EX 10.74.2
ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE
AGREEMENT
(Danville, Illinois)
This Assignment and Assumption of Purchase and
Sale Agreement (the "Assignment") is entered into as of
the 21 day of October ,1996 (the "Effective Date"), by
and between SOUTH BAY PARTNERS, INC., a Texas
corporation ("South Bay"), and EMERITUS CORPORATION, a
Washington corporation ("Emeritus"), with reference to
the following facts:
A. South Bay and Elks Lodge No. 332, BPOE, an
Illinois corporation ("Seller"), entered into that
certain Purchase and Sale Agreement dated as of October
14, 1996 (the "Purchase Agreement"), pursuant to which
South Bay agreed to purchase and Seller agreed to sell,
that certain undeveloped land located in the City of
Danville, State of Illinois, together with certain
property rights associated therewith, all as more
particularly described in the Purchase Agreement
(collectively, the "Property"). Any term used herein
which commences with an initial capital letter and is
not otherwise defined herein shall have the same
meaning in this Assignment as such term has in the
Purchase Agreement. .
B. Pursuant to Section 20 of the Purchase
Agreement, South Bay has the right to assign all of its
rights and to delegate all of its obligations, under
the Purchase Agreement, to any assignee, provided that
such assignee agrees in writing to assume all of South
Bay's obligations under the Purchase Agreement from and
after the effective date of any such assignment.
Further, it was contemplated under Section 20 of the
Purchase Agreement that such an assignment would be
made to Emeritus.
C. South Bay now desires to assign to Emeritus all
of its rights and to delegate to Emeritus all of South
Bay's obligations, under the Purchase Agreement and
Emeritus desires to accept such an assignment and to
assume all such obligations.
NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged,
the parties hereby agree as follows:
1. ASSIGNMENT AND ACCEPTANCE
As of the Effective Date, South Bay hereby
assigns, sets over, conveys and transfers to Emeritus
all of its right, title and interest, and hereby
delegates to Emeritus all of its duties and
obligations, as Purchaser, in, to, and under the
Purchase Agreement including without limitation all
right, title and interest of South Bay in and to the
Xxxxxxx Money. Emeritus hereby accepts said assignment
and hereby agrees to perform all of the duties and
obligations of Purchaser under the Purchase Agreement
to the extent they arise from and after the Effective
Date.
2. XXXXXXX MONEY DEPOSIT
Emeritus acknowledges and understands that
South Bay has deposited with the Escrow Agent the sum
of Five Thousand and No/100 Dollars ($5,000.00)
representing the deposit of the Xxxxxxx Money and that
South Bay has incurred attorney fees with the law firm
of The Xxxxxxxxx Group in connection with the
preparation and negotiation of the Purchase Agreement.
In consideration for this Assignment, Emeritus hereby
agrees to reimburse South Bay the full amount of said
Xxxxxxx Money so deposited with Escrow Agent and all
such attorney's fees and associated legal costs
incurred with The Xxxxxxxxx Group. Said reimbursement
shall be paid (i) with respect to the Xxxxxxx Money,
within five (5) business days following the Effective
Date and (ii) with respect to said attorney's fees and
associated legal costs, within five (5) business days
following receipt by Emeritus of a xxxx from South Bay.
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3. REPRESENTATIONS AND WARRANTIES OF EMERITUS
Emeritus hereby represents and warrants to
South Bay as follows:
a. Emeritus has received and reviewed a
signed copy of the Purchase Agreement and, as of the
Effective Date, Emeritus will be in compliance with the
representations, warranties, covenants, and obligations
of the Purchaser thereunder.
b. The execution, delivery and performance of
this Assignment are within Emeritus' powers, have been
duly authorized and are not in contravention of any law
or the terms of Emeritus' articles of incorporation or
bylaws, or any undertaking to which Emeritus is a party
or by which it is bound.
4. REPRESENTATIONS AND WARRANTIES OF SOUTH BAY
South Bay hereby represents and warrants to
Emeritus as follows:
a. South Bay is in compliance with its
representations, warranties, covenants, and obligations
as the Purchaser under the Purchase Agreement and there
are no defaults on the part of South Bay or the Seller
under the Purchase Agreement that have not been waived
or cured under the provisions thereof. As of the
Effective Date, the Purchase Agreement is in full force
and effect.
b. The execution, delivery and performance of
this Assignment are within South Bay's powers, have
been duly authorized and are not in contravention of
any law or the terms of South Bay's articles of
incorporation or bylaws, or any undertaking to which
South Bay is a party or by which it is bound.
5. MISCELLANEOUS
a. NOTICES. Any notice, request or other
communication to be given by any party hereunder shall
be in writing and shall be sent by registered or
certified mail, postage prepaid, by overnight courier
guaranteeing overnight delivery or by facsimile
transmission (if confirmed orally or in writing by mail
as aforesaid), to the following address:
To South Bay: South Bay
Partners, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
Telephone No. : (000) 000-0000
Facsimile No.: (000) 000-0000
To Emeritus: Emeritus
Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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Notice shall be deemed given three (3) business days
after deposit in the mail, on the next day if sent by
overnight courier and on receipt if sent by facsimile
(and confirmed orally or by mail as aforesaid).
b. ENTIRE AGREEMENT. This Assignment
constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes any
and all prior written or oral agreements or
understandings between the parties pertaining to the
transactions contemplated herein.
c. COUNTERPARTS. This Assignment may be
executed in two (2) or more counterparts, each of which
shall be an original for all purposes and all of which
when taken together shall constitute one agreement.
d. GOVERNING LAW. This Assignment and the
rights and the duties of the parties hereunder shall be
governed by, and construed in accordance with, the laws
of the State of Washington.
e. ATTORNEYS' FEES. Should either party
institute any action or proceeding to enforce or
interpret this Assignment or any provision hereof for
damages by reason of any alleged breach of this
Assignment or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party
in any such action or proceeding shall be entitled to
receive from the other party all costs and expenses,
including reasonable attorneys' and other fees,
incurred by the prevailing party in connection with
such action or proceeding. The term "attorneys' and
other fees" shall mean and include attorneys' fees,
experts' fees, accountants' fees, and any and all other
similar fees incurred in connection with the action or
proceeding and the preparations therefor. The term
"action or proceeding" shall mean and include actions,
proceedings, suits, arbitrations, appeals and other
similar proceedings.
f. BINDING EFFECT. This Assignment shall be
binding upon and shall inure to the benefit of the
parties, their heirs, executors, administrators,
successors and assigns.
g. AMENDMENTS. This Assignment cannot be
amended or modified unless in writing and signed by all
parties hereto.
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IN WITNESS WHEREOF, the parties have executed this
Assignment effective as of the date first set forth
above.
"Emeritus": EMERITUS CORPORATION
a Washington corporation
By: /s/ Xxxxxxx X.
Xxxxxxxxxx
---------------------------------------
Its: President
"South Bay":
SOUTH BAY PARTNERS, INC.,
A Texas corporation
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Its: President
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