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EXHIBIT 99.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this
"Amendment") is made and entered into as of March ___, 2005, by
and among ▇▇▇▇ UNIVERSITY SCHOOL OF NURSING AND HEALTH SCIENCES,
INC., a Delaware corporation ("Purchaser"), FOREST PARK HOSPITAL
CORPORATION #1, a Missouri corporation ("Seller"), and DOCTORS
COMMUNITY HEALTHCARE CORPORATION, a Delaware corporation
("Parent").
W I T N E S S E T H:
WHEREAS, Purchaser, Seller and Parent entered into that
certain Asset Purchase Agreement dated as of March 15, 2005 (the
"Asset Purchase Agreement") pursuant to which Seller agreed to
sell, assign and transfer to Purchaser, and Purchaser agreed to
purchase, assume and take assignment and delivery of,
substantially all of the assets of Seller's Deaconess College of
Nursing Division ("Deaconess"), and to assume certain liabilities
related thereto; and
WHEREAS, Purchaser, Seller and Parent desire to amend the
Asset Purchase Agreement to address certain matters that have
arisen since the effective date of the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual warranties, representations, covenants and agreements
contained in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms.
(a) Section 1.1 (Definitions) is hereby amended to include
the following additional defined terms:
"Lender" shall mean CapitalSource Finance LLC, a
Delaware limited liability company, or any successor thereto
or assignee thereof, as lender under the Loan Agreement.
"Loan Agreement" shall mean the Revolving Credit and
Security Agreement, dated as of January 18, 2005, by and
between Parent, Pacifica of the Valley Corporation, a
Delaware corporation, Greater Southeast Community Hospital
Corporation I, a Delaware corporation, Pacin Healthcare-
▇▇▇▇▇▇ Memorial Hospital Corporation, a Delaware
corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Medical Center Corporation, a
Delaware corporation, St. Alexius Hospital Corporation #1, a
Missouri corporation, Southeast Pharmacy Corporation, a
District of Columbia corporation, Seller and Lender, as may
be amended, restated, supplemented or modified from time to
time.
"NSHE" shall mean NSHE Monticello, LLC, an Arizona
limited liability company.
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"Seller Lease" shall mean the Lease, dated as of
January 18, 2005, between STL Acquisition LLC, an Illinois
limited liability company, Parent, Seller and St. Alexius
Hospital Corporation #1, a Missouri corporation.
"Sublease" shall mean a sublease agreement between
Purchaser or any of its Affiliates and Seller to be dated as
of the Closing Date, in the form attached hereto as Exhibit
D.
"Undisclosed Liens" shall have the meaning provided in
Section 13.2.
(b) The defined term "Lease" is hereby deleted from Section
1.1 and the term "Lease" as used throughout the Asset
Purchase Agreement shall be replaced, in each instance, with
the term "Sublease".
(c) Except as otherwise set forth herein, capitalized terms
used but not otherwise defined in this Amendment shall have
the meanings ascribed to them in the Asset Purchase
Agreement.
2. Section 2.5. Section 2.5 (No Other Liabilities
Assumed) is hereby amended by adding the following sentence
thereto:
For the avoidance of doubt, the Seller Lease and all
obligations, liabilities and undertakings of Seller,
Parent and their Affiliates thereunder shall be
Excluded Liabilities.
3. Section 4.8. Section 4.8 (Real Property) is hereby
amended and restated to read in its entirety as follows:
4.8 Real Property.
(a) Schedule 4.8(a) sets forth true and accurate
descriptions of all of the real property leased or
owned by Seller or Parent that is used exclusively in
the operation of the Business (the "Real Property").
(b) Except as set forth on Schedule 4.8(b), none
of the Real Property is subject to any Lien. None of
the Real Property is subject to any easement, right of
way, building or use restriction, exception, variance,
reservation or limitation as might in any material
respect interfere with or impair the present and
continued use thereof in the usual and normal conduct
of the Business.
(c) Except as set forth on Schedule 4.8(c), none
of Seller's or Parent's leasehold interest in the Real
Property is subject to or encumbered by a leasehold
mortgage.
(d) Seller's use of the Real Estate is in
compliance with all covenants and conditions of record,
and no default (or unmatured default) exists under the
Seller Lease.
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4. Section 5.6. Section 5.6 (Legal Proceedings) is hereby
amended and restated to read in its entirety as follows:
5.6 Legal Proceedings. There are no claims,
proceedings or investigations pending or, to
Purchaser's Knowledge, threatened relating to or
affecting Purchaser or any Affiliate of Purchaser
before any court or Governmental Authority in which an
adverse determination would materially adversely affect
the business condition (financial or otherwise) of
Purchaser or any Affiliate of Purchaser. Neither
Purchaser nor any Affiliate of Purchaser is subject to
any judgment, order, decree or other governmental
restriction specifically applicable to Purchaser or any
Affiliate of Purchaser that materially adversely
affects the business condition (financial or otherwise)
of Purchaser or any Affiliate of Purchaser.
5. Article VI. Article VI (Covenants of Seller) is hereby
amended by adding the following as Section 6.9:
6.9 NSHE Agreement. Seller shall cause NSHE to
execute and deliver to Purchaser as soon as practicable
after the Closing Date, but in no event more than
twenty (20) days thereafter, a Subordination, Non-
Disturbance and Attornment Agreement and Consent to
Sublease, in form reasonably satisfactory to Purchaser.
6. Section 11.3. Section 11.3 (Deliveries by Purchaser)
is hereby amended by amending and restating subsection
11.3(a) thereof to read in its entirety as follows:
(a) the Assignment and Assumption Agreement duly
executed by Purchaser;
7. Section 13.2. Section 13.2 (Indemnification by Seller)
is hereby amended by amending and restating the penultimate
sentence thereof to read in its entirety as follows:
Seller shall not be required to indemnify the Purchaser
Indemnified Parties for any Loss arising out of
breaches of representations and warranties whatsoever
unless the aggregate Losses of the Purchaser
Indemnified Parties exceed $50,000, in which case
Seller shall be responsible for the entire amount of
the Loss and all Losses thereafter; provided, however,
that Seller shall indemnify the Purchaser Indemnified
Parties for any and all Losses arising out of breaches
of the representations and warranties set forth in
Sections 4.6 and 4.8 and shall indemnify the Purchaser
Indemnified Parties against any Losses relating to or
arising out of any Liens on the Purchased Assets or the
Real Property other than such Liens as are set forth on
Schedules 4.6 and 4.8(b) ("Undisclosed Liens"), and
Seller shall be solely responsible for any and all
costs and expenses incurred by Seller or Purchaser or
their respective Affiliates in obtaining the release of
any Undisclosed Liens from the holders thereof (for the
avoidance of doubt, the indemnification obligations and
liability of Seller set forth in this proviso shall not
be subject to the $50,000 threshold set forth above).
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8. Article XV. Article XV (Purchaser's Right of First
Refusal) is hereby amended by adding the following as
subsection 15.1(e):
(e) Notwithstanding the foregoing, Purchaser's
right of first refusal under Section 15.1(a) shall not
apply to any disposition of the Lutheran Assets
pursuant to Lender's rights under the Loan Agreement or
any of the other Loan Documents (as defined in the Loan
Agreement) to cause such a disposition upon default by
Seller, Parent or their Affiliates thereunder,
regardless of Lender's method or means of doing so (in
accordance with and subject to the terms of the Loan
Agreement and the other Loan Documents), including
without limitation, pursuant to a judicial or non-
judicial foreclosure proceeding, by public or private
sale, lease or otherwise, with the cooperation of
Parent, Seller or any of their Affiliates, to an
assignment for the benefit of creditors or as a sale of
assets under Section 363 of the United States
Bankruptcy Code or otherwise.
9. Effect on Asset Purchase Agreement; General Provisions.
Except as set forth in this Amendment, the terms and
provisions of the Asset Purchase Agreement are hereby
ratified and declared to be in full force and effect.
Except as otherwise expressly set forth herein, this
Amendment shall be governed by the provisions of the Asset
Purchase Agreement including with respect to choice of law,
disputes, arbitration and successors and assigns. This
Amendment may be executed 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.
Delivery of an executed counterpart of a signature page to
this Amendment by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of
this Amendment. Captions and paragraph headings are used
herein for convenience only, are not a part of this
Amendment or the Asset Purchase Agreement as amended by this
Amendment and shall not be used in construing either
document. Other than the reference to the Asset Purchase
Agreement contained in the first recital of this Amendment,
each reference to the Asset Purchase 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 Asset Purchase
Agreement as amended by this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above
written.
▇▇▇▇ UNIVERSITY SCHOOL OF NURSING
AND HEALTH SCIENCES, INC.
By:
Name:
Title:
FOREST PARK HOSPITAL
CORPORATION #1
By:
Name:
Title:
DOCTORS COMMUNITY HEALTHCARE
CORPORATION
By:
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT]