Exhibit 10.6
ASSIGNMENT AGREEMENT
Reference is made to the (i) Master Lease Agreement between
Pennsylvania BCC Properties, Inc., HCN BCC Holdings, Inc. and Balanced Care
Tenant (HCN), Inc. effective as of January 1, 2002 (the "Lease Agreement") and
(ii) Settlement Agreement among the parties listed therein effective as of
January 31, 2002 (the "Settlement Agreement"). Capitalized terms used but not
defined herein shall have the meaning, ascribed to such terms in the Lease
Agreement.
In consideration of IPC Advisors S.A.R.L's ("IPC") entering into the
Settlement Agreement, Tenant hereby agrees to the terms set forth herein.
Pursuant to Article 13 of the Lease Agreement, Tenant has an Option to
Purchase all of the Leased Property. Tenant hereby agrees that IPC or its
Affiliate may exercise the Option to Purchase at any time Tenant has a right to
exercise such Option to Purchase if (i) Tenant notifies IPC that it is declining
to exercise its Option to Purchase, (ii) Tenant has declined to exercise such
Option to Purchase by failing to provide a Purchase Notice ten days prior to the
time it would otherwise expire, (iii) IPC has provided Tenant notice (the "IPC
Notice") of its desire to exercise the Option to Purchase and Tenant fails to
deliver a Purchase Notice within 1 day of receipt of the IPC Notice, (iv) Tenant
has provided a Purchase Notice, but is unable to consummate the purchase of the
Leased Property or (v) the occurrence of an Event of Default. If IPC or its
Affiliate desires to exercise the Option to Purchase in accordance with the
terms hereof, it shall provide a Purchase Notice to Landlord.
Tenant hereby agrees that it shall not reject either the Lease
Agreement or this Agreement in connection with proceedings relating to the
Bankruptcy (as defined below) of the Tenant, without the prior written consent
of IPC. "Bankruptcy" shall be deemed to occur when (a) the Tenant (i) makes a
general assignment for the benefit of creditors, (ii) files a voluntary petition
in bankruptcy, (iii) is adjudged a bankrupt or insolvent or has entered against
it an order for relief in any bankruptcy or insolvency proceeding, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
bankruptcy statute, law or regulation, (v) files an answer or other pleading
admitting or failing to contest the material
allegations of a petition filed against it in any proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief or (vi) seeks, consents to or acquiesces in the appointment of
a trustee, receiver or liquidator of the Tenant or of all or any substantial
part of its properties, or (b) (i) 120 days after the commencement of any
proceeding against the Tenant seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, the proceeding has not been dismissed, or (ii) 90 days after the
appointment without its consent or acquiescence of a trustee, receiver or
liquidator of the Tenant or of all or any substantial part of its properties, if
the appointment is not vacated or stayed, or within 90 days after the expiration
of any such stay, the appointment is not vacated.
It is expressly agreed that if any provisions of this Agreement are
found by any Court having jurisdiction to be unenforceable, then and in each
such case, the remaining provisions herein contained shall, nevertheless, remain
effective, and this Agreement, or any portion thereof, shall be considered to be
amended so as to be considered reasonable and enforceable by such Court, and in
such event, the provisions shall be enforced to the extent so permitted.
Tenant hereby agrees that it will not amend Article 13 of the Lease,
without the prior written consent of IPC.
This Agreement may be executed in counterparts, which together shall
constitute an original.
This Agreement may only be modified by a writing signed by all the
parties hereto.
This Agreement shall be governed by the laws of the State of Ohio
without regard to the conflict of laws principals thereof.
Dated: , 2002
IPC ADVISORS S.A.R.L.
By/s/X.X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: Manager
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BALANCED CARE TENANT (HCN), INC.
By/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
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