EX-10.1 SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT 04/14/06

EX-10.1 2 g02644exv10w1.txt EX-10.1 SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT 04/14/06 EXHIBIT 10.1 SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT THIS SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (the "AMENDMENT") is made and entered into effective as of April 14, 2006, by and among DIVERSICARE ASSISTED LIVING SERVICES NC I, LLC, a Delaware limited liability company ("DALS I"), DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC, a Delaware limited liability company ("DALS II") (DALS I and DALS II are collectively, "SELLERS"), and AGEMARK ACQUISITION, LLC, a North Carolina limited liability company ("BUYER"). RECITALS: A. Buyer and Sellers are parties to that certain Asset Purchase Agreement dated November 28, 2005, as amended by the First Amendment to Asset Purchase Agreement dated March 29, 2006 (said Asset Purchase Agreement, as amended, is herein the "AGREEMENT"). B. Buyer and Sellers now desire to amend the terms set forth in the Agreement as provided in this Amendment. C. Capitalized terms not otherwise defined in this Amendment shall have the meanings set forth in the Agreement. AGREEMENT: NOW, THEREFORE, for and in consideration of the premises and the mutual agreements, covenants, representations, and warranties set forth herein and in the Agreement and other good and valuable consideration, the receipt and adequacy of which are forever acknowledged and confessed, the parties hereto agree as follows: 1. Buyer and Sellers shall simultaneous with the execution and delivery of this Amendment, execute and deliver to Escrow Agent written instructions in the form attached to this Amendment as Exhibit A, which instructions shall authorize and direct Escrow Agent to release the Escrowed Amount to Sellers. Upon Sellers' receipt of the Escrowed Amount, Section 2.4 of the Agreement, without further action by the parties, shall be deleted in its entirety and replaced with the following: 2.4 Escrow Deposit. Buyer has previously deposited with Chicago Title ("ESCROW AGENT") the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) (together with all interest thereon, the "ESCROWED AMOUNT"). The Escrowed Amount was subsequently released by Escrow Agent to Sellers. If the Closing occurs, the Escrowed Amount will be credited against the Purchase Price. If the Closing does not occur or the Agreement is otherwise terminated for any reason Sellers shall retain such amounts as liquidated damages. 2. Section 6.2(3) of the Agreement shall be deleted in its entirety and replaced with the following: (3) By Buyer or Sellers if Closing hereunder shall not have taken place by May 15, 2006, or by such later date as shall be agreed upon by an appropriate amendment to this Agreement if the parties agree in writing to an extension, provided that a party shall not have the right to terminate under this Section 6.2(3) if the conditions precedent to such party's obligation to close have been fully satisfied and such party has failed or refused to close after being requested in writing to close by the other party. 3. 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. On and after the date hereof, each reference in the Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like import, and each reference in the other documents and agreements relating to the Agreement, shall mean and be a reference to the Agreement as amended hereby. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 2 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed in multiple originals by their authorized officers, all as of the date first above written. SELLERS: DIVERSICARE ASSISTED LIVING SERVICES NC I, LLC By: Diversicare Assisted Living Services NC, LLC, the sole member By: /s/ Glynn Riddle ------------------------------------ Title: EVP & CFO DIVERSICARE ASSISTED LIVING SERVICES NC II, LLC By: Diversicare Assisted Living Services NC, LLC, the sole member By: /s/ Glynn Riddle ------------------------------------ Title: EVP & CFO BUYER: AGEMARK ACQUSITION, LLC By: /s/ Charles E. Trefzger Jr. ------------------------------------ Title: Manager 3