Contract
Exhibit
10.28.6
AMENDMENT
TO LEASE AGREEMENT
AND CONSENT AGREEMENT
THIS
AMENDMENT TO LEASE AGREEMENT AND
CONSENT AGREEMENT (this "Amendment") is entered into as of this 28th day
of August,
1998, by and among CLAIREMONT ROYALE, a California general partnership
("Landlord"), PACIFICA MANOR, INC., a California corporation, and XXXXX XXXX,
an
individual (collectively, "Original Tenant'), and COBBCO INC., a California
corporation ("New Tenant"), with reference to the following facts and
circumstances.
RECITALS
A. Landlord
entered into that certain Amended and Restated Lease Agreement, dated November
4, 1994, with Original Tenant (the "Lease'), pursuant to which Original Tenant
leased from Landlord that certain licensed residential care facility for
the
elderly commonly known as "Clairemont Royale" and located at 0000 Xxxxxxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx (the "Premises"). A true and correct
copy
of the Lease is attached hereto as Exhibit "A" and the terms of the Lease
are
incorporated herein by this reference.
B. Original
Tenant has advised Landlord that it intends to sell substantially all of
the
residential care facility for the elderly assets of the Original Tenant,
including those operated at the Premises, to New Tenant, as of the Effective
Date (as defined below). Accordingly, Original Tenant and New Tenant desire
to
effectuate an assignment and assumption of the Lease pursuant to which New
Tenant shall expressly assume the obligations of Original Tenant under the
Lease
upon consummation of such purchase.
C. New
Tenant has advised Landlord that, subsequent to the assignment of the Lease
from
Original Tenant to New Tenant, New Tenant will be merged into Summerville
at
Cobbco, Inc., a California corporation ("Summerville"); which entity
to-be-formed will be a wholly-owned subsidiary of Summerville Healthcare
Group,
a Delaware corporation.
D. Pursuant
to Section 11 of the Lease, Original Tenant may not effectuate the assignment
to
New Tenant or the merger of New Tenant into Summerville without obtaining
Landlord's prior written consent.
E.
Landlord is unwilling to consent to such assignment and such subsequent merger
except upon the terms and conditions of this Amendment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, Landlord, Original Tenant and New Tenant hereby
agree as follows:
1. Incorporation
of Recitals.
The foregoing recitals are hereby incorporated into the body of this
Amendment.
2. Effective
Date. This
Amendment, upon complete execution and delivery hereof, shall become effective
and shall be deemed effective on the same date upon which New Tenant's
acquisition of Original Tenant's business is consummated (the "Effective
Date").
Original Tenant and New Tenant shall jointly and promptly give written notice
to
Landlord of the Effective Date.
3. Representations,
Warranties
and Covenants by New Tenant. New Tenant represents and warrants to
Landlord that all financial statements or other documentation delivered by
New
Tenant to Landlord in anticipation of the assignment and
assumption of the Lease to New Tenant and the subsequent merger of new Tenant
into Summerville are true and correct and accurately reflect the financial
position of New Tenant as of the Effective Date. New Tenant further represents
and warrants that it is licensed to operate, and does operate, residential
care
facilities for the elderly which are comparable to the Premises, and is
acquainted with, and does accept, the Premises in an "as is" condition.
Throughout the remaining term of the Lease, New Tenant and Summerville shall
deliver to Landlord such financial and other information about New Tenant
and/or
Summerville as may
be requested from time to time in writing by Landlord. New Tenant acknowledges
that: (a) the current monthly rent for the premises under the Lease is
$38,828.00; which monthly rent is subject to adjustment on April 1, 1999,
as provided in the
Lease, (b) the current Security Deposit held by Landlord is $107,000.00,
and (c)
the current monthly impound amount for real estate taxes is
$2,868.00.
4. Assignment
by Original
Tenant; Assumption by New Tenant. Subject to Paragraphs 5 and 6 of this
Amendment and effective as of the Effective Date, Original Tenant hereby
assigns
to New Tenant all of Original Tenant's right, title and interest in and to
the
Lease, and New Tenant hereby assumes all of the obligations of Original Tenant
under the Lease, as if
new Tenant had originally executed and delivered the Lease, New Tenant hereby
acknowledges that New Tenant has reviewed all of the terms and provisions
of the
Lease and that New Tenant understands and expressly agrees to each of the
same.
5. Consent
of
Landlord to
Transfer. Upon
Landlord's receipt of a fully-executed counterpart of this Amendment from
Original Tenant and New Tenant, Landlord hereby consents to the assignment
of
the Lease by Original Tenant to New Tenant, and the assumption by New Tenant
of
Original Tenant's obligations thereunder as of the Effective
Date;
provided, however, as
consideration for this Amendment and pursuant to Section 11 of the Lease,
the
Original Tenant agrees and reaffirms that Original Tenant, and each of them,
shall remain liable for the continued performance of all of the terms and
provisions of the Lease on the part of the "Tenant" thereunder throughout
the
remainder of the Term of the Lease; which liability shall be joint and several
with New Tenant. The continued liability of Original Tenant shall survive
the
execution of this Amendment. the assignment of the Tenant's interest in the
Lease to New Tenant, the close of New Tenant's acquisition of Original Tenant's
business, and the Effective Date.
2
6. Consent
of Landlord to
Merger. Upon Landlord's receipt of a fully-executed counterpart of this
Amendment from Original Tenant and New Tenant, Landlord hereby consents to
the
assignment of the Lease by New Tenant to Summerville upon the merger of New
Tenant into Summerville, and the assumption by Summerville of New Tenant's
obligations thereunder; provided, however, as consideration for this Amendment
and pursuant to Section 11 of this Lease, the Original Tenant agrees and
reaffirms that Original Tenant, and each of them, shall remain liable for
the
continued performance of all of the terms and provisions of the Lease on
the
part of the "Tenant" thereunder throughout the remainder of the Term of the
Lease; which liability shall be joint and several with Summerville after
the
merger of New Tenant into Summerville. The continued liability of Original
Tenant shall survive the merger of New Tenant into Summerville and the
concurrent assignment of the Lease to Summerville.
7. Security
Deposit.
Upon New Tenant's execution and delivery of this Amendment, New Tenant
and Original Tenant agree that the Security Deposit of $107,000.00 held by
Landlord shall be retained by Landlord, the benefit thereof shall be transferred
to New Tenant, and the Security Deposit shall continue to be held by Landlord
in
accordance with the provisions of Section 34.2 of the Lease. Likewise, upon
the
merger of New Tenant into Summerville, the Security Deposit of $107,000.00
held
by Landlord shall be retained by Landlord, the benefit thereof shall be
transferred to Summerville, and the Security Deposit shall continue to be
held
by Landlord in accordance with Section 34.2 of the Lease.
8. Indemnifications.
Upon the Effective Date, the parties and each of them, agree as
follows:
(a) Original
Tenant hereby agrees to indemnify, defend, protect and hold harmless Landlord,
New Tenant and their respective partners, officers, agents, representatives,
employees, attorneys, heirs, successors and assigns from and against any
and all
liability, damages, losses, claims, judgments, awards, and/or causes of action,
including attorneys' fees and litigation and arbitration expenses, arising
directly or indirectly from or related to the Premises and/or the Lease prior
to
the Effective Date.
(b) New
Tenant and, upon the merger of New Tenant into Summerville, Summerville hereby
jointly and severally agree to indemnify, defend, protect and hold harmless
Landlord, New Tenant and their respective partners, officers, agents,
representatives, employees, attorneys, heirs, successors and assigns from
and
against any and all liability, damages, losses, claims, judgments, awards,
and/or causes of action, including attorneys' fees and litigation and
arbitration expenses, arising directly or indirectly from or related to the
Premises and/or the Lease on or after the Effective Date.
(c) Each
of the indemnification obligations set forth in this Paragraph 8 shall survive
any termination of the Lease, the Effective Date, the consummation of New
Tenant's purchase of the assets of Original Tenant, the merger of New Tenant
into Summerville and each of the transfers of the Lease consented to in this
Amendment.
3
9.
Representations
of Original Tenant In connection with the foregoing, Original Tenant
represents and warrants to New Tenant and Landlord, which representations
and
warranties shall be deemed remade as of the Effective
Date,
that:
(a) A
true and correct copy of the Lease and any and all addendums, supplements,
amendments and modifications thereof have been previously provided to New
Tenant;
(b) The
Lease is in full force and effect according to the terms set forth in the
document(s) previously provided to New Tenant;
(c) Original
Tenant has not previously assigned or transferred any of its rights, title
or
interest in, to or under the Lease, and it holds such right, title and interest
free and clear of any liens, claims or encumbrances.
(d) As
of the Effective Date: (i) Original Tenant is current in the payment of all
rents and other amounts due under the Lease, including, without limitation,
amounts due with respect to taxes, utilities and insurance, and to Original
Tenant's knowledge, Original Tenant is not in default of any of its obligations
thereunder, nor has any event or condition occurred which, with notice or
lapse
of time, would mature into a default under this lease; (ii) there are no
claims,
rights or actions that have accrued or could be asserted by Original Tenant
against New Tenant for any default, breach or violation by Landlord under
the
Lease; and (iii) Original Tenant does not have any offsets or defenses that
could be asserted in any action against the Landlord for payments or other
obligations due under the Lease. Nothing contained herein shall be construed
as
a waiver by
(e) Landlord
of any rights that it may have for any default, breach, or violation of any
term
or provision of the Lease, regardless of when such right might accrue or
default, breach or violation might occur.
(f) Subject
to the removal of tenant alterations and additions upon the termination of
the
Lease and the repair of any damage incident to such removal and any routine
cleaning, the Premises are, to Original Tenant's knowledge, in a condition
sufficient to satisfy the requirements imposed upon the tenant under the
Lease
respecting the condition of the Premises upon termination of the
Lease.
10. No
Amendment-or Assignment
of Lease. On or after the Effective Date, New Tenant shall not agree to
any amendment, modification or supplement of the Lease, nor assign all or
any
part of New Tenant's interest under the Lease to any party other than
Summerville, without the prior written consent of Original Tenant (which
consent
shall not be unreasonably withheld) and Landlord (which consent shall be
pursuant to the terms and conditions of the Lease). Notwithstanding the above,
new Tenant and Summerville shall not require Original Tenant's consent to
exercise any presently existing rights of tenant under Section 34 of the
Lease.
11. No
Further Consented
Assignments. This Amendment shall be deemed to consent only to the
assignment of the Lease to New Tenant and the subsequent merger of New Tenant
into Summerville. Any farther or additional assignment of the Lease shall
be
subject to the terms and conditions of the Lease.
4
12. Entire
Agreement.
This Amendment represents the entire agreement of the parties hereto,
and
Original Tenant and New Tenant hereby acknowledge that Landlord has made
no
representations, warranties or agreements with Original Tenant or New Tenant
other than those expressly set forth herein or in the Lease.
13. Counterparts.
This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14. Authority
to Execute.
Each individual executing this Amendment on behalf of a party represents
and warrants to each other party that he has the full authority, acting alone,
to execute and deliver this Amendment on behalf of such party, and, if such
party is a corporation, any appropriate resolution of the Board of Directors
of
such corporation has been duly executed which grants such authority to the
signing individual.
15. No
Further Amendments.
Except as expressly amended in this Amendment, the Lease shall remain
in
full force and effect, and the Lease, as amended by this Amendment shall
be
construed as one (1) document.
5
IN
WITNESS WHEREOF, Landlord, Original Tenant and New Tenant have executed this
Amendment as of the day and year first hereinabove written, but effective
as of
the Effective Date.
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“LANDLORD”
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CLAIREMONT ROYALE,
a California
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general
partnership
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By:
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/s/
Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx,
as Trustee of The
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Xxxxxxxx
Trust No. 1, a General Partner
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“ORIGINAL
TENANT”
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PACIFICA
MANOR, INC.,
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a
California corporation
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By:
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/s/
Xxxxx Xxxx
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Xxxxx Xxxx,
President
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/s/
Xxxxx Xxxx
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Xxxxx Xxxx,
an individual
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“NEW
TENANT”
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COBBCO
INC.,
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a
California corporation
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By:
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/s/
Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
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Title:
President
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By:
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Name:
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Title:
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New
Tenant’s Address for Notice Purposes:
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12403.
Xxxxxxx Xxxx , Xxx 0X
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Xxx
Xxxxx , XX 00000
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Attention:
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Phone:
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Facsimile:
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6
G
&
K Management
Co.,
Inc.
LEADERS IN PROPERTY MANAGEMENT SINCE 1957
March
3,
1999
Mr. Xxx Xxxxxx
COBBCO,
Inc.
00000
Xxxxxxx Xxxx., Xxxxx 0X
Xxx
Xxxxx, XX 00000
Re: Clairemont Royale
Dear
Xx. Xxxxxx:
In
accordance with your lease agreement dated November 1, 1994 and amendment
to
lease agreement dated August 1, 1998, the Clairemont Royale facility is to
receive an increase in monthly rent effective April 1, 1999.
The
increase is calculated based on the Consumer Price Index (CPI) for Los
Angeles -
Long Beach - Anaheim for all urban wage earners and clerical workers, and
shall
not be less than 2.5% or more than 4%.
As
of the
date of this letter, the March 1,1999 CPI is not available. Therefore,
we will
use the minimum percentage increase of 2.5%, for now. Please note that
when we
receive the March 1, 1999 CPI, we will recalculate your rent, if
required.
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March
1999 rent
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$ |
38,221.00
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Increase
at 2.5%
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956.00
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New
rent effective April 1, 1999
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$ |
39,177.00
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Your
April 1, 1999 rent payment should include the $607.00 of deferred rent
in
accordance with Section 3.2 of your lease agreement.
Sincerely,
G
&
K
MANAGEMENT CO., INC.
/s/
Xxxxxxx X.
Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx,
CPA
Vice
President/Controller
MED:
st
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cc:
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Xxx Xxxx
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Xxxxxx Xxxxxxx
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Xxxxx Xxxxx
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0000
Xxxxxxxx Xxxxxx • Xxxxxx
Xxxx, Xxxxxxxxxx 00000
000.000.0000 fax
310.
204. 1900 xxx.XXxxx.xxx
