AMENDED AND RESTATED LEASE AGREEMENT
Exhibit
10.28.5
AMENDED
AND RESTATED LEASE
AGREEMENT
THIS
AMENDED AND RESTATED LEASE AGRELMENT (the "Lease") is made and entered into
as
of the 1st day of November, 1994, by and between CLAIREMONT ROYALE, a California
limited partnership (hereinafter referred to as "Landlord") and XXXXX XXXX,
an
individual, and PACIFICA MANOR, INC., a California corporation (hereinafter
collectively referred to as "Tenant"), and is made with reference to the
following facts and objectives:
A. Landlord
and Tenant have heretofore entered into a Lease Agreement, dated March 31,
1987,
for the Premises; which prior Lease Agreement was amended by that certain
Amendment of Lease Agreement, dated October 16, 1989 (the prior Lease Agreement,
as thus amended, is hereinafter collectively referred to as the "Prior Lease").
The parties desire to fully amend and restate the Prior Lease with this Lease;
and, upon execution of this Lease, the Prior Lease shall be terminated
and
of no further force and effect.
B. Landlord
owns the "Premises" hereinafter described, together with the fixtures and
equipment therein.
C. Tenant
is experienced in the management and operation of residential care facilities
for the elderly (as defined in California Health and Safety Code, Division
22,
Chapter 23.2, S1569.21.
D. Tenant
desires to lease the Premises and personal property from Landlord pursuant
to
the provisions of this Lease, for the purpose of operating a residential
care
facility for the elderly.
E. Landlord
is entering into this Lease in reliance upon the particular skills, knowledge
and experience of Tenant in the operation of residential care facilities
for the
elderly.
NOW,
THEREFORE, for and in consideration of the foregoing Recitals and the
terms, covenants and conditions of this Lease, and for good and valuable
consideration, the sufficiency of which is acknowledged by all parties, the
parties agree as follows:
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1.
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PREMISES
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Subject
to the terms and conditions of this Lease, Landlord hereby leases to Tenant,
and
Tenant hereby leases from Landlord, that certain real property described
in
Exhibit "A" attached hereto, which is improved with and currently licensed
and
operating as a two hundred fourteen (214) bed residential care facility for
the
elderly, and certain personal property located thereon, or hereafter located
thereon (collectively, the "Premises"). The Premises is located at
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx, and is commonly known
as
Clairemont
Gardens.
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2.
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TERM
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The
term
of this Lease (the "Term") shall be for seventeen (17) years and five (5)
months, commencing on November 1, 1994, and terminating on March 31,
2012.
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3.
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RENT
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3.1
Tenant shall pay to Landlord a monthly rent during each month of the Term,
without deduction, setoff, prior notice or demand, as follows:
3.1.1
Subject to Section 3.2 below, the monthly rent for the initial two (2) years
and
five (5) months of the Term, through March 31, 1997, shall be Thirty-six
Thousand Three Hundred Eighty Dollars ($36,380.00).
3.1.2
Commencing on April 1, 1997, and thereafter on the yearly anniversary date
of
such date throughout the remainder of the Term, the monthly rental shall
increase, but never decrease, as calculated on the basis of the Consumer
Price
Index, All Urban Wage Earners and Clerical Workers, All Items, published
by the
U. S. Department of Labor, Bureau of Statistics for the Los Angeles/Long
Beach/Anaheim Metropolitan Area (the "Index"), as follows:
(a) The
Index published as of March 1, 1996, shall be considered the "Base
Index";
(b) The
monthly rental shall be adjusted upward, but not downward, by an amount equal
to
sixty percent (60%) of the increase, if any, in the Index as of the last
month
prior to such adjustment over the Base Index (for instance, for the adjustment
to occur on April 1, 1997, the Base Index would be compared to the Index
for
March 1, 1997); provided, however, the monthly rent shall not increase in
any
lease year by more than four percent (4%) nor less than two and one-half
percent
(2-1/2%).
If
at the
time of any such adjustment of the monthly rental, the Index shall not exist
in
the same format described above, the Landlord shall reasonably substitute
any
official index published by the Bureau of Labor Statistics, or successor
agency,
as may then be in existence and most nearly equivalent thereto.
3.2
The
parties agree that the monthly rent for the initial one (1) month of the
Term,
due November 1, 1994, shall be deferred; that is, not payable on its usual
due
date, but rather paid
to Landlord in sixty (60) monthly payments of Six Hundred Seven Dollars
($607.00) each, commencing on January 1, 1995, and ending with the payment
on
December 1, 1999. Each such payment shall be deemed additional rent, in addition
to monthly rent and all other sums due under this Lease. Tenant covenants
that
it shall expend such deferred rent amount for capital improvements to the
Premises; which expenditures shall be approved in advance by Landlord in
its reasonable
discretion and shall be accounted for in writing by Tenant to Landlord. This
one
time deferral shall include only the deferral of the monthly rent, not the
deferral of additional rent, impound payments or other sums due under this
Lease
for November 1, 1994 or any other date.
3.3
The
monthly rent is due and payable on the first (1st) day of each month, commencing
on the first (1st) day of the month
in
which the Term commences. If the Term commences on a day other than the first
(1st) day of a month, monthly rent for such partial month shall be prorated
at
the rate of 1/30th of the monthly rent per day.
3.4
All
rent shall be paid to Landlord at 0000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx
00000, or at such other address as may be designated by
Landlord from time to time in writing to Tenant.
3.5
Tenant acknowledges that late payment by Tenant to Landlord of rent will
cause
Landlord to incur costs not contemplated by this Lease, the exact
amount
of such costs being extremely difficult and impracticable to fix. Such costs
include, without limitation, processing and accounting charges, and late
charges
that may be imposed on Landlord by the terms of any encumbrance(s) affecting
the
Premises. Therefore, if any installment of rent is not received by Landlord
within ten (10) days after its due date, Tenant shall pay to Landlord an
additional sum equal to five percent (5%) of the overdue rent as a late charge.
The parties agree that this late charge represents a fair and reasonable
estimate of the costs that Landlord will incur by reason of late payment
by
Tenant. Acceptance of any late charge shall not constitute a waiver of Tenant's
default with respect to the overdue amount, nor prevent Landlord from exercising
any of the other rights and remedies available to Landlord hereunder, at
law or
in equity.
3.6
The
monthly rent provided in this Lease shall be in addition to all other payments
to be made by Tenant as provided herein. It is the purpose and intent of
Landlord and Tenant that the monthly rent provided herein shall be absolutely
net to Landlord, so that this Lease shall yield net to Landlord the monthly
rent
specified in this Lease in each month during the Term. Except as otherwise
expressly provided herein, Landlord shall have no obligation or liability
to pay
any amounts in connection with the ownership, operation and/or management
of the
Premises, or any part thereof, whether for real or personal property taxes,
or
insurance premiums of any kind, or maintenance or costs of repair of any
kind,
including structural or exterior maintenance, or license fees. Excluding
encumbrances for which Landlord is liable, if any, all costs and expenses
including, without limitation, taxes, assessments, insurance premiums,
utilities, maintenance and repair (capital and ordinary), restore, license
fees
and obligations of every kind and nature whatsoever relating to the use and/or
management of the Premises by Tenant which may accrue become due during or
out
of the Term shall be paid by Tenant Landlord shall be indemnified and saved
harmless by Tenant from against the same.
4.
REAL
ESTATE AND PERSONAL
PROPERTY TAXES
In
addition to all rentals herein reserved, the Tenant shall pay the real estate
taxes, levies and assessments imposed, levied upon or assessed against the
Premises for each year of .the Term. Said taxes shall be payable in full
within
thirty (30) days after receipt by Tenant of a statement in writing from Landlord
setting forth the amount of taxes and assessments due under this Section.
The
term "real estate taxes" as used herein shall be deemed to mean all taxes
imposed upon the real property and permanent improvements, and all assessments
levied against the Premises, but shall not include personal income taxes,
inheritance taxes or franchise taxes levied against the Landlord.
During
the Term, Tenant shall pay, prior to delinquency, all taxes assessed against
and
levied upon fixtures, furnishings, equipment and all other personal property
contained in the Premises.
Upon
the
commencement of the Term, an impound account for the payment of real estate
taxes shall be established and maintained by Landlord, as set forth below.
Concurrent with each payment of monthly rental and in addition thereto, Tenant
shall pay to Landlord's a sum (the "Funds") equal to one-twelfth (1/12) of
the
yearly real estate taxes and assessments, as may be adjusted from time to
time.
Any funds received by Landlord shall be held in an institution chosen by
Landlord, in its sole discretion, provided the deposits of which are insured
by
a federal or state agency. Landlord shall be permitted to commingle the Funds
with its own funds or the funds of other tenants of Landlord, as Landlord
shall
determine in its sole discretion. Landlord shall apply the Funds to pay the
real
estate taxes for the Premises; provided Landlord shall only be obligated
to make
such payment of Funds to the extent that Tenant pays the Funds to Landlord.
Landlord shall not charge for the holding or handling of Funds. Landlord
shall
pay interest on the Funds actually held by Landlord based upon a rate equal
to
the then-existing average interest rate for thirty (30) day certificates
of
deposit as published by the Wall Street Journal. The prompt payment of the
Funds
shall be a material covenant of Tenant under this Lease, and shall constitute
additional rent hereunder. Landlord shall provide to Tenant an annual accounting
of the Funds showing credits and debits to the Funds and the purpose for
which
each debit to the Funds was made. If the amount of the Funds held by Landlord,
together with the future monthly installments of Funds payable prior to the
due
dates of real estate taxes, shall exceed the amount required to pay said
real
estate taxes as they fall due, at Landlord's option, such excess shall either
be
repaid to Tenant or credited to Tenant on monthly installments of Funds.
If the
amount of the Funds held by Landlord shall be insufficient to pay real estate
taxes, as they fall due, Tenant shall immediately pay to Landlord any amount
necessary to make up the deficiency in one or more payments, as Landlord
may
require. In the event that the Premises is transferred by Landlord to another
party, which transfer results in an increase in the real estate taxes, Tenant
shall not be responsible for the payment of such additional real estate taxes.
Notwithstanding the foregoing, the initial impound payments by Tenant,
commencing November 1, 1994, shall be utilized for the second (2nd) installment
payment of real estate taxes for 1994-95, and, in addition thereto, Tenant
shall
be responsible for the timely payment of the first (1st) installment payment
of
real estate taxes for 1994-95 directly to the applicable taxing
agency.
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5.
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USE
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5.1
Tenant shall use the facility for a residential care facility for the elderly,
and for no other use without Landlord's prior written consent, which may
be
withheld in Landlord's sole discretion.
5.2
Tenant's use of the Premises as provided in this Lease shall be in accordance
with the following:
5.2.1
Tenant shall not do, bring or keep anything in, or about the Premises that
will
cause a cancellation of .any insurance covering the Premises, and Tenant
shall
comply with all requirements imposed by any such insurance company.
5.2.2
Tenant shall cause the Premises to be and remain licensed and certified by
the
applicable state and/or local governmental agencies as a licensed residential
care facility for the elderly, and shall maintain such license(s) and
certifications during the Term. At Tenant's sole expense, Tenant shall cause
the
Premises to conform to the requirements and provisions as the licensed facility
including, without limitation, the obligation at Tenant's sole cost to alter,
maintain, replace or restore the Premises or any part thereof in compliance
and
conformity with all laws relating to the condition, use or occupancy of the
Premises as the licensed facility during the Term.
5.2.3
Tenant shall not use the Premises in any manner that will constitute waste,
nuisance to the Premises, or cause unreasonable annoyance to owners or occupants
of adjacent properties.
5.2.4
Tenant shall not do anything on the Premises that will cause damage to the
Premises or any part thereof. No machinery, apparatus or other appliance
shall
be used or operated in, on or about the Premises that will in any manner
injure
the Premises or any part thereof.
5.2.5
Tenant shall pay all payrolls promptly when due respecting all personnel
at the
Premises and shall file all governmental reports required pursuant thereto
(including, without limitation, payroll tax returns), and shall pay such
taxes
promptly and before delinquency.
5.2.6
Tenant shall not release, use, generate, manufacture, store or dispose of
on,
under or about the Premises or transfer to or from the Premises any flammable
explosives, radioactive materials, hazardous wastes, toxic substances or related
materials (collectively "hazardous substances"). There is excluded from this
prohibition hazardous substances of the type commonly used in residential
care
facilities for the elderly in California, subject to the condition that they
are
used, stored, and disposed of in accordance with applicable laws. As used
in
this Lease, hazardous substances
shall include, but not be limited to, substances defined as "hazardous
substances," "hazardous materials," or "toxic substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42
U.S.C. Section 9601, et seq.; the Hazardous Materials Transportation Act,
49
U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act,
42
U.S.C. Section 6901, et seq.; the Clean Water Act, 33 U.S.C. Section 466,
et
seq.; the Safe Drinking Water Act, 14 U.S.C. Section 1401, et seq.; the
Superfund Amendment and Reauthorization Act of 1986, Public Law 99-499, 100
Stat. 1613; the Toxic Substances Control Act, 15 U.S.C.•
Section 2601, et
seq., as amended;
the Clean Air Act, 42 U.S.C. Section 7401, et seq.; the Occupational Safety
and
Health Act ("OSHA," 29 U.S.C. Section 651, et seq.; California Environmental
Quality Act, Pub. Res. Code Section 21000, et seq.; Xxxxxxxxx-Xxxxxxx-Xxxxxx
Hazardous Substance Account Act, Health and Safety Code Section 25300, et
seq.;
Hazardous Waste Control Law, Health and Safety Code Section 25100, et seq.; Xxxxxx-Cologne Water
Quality Control Act, Water Code Section 13000, et seq.; Hazardous Waste Disposal
Land Use Law, Health and Safety Code Section 25220, et seq.; Safe Drinking
Water
and Toxic Enforcement Act of 1986 ("Prop 65"), Health and Safety Code Section
25249.5, et seq.; Hazardous Substances Underground Storage Tank Law, Health
and
Safety Code Section 25280, et seq.; Air Resources Law, Health and Safety
Code
Section 39000, et seq., Hazardous Materials Release Response Plans and
Inventory, Health and Safety Code Sections 25500-25541; Toxic Pits Cleanup
Act,
Health and Safety Code Section 25208, et seq.; and those materials and
substances of a similar nature regulated or restricted under any other laws
of
the United States, the State of California or any other governmental agency
having jurisdiction over the Premises now existing or hereafter adopted,
and in
regulations adopted and publications promulgated pursuant to said
laws.
5.2.7
Tenant shall comply with, and the leasehold created by this Lease is subject
to,
all covenants, conditions, restrictions, easements and rights of way affecting
the Premises.
5.2.8
Tenant shall furnish any bond which may be required by law in connection
with
residents' trust funds and the accounting therefor. Tenant shall be fully
responsible for such trust funds, and agrees to indemnify and hold harmless
Landlord from any loss regarding same.
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6.
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ALTERATIONS
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Tenant
shall not make, or suffer to be made, any alterations of the Premises, or
any
part thereof, without the prior written consent of Landlord, and any additions
to, or alterations of the Premises, except movable furniture and trade fixtures,
shall become at once a part of the realty and belong to
Landlord.
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7.
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MAINTENANCE
AND
REPAIRS
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7.1
Except as provided in Section 7.2 below, Tenant shall, during the Term, at
its
sole cost and expense, keep in good repair and maintain the entire Premises
in
good, clean working order, condition and repair including, without limitation,
the structural portions of the building and improvements thereon, the interior
and exterior thereof, plate glass, wiring, plumbing, heat and air conditioning
units, the parking and service areas, the landscaping, the approaches thereto
and appurtenances thereof, including all adjacent sidewalks and alleys. Except
as provided in Section 7.2 below, Tenant's obligation to maintain the Premises
shall specifically include, without limitation, the obligation to make any
and
all repairs and to repaint and/or re-stain all painted areas as required.
Landlord shall not have any responsibility to maintain the Premises or any
part
thereof including, without limitation, any structural maintenance, repair,
replacement or restoration. Tenant waives all rights under any laws which
may
provide for Tenant's right to make repairs and to then deduct from rents
the
expenses of such repairs.
7.2
Except as provided in Section 7.3 below, Landlord shall, during the Term,
at its
sole cost and expense, keep in good repair and maintain the roof and exterior
surface of the Premises in good condition and repair. Landlord's obligations
for
maintenance and repair shall be limited to the particular obligations of
this
Section 7.2; all other maintenance and repair obligations relating to the
Premises shall belong to Tenant under Section 7.1 above. Landlord's obligation
to maintain the exterior surface of the Premises shall include, without
limitation, the obligation to make any and all repairs and to repaint and/or
restain, as applicable, the painted portions of the exterior surface. Upon
the
occurrence of the events described in Section 7.3 below, all obligations
of
Landlord hereunder shall shift to Tenant. In the event that Tenant becomes
aware
of the need to repair the roof and/or exterior surface of the Premises (prior
to
the assumption by Tenant of the responsibility for maintenance of the roof
pursuant to Section 7.3 below), Tenant shall notify Landlord in writing of
the
specific details of such need(s). In the event that Landlord fails to repair,
or
commence to repair (and prosecutes diligently to completion), such needs
within
ten (10) days after receipt of the written notice, and damages are
thereafter
suffered to the Premises and/or Tenant's personal property as the direct and
consequential result of such failure to repair, then Landlord shall be liable
to
Tenant for the amount of such damages which exceed Tenant's recovery of
insurance proceeds for such damage. Such damage shall be subject to reasonable
proof and verification being provided to Landlord. The foregoing shall represent
Landlord's only potential area of liability for maintenance and repair of
the
Premises under this Lease.
7.3
Landlord shall have the option, in its sole discretion and at its sole cost
and
expense, to re-roof the Premises and/or to repaint the exterior of the Premises.
In the event that Landlord causes such work to be performed during the Term,
then immediately thereafter and throughout the remainder of the Term, Tenant
shall assume, at its sole cost and expense, the obligation to keep in good
repair and maintain the roof and/or the exterior surface of the Premises,
respectively, along with and in comparable condition with other portions
of the
Premises as required of Tenant in Section 7.1 above. Upon such assumption:
(a)
Landlord's obligation to repair and maintain the roof and/or exterior surface
of
the Premises under Section 7.2 above shall cease and terminate and (b) Landlord
shall cause to be assigned to Tenant any applicable warranty for the new roof.
7.4
Tenant shall, at its sole cost and expense, during the Term, keep and maintain
all the personal property including furniture, fixtures and equipment, in
good
working order, condition and repair. Tenant shall have the right to install
on
the Premises any and all equipment and fixtures which Tenant desires to install
thereon and which are necessary or convenient to Tenant's use of the Premises
as
permitted herein, without the consent of Landlord. All such property so
installed by Tenant shall remain Tenant's property (other than replacements
for
personal property as provided below) and, provided Tenant is not in default
hereunder, may be removed by Tenant as provided in this Lease. Tenant shall
not
remove any personal property owned by Landlord which was leased to Tenant
as
part of the Premises and/or replacements thereof or any part thereof from
the
Premises, without the prior written consent of Landlord. Tenant shall purchase
and replace with substitutes of equal or higher quality any worn out or broken
items of personal property required to be on the Premises for continued
licensing and/or certification as the same may occur from time to time
throughout the Term at Tenant's sole cost and expense. Such items being
replaced by
Tenant shall become the property of Landlord. Tenant agrees, upon written
request from Landlord, to execute any and all documents necessary to assist
Landlord to fully evidence Landlord's ownership of the personal
property.
7.5
Tenant shall, throughout the Term of this Lease, make all repairs, alterations,
replacements and additions to the Premises required by law and/or as necessary
to obtain and maintain licensing and certification as a licensed residential
care facility for the elderly.
7.6
By
entering upon the Premises, Tenant shall be deemed to have accepted the Premises
as being in good and sanitary order; condition and repair.
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8.
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COMPLIANCE
WITH
LAWS
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Tenant
shall, at his sole cost and expense, comply with all of the requirements
of all
municipal, state and federal authorities now in force or which may hereafter
be
in force pertaining to the use of the Premises, and shall faithfully observe
in
said use all municipal ordinances and State and Federal statutes now in force
or
which shall hereinafter be in force. The judgment of any court of competent
jurisdiction, the ruling of any administrative proceeding, or the admission
of
Tenant, in any action, or proceeding against Tenant, whether Landlord be
a party
thereto or not, that Tenant has violated any such regulation, order or statute
in said use, shall be conclusive of that fact as between the Landlord and
Tenant. It is agreed and understood by and between Landlord and Tenant that,
in
order to conduct the business proposed for the Premises, the State of California
shall issue and be responsible for renewing a license to allow Tenant to
conduct
a residential care facility for the elderly. In the event of the cancellation
or
rescinding of said license, Tenant agrees that this action shall constitute
a
material default under this Lease.
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9.
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INDEMNIFICATION
OF
LANDLORD
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Tenant,
as a material part of the consideration to be rendered to Landlord under
this
Lease, hereby waives and releases all claims against Landlord for damage
to
personal property in, upon or about the Premises and for injuries to any
and all
persons in or about the Premises, from any cause arising at any
time.
Tenant
hereby agrees to indemnify and hold harmless Landlord and its partners, agents,
successors, heirs and assigns from and against any and all damage or injury
to
any person; or personal property of any person, arising from the use of the
Premises by Tenant, or from the failure of Tenant to keep the Premises in
good
condition and repair as herein provided.
Except
as
provided in Sections 10.3 and 10.4 below, Tenant furthermore agrees to indemnify
and hold harmless Landlord and its partners, agents, successors, heirs and
assigns from and against any and all from and against any and all loss, damages,
claims, causes of action and/or awards incurred, directly or indirectly,
by
reason of any damage to the Premises, any personal property thereon or any
person during the Term for any reason, other than the intentionally tortious
conduct of Landlord.
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10.
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INSURANCE
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10.1
During the entire Term, the Tenant shall, at its sole cost and expense, but
for
the mutual benefit of Landlord and Tenant, maintain general public liability
insurance against claims for personal injury, death or property damage occurring
in, upon or about
the Premises and on any sidewalks directly adjacent to the Premises. The
limitation of liability of such insurance shall be not less than One Million
Dollars
($1,000,000) in respect to injury or death of one person and to the limit
of not
less than Two Million Dollars ($2,000,000.00) in respect to any one accident
and
to the limit of not less than Five Hundred Thousand Dollars ($500,000.00)
in
respect to property damage. All such policies of insurance shall be issued
in
the name of Tenant and Landlord and for the mutual and joint benefit and
protection of the parties, and such policies of insurance or copies thereof
shall be delivered to the Landlord. Each insurance policy shall provide that
such policy cannot be canceled, modified or reduced in scope without thirty
(30)
days' prior written notice to Landlord and to any superior lessor, mortgagee
or
trust deed holder of whom the insurer has been notified in writing.
10.2
During the entire term, Tenant shall, at its cost and expense, maintain fire
and
extended coverage insurance throughout the Term of this Lease in an amount
equal
to the replacement value of the Premises (exclusive of foundation and excavation
costs) of the building and improvements hereby demised, as determined by
Landlord in its sole discretion. The proceeds of said policy shall be payable
to
Landlord and Tenant as their respective interests may appear. Tenant agrees
that
upon Landlord's request, it will procure a mortgagee's loss payable endorsement
to said policy, provided that any policy proceeds paid to such mortgagee
shall
be available for reconstruction in accordance with the terms of this Lease.
It
is further understood and agreed that Tenant hereby waives any right of recovery
from Landlord, its officers or employees for any loss or damage (including
consequential loss) resulting from any of the perils insured against in the
standard form fire insurance policy with extended coverage
endorsement.
10.3
In
the event that the Premises are damaged or destroyed by fire or other casualty,
but the Premises not thereby rendered untenantable in whole or in part, Landlord
shall cause such damage or destruction to be repaired at its own cost and
expense (in excess of any insurance proceeds paid pursuant to such damage
or
destruction), and the monthly rent provided herein shall not be abated during
the repair period as to any portion of the Premises. The cost of any repairs
required as the result of the negligence of Tenant shall be paid by
Tenant.
10.4
In
the event that the Premises are damaged or destroyed by fire or other casualty,
and the Premises shall be rendered untenantable either in whole or in part,
Landlord shall have the option to repair the damage and destruction at its
cost
and expense (in excess of any insurance proceeds thereof), in which case
the
monthly rent provided hereunder shall not be abated during the repair period
as
to any portion of the Premises, including, without limitation, the portion
rendered untenantable. Landlord may, however, in the event of any damage
or
destruction, and at Landlord's election, terminate this Lease by giving Tenant
written notice of Landlord's election within sixty (60) days following the
date
of such damage or destruction, and in such event this
Lease
shall terminate on the date of such notice and rent shall be prorated as
of the
date of expiration of coverage under the business interruption insurance
in
place. The cost of any repairs required as result of the negligence of Tenant
shall be paid by Tenant. To the extent applicable, Tenant hereby waives any
provisions of the California Civil Code with respect to any damage to, or
destruction of, the Premises or the building in which the Premises are located,
the rights of Tenant in the case of any such case of any such damage or
destruction being governed by the provisions of this Lease.
10.5
During the entire Term, Tenant, at its sole cost and expense, shall maintain
business interruption insurance or loss of income insurance for a coverage
period satisfactory to Landlord, but not less than six (6) months. Landlord
shall be named in such policy as the irrevocable
assignee of all proceeds of such policy.
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11.
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ASSIGNMENT
AND
SUBLETTING
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Tenant
shall not assign this Lease, or any interest therein, and shall not sublet
the
Premises, or any part thereof, or any right or privilege appurtenant thereto,
or
permit any other person (the agents and servants of Tenant excepted) to occupy
or use the Premises, or any portion thereof, without first obtaining the
written
consent of Landlord, which consent may be withheld in the sole discretion
of
Landlord. Consent by Landlord to one assignment, subletting, occupation or
use
by another person shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another person. Consent to an
assignment, subletting, occupation or use by another person
shall
not release the original named Tenant from liability for the continued
performance of the terms and provisions on the part of Tenant to be kept
and
performed, unless Landlord specifically and in writing releases the original
named Tenant from said liability. Any assignment or subletting without the
prior
written consent of Landlord shall be void and shall, at option of Landlord,
terminate this Lease.
Tenant may not assign
this Lease, or any interest therein, by operation
of law, without the prior written consent of Landlord, which consent shall
not
be unreasonably withheld.
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|
12.
|
DEFAULT
|
In
the
event of any breach of this Lease by Tenant, the Landlord shall notify the
Tenant in writing of such breach, and Tenant shall have ten (10) days in
which
to cure any such breach as to payments of rent or other sums due hereunder,
and
thirty (30) days to cure any other breach and, if Tenant shall fail to cure
such
breach or default within such time limit, then Landlord, besides other rights
or
remedies Landlord may have, shall have the immediate right of reentry and
may
remove all persons and property from the Premises, and such property may
be
removed and stored in a public warehouse or elsewhere at the cost of and
for the
account of Tenant. Should Landlord elect to reenter, as herein provided,
or
should Landlord take possession pursuant to legal proceedings or pursuant
to any
notice provided for by law, Landlord may either terminate this Lease or may
from
time to time, without terminating this Lease, relet the Premises, or any
part
thereof, for such term or terms and at such rental or rentals and upon such
other terms and conditions as Landlord in his sole discretion may deem
advisable, with the right to make alterations and repairs to said premises.
Upon
such reletting: (a) Tenant shall be immediately liable to pay to Landlord,
in
addition to any indebtedness other than rent due hereunder, the cost and
expenses of such reletting and of such alteration and repair, incurred by
Landlord, and-the
amount, if any,
by which the rent reserved in this Lease for the period of such reletting
up to
but not beyond the Term, exceeds the amount agreed to be paid as rent for
the
demised premises for such period of such reletting or (b) At the option of
Landlord, rents received by such Landlord from such reletting shall be applied
as follows: First, to the payment of any indebtedness, other than rent, due
hereunder from Tenant to Landlord; Second, to the payment of any costs and
expenses of such reletting and of such alterations and repairs; Third, to
the
payment of rent due and unpaid hereunder; and the residue, if any, shall
be held
by Landlord and applied in payment of future rent as the same may become
due and
payable hereunder. If Tenant has been credited with any rent to be received
by
such reletting under option (a), and such rent shall not be promptly paid
to
Landlord by the new Tenant, or if such
rentals received from reletting under option (b) during any month be less
than
that to be paid during that month by Tenant hereunder, Tenant shall pay any
such
deficiency to Landlord. Such deficiency shall be calculated and paid monthly.
No
such reentry or taking possession of the Premises by Landlord shall be construed
as an election on Landlord's part to terminate this Lease unless a written
notice of such intention be given to Tenant or unless the termination thereof
be
decreed by a court of competent jurisdiction. Notwithstanding any re-letting
without termination, Landlord may at any time thereafter elect to terminate
this
Lease for such previous breach.. Should Landlord at any time elect to terminate
this Lease for any breach, in addition to any other remedies he may have,
Landlord may recover from Tenant all damages incurred by Landlord by reason
of
such breach, including the cost of recovering the premises, and including
the
worth at the time of such termination of the excess, if any, of the amount
of
rent and charges equivalent to rent reserved in this Lease for the remainder
of
the stated term of this Lease over the then reasonable rental value of the
premises for the remainder of the stated term, all of which amounts shall
be
immediately due and payable from Tenant to Landlord.
In
addition to all other rights created herein upon any default under this Lease
by
Tenant, it is expressly agreed that:(a) a default under this Lease shall
also
constitute a default under all of the Other Leases (as defined below) entered
into between Landlord and its related affiliates, on one hand, and Tenant,
on
the other hand, shall constitute a default in each and all of the Other Leases
and allow Landlord to exercise all remedies provided in each of the Other
Leases, and (b) a default under any or all of the Other Leases shall constitute
a default under this Lease and shall allow Landlord to exercise all remedies
provided for Tenant's default under this Lease. The "Other Leases" shall
mean
and refer to the following: (i) the Amended and Restated • Lease Agreement,
dated November 1, 1994, between Northridge Royale and Tenant for the premises
at
00000 Xxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxx; (ii) the Amended and Restated
Lease Agreement, dated November 1, 1994, between Channel Islands Royale and
Tenant for the premises at 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxxxx; (iii) the
Amended and Restated Lease Agreement, dated November 1, 1994, between Alhambra
Royale and Tenant for the premises at 0 Xxxx Xxxxxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx;
and (iv) the Amended and Restated Lease Agreement dated November 1, 1994,
between Chatsworth Royale and Tenant for the premises at 00000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx.
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13.
|
FREE
FROM
LIENS
|
Tenant
shall keep the Premises free from any liens arising out of any work performed,
material furnished, or obligation incurred by Tenant.
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14.
|
ABANDONMENT
|
Tenant
shall not vacate or abandon the Premises at any time during the Term; and
if
Tenant shall abandon, vacate or surrender the Premises or be dispossessed
by
process of law, or otherwise, any personal property belonging to Tenant and
left
on the Premises shall be deemed to be abandoned, at the option of Landlord,
except such property as may be mortgaged to Landlord.
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15.
|
SIGNS;
AUCTIONS
|
The
Tenant may affix and maintain upon the exterior (including those parts of
the
interior visible from the exterior) of the building only such signs,
advertising, placards, names, insignia, trademarks and descriptive material
as
shall have first received the written approval of the Landlord as to size,
type,
color, location, copy, nature and display qualities and which are in conformity
with municipal ordinances. Anything to the contrary, in this Lease
notwithstanding, Tenant shall not affix any sign to the roof of the
building.
Tenant
shall not conduct or permit to be conducted in, from or upon the Premises
any
sale by auction, whether such auction be voluntary, involuntary, pursuant
to any
assignment for the payment of creditors or pursuant to any bankruptcy or
other
insolvency proceeding.
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16.
|
UTILITIES
|
Tenant
shall pay before delinquency all charges for water, gas, heat, electricity,
power, telephone service, trash collection and all other services and utilities
used in, upon or about the Premises by Tenant during the Term. Landlord shall
not be liable for any interruption in the provision of any such utility services
to the Premises.
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17.
|
ENTRY
AND
INSPECTION
|
Tenant
shall permit Landlord and his agents to enter into and upon the Premises
at all
reasonable times for the purpose of inspecting the same or for the purpose
of
performing any right of Landlord hereunder, or for the purpose of posting
notices of non-liability for alterations, additions or repairs, or for the
purpose of placing upon the Premises any usual or ordinary "For Sale" signs.
Landlord shall be permitted to do any of the above without any rebate of
rent
and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Premises thereby occasioned. Tenant shall permit Landlord,
at
any time within six (6) months prior to the expiration of this Lease, to
place
upon the Premises any usual or ordinary "For Lease" signs and during such
six
(6) month period, Landlord or his agents may, during normal .business hours,
enter upon the Premises and exhibit same to prospective tenants.
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18.
|
INSOLVENCY
OF
TENANT
|
Tenant
agrees that, in the event all or substantially all of its assets be placed
in
the hands of a receiver or trustee, and in the event such receivership or
trusteeship continues for a period of ten (10) days, or should Tenant make
an
assignment for the benefit of creditors, or be adjudicated as bankrupt, or
should Tenant institute any proceedings under any state or federal bankruptcy
act wherein Tenant seeks to be adjudicated as bankrupt, or seeks to be
discharged of its debts, or should any involuntary proceedings be filed against
such Tenant under such bankrupt laws and Tenant consents thereto or acquiesces
therein by pleading or default, then this Lease or any interest in and to
the
Premises shall not become an asset in any of such proceedings and in any
of such
events, and in addition to any and all rights or remedies of Landlord hereunder
or as provided by law, it shall be lawful for Landlord at his option to declare
the Term ended and to reenter the Premises and take possession thereof and
remove all persons therefrom and Tenant shall have no further claim therein
or
hereunder.
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19.
|
SURRENDER
OF
LEASE
|
The
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger, and shall, at the option of Landlord,
terminate all or any existing sub-leases or sub-tenancies or may, at the
option
of Landlord, operate as an assignment to him of any or all of such sub-leases
or
sub-tenancies.
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20.
|
HOLDING
OVER
|
This
Lease shall terminate at the end of the Term, provided it has not either
been
earlier terminated as contemplated in this. Upon termination
of
this Lease, whether by lapse of time, cancellation, forfeiture, or otherwise,
Tenant shall immediately surrender possession of the Premises and all buildings
and improvements within which the same are located to Landlord in good and
tenantable repair, reasonable wear and tear excepted. Tenant shall fully
cooperate with Landlord in turning the Premises over to Landlord so as to
assure
to uninterrupted care to all residents of the Premises.
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21.
|
PRESERVATION
OF
RESIDENTS' RECORDS
|
Tenant
shall preserve all resident records as required by applicable law and deliver
them to Landlord on expiration, or sooner termination, of this
Lease.
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|
22.
|
RESIDENT
CARE;
CENSUS
|
Tenant
shall take all steps appropriate to maintain a high level of quality resident
care, and to promote and maintain a high resident census at the Premises
consistent with law and ethical standards governing the operation of residential
care facilities for the elderly.
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23.
|
FINANCIAL
STATEMENT
|
Landlord
and Tenant agree that, upon request by Landlord, Tenant will provide to
Landlord, within ten (10) days of Landlord's request, a copy of the current
financial statement for the Premises (which shall include a current profit
and
loss statement and balance sheet).
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24.
|
ATTORNEYS'
FEES
|
In
the
event the Landlord finds it necessary to retain an attorney in connection
with
the default by the Tenant in any of the agreements or covenants contained
in
this Lease, Tenant shall pay reasonable attorneys' fees and costs incurred
by
said attorney.
In
the
event of any litigation regarding this Lease, the prevailing party shall
be
entitled to recovery of expenses of litigation, including, without limitation,
attorneys' fees, travel expenses, trial and appellate court costs and deposition
and trial transcript expenses.
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25.
|
NOTICES
|
Wherever
in this Lease it shall be required or permitted that notice and demand be
given
or served by either party to this Lease to or on the other, such notice or
demand shall be given or served and shall not be deemed to have been duly
given
or served unless in writing and forwarded by registered or express mail,
return
receipt requested, addressed as follows:
|
TO
LANDLORD
|
TO
TENANT
|
|
|
Clairemont
Royale
|
Pacifica
Manor, Inc.
|
|
|
0000
Xxxxxxxx Xxxxxx
|
00000
Xxxx Xxxxxxxxxx Xxxxxxxxx
|
|
|
Xxxxxx
Xxxx, Xxxxxxxxxx 00000
|
Xxxxxx
Xxxx, Xxxxxxxxxx 00000
|
|
|
Attention:
Xxxxxx Xxxxxxx
|
Attention:
|
Xxxxx
Xxxx
|
|
President
|
||
Either
party may change such address by written notice by registered mail to the
other.
|
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26.
|
SUCCESSORS
IN
INTEREST
|
The
covenants herein contained shall, subject to the provisions as to assignment,
apply to and bind the heirs, successors, executors, administrators and assigns
of all the parties hereto.
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27.
|
FORCE
MAJEURE
|
If
either
party hereto shall be delayed or prevented from the performance of any act
required hereunder by reason of acts of God, strikes, lockouts, labor troubles,
inability to procure materials, restrictive governmental laws or regulations
or
other cause without fault and beyond the control of the party obligated
(financial inability excepted), performance of such act shall be excused
for the
period of the delay and the period of such delay; provided, however, nothing
in
this Section contained shall excuse Tenant from the prompt payment of any
rental
or other charge required of Tenant hereunder except as may be expressly provided
elsewhere in this Lease.
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|
28.
|
PARTIAL
INVALIDITY
|
If
any
term, covenant, condition or provision of this Lease is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the provisions hereof shall remain in full force and effect and shall in
no way
be affected, impaired or invalidated thereof.
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29.
|
MARGINAL
CAPTIONS
|
The
various headings and numbers herein and the grouping of the provisions of
this
Lease into separate Sections and Paragraphs are for the purpose of convenience
only shall not be considered a part hereof.
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|
30.
|
TIME
|
Time
is of the essence
in the performance and interpretation of this Lease.
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|
31.
|
SUBORDINATION,
ATTORNMENT
|
This
Lease and all rights of Tenant herein shall be subordinate to the lien of
any
mortgage, or deed of trust, to any bank, insurance company or other lending
institution, now or hereafter in force against the land and building of which
the Premises are a part, and upon any buildings hereafter placed upon the
land
of which the Premises are a part, and to all advances made or hereafter to
be
made upon the security thereof. Tenant agrees to execute any writing required
by
Landlord or its lender(s) to evidence such subordination.
In
the event any proceedings are brought for foreclosure, or in the event of
.the
exercise of the power of sale under any mortgage or deed of trust made by
the
Landlord covering the Premises, Tenant shall attorn to the purchaser upon
any
such foreclosure or sale and recognize such purchaser as the Landlord under
this
Lease. The provisions of this Section to the contrary notwithstanding and
so
long as Tenant is not in default hereunder, this Lease shall remain in full
force and effect for the full Term.
Within
ten (10) days after request therefor by Landlord, or in the event that upon
any
sale, assignment or hypothecation of the Premises or the land thereunder
by the
Landlord, an offset statement shall be required from Tenant, Tenant agrees
to
deliver in recordable form a certificate addressed to any such proposed
mortgagee or purchaser or to the Landlord certifying that this Lease is in
full
force and effect (if such be the case) and that there are no differences
or
offsets thereto or stating those claimed by Tenant.
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32.
|
BROKERAGE
|
Tenant
shall be responsible for all brokerage fees, if any, resulting from this
Lease,
and Tenant agrees to indemnify and hold harmless Landlord from and against
all
such fees and costs.
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33.
|
WARRANTIES
|
LANDLORD
HAS MADE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, NOR DOES LANDLORD
MAKE ANY HEREIN REGARDING THE CONDITION OF THE PREMISES OR ANY PART THEREOF,
INCLUDING, WITHOUT LIMITATION, THE PREMISES' FITNESS FOR ANY PARTICULAR USE
OR
OCCUPANCY. LANDLORD FURTHER HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
AND/OR WARRANTIES, BOTH EXPRESS AND IMPLIED IN LAW, WITH RESPECT TO THE
CONDITION, HABITABILITY, OR SUITABILITY OF THE PREMISES, OR ANY PART THEREOF,
FOR THE USE AND PURPOSES PERMITTED HEREUNDER OR ANY OTHER PURPOSE, AND LANDLORD
DOES NOT REPRESENT OR WARRANT THAT THE PREMISES OR ANY PART THEREOF COMPLIES
WITH ANY LAWS RELATING TO THE USES AND OCCUPANCY THEREOF. TENANT FULLY
UNDERSTANDS THAT THERE MAY BE CERTAIN REPAIRS AND ALTERATIONS REQUIRED FOR
THE
CONTINUED LICENSING AND/OR CERTIFICATION OF THE PREMISES, AND TENANT SHALL
BE
FULLY RESPONSIBLE FOR THE COST OF AND FOR EFFECTUATING ANY AND ALL ALTERATIONS,
REPAIRS AND REPLACEMENTS REQUIRED TO BE MADE FOR THE CONTINUED LICENSING
AND
CERTIFICATION OF THE PREMISES, AS WELL AS ALL ALTERATIONS AND REPLACEMENTS
REQUIRED TO MAINTAIN AND PRESERVE THE PREMISES IN THE CONDITION CALLED FOR
HEREIN. THE PARTIES HEREBY ACKNOWLEDGE THAT LANDLORD IS NOT RESPONSIBLE FOR,
AND
TENANT SHALL HOLD LANDLORD HARMLESS IN CONNECTION WITH, ANY SUCH REPAIRS,
REPLACEMENTS, AND ALTERATIONS TO THE PREMISES FOR ANY REASON
WHATSOEVER.
Initials
of Tenant /s/ JA
|
|
34.
|
RIGHT
OF FIRST
REFUSAL,
|
In
consideration of this Lease, Paragraph 2 of the Amendment to the Prior Lease,
entitled "Option to Purchase," is hereby expressly deleted and terminated
upon
the execution of this Lease; and, as a part thereof, Tenant waives and
relinquishes all rights and/or interest in the Premises created thereby.
In
place thereof, Landlord hereby grants to Tenant a right of first refusal
as set
forth in Subsection 34.1 immediately below.
34.1
During the Term of this Lease, in the event that Landlord shall decide to
sell
the Premises, Tenant shall have a right of first refusal to match the terms
of
any offer of a third party to purchase the Premises from Landlord, on the
following terms and conditions:
|
|
(a)
|
Landlord
shall deliver to Tenant a copy of a legitimate -written offer of
a third
party (the"Offer") to whom the Landlord proposes to sell the Demised
Premises; which Offer shall contain all basic deal points of such
Offer;
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|
|
(b)
|
Tenant
shall have fifteen (15) calendar days after its receipt of the
Offer
within which to exercise
its right of first refusal; and shall exercise such right
by
delivery to the Landlord of a written notice of intent to exercise
such
right.
|
|
|
(c)
|
If
Tenant exercises its right to purchase the Premises, it shall be
upon the
same terms, conditions and timing as set forth in the Offer;
and
|
|
|
(d)
|
If
Tenant fails to exercise its right of first refusal within the
time limit
imposed above, Tenant's right of first refusal shall be forever
waived and
terminated.
|
34.2
The
parties acknowledge that, as part of the Prior Lease (as provided in Sections
21
and 29 of the Prior Lease),
Tenant paid to Landlord
a refundable "Option Payment" equal to Two
Hundred Fourteen Thousand Dollars ($214,000.00). In light of the termination
of
the "Option to Purchase," as provided in Section 34 of this Lease, the parties
hereby agree to reallocate the Option Payment, as follows:
(a) A
portion of the Option Payment equal to One Hundred Seven Thousand Dollars
($107,000.00) shall be deemed the Option Payment for the "Option to Purchase,"
for the term from the date of execution of the Prior Lease through October
31,
1994. This portion shall be deemed fully earned by Landlord, and shall not
be
subject to any refund, credit or offset.
(b) The
remaining portion of the Option Payment, in the amount of One Hundred Seven
Thousand Dollars ($107,000.00), effective upon the commencement of the Term
of
this Lease, shall be deemed to be a refundable security deposit (the "Security
Deposit") under this Lease, and not prepaid rent. Landlord shall not be required
to keep the Security Deposit separate from Landlord's other accounts and
no
trust relationship is created with respect to the Security Deposit. In no
event
shall the Security Deposit be in lieu of, constitute, or excuse Tenant from
paying any portion of the monthly rent, additional rent, or of any other
sums
payable by Tenant under this Lease, at any time during the Term of this Lease.
The application of the Security Deposit by Landlord shall in no way be a
bar or
defense to any action in unlawful detainer
for
the recovery of the Premises or any other action which Landlord may at any
time
institute for the breach of this Lease. No interest shall accrue or be payable
by Landlord on the Security Deposit. Landlord may, at Landlord's option,
apply
all or any part of the Security Deposit to any unpaid monthly rent, additional
rent, or any other sums due from Tenant under this Lease, or to cure any
other
defaults of Tenant hereunder. Upon expiration of the Term of this Lease,
and
provided Tenant is not then in default under this Lease, or no event has
occurred which Could give rise to a default with the giving of notice and/or
the
passage of time, Landlord shall return that portion of the Security Deposit
to
Tenant which has not been so applied by Landlord. Should all or any portion
of
the Security Deposit be applied by Landlord, pursuant to this Section 34.2,
Tenant shall, upon 'the written demand of Landlord promptly remit to Landlord
a
sufficient amount of cash to replenish the Security Deposit to the amount
of the
Security Deposit immediately prior to such application, and Tenant's failure
to
do so within five (5) days after receipt of such demand shall constitute
a
further material default and breach under this Lease.
(c) As
a further part here of Tenant acknowledges, that security deposits have been
delivered by Tenant pursuant to each of the Other Leases (as defined in Section
12 of this Lease), in addition of the Security Deposit herein. In the event
that
the Security Deposit herein has been depleted, then Landlord shall be expressly
permitted and authorized, but not obligated, to apply funds from the security
deposits of any or all of the Other Leases to replenish the Security Deposit
under this Lease. Such application of security deposits from any of the Other
Leases shall in no manner limit or waive Tenant's obligation under this Lease
to
replenish the Security Deposit herein, and likewise shall further require
Tenant
to immediately replenish the security deposit(s) applied from any of the
Other
Leases. Upon the expiration of this Lease, if any of the security deposit(s)
provided for in the Other Leases are subject to the replenishment as provided
in
this Section 34 or said Other Lease, and further provided that Tenant would
otherwise be entitled to the return of all or a portion of the Security Deposit,
the Security Deposit herein shall be transferred to the Other Leases in the
amount(s) necessary to replenish said security deposit(s), and only the balance
of the Security Deposit after such transfer, if any, shall be returned to
Tenant. Likewise, if one or more of the Other Leases shall expire, and the
Security Deposit herein shall be subject to replenishment as provided above,
any
portion of the security deposit(s) for such Other Leases shall be transferred
to
the Security Deposit herein to replenish same, and only the balance thereof,
if
any, shall be returned to Tenant. Tenant expressly agrees and acknowledges
that
any transfer of funds between the Security Deposit and the security deposit(s)
of any or all of the Other Leases pursuant to the provisions of this Section
34.2 (c) shall be deemed a good faith retention of such funds by Landlord.
Tenant further acknowledges and agrees to waive any and all of the provisions
of
California Civil Code Section 1950.7, or successor provision, which shall
in any
manner conflict with this Section 34.2(c).
|
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35.
|
NOVATION
|
It
is the
intent of the parties hereto that a novation of the Prior Lease occur upon
execution of this Lease, and that the Prior Lease shall be extinguished hereby,
effective November 1, 1994.
IN
WITNESS WHEREOF, the parties have duly executed this Lease as of the day
and
year first above written.
|
“LANDLORD”
|
“TENANT”
|
|||
|
CLAIREMONT
ROYALE, a California limited partnership
|
||||
|
/s/
Xxxxx Xxxx
|
||||
|
Xxxxx
Xxxx, an individual
|
||||
|
By:
|
/s/ Xxxxxx
Xxxxxxx
|
PACIFICA
MANOR, INC., A California corporation
|
||
|
Xxxxxx
Xxxxxxx, as Trustee
|
||||
|
of
The Xxxxxx X. Xxxxxxx
|
||||
|
Trust,
a General Partner
|
||||
|
By:
|
/s/
Xxxxx Xxxx
|
|||
|
Xxxxx
Xxxx, President
|
||||
