EX 10.72.2
ASSIGNMENT AND ASSUMPTION OF AGREEMENT OF SALE
THIS ASSIGNMENT AND ASSUMPTION OF PURCHASE
AND SALE AGREEMENT (hereinafter referred to as this
"Assignment"), made this 12th day of February, 1997, by
and between GREENCASTLE RETIREMENT PARTNERS, L.L.C., a
Maryland limited liability company (hereinafter
referred to as the "Assignor") and EMERITUS
CORPORATION, a Washington corporation (hereinafter
referred to as the "Assignee").
WITNESSETH, THAT WHEREAS, by Purchase and
Sale Agreement (hereinafter referred to as the
"Agreement") dated February 5,1997, by and between ▇▇▇▇
▇. ▇▇▇▇▇ (hereinafter referred to as the "Seller") and
the Assignor, a true copy of which the Assignor has
heretofore provided to the Assignee, the Seller agreed
to sell to the Assignor and the Assignor agreed to
purchase from the Seller all of that land, situate and
lying in Augusta County, Virginia, comprised of Twenty
Two and Five tenths (8 5/10) acres, more or less, which
is more particularly described in the Agreement,
together with all of the improvements thereon and all
of the rights, alleys, ways, waters, privileges,
appurtenances, and advantages, to the same belonging or
in any way appertaining (the "Property"); and
WHEREAS, the parties hereto desire by this
Assignment for the Assignor to assign to the Assignee
all of the rights and obligations of the Purchaser
under the provisions of the Agreement and for the
Assignee to accept such assignment and assume all
rights and responsibility of Assignee under the
Agreement, all upon the terms and subject to the
conditions which are hereinafter set forth. .
NOW THEREFORE, FOR AND IN CONSIDERATION of
the mutual entry into this Assignment by the parties
hereto, and for other good and valuable consideration,
the receipt and adequacy of which are hereby
acknowledged by each party hereto, the parties hereto
hereby agree as follows:
Section 1. ASSIGNMENT AND ASSUMPTION. The
Assignor hereby assigns to the Assignee, and the
Assignee hereby accepts and assumes from the Assignor,
all of the Assignor's rights and obligations under the
provisions of the Agreement (including, by way of
example rather than of limitation, all of the
Assignor's right, title, and interest in and to any and
all deposit moneys paid to the Seller, all of the
Assignor's rights of access to the Property, and all of
the Assignor's rights to certain remedies if the Seller
defaults).
Section 2. INDEMNIFICATION.
2.1. BY ASSIGNOR. The Assignor shall defend,
indemnify, and hold harmless the Assignee against and
from any and all liability to the Seller for any
default by the Assignor in performing its obligations
under the provisions of the Agreement occurring before
the entry into this Assignment by the parties hereto.
2.2. BY ASSIGNEE. The Assignee shall defend,
indemnify, and hold harmless the Assignor against and
from any and all liability to the Seller for any
default by the Assignee in performing its obligations
under the provisions of the Agreement occurring after
the entry into this Assignment by the parties hereto.
Section 3. REPRESENTATIONS.
3.1. BY ASSIGNOR. The Assignor hereby
represents and warrants to the Assignee that, as of the
entry into this Assignment by the parties hereto,
3.1.1. the Assignor has not heretofore
assigned, transferred, or encumbered any or all of its
rights under the provisions of the Agreement;
3.1.2. the Agreement has not been
amended or otherwise modified in any manner and is in
full force and effect; and
3.1. 3. the settlement of the sale and
purchase of the Property pursuant to the Agreement, and
of the other matters contemplated thereby, has not
occurred.
3.2. BY EACH PARTY. Each party hereto hereby
represents and warrants to the other that it has been
duly authorized to execute and deliver this Assignment,
and to perform its obligations hereunder.
Section 4. GENERAL.
4.1 EFFECTIVENESS. This Assignment shall
become effective on and only on its execution and
delivery by each party hereto.
4.2. COMPLETE UNDERSTANDING. This Assignment
represents the complete understanding between the
parties hereto as to the subject matter hereof, and
supersedes all prior negotiations, representations,
guaranties, warranties, promises, statements, or
agreements, either written or oral, between the parties
hereto with respect to the same.
4.3. AMENDMENT. This Assignment may be
amended by and only by an instrument executed and
delivered by each party hereto.
4.4. WAIVER. No party hereto shall be deemed
to have waived the exercise of any right which it holds
hereunder unless such waiver is made expressly and in
writing (and, without limiting the generality of the
foregoing, no delay or omission by any party hereto in
exercising any such right shall be deemed a waiver of
its future exercise). No such waiver made in any
instance involving the exercise of any such right shall
be deemed a waiver as to any other such instance, or
any other such right.
4.5. APPLICABLE LAW. This Assignment shall
be given effect and construed by application of the law
of the state of Washington.
4.6. HEADINGS. The headings of the Sections,
subsections, paragraphs, and subparagraphs hereof are
provided herein for and only for convenience of
reference, and shall not be considered in construing
their contents.
4.7. ASSIGNMENT. This Assignment shall be
binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, personal
representatives, successors and assigns hereunder.
4.8. SEVERABILITY. No determination by any
court, governmental body or otherwise that any
provision of this Assignment or any amendment hereof is
invalid or unenforceable in any instance shall affect
the validity or enforceability of (a) any other
provision thereof, or (b) such provision in any
circumstance not controlled by such determination. Each
such
2
provision shall be valid and enforceable to the fullest
extent allowed by, and shall be construed wherever
possible as being consistent with applicable law.
4.9. CONSTRUCTION. As used herein,
4.9.1. the term "person" means a natural
person, a trustee, a corporation, a partnership, and
any other form of legal entity; and
4.9.2. all references made (a) in the
neuter, masculine, or feminine gender shall be deemed
to have been made in all such genders, (b) in the
singular or plural number shall be deemed to have been
made, respectively, in the plural or singular number as
well, and (c) to any Section, subsection, paragraph, or
subparagraph shall, unless therein expressly indicated
to the contrary, be deemed to have been made to such
Section, subsection, paragraph, or subparagraph of this
Assignment.
4.10. DISCLAIMER OF PARTNERSHIP STATUS.
Nothing in the provisions of this Assignment shall be
deemed in any way to create between the parties hereto
any relationship of partnership, joint venture or
association, and the parties hereto hereby disclaim the
existence of any such relationship.
IN WITNESS WHEREOF, each party hereto has
caused this Assignment to be executed and ensealed on
its behalf by its duly authorized representations, the
day and year first above written.
WITNESS/ATTEST: GREENCASTLE
RETIREMENT
PARTNERS, L.L.C., a
Maryland
Limited liability company
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇,
----------------------------------------
-------------------------------------
(SEAL) ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Managing Member
EMERITUS CORPORATION, a
Washington corporation
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
------------------------------------------
(SEAL) Name: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
Title: President
3