EXHIBIT 10.20
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "AMENDMENT") is
made and entered into as of March 29, 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 (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. Section 2.4 of the Agreement is hereby 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 shall be held by Escrow Agent and paid,
disbursed or applied as a credit against the Purchase Price as provided
in this Agreement. The Escrowed Amount shall be held or placed by
Escrow Agent in an interest bearing account and the term "Escrowed
Amount" shall include any interest thereon. 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 (i) by
reason of Seller's default, Escrow Agent shall be irrevocably
authorized and directed to release the Escrowed Amount to Buyer; or
(ii) for any other reason, Escrow Agent shall be irrevocably authorized
and directed to release the Escrowed Amount to the Sellers and such
amounts shall be retained by Sellers as liquidated damages. This
Agreement shall constitute both an agreement among Sellers and Buyer
and escrow instructions for Escrow Agent. If Escrow Agent requires a
separate or additional escrow agreement to hold the Escrowed Amount,
Buyer and Sellers hereby agree upon request by Escrow Agent to promptly
execute and deliver such agreement; provided, that such agreement shall
not modify or amend the provisions of this Agreement unless otherwise
consented and agreed to in writing by Sellers and Buyer.
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 April 14, 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. EFFECT ON PURCHASE AGREEMENT; GENERAL PROVISIONS. 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.
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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/ L. Glynn Riddle
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Title: EVP and CFO
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DIVERSICARE ASSISTED LIVING
SERVICES NC II, LLC
By: Diversicare Assisted Living
Services NC, LLC, the sole member
By: /s/ L. Glynn Riddle
-------------------
Title: EVP and CFO
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BUYER:
AGEMARK ACQUISITION, LLC
By: /s/ Charles E. Trefzger Jr.
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Title: Manager
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SIGNATURE PAGE TO FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT