Exhibit 2.3
July 31, 1998
11878-340
BY FACSIMILE
ElderTrust Operating Limited Partnership
c/o Xxxxxx X. Xxxxxxx, Xx.
ElderTrust
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Genesis Health Ventures, Inc.
c/o Xxxxxxx X. Xxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
Re: Purchase and Sale Agreement dated as of June 12, 1998, as
Amended by First Amendment dated as of July 22, 1998
(collectively, the "Agreement")
Gentlemen:
This letter will constitute a Second Amendment to the Agreement.
Pursuant to Sections 5 and 6 of the Agreement, the Study Period has
most recently been extended until 5:00 p.m. on July 31, 1998. In addition,
pursuant to Section 6(a) of the Agreement, the Purchaser has requested
permission to undertake certain additional environmental testing at Heritage at
Cleveland Circle, Heritage at the Falls, and Heritage at Xxxxxx Court as
outlined in the letter from the Purchaser's counsel dated July 23, 1998 attached
hereto as Exhibit A outlining additional testing to be performed by Xxxxxx
Environmental Consultants, Inc. ("Xxxxxx") (the "Purchaser's Additional
Environmental Testing").
The Seller agrees to Purchaser's Additional Environmental Testing on
the following conditions:
1. With respect to Heritage at Cleveland Circle, Xxxxxx shall
coordinate such work with CJP's consultant, GZA
GeoEnvironmental, Inc. ("GZA").
2. With respect to Heritage at the Falls, if not already
forwarded, the Seller shall provide the Purchaser with
pressure test results of the existing underground storage tank
located on the adjoining Gregorian property by July 31, 1998.
Xxxxxx shall coordinate its additional testing with the
Seller's consultant, Xxxxxxx Head & Associates.
3. With respect to Heritage at Xxxxxx Court, the Purchaser may
perform the additional testing described in Exhibit A.
4. All of the Purchaser's Additional Environmental Testing shall
be performed with reasonable prior notice to the Seller. The
Purchaser specifically also shall comply with the insurance
and restoration provisions of Section 6(c) of the Agreement.
The Purchaser promptly shall provide the Seller with copies of
all such test results.
5. Subject to the price adjustment set forth in Section 6 below,
the Purchaser shall have no right to terminate the Agreement
on account of the results of Purchaser's Additional
Environmental Testing. Further, with the exception of
Purchaser's Additional Environmental Testing, the Purchaser
has accepted the environmental condition of the Properties as
of the date of the Agreement.
6. The Purchaser shall notify the Seller by 5:00 p.m. on August
7, 1998, whether the Purchaser accepts the environmental
condition of the three Properties affected by the Purchaser's
Additional Environmental Testing or whether, in any instance,
a Licensed Site Professional ("LSP") has certified that
additional remediation of specific matters (beyond that
already being performed) is required by applicable law,
including the nature, scope, estimated cost for, and the
likely degree of interference at the Property as a result of
such remediation work. In such latter event, the Seller and
the Purchaser promptly shall consult with each other
concerning the nature of such recommendations and whether any
price adjustment is appropriate (at a minimum, a price
adjustment will be made in the amount of the estimated cost).
If there is additional remediation required by law and if the
estimated cost and any losses reasonably anticipated as a
result of such interference is less than $250,000.00, then (a)
the Seller and the Purchaser shall proceed with the
transaction and the Purchaser shall be afforded a credit
against the purchase price in the amount of such estimated
cost and the aforesaid losses, or (b) if the estimated cost
and the aforesaid losses exceed $250,000.00, then, at the
Seller's election exercised by notice to the Purchaser within
five (5) business days of receipt of the LSP certification,
the Seller either (i) may terminate the Agreement and return
the Deposit, or (ii) may afford the Purchaser a credit against
the purchase price for the amount of such estimated cost and
the aforesaid losses; provided, however, that if the Seller
elects to terminate the Agreement pursuant to (i) above, the
Purchaser may elect to proceed with the closing with a credit
of only $250,000 against the purchase price.
7. With respect to physical, title, survey and zoning/permitting
compliance matters, the Purchaser accepts the status of such
matters as of the date of the Agreement except for those
matters (the "Remaining Due Diligence Matters") set forth or
referenced in the letter dated July 24, 1998 from Xxxxxx
Xxxxx, Esquire, on behalf of the Purchaser, attached hereto as
Exhibit B. Subject to the price adjustment set forth below,
the Purchaser shall have no right to terminate the Agreement
on account of the Remaining Due Diligence Matters.
The Seller and the Purchaser agree also to extend the Study
Period until 5:00 p.m. on August 10, 1998 for the sole and
limited purpose of permitting the parties further to review
and to agree on the necessity for and/or manner in which the
Seller will address the Remaining Due Diligence Matters.
Between the date hereof and August 10, 1998, the Seller shall
work cooperatively with the Purchaser to provide any
additional information in the Seller's possession or to answer
the Purchaser's outstanding questions with respect to the
Remaining Due Diligence Matters. The Seller already has
provided a significant amount of such additional information
and certain additional undertakings as set forth in (a) the
letter dated July 28, 1998 from Xxxxxx X. Xxxxxxx, Esquire to
Xxxxxx Xxxxx, Esquire, attached hereto as Exhibit C, and (b)
the letter dated July 29, 1998 from Xxxxxx Xxxxx, Esquire, to
Xxxxxx X. Xxxxxxx, Esquire, countersigned by Xxxxxxxx X. Xxx
on behalf of the Seller, attached hereto as Exhibit D.
In addition, prior to the Closing, the Seller shall arrange
for the execution and recording of an Amended and Restated
Reciprocal Easement Agreement affecting Heritage at the Falls
incorporating the substantive changes set forth in the
progress draft dated July 31, 1998 attached hereto as Exhibit
E, with only such remaining administrative changes to be made
as are required to reflect current addresses, prior recording
information, and similar updating or clerical changes.
If, by 5:00 p.m. on August 10, 1998, there are any Remaining
Due Diligence Matters which: (i) are required by law
(including regulatory or permitting compliance) to be
effectuated; (ii) require affirmative title insurance by the
Purchaser or its lender; or (iii) will materially interfere
with the operation of any Property for its present use, then
(a) if the estimated aggregate cost to address the same
(including environmental under Section 6) is less than the
same $250,000 referenced in Section 6 above, the Seller and
the Purchaser shall proceed with the transaction and the
Purchaser shall be afforded a credit against the purchase
price in the amount required so to comply with law, to obtain
such title insurance or to cure such problem, or (b) if the
estimated aggregate cost to address all such items (including
environmental under Section 6) exceeds $250,000.00, then, at
the Seller's election exercised by notice to the Purchaser
within five (5) business days of the Purchaser's notifying the
Seller that such costs exceed $250,000.00, the Seller either
(i) may terminate the Agreement and return the Deposit, or
(ii) may afford the Purchaser a credit against the purchase
price for the amount of such estimated cost; provided,
however, that if the Seller elects to terminate the Agreement
pursuant to (i) above, the Purchaser may elect to proceed with
the closing with a credit of only $250,000 against the
purchase price.
8. Except for the matters specifically addressed herein and
except for the MHFA-related matters addressed in the First
Amendment, the Purchaser has accepted all other aspects of the
Properties as of the date of the Agreement, including, without
limitation, the physical, financial and operational aspects or
condition.
9. The sixth WHEREAS clause on Page 1 of the Agreement is amended
to delete Heritage at the Falls and to substitute Heritage at
Xxxxxx Court as one of the "MHFA Facilities".
10. The First Amendment is re-confirmed and ratified in all respects.
Except for the matters addressed in this Second Amendment, the
Agreement remains in full force and effect and unmodified.
Please confirm your agreement to the foregoing by signing, or having
your counsel sign, a copy of this letter and returning a faxed copy of the same
to me prior to 5:00 p.m. on July 31, 1998.
Very truly yours,
Xxxxxx X. Xxxxxxx
Counsel for the Seller and for
the NDNE/ADS Entities
RAF/em
Exhibits
A - Xxxxx, Xxxxx letter dated July 23, 1998 regarding Purchaser's Additional
Environmental Testing.
B - Xxxxx, Xxxxx letter dated July 24, 1998 regarding Remaining Due Diligence
Matters.
C - NMF due diligence response letter dated July 28, 1998.
X - Xxxxx, Xxxxx due diligence letter dated July 29, 1998, countersigned by
Xxxxxxxx X. Xxx.
E - Draft dated July 31, 1998 of Amended and Restated Reciprocal Easement
Agreement.
The foregoing amendments are confirmed and agreed.
ElderTrust Operating Limited Partnership
By: ElderTrust
By:
---------------------------------
Name:
Title:
Genesis Health Ventures, Inc.
By:
---------------------------------
Name:
Title:
cc: (By Telefax)
Xxxx Xxxx, Esquire
Xxx Xxxxxxxx, Esquire
Xxxxxx Xxxxx, Esquire
Xxxxxxx Xxxxxxx, Esquire
Xx. Xxxxxx X. Xxxxxxx
Xx. Xxxxxxxx X. Xxx
Mr. Xxxxxxx Xxxxxx
Xx. Xxxx X. Xxxxxxxx
Xx. Xxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxxxxx-Xxxxx, Esquire
514015
