EXHIBIT 2.2(b)
FIRST AMENDMENT TO
ASSET EXCHANGE AGREEMENT
THIS AMENDMENT (the "Amendment") is made and entered into this 20th day of
February, 1996 amends that certain Asset Exchange Agreement by and between
Paracelsus Halstead Hospital, Inc. ("PHH"), Paracelsus Elmwood Medical Center,
Inc. ("PEMC"), Paracelsus Peninsula Medical Center, Inc. ("PPMC"), Paracelsus
Real Estate Corporation ("PREC"), Pioneer Valley Hospital, Inc. ("PVH") and
Medical Center of Santa Rosa, Inc. ("MCSR") dated November 28, 1995 (the
"Agreement").
RECITALS:
A. Other than letter amendments to the Agreement which establish
deadlines for the parties to agree to the disclosure schedules to the Agreement
and which extend the "drop dead" date, there have been no amendments to the
Agreement as of the date hereof.
B. The parties would like to add a provision to the Agreement which
relates to the emergency services business associated with Santa Rosa Medical
Center in Santa Rosa, Florida.
C. The parties would like to clarify the Agreement so as to reflect their
mutual agreement as to (i) the taking of physical inventory prior to the Closing
and (ii) the procedure by which the real property associated with the Louisiana
Hospital and the Kansas Hospital as currently held by AHP will be conveyed to
C/HCA.
AGREEMENT
NOW, THEREFORE, for the consideration recited in the Agreement and the
promises and covenants contained therein and herein, the parties hereto agree as
follows:
1. NEW PROVISION. A new Section 11.24 shall be added to the Agreement as
follows:
"11.24.1 COVENANT RELATING TO AMBULANCE SERVICES. For a period of two
(2) years from and after the date hereof (or such lesser period to the
maximum extent permitted by applicable law), neither PPMC, PREC, MCSR, any
affiliate thereof, nor
any entity controlled (directly and indirectly) by such entities shall, directly
or indirectly, within, into or from the Territory (as defined below), engage in
any aspect of the ambulance, paramedic, emergency response transport service
business (the "Ambulance Service Business") in competition with Rural/Metro
Corporation (the parent of the corporation which is buying the emergency
services business from an affiliate of MCSR) or any of its subsidiaries. For
purposes of this Agreement, the term "Territory" shall mean the counties of
Escambia and Santa Rosa, Florida.
Notwithstanding the above, the Ambulance Service Business shall not be
deemed to include inter-facility transports or non-emergency transports. For
purposes of this Agreement, "inter-facility transports" shall mean those
transports to or from the Santa Rosa Medical Center to or from such other
health care facilities including but not limited to physician office
buildings, skilled nursing facilities, rehabilitation facilities, nursing
homes, boarding houses, etc. and "non-emergency transports" shall mean those
transports of patients to Santa Rosa Medical Center for which an emergency
transport vehicle is not required.
If at any time during the two year term of this covenant, it is
determined that the provider of the Ambulance Service Business in Santa Rosa
County is in breach of its agreement with the Santa Rosa County for the
provision of Ambulance Service Business, then the term of this covenant shall
terminate effectively with such determination, and neither PPMC, PREC, MCSR,
any affiliate thereof, nor any entity controlled (directly or indirectly) by
such entities shall thereafter be bound by this Section 11.24 and the same
shall no longer be effective.
11.24.2 REASONABLENESS AND REMEDIES. Each of the parties hereto
specifically acknowledge that the geographic regions contained in Section
11.24.1 hereof, and the length of time restrictions in Section 11.24.1 hereof
are necessary and reasonable. Each party hereby acknowledges and agrees that
the restrictions set forth in this Amendment are reasonable and necessary,
and that any violation thereof would result in substantial and irreparable
injury to the other parties and such other parties may not have an adequate
remedy at law with respect to any such violation. Accordingly, each party
agrees that, in the event of any actual or threatened violation thereof, any
party affected by such violation or threatened violation shall have the right
and privilege to obtain, without the necessity of posting bond therefor, and
in addition to any other remedies that may be available, equitable relief,
including temporary and permanent injunctive relief, to cease or prevent any
actual or threatened violation of any provision hereof.
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11.24.3 ASSIGNMENT. It is expressly agreed that any of the parties
hereto may assign the benefits of this Section 11.24 (but not the obligations
set forth in Section 11.24.1) to an affiliate or other third party giving
valid consideration for such assignment without the prior written consent of
the other parties and further that any such assignee shall have the right to
enforce the obligations set forth in this Section 11.24.
11.24.4 INDULGENCES. Neither any failure nor any delay on the part of
any of the parties hereto (or their assignees as set forth in Section 11.24.3)
to exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege, nor shall any waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence."
2. SUPPLIES. The parties agree that the physical inventories
contemplated by Section 2.10.1 and Section 2.11.1 may be completed at any time
on or after December 31, 1995; provided that each party maintains a perpetual
rolling count thereafter in sufficient detail to allow the party who will be
receiving the supplies at the Closing to track the movement of the inventory
from the date of its physical count to the Closing.
3. PROCEDURE TO CONVEY REAL PROPERTY. The Agreement is hereby amended as
appropriate to effect the following amendment, provided, however, that nothing
herein shall in any way diminish or limit the representations and warranties of
the parties to the Agreement or the quality of title to the property exchanged
by such parties pursuant to the terms of the Agreement.
PHH and PEMC shall merge into PPVH, a newly formed corporation,
immediately prior to Closing. PPVH shall acquire the Louisiana Real
Property from AHPNO and the Kansas Real Property from AHPKS prior to
Closing. At Closing PPVH, as the successor to PHH and PEMC and as the
fee owner of the Louisiana Real Property and the Kansas Real Property,
shall exchange the Louisiana Assets and the Kansas Assets with PVH for
the Pioneer Assets. At the Closing, PPVH shall deliver the conveyance
documents to PVH that PHH, PEMC, AHPNO and AHPKS were to provide under
the terms of the Agreement. In addition, PPVH shall provide such
other instruments and documents as C/HCA reasonably deems necessary to
evidence the
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merger of PHH and PEMC, its ownership of the Louisiana Assets and the
Kansas Assets and to effect the transactions contemplated hereby. As
a result of this revised structure, counsel for AHPNO and AHPKS shall
not be required to deliver a legal opinion as contemplated by the
Agreement. Attached hereto as EXHIBIT A is an outline of the
amendment to the structure of this transaction.
4. COUNTERPART SIGNATURE. This amendment may be executed in one or more
counterparts, each of which shall be an original but all of which shall
constitute one agreement.
5. DEFINITIONS. Any terms left undefined in this Amendment will have the
meaning ascribed to them as set forth in the Agreement.
IN WITNESS WHEREOF, each of the parties has signed this Amendment on the
date first above written.
PARACELSUS HALSTEAD HOSPITAL, INC.
By: /s/ Robert C. Jay
-------------------
Title: Vice President
----------------
PARACELSUS ELMWOOD MEDICAL CENTER, INC.
By: /s/ Robert C. Jay
-------------------
Title: Vice President
----------------
PARACELSUS PENINSULA MEDICAL CENTER,
INC.
By: /s/ Robert C. Jay
-------------------
Title: Vice President
----------------
PARACELSUS REAL ESTATE CORPORATION
By: /s/ Robert C. Jay
-------------------
Title: Vice President
----------------
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PIONEER VALLEY HOSPITAL, INC.
By: /s/ V. Carl George
-------------------
Title: Vice President
----------------
MEDICAL CENTER OF SANTA ROSA, INC.
By: /s/ V. Carl George
-------------------
Title: Vice President
----------------
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EXHIBIT A
REAL AND PERSONAL PROPERTY TRANSFER STRUCTURE
COLUMBIA -- PARACELSUS
Asset Exchange Agreement
Capitalized terms not defined herein but defined in the Asset Exchange
Agreement shall have the same meaning herein as set forth therein.
A. Kansas Business and Louisiana Business in exchange for Pioneer
Business
1. Kansas Real Property and Kansas Business to be owned by
Paracelsus Pioneer Valley Hospital, Inc., a Utah corporation and
successor by merger to PHH and PEMC ("PPVH") as of Closing
2. Louisiana Real Property and Louisiana Business to be owned by
PPVH as of Closing
3. Exchange of Pioneer Real Property, by Pioneer Valley Hospital,
Inc., a Utah corporation ("Pioneer"), and remainder of Pioneer
Business by Pioneer with PPVH for the Louisiana Real Property,
Louisiana Business, Kansas Real Property and Kansas Business
a. The Pioneer Real Property and Pioneer Business will be
transferred by Pioneer as follows:
(1) Conveyance of fee title from Pioneer by special
warranty deed to PPVH of the following:
(A) Parcels 2, 3, 4, 5, 6 and 7 (3449 and 3460 S. Pioneer
Parkway, and 4052 W. Pioneer Parkway), all as set forth
in Commitment No. 13985-A
(B) Parcels 1 and 2 (vacant land at 3381 South 4000 West)
as set forth in Commitment No. 13985-B
(2) Assignment of the following leases (with consents of
lessors) from Pioneer to PPVH:
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(A) Lease by Pioneer of Parcel 1 (3336 S. Pioneer Parkway)
as set forth in Commitment No. 13985-A between National
Health Investors, Inc., a Maryland corporation ("NHI"),
as lessor, and Pioneer, as lessee
(B) Lease described in Commitment No. 14160 (Salt Lake
Industrial Clinic), owned by Boyer-Salt Lake Industrial
Partnership
(C) Such other leases as are listed in Schedule 5.9 of the
Asset Exchange Agreement
(3) Conveyance of remainder of Pioneer Business by Pioneer
to PPVH, as set forth in the Asset Exchange Agreement,
from Pioneer to PPVH
b. The Louisiana Real Property, Louisiana Business, Kansas Real
Property and Kansas Business will be conveyed from PPVH(1)
as follows:
(1) Conveyance of fee title by special warranty deed from
PPVH to Pioneer of the following:
(a) A-1, A-2 and B (Elmwood Medical Center and
Popeye's Building) as set forth in Commitment No.
1508.521
(b) The land described in Commitment No. T4145
(Halstead Hospital)
(2) Assignment from PPVH to Pioneer of the leases for the
Kansas Real Property and Louisiana Real Property set
forth in Schedule 4.9 of the Asset Exchange Agreement
(3) Conveyance of remainder of Louisiana Business and
Kansas Business, as set
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(1) The Exchange Agreement contemplates that AHPNO and AHPKS will convey
these properties.
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forth in the Asset Exchange Agreement, from PPVH to
Pioneer
B. Exchange of Santa Rosa Real Property for Florida Real Property between
Paracelsus Real Estate Corporation, a California corporation ("PREC")
and Medical Center of Santa Rosa, Inc., a Florida Corporation ("Santa
Rosa"), and exchange of remainder of Santa Rosa Business for remainder
of Florida Business between Paracelsus Peninsula Medical Center, Inc.,
a Florida corporation ("PPMC") (or Paracelsus Santa Rosa Medical
Center, Inc. if PPMC's name is changed prior to Closing) and Santa
Rosa
1. PREC leases the Florida Real Property to PPMC. Concurrently with
the Closing, this lease will be terminated.
2. PREC and PPMC will transfer the Florida Real Property and Florida
Business to Santa Rosa as follows:
a. Conveyance by special warranty deed by PREC to Santa Rosa of
the land described in Commitment No. FL014-10-N68806
(Peninsula Medical Center)
b. Assignment of the PPMC leases described in Schedule 4.9 of
the Asset Exchange Agreement
c. Conveyance of Florida Business from PPMC to Santa Rosa as
set forth in the Asset Exchange Agreement
3. Santa Rosa will transfer the Santa Rosa Real Property to PREC as
follows:
a. Assignment by Santa Rosa to PREC of lease relating to Parcel
3 as described in Commitment No. 95-3179-A-PF (Lots 1-6 of
Berryhill Medical Park a/k/a 1540, 1550 and 1560 Berryhill
Road)
b. Assignment of lease with Santa Rosa County by Santa Rosa to
PREC covering Parcel I as described in Commitment No.
95-3179-A-PF (the Santa Rosa Medical Center Building)
4. Santa Rosa will transfer the Santa Rosa Business to PPMC as
follows:
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a. Assignment of the Santa Rosa leases set forth in Schedule
5.9 of the Asset Exchange Agreement
b. Conveyance of Santa Rosa Business from Santa Rosa to PPMC as
set forth in the Asset Exchange Agreement
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