AND ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit
10.2
XXXX OF SALE
AND
ASSIGNMENT
AND ASSUMPTION AGREEMENT
THIS XXXX OF SALE AND ASSIGNMENT AND
ASSUMPTION AGREEMENT (“Agreement”), is made and entered into effective as of
this 31st day of December, 2008, by and among DCA OF HYATTSVILLE, LLC, a
Maryland limited liability company (“Purchaser”), and ST. XXXXXX XXXX DIALYSIS
CENTER, LLC, a Maryland limited liability company (“Seller”).
WHEREAS, the Seller and the Purchaser
are parties to an Asset Purchase Agreement dated as of December 31, 2008 (the
“Purchase Agreement”) whereby (i) Seller has agreed to sell, convey, transfer,
assign and deliver to the Purchaser the Acquired Assets (as defined in the
Purchase Agreement), and Seller has agreed to assign and the Purchaser has
agreed to assume, the Assumed Liabilities (as defined in the Purchase
Agreement);
WHEREAS, all capitalized terms not
defined herein shall have the meanings ascribed to such terms in the Purchase
Agreement.
NOW THEREFORE, pursuant to the Purchase
Agreement, and in consideration of the mutual promises, covenants and agreements
therein and hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Xxxx of
Sale.
(a) Seller
hereby sells, assigns, conveys, transfers, sets over and delivers to the
Purchaser all of Seller’s right, title and interest in and to the Acquired
Assets, free and clear of all Liens, to have and to hold such Acquired Assets
into the Acquiring Entity, its respective successors and assigns,
forever.
(b) The Seller
warrants that it has good, valid and marketable title to all of the Acquired
Assets, free and clear of any and all Liens, and hereby covenants and agrees to
defend the transfer, sale, assignment and delivery of such Acquired Assets to
the Purchaser against each and every claim of superior title, right or interest
therein or thereto.
(c) Notwithstanding
anything contained herein, Purchaser is not purchasing from the Seller nor
receiving from Seller any of the Excluded Assets as set forth in Section 1.3 of
the Purchase Agreement.
2. Assignment and Assumption of
Assumed Liabilities.
(a) Seller
hereby assigns to Purchaser, its respective successors and assigns, and the
Purchaser hereby assumes, in accordance with the terms and conditions of the
Purchase Agreement, the Assumed Liabilities.
(b) In the
event that Seller and or the Purchaser determines after execution of this
Agreement that one or more contract or agreement between Seller and any third
party necessary to operate the Acquired Assets was not designated as an Assumed
Agreement (each and “Omitted Agreement”), and the parties consent in writing to
the assignment and assumption of such Omitted Agreement, which consent shall not
be unreasonably withheld, then such Omitted Agreement shall be deemed assigned
by Seller to the Purchaser as of the Closing Date.
(c) Notice of
the assignment under this Agreement may be given at the option of either party
to all parties to the Assumed Agreements (other than Seller) or to such parties’
duly authorized agents.
(d) The
assumption by the Purchaser of any Assumed Liabilities shall not enlarge the
rights of any third party with respect to any Assumed Liabilities, nor shall it
prevent the Purchaser, with respect to any party other than Seller, from
contesting or disputing any Assumed Liability, provided that such contest or
dispute shall not expose Seller to any additional cost or liability under the
Assumed Liabilities.
3. Consummation of Purchase
Agreement. This Agreement is intended to evidence the
consummation of the sale by Seller and the purchase by the Purchaser of the
Acquired Assets, and the assignment by Seller and the assumption by the
Purchaser of the Assumed Liabilities contemplated by the Purchase
Agreement. Seller and the Purchaser, by their execution of this
Agreement, each hereby acknowledges and agrees that neither the representations
and warranties nor the rights and remedies of any party under the Purchase
Agreement shall be deemed to be enlarged, modified or altered in any way by this
Agreement. Any inconsistencies or ambiguities between this Agreement
and the Purchase Agreement shall be resolved in favor of the Purchase
Agreement.
4. Payments
Received. Any payment that may be received by the Seller to
which any of the Purchaser is entitled by reason of this Agreement or the
Purchase Agreement shall be received by the Seller as trustee for the Purchaser,
and will be delivered promptly to the Purchaser, and any payment that may be
received by the Purchaser to which Seller is entitled by reason of this
Agreement or the Purchase Agreement shall be received by Purchaser as trustee
for the Seller, and will be delivered promptly to Seller.
5. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns.
6. Further
Assurances. After the Closing Date, each party will from time
to time, at the other party’s request and without further cost to the party
receiving the request, execute and deliver to the requesting party such other
instruments and take such other action as the requesting party may reasonably
request so as to enable it to exercise and enforce its rights under, and fully
enjoy the benefits and privileges with respect to, this Agreement and to carry
out the provisions and purposes hereof.
7. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland applicable to agreements made
and to be performed in that State without giving effect to conflicts of law
principles.
8. Counterparts. This
Agreement may be signed in any number of counterparts and all such counterparts
shall be read together and construed as one and the same document.
IN
WITNESS WHEREOF, this Xxxx of Sale and Assignment and Assumption Agreement has
been executed as of the 31st day of December, 2008.
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SELLER:
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ST.
XXXXXX XXXX DIALYSIS CENTER, LLC
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a
Maryland limited liability company
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By: G&L
SENIOR CARE PROPERTIES, LLC,
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a
Nevada limited liability company
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Its: Managing
Member
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By:
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/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx, Managing Director
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By:
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M&J
HYATTSVILLE, LLC,
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a
Maryland limited liability company
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Its: Member
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By:
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/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxxx, Manager
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IN
WITNESS WHEREOF, this Xxxx of Sale and Assignment and Assumption Agreement has
been executed as of the 31st day of December, 2008.
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PURCHASER:
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DCA
OF HYATTSVILLE, LLC
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a
Maryland limited liability company
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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President
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