ASSIGNMENT AND ASSUMPTIONAGREEMENT
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THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made as of
May 1, 2003 by and among Extended Care Operators of Harrisburg, LLC (the
"Tenant"), BCC at Harrisburg, Inc. (the "Manager", and together with the Tenant,
collectively, the "Assignor"), and Emeritus Corporation (the "Assignee").
RECITALS:
WHEREAS, Assignor, Balanced Care Corporation, a Delaware corporation (the
"Parent"), Assignee and Capstone Capital of Pennsylvania, Inc. entered into that
certain Operations Transfer Agreement dated as of April 30, 2003 (the "OTA"),
under which Assignor agreed to transfer to Assignee the operational and
financial responsibility of the Facility as of the Effective Date. Any term
used but not defined in this Agreement shall have the meaning ascribed to such
term in the OTA.
NOW THEREFORE, for and in consideration of the Transfer Consideration and other
valuable consideration to Assignor in hand paid by Assignee, and the mutual
covenants herein contained, the receipt and sufficiency of the foregoing
consideration being hereby acknowledged, the parties hereto agree as follows:
1. ASSIGNMENT: Assignor hereby assigns, transfers, sets over and conveys to
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Assignee all of Assignor's right, title and interest in and to (A) the Prepaid
Expenses and the Additional Prepaid Expenses, if any, and (B) the Rents and
Fees. Assignor represents to Assignee that it is the holder of interest in and
to the Prepaid Expenses and the Additional Prepaid Expenses, if any, and the
Rents and Fees and Assignor has not assigned, hypothecated, pledged or otherwise
transferred all or any portion of its interest in and to the Prepaid Expenses
and the Additional Prepaid Expenses, if any, or the Rents and Fees; provided,
however, nothing herein shall be construed as releasing Assignor from any
liability with respect to the Prepaid Expenses and the Additional Prepaid
Expenses, if any, and the Rents and Fees to the extent such liability relates to
or arises from the acts or omissions of Assignor prior to the date hereof and
whether or not a claim with respect thereto is asserted prior to or after the
date hereof.
2. ASSUMPTION: Assignee does hereby assume and agree to perform all of
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Assignor's obligations with respect to the Prepaid Expenses and the Additional
Prepaid Expenses, if any, and the Rents and Fees; provided, however, nothing
herein shall be construed as imposing any liability on Assignee with respect to
the Prepaid Expenses and the Additional Prepaid Expenses, if any, or the Rents
and Fees to the extent such liability relates to or arises from the acts or
omissions of Assignor prior to the date hereof.
3. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and inure
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to the benefit of Assignor and Assignee and their respective successors and
permitted assigns.
4. COUNTERPARTS: This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
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together shall constitute one and the same instrument.
5. CAPTIONS: The captions of this Agreement are for convenience and
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reference only, and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provisions hereof.
6. JOINT EFFORT: The preparation of this Agreement has been the joint
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effort of the parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
7. PARTIAL INVALIDITY: If any provision of this Agreement shall be invalid
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or unenforceable, the remainder of this Agreement shall not be affected thereby.
Notwithstanding the foregoing, it is the intention of the parties hereto that if
any provision of this Agreement is capable of two (2) constructions, one of
which would render the provision void and the other of which would render the
provision valid, then such provision shall be construed in accordance with the
construction which renders such provision valid.
8. AMENDMENTS: This Agreement may not be amended in any respect whatsoever
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except by a further agreement, in writing, fully executed by all of the parties.
9. GOVERNING LAW: This Agreement including the validity thereof and the
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rights and obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
10. TIME OF THE ESSENCE: Time is of the essence of each and every term,
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condition, covenant and warranty set forth herein.
11. NO THIRD PARTY BENEFICIARIES: This Agreement is solely for the benefit
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of Assignee and Assignor and their respective successors and permitted assigns
and nothing contained herein shall confer upon any person other than such
parties any right to insist upon or to enforce the performance or observance of
any of the obligations relating to the Prepaid Expenses and the Additional
Prepaid Expenses, if any, and the Rents and Fees.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have executed this Agreement on and as of the date first written above.
ASSIGNOR:
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EXTENDED CARE OPERATORS
OF
HARRISBURG, LLC
By: BCC AT HARRISBURG, INC., its sole
member and manager
By: _/s/ Robin L. Barber
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Robin L. Barber
Vice President and Secretary
BCC AT HARRISBURG, INC.
By: _/s/ Robin L. Barber
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Robin L. Barber
Vice President and Secretary
ASSIGNEE:
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EMERITUS CORPORATION
By:/s/ Raymond R. Brandstrom
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Raymond R. Brandstrom
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Its: Chief Financial Officer
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Assignment and Assumption Agreement.Harrisburg.Final