Contract
Exhibit
10.28.4
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 CHATSWORTH ROYALE, a California limited
partnership ("Landlord"), PACIFICA MANOR, INC., a California corporation,
and
XXXXX AGA.M, 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
1, 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
"Chatsworth Royale"
and located at 00000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
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 12 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 arc 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 $86,720.00; which monthly rent is subject to adjustment on October
1, 1998, as provided in the Lease, (b) the Current Security Deposit held
by
Landlord is $200,000.00, and (c) the current monthly impound amount for real
estate taxes is $7,291.00.
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 12 of the Lease,
the
Original Tenant agrees and reaffirms that Original Tenant, and each of them,
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.
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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 12 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
$200,000.00 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 5 of the Lease. Likewise,
upon the merger of New Tenant into Summerville, the Security Deposit of
$200,000.00 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 5 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.
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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
documents) previously provided to New Tenant;
(c) Original
Tenant has not previously assigned or transferred any of its tights, 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 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.
(e) 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 12 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 further or additional assignment of the Lease
shall be subject to the terms and conditions of the Lease.
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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.
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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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CHATSWORTH ROYALE,
a California
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limited
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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Attention:
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Phone:
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Facsimile:
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