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EXHIBIT 10.51
Prepared by and when recorded return to:
Xxxxxxxx Xxxxxxx, Esq.
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
ASSIGNMENT OF SUBLEASES AND RENTS
(LEWISBURG)
BLACK BOX OF LEWISBURG, INC., a Delaware corporation (the "Assignor"),
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, in accordance with the terms and conditions set forth
below, bargains, sells, conveys, assigns, transfers, sets over, pledges and, if
applicable, delivers, to MEDITRUST ACQUISITION CORPORATION II, a Delaware
corporation, having its principal address at 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Assignee") all of the Assignor's right, title and
interest in and to the "Subleases" (as hereinafter defined) to secure the
"Obligations" as such term is defined in the Facility Lease (as hereinafter
defined).
1. FACILITY LEASE; DEFINED TERMS. The Assignee is the Lessor and the
Assignor is the Lessee under that certain Facility Lease Agreement (the
"Facility Lease"), of even date herewith, relating to certain real property
located in East Buffalo Township, Union County, Pennsylvania, as more
particularly described in EXHIBIT A attached hereto and incorporated herein by
reference and all of the improvements now or hereafter situated thereon (such
real property and improvements are hereinafter collectively referred to as the
"Leased Property").
Capitalized terms used herein and not otherwise specifically defined
herein shall have the same meanings ascribed to such terms in the Facility
Lease.
2. ASSIGNMENT OF SUBLEASES. The Assignor hereby presently and
irrevocably assigns and transfers to the Assignee all of the Assignor's right,
title, and interest in and to all subleases, license agreements, concession
agreements, tenancy at will agreements, room rentals and rentals of other
facilities of the Leased Property and all other occupancy agreements of every
kind and nature, whether oral or in writing, now in existence or subsequently
entered into by the Assignor, encumbering or affecting all or any portion of the
Leased Property (hereinafter collectively referred to as the "Subleases"),
including, but not limited to, all Residence Agreements and the Subleases listed
on the EXHIBIT B attached hereto and incorporated herein by reference
(hereinafter referred to as the "Schedule of Subleases"), together with all
extensions, renewals, modifications and replacements thereof, and together with
any and all guaranties (hereinafter collectively referred to as the
"Guaranties") of the obligations of the sublessees, licensees, concessionaires
and occupants (hereinafter collectively referred to as the "Sublessees"), under
all of the Subleases.
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3. ASSIGNMENT ABSOLUTE. This Assignment shall be a present, absolute
and unconditional assignment, and immediately upon the execution and delivery
hereof, this Assignment shall give the Assignee the right to collect all rents,
revenues, royalties, issues, profits, insurance proceeds, condemnation awards,
license fees, concession fees and all other income and security of every kind
and nature due by virtue of the Subleases and the Guaranties (hereinafter
collectively referred to as the "Rents").
4. ASSIGNMENT OF SECURITY DEPOSIT. If any of the Subleases provides for
a security deposit to be paid by any Sublessee to the Assignor, the Assignor
hereby assigns its right, title and interest in and to such security deposit to
the Assignee. Notwithstanding the foregoing, the Assignor shall have the right
to retain such security deposits as long as no Lease Default has occurred and
the Assignee shall not be obligated to any Sublessee to account for any such
security deposit unless and until the Assignee obtains actual possession or
control of such security deposit after a Lease Default.
5. LICENSE TO COLLECT. The Assignee hereby grants to the Assignor a
license to collect the Rents as such Rents respectively become due and to
enforce the Subleases and the Guaranties, so long as no Lease Default exists
(the "License"). The Assignor shall hold the Rents, or such portion of the Rents
as is sufficient to discharge all sums currently due under the Lease Documents,
in trust for use in satisfaction of the Obligations. The Assignor hereby
irrevocably authorizes and directs each of the Sublessees under the Subleases
and the guarantors under the Guaranties, upon receipt of a written notice from
the Assignee so demanding, to pay all Rents due or which become due under the
Subleases or the Guaranties to the Assignee and to continue to do so until
otherwise notified by the Assignee. Neither the Sublessees, nor any of the
guarantors under the Guaranties shall have any obligation to determine whether
or not a Lease Default does in fact exist.
Notwithstanding anything contained herein to the contrary, the Assignor
agrees that the Assignee, and not the Assignor, shall be and is deemed to be the
creditor of each Sublessee under each Sublease and each guarantor under each
Guaranty with respect to any and all of the Rents which may be payable by any
Sublessee under any Sublease and by any guarantor under any of the Guaranties on
account of a default by the Sublessee under such Sublease, including, without
limitation, any damages or further rentals payable by such Sublessee or such
guarantor on account of or after such default, and in respect of all assignments
for the benefit of creditors and bankruptcy, reorganization, insolvency,
dissolution or receivership proceedings affecting any Sublessee under any
Sublease or any guarantor under any of the Guaranties (without any obligation on
the part of the Assignee, however, to file or make timely filings of claims in
such proceedings or otherwise to pursue creditor's rights thereon), and the
Assignee shall have the option to apply any money received or receivable by the
Assignee as such creditor in reduction of the Obligations, whether or not a
Lease Default shall then exist.
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6. WARRANTIES OF THE ASSIGNOR. The Assignor hereby warrants and
represents that:
(a) the Assignor is the sole holder of the landlord's interest in
and under the Subleases and the Guaranties and has the right
to sell, assign, transfer and set over the Subleases, the
Guaranties and the Rents to the Assignee;
(b) the Assignor has made no assignment (other than this
Assignment) of any of the Assignor's rights in any of the
Subleases, the Guaranties or the Rents;
(c) there is no default by the Assignor or any Sublessee under any
of the Subleases or by any guarantor under any of the
Guaranties, or any state of facts which, with the passing of
time or the giving of notice or both, would constitute a
default by the Assignor or any Sublessee under any of the
Subleases or by any guarantor under any of the Guaranties;
(d) all of the Subleases provide for Rents to be paid monthly in
advance, all of the Rents due to date have been collected and
no Rents have been collected more than one (1) month in
advance;
(e) no Sublessee under any of the Subleases nor any guarantor
under any of the Guaranties has any defense, setoff or
counterclaim against the Assignor;
(f) the Schedule of Subleases lists all of the Subleases, other
than the Residence Agreements, currently in effect for the
Leased Property and the Schedule of Guaranties attached hereto
as EXHIBIT C and incorporated herein by reference lists all of
the Guaranties currently in effect for the Leased Property and
true and correct copies of such Subleases and Guaranties have
been provided to the Assignee;
(g) each of the Subleases and the Guaranties (including any
amendments and modifications thereof) submitted by the
Assignor to the Assignee constitutes the entire agreement
between the parties thereto, and there are no agreements,
amendments, modifications, undertakings, representations or
warranties, either oral or written, which have not been
submitted to the Assignee;
(h) each of the Subleases and the Guaranties listed on EXHIBIT B
and EXHIBIT C, respectively, is valid, in full force and
effect, and enforceable in accordance with its terms;
(i) neither the Assignor, nor any Sublessee has commenced any
action or given or served any notice for the purpose of
terminating any Sublease; and
(j) no rental concession in the form of any period of free Rent or
any other waiver,
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release, reduction, discount or other alteration of the Rents
due or to become due has been granted to any Sublessee under
the Subleases or any guarantor under the Guaranties for any
period subsequent to the effective date of this Assignment.
7. COVENANTS OF THE ASSIGNOR. The Assignor hereby covenants and
agrees that the Assignor:
(a) shall fulfill, perform and observe (or cause to be fulfilled,
observed and performed), in all material respects, all of the
duties, covenants and obligations of the landlord under the
Subleases;
(b) shall give prompt written notice to the Assignee of any
default or claim of default by the Assignor or any Sublessee
under any of the Subleases other than any of the Residence
Agreements or by any guarantor under any of the Guaranties,
along with a complete copy of any written notice of such
default or claim of default;
(c) shall enforce (in a manner satisfactory to the Assignee and
short of termination of either the Subleases (excluding the
Residence Agreements) or the Guaranties), the performance, in
all material respects, by the Sublessees and the guarantors
under the Guaranties of all of their duties, covenants and
obligations under the Subleases and the Guaranties, as the
case may be;
(d) shall appear in and defend any action or proceeding arising
under or in any manner connected with (i) any of the
Subleases, (ii) the obligations and undertakings of the
landlord or any Sublessee under the Subleases and (iii) the
obligations and undertakings of the guarantors under the
Guaranties;
(e) shall not (i) alter, modify or amend, in any material respect
any of the Subleases (excluding the Residence Agreements),
(ii) replace, terminate or cancel any of the Subleases
(excluding Residence Agreements) or any of the Guaranties,
(iii) accept a surrender of any of the Subleases (excluding
Residence Agreements) or (iv) waive any material term or
condition of any of the Subleases (excluding Residence
Agreements) or any of the Guaranties, without the prior
written consent of the Assignee, in each instance, which
consent may be withheld in the Assignee's sole and absolute
discretion;
(f) shall not (i) dispose or delegate any right to receive any of
the Rents, (ii) collect nor accept any Rents more than one (1)
month in advance of the time any such Rents becomes due
without forthwith depositing the same with the Assignee in a
special account or (iii) withdraw or disburse any such funds
except for immediate application towards the Lease Obligations
or the obligations of the
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Assignor under the Subleases;
(g) shall not execute any future Subleases (excluding Residence
Agreements), nor consent to the assignment of any Sublessee's
interest under any of the Subleases (excluding Residence
Agreements), nor consent to any further subletting thereunder,
without the prior written consent of the Assignee, in each
instance, which consent may be withheld in the Assignee's sole
and absolute discretion;
(h) shall not consent to the assignment of any guarantor's
obligations under any of the Guaranties without prior written
consent of the Assignee, in each instance, which consent may
be withheld in the Assignee's sole and absolute discretion;
(i) shall not execute any assignment of the landlord's interest
under any of the Subleases, nor any assignment of the Rents or
any interest therein and shall not suffer or permit any such
assignment to occur by operation of law;
(j) shall not consent to the direct or indirect creation of any
Lien upon or against the Leased Property or any Sublessee's
interest therein;
(k) shall not take any action which may cause or permit the estate
of any of the Sublessees under the Subleases to merge with the
Assignor's interest in the Leased Property;
(l) shall not take any action (or allow any action to be taken
either by the Assignor's agents or by any other Person, but
only to the extent that such action may be prevented by the
Assignor) that may impair, in any material respect, the
security of the Subleases;
(m) shall not commit or suffer any violation of law in connection
with the Subleases; and
(n) shall not allow the premises demised under any Sublease
(excluding Residence Agreements) to be abandoned or vacated.
8. COVENANT OF THE ASSIGNEE. Upon the complete payment and performance
of the Lease Obligations, provided, that no Related Party Default has occurred
nor any event which, with the giving of notice and/or the passage of time, would
constitute a Related Party Default, this Assignment shall be deemed terminated
and released by the Assignee without further action and shall thereupon be of no
further force or effect. The Assignor agrees that an affidavit, certificate,
letter or statement of any officer, agent or attorney of the Assignee indicating
that any part of the Obligations remains outstanding shall be deemed prima facie
evidence of the validity, effectiveness and continuing force of this Assignment
and any Person, including, without limitation, any Sublessee or any guarantor
under any of the Guaranties may
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and is hereby authorized to rely thereon. Notwithstanding the foregoing, the
recording with the applicable recording office of a duly authorized and executed
notice or memorandum of termination of the Facility Lease shall terminate this
Assignment.
9. EVENTS OF DEFAULT. Each of the following shall constitute an Event
of Default hereunder:
(a) the occurrence of a Lease Default; and
(b) if any representation or warranty by the Assignor contained in
this Assignment proves to be false or misleading in any
material respect.
10. REMEDIES. Upon the occurrence of an Event of Default hereunder and
at any time thereafter (without in any way waiving such Event of Default), at
the Assignee's option and without notice or demand of any kind, and without
regard to the adequacy of security for the complete payment and performance of
the Obligations, the Assignee may exercise any or all of the following remedies,
either in person or by agent, with or without bringing any action or proceeding,
or by a receiver appointed by a court:
(a) terminate the Facility Lease and/or exercise any or all of the
other rights and remedies under the Facility Lease and/or the
other Lease Documents;
(b) take physical possession of the Leased Property and of all
books, records, documents and accounts relating to the Leased
Property and the Assignor's business thereon, and, at the
Assignor's sole cost and expense, hold, lease, manage,
maintain and operate the Leased Property and the Assignor's
business thereon (on such terms and for such period of time as
the Assignee, in its sole and absolute discretion, may deem
proper) without any interference whatsoever from the Assignor;
(c) with or without taking possession of the Leased Property,
terminate the Assignor's License, and collect the Rents
(including those past due and unpaid) and any other sums owing
under any of the Subleases and Guaranties and, in the
Assignee's sole and absolute discretion, apply such Rents to
the payment of (i) all expenses of managing the Leased
Property, including, without limitation, the salaries, fees
and wages of a managing agent and such other employees as the
Assignee, in its sole and absolute discretion, may deem
necessary or desirable, and all expenses of operating and
maintaining the Leased Property, including, without
limitation, all taxes, charges, claims, assessments, water
rents, sewer rents and any other liens, and premiums for all
insurance which the Assignee, in its sole and absolute
discretion, may deem necessary or desirable, and the cost of
all alterations, renovations, repairs or replacements, and all
expenses incident to taking and retaining possession of the
Leased Property and (ii) the
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Obligations;
(d) institute any legal or equitable action (in either the
Assignor's or the Assignee's name) which the Assignee, in its
sole and absolute discretion, deems desirable to collect any
or all of the Rents;
(e) perform any or all obligations of the Assignor under any of
the Subleases or this Assignment and to take such actions as
the Assignee deems appropriate to protect its security,
including, without limitation:
(1) appearing in any action or proceeding affecting any
of the Subleases, any of the Guaranties or the
Leased Property;
(2) executing new Subleases, and modifying, terminating
or cancelling any of the then existing Subleases or
Guaranties;
(3) collecting, modifying and compromising any Rents
payable under the Subleases and the Guaranties; and
(4) enforcing any of the Subleases and the Guaranties,
including, if necessary, evicting any Sublessees; and
(f) exercise any other rights and remedies permitted to the Assignee
under applicable law.
All costs and expenses reasonably incurred by the Assignee in
connection with any actions taken pursuant to this Section, including, without
limitation, attorneys' fees and expenses and court costs, shall be a demand
obligation of the Assignor to the Assignee, and, to the extent permitted under
applicable law, shall be added to the Obligations and shall be secured hereby as
fully and effectively and with the same priority as every other obligation of
the Assignor hereunder and, if not paid within ten (10) days after demand, shall
thereafter, to the extent permitted by applicable law, bear interest at the
Overdue Rate until the date of payment.
The foregoing rights and remedies are in addition to all other rights
and remedies afforded to the Assignee under any of the other Lease Documents or
at law or in equity, by statute or otherwise, all of which are hereby reserved
by the Assignee, and this Assignment is made and accepted without prejudice to
any such rights and remedies. The exercise by the Assignee of any of the rights
or remedies granted to it in this Assignment, including, without limitation, the
collection of the Rents and the application thereof as herein provided, shall
not be considered a waiver of any default hereunder or under any of the Lease
Documents. All of the rights and remedies of the Assignee under the Lease
Documents shall be separate and cumulative and may be exercised concurrently or
successively in the Assignee's sole and
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absolute discretion. The exercise of any right or remedy by the Assignee
hereunder shall not be considered to be a waiver of any of the Assignee's other
rights or remedies hereunder or under any of the other Lease Documents; in
particular, but without limitation, the Assignee's exercise of its rights to
collect and receive Rents shall not preclude the Assignee from simultaneously or
subsequently electing to take possession of the Leased Property, nor shall the
Assignee's exercise of its rights or remedies with respect to any particular
Sublease, any of the Guaranties or any portion of the Leased Property (which
exercise shall be expressly permitted, at the Assignee's option) preclude the
Assignee from simultaneously or subsequently electing to exercise any of its
rights or remedies with respect to any other Sublease, any of the Guaranties or
any other portion of the Leased Property subject hereto. No failure or delay on
the part of the Assignee to exercise any such right or remedy shall operate as a
waiver thereof.
The Assignor does hereby make, constitute and appoint the Assignee or
any officer or agent designated by the Assignee, the Assignor's true and lawful
attorney-in-fact, with power of substitution, at any time after a Lease Default,
to
(a) endorse the name of the Assignor upon any notes, checks,
drafts, money orders, or other instruments of payment with
respect to the Subleases and Guaranties and with respect to
all Rents in connection therewith;
(b) give such notice and directions, in writing or otherwise, to
the United States Post Office as may be necessary to effect
delivery to the Assignee or any of its designated agents of
all mail addressed to the Assignor; and
(c) take possession of the Leased Property, and to have, hold,
manage, lease and operate the same, all to the extent
permitted by applicable law; hereby granting unto the
Assignor's said attorney full power to do any and all things
necessary to be done in and about the Leased Property as fully
and effectually as the Assignor might or could do, and hereby
ratifying all that said attorney shall do or cause to be done
by virtue hereof.
The power of attorney conferred on the Assignee pursuant to the
provisions of this Section, being coupled with an interest, shall be irrevocable
until all of the Obligations are fully paid and performed and shall not be
affected by any disability or incapacity which the Assignor may suffer and shall
survive the same. Such power of attorney is provided solely to protect the
interests of the Assignee and shall not impose any duty on the Assignee to
exercise any such power, and neither the Assignee nor such attorney-in-fact
shall be liable for any act, omission, error in judgment or mistake of law,
except as the same may result from its gross negligence or wilful misconduct.
11. APPLICATION OF PROCEEDS. Any amounts collected by the Assignee
hereunder shall be applied by the Assignee, without marshalling of assets,
towards the payment of the
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Obligations in such order as the Assignee shall determine in its sole and
absolute discretion.
12. NO LIABILITY. Nothing in this Assignment shall be construed to
impose any obligation on or responsibility from the Assignee to the Assignor,
nor from the Assignee to any Sublessee under any of the Subleases, any guarantor
under any of the Guaranties or any other third party, for:
(a) the control, care, management or repair of the Leased
Property, unless expressly assumed, in writing, by the
Assignee;
(b) the performance of any of the landlord's obligations under any
of the Subleases, unless expressly assumed, in writing, by the
Assignee;
(c) for any waste committed on the Leased Property;
(d) for any dangerous or defective condition on or under the
Leased Property;
(e) the Assignee's failure to let the Leased Property after the
occurrence of an Event of Default hereunder;
(f) any act or omission of the Assignee in managing the Leased
Property after an Event of Default hereunder; or
(g) for any negligence in the management, upkeep, repair or
control of the Leased Property resulting in loss or injury or
death to any Sublessee, licensee, employee or other party.
13. INDEMNIFICATION. The Assignor shall and hereby agrees to indemnify
and hold the Assignee harmless from and against all obligations, liabilities,
losses, costs, claims, expenses, fines, penalties and damages (including,
without limitation, attorneys' fees and expenses and court costs) which the
Assignee may incur:
(a) by reason of this Assignment including without limitation the
exercise of any right or remedy hereunder;
(b) in connection with any of the Subleases (including, without
limitation, all claims and demands which may be asserted
against the Assignee by reason of any alleged obligation or
undertaking on its part to perform or discharge any of the
terms, covenants or agreements contained in any Sublease); and
(c) with regard to the Leased Property;
provided, however, that the foregoing shall not be deemed to exculpate the
Assignee from any
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liability resulting solely from the gross negligence or willful misconduct of
the Assignee.
The Assignor shall defend the Assignee against any claim or litigation
involving the Assignee for the same, with counsel approved by the Assignee, and
should the Assignee incur any such obligation, liability, loss, cost, expense,
fine, penalty or damage, then the Assignor shall reimburse the Assignee for such
amounts upon demand, and upon the failure of the Assignor so to do, the Assignee
may, at its option, terminate the Facility Lease and/or exercise any or all of
the other rights and remedies under the Facility Lease and/or the other Lease
Documents. Notwithstanding anything to the contrary contained herein, the
Assignee shall have the option of conducting its own defense with counsel of the
Assignee's selection, but at the expense of the Assignor. The foregoing
indemnification agreement shall also include all costs reasonably incurred by
the Assignee in connection with the enforcement of said indemnification
agreement.
Any amounts owed to the Assignee under this Section shall be a demand
obligation and, to the extent permitted by applicable law, shall be added to the
Lease Obligations and shall be secured hereby as fully and effectively and with
the same priority as every other obligation of the Assignor secured hereby and,
if not paid within ten (10) days after demand, shall thereafter, to the extent
permitted by applicable law, bear interest at the Overdue Rate until the date of
payment. The provisions of this Section shall survive the complete payment and
performance of the Obligations and the expiration or earlier termination of the
Facility Lease.
14. GENERAL PROVISIONS; RULES OF CONSTRUCTION. The provisions set forth
in Articles 22 and 23 and Sections 2.2, 16.8 through 16.10, 24.2 through 24.12
of the Facility Lease are hereby incorporated herein by reference, mutatis,
mutandis and shall be applicable to this Assignment as if set forth in full
herein.
IN WITNESS WHEREOF, the Assignor has duly executed this Assignment as a
sealed instrument as of the 31st day of December, 1997.
WITNESS: ASSIGNOR:
BLACK BOX OF LEWISBURG, INC., a
Delaware corporation
/s/ Signature Illegible By: /s/ Signature Illegible
---------------------------------- ----------------------------------
Name: Name:
Title:
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Schedule to Exhibit 10.51 filed pursuant to Instruction 2 to Item 601(a) of
Regulation S-K
Assignment of Subleases and Rents
Project Parties Date
------- ------- ----
Blyethville, AR TC Realty of Blytheville, Inc. (Assignor) 12/19/97
Meditrust Acquisition Corporation II
(Assignee)
Maumelle, AR TC Realty of Maumelle, Inc. (Assignor) 12/19/97
Meditrust Acquisition Corporation II
(Assignee)
Mountain Home, AR TC Realty of Mountain Home, Inc. 12/19/97
(Assignor)
Meditrust Acquisition Corporation II
(Assignee)
Pocahontas, AR TC Realty of Pocahontas, Inc. 12/19/97
(Assignor)
Meditrust Acquisition Corporation II
(Assignee)
Sherwood, AR TC Realty of Sherwood, Inc. (Assignor) 12/19/97
Meditrust Acquisition Corporation II
(Assignee)
Altoona, PA TC Realty of Altoona, Inc. (Assignor) 12/19/97
Meditrust Acquisition Corporation II
(Assignee)
Reading, PA TC Realty of Reading, Inc. (Assignor) 12/19/97
Meditrust Acquisition Corporation II
(Assignee)
12
Project Parties Date
------- ------- ----
Dillsburg, PA Black Box of Dillsburg, Inc. (Assignor) 12/31/97
Meditrust Acquisition Corporation II
(Assignee)
Martinsburg, WV Black Box of Martinsburg, Inc. (Assignor) 12/31/97
Meditrust Acquisition Corporation II
(Assignee)
Peckville, PA Black Box of Peckville, Inc. (Assignor) 12/31/97
Meditrust Acquisition Corporation II
(Assignee)
Berwick, PA TC Realty of Berwick, Inc. (Assignor) 1/7/98
Meditrust Acquisition Corporation II
(Assignee)
Chippewa, PA TC Realty of Chippewa, Inc. (Assignor) 1/7/98
Meditrust Acquisition Corporation II
(Assignee)
Lewistown, PA TC Realty of Lewistown, Inc. (Assignor) 1/7/98
Meditrust Acquisition Corporation II
(Assignee)
