SECOND AMENDMENT TO THE ASSET PURCHASE AGREEMENTAsset Purchase Agreement |
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DIAKON LUTHERAN SOCIAL MINISTRIES, TRESSLER LUTHERAN SERVICES | NORTHEASTERN PENNSYLVANIA, INC | OP POTTSVILLE, LLC | OP SALISBURY, LLC BUYER'S OPERATORS | OP SELINSGROVE, LLC, OP MIFFLIN, LLC, OP HAZLETON, LLC, OP HAZLETON II, LLC, OP NEW BLOOMFIELD, LLC,, OP MILLERSBURG, LLC, OP EVERETT, LLC, OP FROSTBURG, LLC | RE EVERETT, LLC, RE FROSTBURG, LLC, RE SALISBURY, LLC | RE SELINSGROVE, LLC, RE MIFFLIN, LLC, RE HAZLETON, LLC, RE POTTSVILLE, LLC, RE NEW BLOOMFIELD, LLC, RE MILLERSBURG, LLC | TOPTON, PENNSYLVANIA AND SUSQUEHANNA HOUSING, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit
10.28
SECOND AMENDMENT TO THE
ASSET PURCHASE AGREEMENT
BY AND AMONG
DIAKON LUTHERAN SOCIAL MINISTRIES, ET AL.
(“SELLER”)
AND
RE SELINSGROVE, LLC, ET AL.
(“BUYER”)
Dated as of March 15, 2005
SECOND AMENDMENT
This SECOND AMENDMENT to the Asset Purchase Agreement (“Second Amendment”) is made and entered
into as of March 15, 2005, by and among DIAKON LUTHERAN SOCIAL MINISTRIES, TRESSLER LUTHERAN
SERVICES, THE LUTHERAN WELFARE SERVICE OF NORTHEASTERN PENNSYLVANIA, INC., THE LUTHERAN HOME AT
TOPTON, PENNSYLVANIA AND SUSQUEHANNA HOUSING, INC. (“Seller”) and RE SELINSGROVE, LLC, RE MIFFLIN,
LLC, RE HAZLETON, LLC, RE POTTSVILLE, LLC, RE NEW BLOOMFIELD, LLC, RE MILLERSBURG, LLC and RE
EVERETT, LLC, RE FROSTBURG, LLC, RE SALISBURY, LLC, (“Buyer”) AND OP SELINSGROVE, LLC, OP MIFFLIN,
LLC, OP HAZLETON, LLC, OP HAZLETON II, LLC, OP NEW BLOOMFIELD, LLC,, OP MILLERSBURG, LLC, OP
EVERETT, LLC, OP FROSTBURG, LLC AND OP SALISBURY, LLC (“BUYER’S OPERATORS).
WITNESSETH:
WHEREAS, Seller and Buyer have entered into that certain Asset Purchase Agreement as of
February 15, 2005 (“Asset Purchase Agreement”), whereby Seller agreed to sell, and Buyer agreed to
purchase substantially all of the assets of certain nursing homes, assisted living facilities, and
independent living facilities owned by Seller throughout Pennsylvania and Maryland, specifically
identified on Exhibit “A” attached hereto; and
WHEREAS, Seller and Buyer entered into the First Amendment to the Asset Purchase Agreement, as
of February 28, 2005; and
WHEREAS, Seller and Buyer have found it necessary to further modify certain terms of said
Asset Purchase Agreement in order to clarify their further negotiations regarding the same; and
WHEREAS, the parties desire to set forth those certain changes to the Asset Purchase Agreement
in this Second Amendment.
NOW THEREFORE, for and in consideration of the premises, and the agreements, covenants,
representations and warranties hereinafter set forth, and other good and valuable consideration,
the receipt and adequacy of all of which are forever acknowledged and confessed, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Section 2.2, Allocation of Purchase Price, shall be amended to add the following
sentence: “Seller and Buyer’s agreed upon Allocation of the Purchase Price shall be attached
hereto as Schedule 2.2.”
2. The Schedule reference in Section 4.14.11 in the Asset Purchase Agreement is hereby amended
from Schedule 4.14.10 to 4.14.11.
3. Section 5.6, Brokers and Finders, of the Asset Purchase Agreement is hereby amended
to reference the Schedule 5.4 to become Schedule 5.6.
4. Section 8.17, Financing, of the Asset Purchase Agreement is hereby amended and
restated to read as follows: “Buyer shall have obtained one or more debt and/or equity financing
commitments from Behrman Capital, Merrill Lynch Capital, a division of Merrill Lynch Business
Financial Services, Inc., and LaSalle Bank (collectively “Lender”), and Buyer shall have received
the proceeds of said financing in an amount sufficient to enable Buyer to pay the Purchase Price as
of the Closing Date.
5. Schedule 10.1(a), Locations, is hereby renumbered to be Schedule 10.1.
6. Section 13.19.3, shall read “Intentionally Omitted”.
7. Paragraph 13.20 of said Asset Purchase Agreement, Incorporation by Reference, shall
be hereby amended by removing the date, March 11, 2005, and substituting the new date of March 15,
2005, in its place.
8. The parties hereto hereby agree to the attached Exhibit B, Addendum to the Schedules of the
Asset Purchase Agreement, as of this date. The parties further agree that the parties are not in
complete agreement with the remaining wording of Schedule 4.14, and have identified issues related
thereto and will amend said Schedule in a subsequent amendment to the Asset Purchase Agreement.
9. The parties hereto otherwise ratify and confirm all of the remaining terms of the Asset
Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed in
multiple originals by their duly authorized officers, all as of the date and year first above
written. This Second Amendment may be executed and delivered in multiple counterparts and each
such counterpart shall be deemed an original, but all such counterparts shall together constitute
one and the same Second Amendment.
BUYER:
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RE SELINSGROVE, LLC | |
| By: /s/ Rosemary L. Corsetti | ||
| Name: Rosemary L. Corsetti | ||
| Title: Secretary | ||
| RE MIFFLIN, LLC | ||
| By: /s/ Rosemary L. Corsetti | ||
| Name: Rosemary L. Corsetti | ||
| Title: Secretary | ||
| RE HAZLETON, LLC | ||
| By: /s/ Rosemary L. Corsetti | ||
| Name: Rosemary L. Corsetti | ||
| Title: Secretary | ||
| RE POTTSVILLE, LLC | ||
| By: /s/ Rosemary L. Corsetti | ||
| Name: Rosemary L. Corsetti | ||
| Title: Secretary | ||
| RE NEW BLOOMFIELD, LLC | ||
| By: /s/ Rosemary L. Corsetti | ||
| Name: Rosemary L. Corsetti | ||
| Title: Secretary | ||
| RE MILLERSBURG, LLC | ||
| By: /s/ Rosemary L. Corsetti | ||
| Name: Rosemary L. Corsetti | ||
| Title: Secretary |
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| RE EVERETT, LLC | ||
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