ASSET PURCHASE AGREEMENT RELATING TO
TASC ANESTHESIA, L.L.C.
THIS ASSET PURCHASE AGREEMENT is made as of September 30, 2005 by and
between UNION HOSPITAL, an Ohio nonprofit corporation (the "PURCHASER") and TASC
ANESTHESIA, L.L.C. (the "SELLER"), an Ohio limited liability company whose sole
member is Tuscarawas Ambulatory Surgery Center, LLC ("TASC").
WITNESSETH:
WHEREAS, the Seller owns certain assets as set forth on EXHIBIT A,
attached hereto (the "ASSETS"); and
WHEREAS, the Purchaser desires to purchase and the Seller desires to
sell the Assets; and
NOW, THEREFORE, it is mutually understood, agreed and represented as
follows:
ARTICLE 1
TRANSACTION TERMS
1.1 SALE. The Seller agrees to sell, and the Purchaser agrees to buy,
the Assets at a price of $77,524.00 (the "PURCHASE PRICE").
1.2 PAYMENT AND DELIVERY. The Purchase Price for the Assets shall be
paid to the Seller by the Purchaser at the Closing. The Parties agree and
acknowledge that it is the intent of Seller to pay any outstanding liabilities
and distribute the remaining proceeds of the transaction to TASC, its sole
member, which in turn intends to distribute such amounts pro rata to its Members
(i.e., those Members existing immediately prior to the Purchaser becoming a
Member) consistent with its or their respective Units in TASC.
ARTICLE 2
CLOSING
2.1 THE CLOSING. The consummation of the transactions contemplated by
this Agreement (the "CLOSING") shall take place at the offices of Xxxxxx & Xxxxx
commencing at 9:00 a.m. local time on the date of this Agreement, or such other
place and date as is agreed to by the parties hereto. Following the satisfaction
or waiver of all conditions to the obligations of the parties hereto to
consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective parties hereto will take at the Closing
itself), the transactions contemplated by this Agreement to occur upon Closing
shall be effective as of 12:00 a.m. on October 1, 2005 (the "CLOSING DATE").
2.2 DELIVERIES BY THE SELLER AT THE CLOSING. At the Closing, the Seller
will deliver to Purchaser such instruments of title, certificates, consents,
endorsements, assignments, assumptions and other documents or instruments, in a
form reasonably satisfactory to the Purchaser and its counsel, as set forth
herein or as may be reasonably requested by the Purchaser in order to transfer
the Assets to the Purchaser, to carry out the transaction contemplated by this
Agreement and to comply with the terms hereof.
2.3 CLOSING DELIVERIES OF THE PURCHASER. At the Closing, the Purchaser
will deliver to the Seller payment of the Purchase Price in immediately
available funds and such other instruments, certificates, consents or other
documents as set forth herein or as may be reasonably necessary to carry out the
transactions contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 PURCHASER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. As of the
date hereof and as of the Closing Date, the Purchaser represents, warrants, and
covenants to the Seller that the execution, delivery and performance of this
Agreement are within the powers of the Purchaser, have been duly authorized by
all necessary action, and do not and will not (i) violate any provision of the
governing documents of the Purchaser or of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
having applicability to the Purchaser; (ii) require the consent or approval of,
or filing or registration with, any governmental body, agency or authority or
any other third party; or (iii) result in a breach of or constitute a default
under, or result in the imposition of any lien, charge or encumbrance upon any
property of the Purchaser pursuant to, any indenture or other agreement or
instrument under which the Purchaser is a party hereto or by which it or its
properties may be bound or affected. This Agreement constitutes the legal, valid
and binding obligation of the Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy or similar laws affecting the
enforceability of creditors' rights generally.
3.2 THE SELLER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. As of the
date hereof and as of the Closing Date:
a. The Seller represents, warrants, and covenants to the Purchaser that
it has good and marketable title to the Assets being sold to the Purchaser,
subject to no encumbrance or restraint on transfer.
b. The execution, delivery and performance of this Agreement are within
the powers of the Seller, have been duly authorized by all necessary action, and
do not and will not (i) violate any provision of the governing documents of the
Seller or of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to the
Seller; (ii) require the consent or approval of, or filing or registration with,
any governmental body, agency or authority; or (iii) result in a breach of or
constitute a default under, or result in the imposition of any lien, charge or
encumbrance upon any property of the Seller pursuant to, any indenture or other
agreement or instrument under which the Seller is a party hereto or by which it
or its properties may be bound or affected. This Agreement constitutes the
legal, valid and binding obligation of the Seller in accordance with its terms,
except as such enforceability may be limited by bankruptcy or similar laws
affecting the enforceability of creditors' rights generally.
c. The Seller is a limited liability company duly organized and
existing in good standing or active status under the laws of the State of Ohio,
and has all requisite power and authority, to conduct its business and to own
its properties. The Seller is duly licensed or qualified to do business in all
jurisdictions in which such qualification is required, and failure to so qualify
could have a material adverse effect on the property, financial condition or
business operations of the Seller.
d. The financial statements furnished to the Purchaser in connection
with this Agreement and prior thereto, as set forth on SCHEDULE 3.3.D., were
prepared in accordance with generally accepted accounting principles and fairly
present the financial condition and results of operations at all dates and for
all periods covered thereby. To the best of Seller's knowledge, Seller has no
material liability, contingent or otherwise, not disclosed in such statements.
To the best of Seller's knowledge, since the date of such statements, there has
been no material adverse change in the business, prospects, assets or financial
condition of Seller and Seller has not engaged in any material transaction
outside the ordinary course of business.
e. Seller has good and marketable title to all of the Assets, free and
clear of all material liens, security interests, mortgages and encumbrances of
any kind, except for Permitted Liens as set forth on SCHEDULE 3.3.E. hereto.
f. Except as expressly disclosed in the financial statements, Seller
does not have any outstanding unpaid tax liability (except for taxes which are
currently accruing from current operations and ownership of property, which are
not delinquent), and to the best of Seller's knowledge, no tax deficiencies have
been proposed or assessed against Seller.
g. Except as set forth on SCHEDULE 3.3.G. hereto, Seller is not a party
to any litigation or administrative proceeding, nor so far as is known by Seller
is any litigation or administrative proceeding threatened against it.
ARTICLE 4
CONDITIONS TO OBLIGATION TO CLOSE
4.1 CONDITIONS TO OBLIGATION OF THE PURCHASER TO CLOSE. The obligation
of the Purchaser to consummate the transactions to be performed by it in
connection with this Agreement is subject to satisfaction (or written waiver on
or prior to the Closing Date) of the following conditions:
a. The representations and warranties of the Seller set forth in
ARTICLE 3 shall be true and correct at and as of the Closing Date;
b. The Seller and Purchaser shall have received all authorizations,
consents, and approvals required to be obtained prior to consummation of the
transactions contemplated herein;
c. The Seller shall have delivered to the Purchaser all documents
specified in SECTION 2.2; and
d. All actions to be taken by the Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to the
Purchaser.
4.2 CONDITIONS TO OBLIGATION OF SELLER TO CLOSE. The obligation of
Seller to consummate the transactions to be performed by it in connection with
this Agreement is subject to satisfaction (or written waiver by Seller on or
prior to the Closing Date) of the following conditions:
a. the representations and warranties of the Purchaser set forth in
ARTICLE 3 above shall be true and correct at and as of the Closing Date;
b. the Purchaser shall have performed and complied with all of its
covenants and agreements hereunder through the Closing Date;
c. Seller shall have received all approvals, authorizations and
consents required to be obtained prior to consummation of the transactions
contemplated herein, which includes the prior written consent of Health Care
Business Credit Corporation;
d. the closing of the transaction contemplated by TASC, Purchaser and
others related to the sale of certain interests in TASC to Purchaser shall have
occurred prior to or simultaneous with the Closing;
e. the Purchaser shall have delivered to Seller all documents and other
items specified in SECTION 2.3; and
f. all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to
Sellers.
ARTICLE 5
MISCELLANEOUS
5.1 ENTIRE AGREEMENT. This Agreement (including EXHIBIT A) constitutes
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes any prior understandings or agreements of the
parties hereto, written or oral, with respect to such subject matter.
5.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, including any other Affiliates. No party hereto may assign
either this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other parties hereto.
5.3 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
5.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
5.5 HEADINGS. The Articles and Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
5.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Ohio, without giving effect to
any choice or conflict of law provision or rule (whether of the State of Ohio or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Ohio.
5.7 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
5.8 EXPENSES. Each of the Purchaser and the Seller will bear its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby, except as
otherwise set forth herein.
[signature page to follow]
IN WITNESS WHEREOF, the Purchaser and the Seller have executed this
Agreement as of the day and date first above written.
UNION HOSPITAL
By: /S/ XXXXXX X. XXXXX
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Its: VP FINANCE
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TASC ANESTHESIA, L.L.C.
By: XXXXX XXXXXXX
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Its: CEO
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EXHIBIT A
ASSETS
1. Contract with Xx. Xxxxxxx Xxxxx dated _________ __, ____.
2. Locum Tenens Service Agreement.
3. Accounts Receivable for services rendered prior to the Closing Date; and
4. Cash in the amount of $41,051.00.
A-1
SCHEDULE 3.3.D.
FINANCIAL STATEMENTS
Unaudited financial statements for fiscal years ending 2004, 2003, and 2002 and
year-to-date through August 31, 2005.
SCHEDULE 3.3.E.
PERMITTED LIENS
See attached.
SCHEDULE 3.3.G.
LITIGATION
None.
