EXHIBIT 2.5
Assignment and Assumption
of
Purchase and Sale Agreement
ElderTrust Operating Limited Partnership, a Delaware limited
partnership (the "Assignor"), for and in consideration of the sum of TEN DOLLARS
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, does hereby unconditionally assign, set over,
convey and transfer to Genesis Health Ventures, Inc., a Pennsylvania corporation
("Assignee"), all of Assignor's right, title and interest in and to that certain
Purchase and Sale Agreement dated as of June 12, 1998, as amended, by and
between Assignor and Assignee, collectively as purchaser, and Cabot Park Limited
Partnership, Cleveland Circle Assisted Living Limited Partnership, Heritage at
the Falls Assisted Living Limited Partnership, Vernon Court Associates Limited
Partnership and North Andover Assisted Living Limited Partnership, collectively
as seller, as amended (the "Purchase and Sale Agreement") limited exclusively to
the purchase and sale of the assisted living facility known as The Heritage at
the Falls ("The Falls").
Capitalized terms used herein and not expressly defined shall have the
meaning ascribed to them in the Purchase and Sale Agreement.
The provisions of this Assignment and Assumption Agreement shall be
effective upon the execution and delivery of the amendment of even date herewith
to the Purchase and Sale Agreement (the "Heritage at The Falls Amendment"),
which amendment shall be considered part of the Purchase and Sale Agreement for
purposes of this instrument.
Assignee hereby assumes the rights and prospective obligations of
Assignor under Purchase and Sale Agreement with respect to The Falls only, and
the performance of all of the terms, covenants, conditions, payments and
agreements imposed by the Purchase and Sale Agreement with respect to The Falls
which first arise upon or after the execution and deliver of the Heritage at The
Falls Amendment; Assignee agrees to indemnify and hold harmless Assignor from
and against all costs, expenses, claims and losses, including, without
limitation, reasonable attorneys' fees, arising out of or in connection with
Assignee's performance of, or failure to perform any of Assignee's obligations
under the Purchase and Sale Agreement with respect to The Falls upon and after
the execution and delivery of the Heritage at The Falls Amendment and from and
against all costs, expenses, claims and losses, including, without limitation,
reasonable attorneys' fees, arising out of or in connection with any claim made
or action commenced by Seller based upon Assignee's performance of, or
Assignee's failure to perform any of Purchaser's obligations under the Purchase
and Sale Agreement prior to the execution and delivery of the Heritage at The
Falls Amendment.
Assignor hereby agrees to indemnify and hold harmless Assignee
from and against all costs, expenses, claims and losses, including, without
limitation, reasonable attorneys' fees, arising out of or in connection with any
claim made or action commenced by Seller based upon Assignor's performance of,
or Assignor's failure to perform any of Purchaser's obligations under the
Purchase and Sale Agreement prior to the execution and delivery of the Heritage
at The Falls Amendment.
Notwithstanding anything to the contrary herein contained,
Assignor reserves the rights and benefits accruing upon the breach of
representation and warranties of Seller under the Purchase and Sale Agreement.
Concurrently with the execution and delivery of the Heritage at
The Falls Amendment, Assignee shall cause the existing deposit of One Million
Dollars ($1,000,000) under the Purchase and Sale Agreement to be refunded to
Assignor and to effect the substitution of Assignee's funds for Assignor's funds
as the Cash Escrow (as defined in the Heritage at the Falls Amendment).
Assignor and Assignee agree that the due diligence fees and
expenses allocable to The Falls are $142,756.00 (the "Falls Due Diligence
Expenses"). Concurrently with the execution and delivery of the Heritage at The
Falls Amendment, Assignee shall cause one half of the Falls Due Diligence
Expenses to be reimbursed to Assignor. In the event the The Falls is acquired in
a transaction in which Assignor or an affiliate or subsidiary of Assignor
acquires an ownership interest and Assignee or an affiliate or subsidiary of
Assignee acquires a leasehold interest, Assignor shall repay Assignee an amount
equal to the portion of the Falls Due Diligence Expenses previously paid to
Assignor by Assignee and the Falls Due Diligence Expenses shall be included in
the so-called "Acquisition Costs" for purposes of determining the rent to be
paid in consideration of such leasehold interest. In the event The Falls is
acquired in a transaction following which Assignee or an affiliate or subsidiary
of Assignee will own, lease or operate the Heritage at The Falls and Assignor or
an affiliate or subsidiary of Assignor will not have any ownership interest,
Assignee shall pay to Assignor the remaining one half of the Falls Due Diligence
Expenses concurrently with the consummation of such transaction.
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IN WITNESS WHEREOF, the said Assignor and Assignee have hereunto
set their hands and seals as of the 23rd day of November, 1998.
ASSIGNOR: ASSIGNEE:
ELDERTRUST OPERATING GENESIS HEALTH VENTURES, INC.,
LIMITED PARTNERHIP
By: ElderTrust, By: /s/ Ira C. Gubernick
its General Partner --------------------------------
Name:
Title: Vice President
By: /s/ D. Lee McCreary, Jr.
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Name:
Title: