AMENDMENT NO. 1 TO
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AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
This Amendment is an amendment to the Asset Purchase Agreement dated
July 23, 1997 (the "Agreement") by and among, by and among XXXXXX MANAGEMENT
GROUP FIRST PARTNERSHIP, XXXXXX MANAGEMENT GROUP THIRD PARTNERSHIP, XXXXXX
MANAGEMENT GROUP FOURTH PARTNERSHIP, XXXXXX, XXXXXX & HALL PARTNERSHIP, XXXXXX
MANAGEMENT GROUP FIFTH PARTNERSHIP, HEALTH CARE INVESTMENTS PARTNERSHIP, XXX
XXXXXX AND XXXX XXXXXX PARTNERSHIP, SENTRY SERVICES LLC, GVP SENTRY SERVICES
LLC, SCP SENTRY SERVICES LLC, SGP SENTRY SERVICES LLC, SVP SENTRY SERVICES LLC,
VCP SENTRY SERVICES LLC, SVCP SENTRY SERVICES LLC, SENTRY CARE OF NEWPORT, INC.,
TRI-CITY HAVEN, INC., XXXX HAVEN CENTER OF CARE, INC., KANNAPOLIS VILLAGE REST
HOME, XXXXXX XXXX PARTNERSHIP, HEALTH CARE INVESTMENTS, INC., MIDSTATE
PROPERTIES, INC., COMMERCIAL INSPECTION AND MAINTENANCE, TARHEEL INSTITUTIONAL
BROKERAGE, (collectively "Sellers") and A. XXXXX XXXXXX, XXXX XXX XXXXXX, XXX X.
XXXXXX, XXXX XXXXXX, X. XXXX XXXXXX, XXXXXXXXXX X. XXXXXX, XXXXXXX XXXXXX
XXXXXXXX, XXXXXXX X. XXXXXXXX,(collectively "Owners"), and ADVOCAT INC., a
Delaware corporation ("Buyer").
WHEREAS, Section 15.2 of the Agreement provides that prior to Closing,
Buyer may freely assign its rights or delegate its obligations under the
Agreement to one or more entity which is directly or indirectly wholly owned by
Buyer; and
WHEREAS, Section 15.12 of the Agreement provides that it may be modified
only by an agreement in writing signed by Sellers, Owners and Buyer; and
WHEREAS, Closing has not yet occurred and Sellers, Owners and Buyer desire
to amend the Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the undersigned hereby agree as follows:
1. Buyer hereby assigns all of its rights and delegates all of its
obligations as provided in Section 15.2 of the Agreement to Diversicare
Assisted Living Services NC, LLC, a Tennessee limited liability company
and all places in the Agreement and any documents executed in connection
with the Closing which refer to Buyer or Advocat, Inc. shall be deemed to
refer to Diversicare Assisted Living Services NC, LLC.
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2. Section 3.1 of the Agreement is hereby deleted in its entirety and
replace with the following:
3.1 Purchase Price. The purchase price payable by Buyer
to Sellers and Owners for the Assets and in consideration for the
agreements contained herein, including the agreements contained in
Article XIV hereof, will be payable as provided in Section 7.1 hereof
and shall be Thirty Two Million Four Hundred Eighty-nine Thousand and
No/100 Dollars ($32,489,000.00), subject to adjustment pursuant to the
terms of this Agreement (the "Purchase Price"), and shall be payable in
the following manner:
(1) Thirty Two Million Two Hundred Twenty-Five
Thousand and No/100 Dollars ($32,225,000.00), in cash in
immediately available funds at Closing;
(2) Two Hundred Sixty Four Thousand and No/100
Dollars ($264,000.00) payable in thirty-six equal monthly
installments of $ 7,333.33 each; and
(3) Assumption of the Assumed Liabilities at
Closing.
3. Exhibit 1.4 Assumed Liabilities is hereby amended to add Severance
Payment to Xxx Xxxxxx of $20,000.00.
4. Exhibit 1.2 Excluded Assets is hereby amended to delete the Managers
Home, Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000, and said property is
hereby included as a part of the Real Estate described in Section
1.1(1) to be purchased by the Buyer and shall be deemed to be a part of
the Purchased Assets for all purposes under the Agreement.
5. Exhibit 1.3(1) is hereby deleted in its entirety and replaced with
Revised Exhibit 1.3(1) attached hereto.
6. Current Exhibits 1.1(1) and 4.12(2) attached to the Agreement are
hereby deleted and replaced in their entirety with Exhibits 1.1(1) and
4.12(2) in the form attached hereto.
7. The parties hereto agree that with respect to the improved real
property located near the Heritage, Seven Lakes facility described on
Exhibit ____ attached hereto, such improved real property is included
as part of the Purchased Assets, however, the parties will complete the
transfer of the improved real property within 90 days after closing
upon the receipt of Title Evidence and Environmental Reports
satisfactory to Buyer. At the time of the transfer of the improved real
property, Sellers and Owners will convey fee simple title to the
property to Buyer by a general warranty deed as provided in the
Agreement with only such Permitted Exceptions as acceptable to Buyer
and Buyer will payoff the outstanding balance currently
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owed to First Union National Bank of North Carolina on the property.
The payoff amount for such loan on September 30, 1997 is $60,382.46
with interest accruing at $13.97 per day.
8. The parties hereto agree that with respect to Hazardous Substances, any
post-closing environmental testing required by Buyer's lender or
voluntarily undertaken by Buyer based upon the Environmental Reports
obtained by Buyer with respect to any underground storage tanks now or
heretofore located on the Real Estate or Leased Property, or any
property adjacent thereto, will be at Buyer's cost and expense;
provided however, that if the tank closure report for the Christian
Care of Smithville property is not accepted by the State of North
Carolina and any further testing is required by the State of North
Carolina or any other applicable governmental agency having
jurisdiction, then such testing shall be at the expense of Sellers and
Owners. In the event any such testing reveals any Hazardous Substances
on the Real Property or Leased Property which would constitute a breach
of Sellers' or Owners' representations and warranties hereunder or as
to which Sellers or Owners would otherwise be responsible at law, the
Sellers and Owners shall be responsible for all remediation or cleanup
and any penalties, fines, costs or expenses incurred in connection
therewith in accordance with the provisions of Section 4.14
Environmental Matters and the indemnification provisions of Section 13.
9. Sellers and Owners agree that within 30 days of Closing, Sellers and
Owners will deliver an easement, license or other agreement
satisfactory to Buyer, in recordable form, providing that Sellers and
Owners will continue to make available to Buyer the right to use the
private water system from the well and pump station and sewage
treatment facility owned by Sellers and Owners which currently serve
the Creekside Manor facility and the office building in Kernersville,
North Carolina which will be leased by Buyer after closing. Pursuant to
the Lease Agreements for the Creekside Manor facility and the office
building, Buyer will be responsible for the maintenance and repair of
the well and pump station and sewage treatment facility during the term
of such leases.
10. This Amendment may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument. A
facsimile signature shall be deemed the same as an original signature.
11. Except as expressly amended hereby, the terms of the Agreement shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement as of the _____ day of September, 1997.
"SELLERS"
XXXXXX MANAGEMENT GROUP FIRST
PARTNERSHIP
By:
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Its:
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XXXXXX MANAGEMENT GROUP THIRD
PARTNERSHIP
By:
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Its:
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XXXXXX MANAGEMENT GROUP FOURTH
PARTNERSHIP
By:
--------------------------
Its:
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XXXXXX, XXXXXX & HALL PARTNERSHIP
By:
--------------------------
Its:
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XXXXXX MANAGEMENT GROUP FIFTH
PARTNERSHIP
By:
--------------------------
Its:
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HEALTH CARE INVESTMENTS PARTNERSHIP
By:
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Its:
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XXX XXXXXX AND XXXX XXXXXX
PARTNERSHIP
By:
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Its:
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SENTRY SERVICES LLC
By:
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Its:
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GVP SENTRY SERVICES LLC
By:
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Its:
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SCP SENTRY SERVICES LLC
By:
--------------------------
Its:
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SGP SENTRY SERVICES LLC
By:
--------------------------
Its:
--------------------------
SGP SENTRY SERVICES LLC
By:
--------------------------
Its:
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SVP SENTRY SERVICES LLC
By:
--------------------------
Its:
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VCP SENTRY SERVICES LLC
By:
--------------------------
Its:
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SVCP SENTRY SERVICES LLC
By:
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Its:
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SENTRY CARE OF NEWPORT, INC.
By:
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Its:
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TRI-CITY HAVEN, INC.
By:
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Its:
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XXXX HAVEN CENTER OF CARE, INC.
By:
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Its:
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KANNAPOLIS VILLAGE REST HOME
By:
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Its:
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XXXXXX XXXX PARTNERSHIP
By:
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Its:
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HEALTH CARE INVESTMENTS, INC.
By:
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Its:
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MIDSTATE PROPERTIES, INC.
By:
--------------------------
Its:
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TARHEEL INSTITUTIONAL BROKERAGE
By:
--------------------------
Its:
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COMMERCIAL INSPECTION AND
MAINTENANCE
By:
--------------------------
Its:
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"OWNERS"
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A. XXXXX XXXXXX
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XXXX XXX XXXXXX
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XXX X. XXXXXX
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XXXX XXXXXX
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X. XXXX. XXXXXX
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XXXXXXXXXX X. XXXXXX
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XXXXXXX XXXXXX XXXXXXXX
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XXXXXXX X. XXXXXXXX
"BUYER"
ADVOCAT INC.
By:
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Its:
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DIVERSICARE ASSISTED
LIVING SERVICES NC, LLC.
By:
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Its:
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