any undischarged super-priority administrative
expense claims by the Purchaser; provided, however, that any
such claim (i) must be asserted by the Purchaser in writing to
Seller and to the Escrow Agent not later than 180 days
following the Closing Date (the "Expiration Date"), (ii) that
is disputed by Seller in writing within ten (10) days
following its receipt of Purchaser's claim will be adjudicated
by the Bankruptcy Court upon application of Purchaser and
Seller, and (iii) must be administered by the Escrow Agent in
accordance with the other terms and conditions of the Escrow
Agreement.]
14. Section 8.3(b) of the Acquisition Agreement relating to
Section 338 elections is amended in its entirety to read as
follows:
(b) At Purchaser's option, Purchaser and each Selling Entity
shall join with Purchaser in making one or more [an election]
elections with respect to one or more of the Acquired
Subsidiaries under Code ss.338(h)(10) (and, to the extent
permitted by applicable law, any corresponding elections under
state, local, and foreign tax law) with respect to the
purchase and sale of Interests hereunder. The Seller Entities
shall include any income, gain, loss, deduction, or other tax
item resulting from such election under Code ss.338(h)(10) on
their Tax Returns to the extent required by applicable law.
Purchaser and each Selling Entity will (i) cooperate in the
preparation and filing of such election under Code
ss.338(h)(10) and (ii) take all such action as is required in
order to give effect to the election for state, local, and
foreign Tax purposes to the greatest extent permitted by law.
15. Article IX relating to Definitions is amended by (i) deleting
in their entirety the following defined terms: "Escrow
Account;" "Escrow Agent;" "Escrow Agreement;" "Escrow Amount;"
"Indemnified Party"; "Indemnifying Party;" Purchaser
Indemnitees;" "Losses"; and "Seller Indemnitees;" (ii)
changing the cross references in the definitions of "License
Agreement" and "Transition Services Agreement" from Section
1.9 to Section 1.8; and (iii) changing the cross reference in
the definition of "Transfer Taxes" from Section 8.3 to Section
8.2.
16. Exhibit "F" containing the Form of Escrow Agreement is deleted
in its entirety and Exhibits "G" and H" are relettered
sequentially. Any references to Exhibits "G" and "H" within
the Acquisition Agreement shall be deemed amended to be
references to Exhibits "F" and "G" respectively.
17. The Table of Contents is amended as shall be required to
reflect the deletion of any sections or subsections by this
Amendment and the renumbering of any subsequent sections of
subsections.
18. The Table of Exhibits is amended to reflect the deletion of
Exhibit "F," Form of Escrow Agreement," and sequential
relettering of former Exhibits "G" and "H" as Exhibits "F" and
"G" respectively.
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IN WITNESS WHEREOF, the Seller, the Selling Subsidiaries and the
Purchaser have caused this Amendment to be executed on their behalf by their
officers thereunto duly authorized, as of the date first above written.
[THIS SPACE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS.]
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DVI FINANCIAL SERVICES INC.
By: /s/ Xxxxxxx X'Xxxxxx
----------------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: Chairman
US DIAGNOSTIC INC.
USD PAYMENT CORPORATION, INC.
MEDICAL IMAGING CENTERS OF AMERICA, INC.
MEDITEK INDUSTRIES, INC.
MICA PACIFIC, INC.
MICA CAL I, INC.
MICA FLO I, INC.
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: President and Chief Executive Officer
PRESGAR DIAGNOSTIC IMAGING, LLC
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
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