LEASE AGREEMENT (Existing Facilities)
Exhibit
10.28.7
BROOKHURST
ROYALE/Summerville
(Existing
Facilities)
THIS
LEASE AGREEMENT (this "Lease") is made and entered into as of the 1st
day
of March,
2005, by and between BROOKHURST ROYALE, LLC, a California limited liability
company ("Landlord"), and SUMMERVILLE 13, LLC, a Delaware limited liability
company ("Tenant"), with reference to the following facts and
circumstances:
A. WHEREAS,
Landlord owns the "Premises" hereinafter described.
B. WHEREAS,
Tenant is experienced in the management and operation of residential care
facilities for the elderly, as defined in California Health & Safety Code,
Division 2, Chapter 23.2, Section 1569.2, and related California statutes
and
regulations.
C. WHEREAS,
Tenant desires to lease the Premises from Landlord and Landlord desires to
lease
the Premises to Tenant pursuant to the provisions of this Lease, for the
purpose
of Tenant's operation of a duly licensed residential care facility for the
elderly (including Alzheimer's care) (an "RCFE").
D. WHEREAS,
Landlord is entering into this Lease in reliance upon the particular skills,
knowledge and experience of Tenant in the operation of an RCFE.
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 receipt and sufficiency of which is hereby acknowledged, the parties
hereto
do hereby agree as follows:
1. LEASE
OF
PREMISES. Subject to the terms and conditions of this Lease,
Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, for the
Term
(as defined below) that certain real property described in Exhibit "A" attached
hereto, which has been improved with an approximately one hundred seventeen
(117) unit RCFE, and related personal property (as described in Paragraph
10
below) (collectively, the "Premises"). The Premises are located at 00000
Xxxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxx, and shall be commonly known as "Brookhurst
Royale."
2. TERM
.The term of
this Lease (the "Term") shall be for twenty (20) years, commencing on May
1,
2005; provided that Tenant has received authorization from the California
Department of Social Services Community Care Licensing to operate the Premises
("Commencement Date"), and expiring on April 30, 2025.
3. MONTHLY
RENT. Tenant
shall pay to Landlord rental for the Premises, without
deduction, set off, prior notice or demand, as follows:
3.1 Monthly
Rent. Subject
to adjustment under Paragraph 4 below, Tenant shall
pay
to Landlord monthly rent (the "Monthly Rent") in the amount set forth below
commencing on May 1, 2005. The Monthly Rent set forth below shall be due
and
payable in advance on the first day of each month. Concurrently with the
payment
of Monthly Rent, Tenant shall deliver to Landlord rent rolls and occupancy
statements for the prior monthly period.
|
Monthly
Period
|
Monthly
Rent
|
|
|
May
2005 through October
|
$65,00
|
|
|
2005
November 2005 through
|
0
|
|
|
April
2006 May 2006 through
|
$70,00
|
|
|
October
2006 November
|
0
|
|
|
2006
through April 2007
|
$75,00
|
3.2 Rent
Payment Address, Late
Payment Charge. All Monthly Rent and other
charges payable by Tenant to Landlord hereunder (collectively, any "Payment")
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. Landlord shall have the right at its election
at any
time during the Term of this Lease to require any and all Payments to be
made by
direct payment from Tenant's bank account, and Tenant shall execute and provide
any documentation necessary to authorize such direct payment. Tenant
acknowledges that late payment by Tenant to Landlord of any Payment 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 Payment is not received by Landlord within seven
(7)
calendar days after its due date, Tenant shall pay to Landlord a late charge
equal to six percent (6%) of such late Payment. The parties agree that this
late
charge represents a fair and reasonable estimate of the costs that Landlord
will
incur by reason of any late Payment by Tenant. Acceptance of any late charge
shall not constitute a waiver of Tenant's default with respect to the late
Payment, nor prevent Landlord from exercising any of the other rights and
remedies available to Landlord hereunder, at law or in equity.
3.3 Monthly
Rent "Triple Net" to
Landlord. 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
each
month during the Term (unless 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, except to the extent expressly provided herein.
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), license fees and
obligations of every kind and nature whatsoever relating to the use and/or
operation of the Premises by Tenant which may accrue or become due during
or out
of the Term shall be paid by Tenant, and Tenant shall indemnify, defend and
hold
Landlord harmless from and against any liability for the same.
4. MONTHLY
RENT
ADJUSTMENTS.
4.1 CPI
Adjustment.
(a) Commencing
May 1, 2007, and annually thereafter throughout the remainder
of the Term, the Monthly Rent then payable hereunder shall be adjusted,
compounded annually, by the increase, if any, in the Consumer Price Index
published by the Bureau of Labor Statistics of the United States Department
of
Labor for All Urban Consumers (1982-84=100) "All Items," Los Angeles-
Riverside-Orange County, California (the "CPI"), which adjustments shall
be
subject to the limitations hereinafter set forth. The adjustments to the
Monthly
Rent provided for herein shall be calculated as follows: for each adjustment,
the Monthly Rent payable immediately prior to the adjustment shall be multiplied
by a fraction, the numerator of which shall be the CPI for the calendar month
that is three (3) months prior to the lease year for which the adjustment
is
being calculated (in each case the "Comparison Index"), and the denominator
of
which shall be the CPI for the calendar month that is three (3) months prior
to:
(a) May 1, 2006, in the case of the first year of the first adjustment, or
(b)
the date on which the immediately preceding adjustment was calculated in
the
case of the subsequent adjustments (in either case, the "Base Index"). The
sum
so calculated shall constitute the adjusted Monthly Rent; provided,
however, that the
Monthly Rent shall not be decreased as a result of any adjustment, and no
annual
adjustment shall cause the Monthly Rent in effect prior to the adjustment
to
increase by less than three percent (3%) or more than six percent (6%) per
annum.
(b) The
following sample calculation is set forth for illustration purposes only,
and
is based upon the assumption that the commencement date of the Lease would
be
May 1, 2005, the CPI for February, 2006 will be 200 (the Base Index for the
first adjustment), the CPI for February, 2007 will be 208 (the Comparison
Index
for the first adjustment and the Base Index for the second adjustment), the
CPI
for February, 2008 will be 213 (the Comparison Index for the second adjustment
and the Base Index for the third adjustment), and the CPI for February, 2009
will be 227 (the Comparison Index for the third adjustment and the Base Index
for the fourth adjustment); then, based upon such assumptions:
(i)
the adjusted Monthly Rent as of May 1, 2007 (the date upon which the first
adjustment would take effect) would be $83,200.00 ($80,000.00 x 208/200 =
$83,200.00);
(ii)
the adjusted Monthly Rent as of May 1, 2008 (the date upon which the second
adjustment would take effect) would be $85,696.00 ($83,200.00 x 213/208 =
$85,200 -however, the second adjustment would trigger the three percent
(3%) minimum increase limitation because the foregoing CPI calculation would
otherwise produce an adjustment less than the annual 3% minimum increase,
therefore the substituted calculation would be as follows: $83,200.00 x 1.03
=
$85,696); and
(iii)
the adjusted Monthly Rent as of May 1, 2009 (the date upon which the third
adjustment would take effect) would be $90,837.76 ($85,696.00 x 227/213 =
$91,328.60 -- however, the third adjustment would trigger the six percent
(6%)
CPI increase limitation because the foregoing CPI calculation would otherwise
produce an adjustment in excess of the limitation, therefore the substituted
calculation would be as follows: $85,696.00 x 1.06 =
$90,837.76).
(c) Pending
receipt of the required CPI index and determination of the actual adjustment,
Tenant shall pay to Landlord an estimated adjusted Monthly Rent, as reasonably
determined by Landlord by reference to the then available CPI figures. Any
overpayment by Tenant shall be credited against the next installment of Monthly
Rent due, and any underpayment shall be due and payable by Tenant within
five
(5) business days after determination of the adjustment. Landlord's failure
to
request payment of an estimated or actual adjustment shall not constitute
a
waiver of the right to any adjustment provided for in this Lease. In the
event
that the compilation and/or publication of the CPI shall be transferred to
any
other governmental department, bureau or agency, or shall be discontinued
or
materially changed, then the index most nearly the same as the discontinued
or
materially changed index, as determined by Landlord, shall be used to calculate
the Monthly Rent adjustments contemplated hereunder.
5. SECURITY
DEPOSIT. Upon execution of this Lease, Tenant shall deliver
to
Landlord (i) the sum of Four Hundred Fifty Thousand Dollars ($450,000) by
wire
transfer or cashier's check and (ii) commencing on May I, 2007 through and
including February 1, 2010, in advance on a monthly basis, the sum of $3,000,
until such time as the additional deposits shall reach a total of $100,000
(collectively, the "Security Deposit"), as security for Tenant's prompt payment
and performance of all of Tenant's obligations hereunder (and not as prepaid
rent). Landlord shall not be required to keep the Security Deposit separate
from
Landlord's other accounts and no trust relationship shall be created with
respect to the Security Deposit. In no event shall the Security Deposit be
in
lieu of or excuse Tenant from paying any portion of the Monthly Rent or any
other Payment due and payable by Tenant hereunder at any time during the
Term of
this Lease. The taking 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 possession
of the Premises or any other right or remedy that Landlord may at any time
exercise upon Tenant's Default or breach of this Lease. No interest shall
be
payable by Landlord on the Security Deposit. Without waiving any of Landlord's
rights or remedies hereunder, at law or in equity, Landlord may, at Landlord's
option, apply all or any part of the Security Deposit to any unpaid Monthly
Rent
or other Payment due and payable by Tenant from time to time under this Lease
(including but not limited to late charges), or to cure any other Default
or
breach of Tenant hereunder (including, but not limited to, the cost of
maintenance and repair of the Premises). Upon the expiration of the Term
of this
Lease and Tenant's prompt surrender of possession of the Premises in accordance
with the terms of this Lease, and provided that Tenant is not then in default
hereunder (and/or no event has occurred which, with the giving of notice
or the
passage of time, could give rise to a default hereunder), Landlord shall
return
any portion of the Security Deposit to Tenant that has not been so applied
by
Landlord. Should all or any portion of the Security Deposit be so applied
by
Landlord at any time from time to time during the Term of this Lease, Tenant
shall, upon the written request of Landlord promptly remit to Landlord an
amount
sufficient to restore 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 Landlord's written request therefor shall constitute
a
material default of Tenant under this Lease.
6. REAL
ESTATE AND PERSONAL
PROPERTY TAXES. In addition to all Payments
or other charges payable by Tenant hereunder, Tenant shall promptly pay all
real
estate taxes, levies and assessments imposed, levied upon or assessed against
the Premises throughout the Term of this Lease. 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
(including, without limitation, any increases thereto occasioned by any sale
or
transfer of ownership thereof), but shall not include personal income taxes,
inheritance taxes or franchise taxes levied against the Landlord. In addition,
throughout the Term of this Lease, 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. Tenant shall reimburse
Landlord for real estate taxes paid directly by Landlord, which reimbursement
shall be on or before the later of: (i) ten (10) days prior to the date
delinquencies would be assessed by the taxing authority on such tax, if unpaid;
or (ii) five (5) business days after written notice from Landlord to Tenant
of
the amount of Tenant's required tax reimbursement.
7. INSURANCE.
7.1 Throughout
the entire Term hereof, Tenant shall, at its sole cost and expense, but for
the
mutual benefit of Landlord and Tenant, maintain general public liability
insurance (including professional liability coverage) 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 Three Million Dollars ($3,000,000.00) in respect to any one accident
and to the limit of not less than Two Million Dollars ($2,000,000.00) in
respect
to property damage.
7.2 Throughout
the entire Term of this Lease, Tenant shall, at its cost and expense,
maintain fire and extended coverage insurance in an amount equal to the full
replacement value of the Premises (exclusive of foundation and excavation
costs), as such value shall be determined or revised by Landlord in its
reasonable discretion from time to time. 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, Tenant shall 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, as amended or supplemented by any subordination,
non-disturbance and attornment agreement executed by and between Tenant and
such
mortgagee. In addition, Tenant, at its own cost, shall either by separate
policy
or, at Landlord's option, by endorsement to a policy already carried, maintain
insurance coverage on all Standard Furnishings, as well as any personal property
owned by Landlord or Tenant and kept in, on or about the Premises, which
insurance shall be full replacement cost coverage with a deductible not to
exceed $25,000 per occurrence, and the proceeds of such insurance shall be
used
by Tenant solely for the replacement of Standard Furnishings and other personal
property of Landlord or Tenant kept in, on or about the Premises. It is further
understood and agreed that Tenant hereby waives any right of recovery from
Landlord, its principals, agents and/or employees for any loss or damage
(including consequential loss) resulting from any of the perils that would
have
been insured against in the insurance policies to be maintained by Tenant
hereunder (except if caused by the gross negligence or willful misconduct
of
Landlord or its agents, employees or contractors), whether or not such coverage
is actually in place at the time of such loss.
7.3 Throughout
the entire Term of this Lease, Tenant, at its sole cost and expense,
shall maintain rental interruption insurance for the benefit of Landlord
and
business interruption or loss of income insurance on its own behalf for a
coverage period of at least twelve (12) months. Landlord shall be named as
an
additional insured and all proceeds of such policy shall be paid jointly
to
Landlord and Tenant. Without limitation, such policy shall be maintained
at
coverage levels sufficient to perform all of the continuing monetary obligations
of Tenant under this Lease.
7.4
Throughout the entire Term of this Lease, Tenant, at its sole cost and expense,
shall maintain workers' compensation insurance in the amount required by
statute, together with employer's liability coverage with a liability amount
not
less than One Million Dollars ($1,000,000) per occurrence.
7.5 All
such policies of insurance to be maintained by Tenant hereunder shall
be
issued
in the name of Tenant and shall name Landlord, Royale Management Co., LLC
and
Landlord's lender (if any) as an additional insured, and Tenant shall promptly
deliver copies of all such policies of insurance to 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. If Tenant fails to provide evidence of insurance after
five
(5) business days written notice from Landlord, Landlord shall have the right,
but not the obligation, to place such insurance and the cost thereof shall
be
reimbursed by Tenant to Landlord as additional rent hereunder within two
(2)
business days of notice to Tenant of the cost thereof. Tenant's failure to
maintain any of the insurance coverage to be maintained by Tenant hereunder
or
to reimburse Landlord for the cost thereof shall constitute a material default
of Tenant under this Lease in accordance with the terms of Section 18
below.
8. IMPOUND
PAYMENTS. At
Landlord's option or upon Tenant's request, Landlord
may, at any time, establish an impound account and require that Tenant pay
into
such account, in advance on a monthly basis, an estimated amount sufficient
in
Landlord's reasonable judgment to cover all real and personal property taxes
and
all insurance premiums for insurance to be maintained by Tenant with respect
to
the Premises (such monthly payments being referred to hereinafter as "Impound
Payments"). All Impound Payments received by Landlord shall be held in an
institution chosen by Landlord, in its sole discretion, provided that the
deposits of such institution are insured by a federal or state agency. Landlord
shall be permitted to commingle any such Impound Payments with its own funds
or
the funds of other tenants of Landlord (or Landlord's affiliates), as Landlord
shall determine in its sole discretion. Landlord shall apply the Impound
Payments toward payment of the real estate taxes, personal property taxes
and
insurance premiums otherwise payable by Tenant hereunder; provided, however,
that Landlord shall only be obligated to so apply the Impound Payments
to
the extent of the balance of Impound Payments actually received by Landlord
from
Tenant. Any Impound Payments received or held by Landlord hereunder shall
not
bear interest for Tenant's benefit. Upon Landlord's exercise of its option
to
collect such Impound Payments from Tenant, Tenant's prompt payment of such
Impound Payments to Landlord shall be a material covenant of Tenant and
additional rent under this Lease. Landlord shall provide to Tenant an annual
accounting of any Impound Payments received by Landlord, reflecting all credits
and debits to the balance of the Impound Payments and the purpose for which
each
debit to such balance was made. If the balance of the Impound Payments held
by
Landlord, together with the future monthly Impound Payments payable by Tenant
prior to the due dates of real estate taxes, personal property taxes and
insurance premiums shall exceed the amount required to pay said real estate
taxes, personal property taxes and insurance premiums as they fall due, at
Landlord's option, such excess may either be repaid to Tenant or credited
toward
the next monthly Impound Payment(s) due from Tenant. If the balance of the
Impound Payments held by Landlord, together with the future monthly Impound
Payments payable by Tenant prior to the due dates of real estate taxes, personal
property taxes and insurance premiums shall be insufficient to pay real estate
taxes, personal property taxes and insurance premiums as they fall due, Tenant
shall pay to Landlord any amount necessary to make up the deficiency within
three (3) business days of Landlord's request.
9. UTILITIES.
Tenant shall contract directly for and pay before delinquency all charges
relating to 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,
unless such interruption is caused by the gross negligence or willful misconduct
of Landlord or its agents, employees or contractors.
10. STANDARD
FURNISHINGS. Landlord
has
provided and/or installed all standard furnishings, fixtures and equipment
reasonably necessary for the operation of an RCFE. Tenant acknowledges and
agrees that all standard furnishings, fixtures and equipment and vehicles
currently at the Premises have been provided by Landlord and are as more
particularly described on Exhibit "B" attached hereto and shown on a video
taken, _________ 2005 hereby incorporated herein and made a part hereof
(collectively, the "Standard Furnishings"). Tenant acknowledges and agrees
to
timely make all payments to NBR International Leasing Co. in connection with
the
2003 Starcraft Starlite Van License No. 5037KWD ("Vehicle"). Notwithstanding
the
foregoing, title to the Vehicle shall remain with Landlord and such vehicle
(or
comparable replacement thereof) shall be returned to Landlord at the expiration
or earlier termination of this Lease. Tenant hereby acknowledges that the
Standard Furnishings provided by Landlord are of such nature and quality
as are
customarily found in similar facilities owned by Landlord (or Landlord's
affiliates) and leased to other operators.
11. USE
11.1
Use. Tenant
shall use the facility for the operation of a licensed RCFE, and for no other
purpose whatsoever without Landlord's prior written consent, which consent
may
be withheld in Landlord's sole and absolute discretion. Tenant shall not
do,
bring or keep anything in, on or about the Premises that will cause a
cancellation of any insurance maintained by either Landlord or Tenant with
respect to the Premises or any personal property located or used thereon,
and
Tenant shall comply with all requirements imposed by the insurance companies
issuing such insurance. Tenant shall not use the Premises in any manner that
will constitute waste of the Premises or a nuisance or unreasonable annoyance
to
owners or occupants of adjacent properties. 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. 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. Tenant shall comply with,
and
the leasehold created by this Lease shall at all times be subject to, all
covenants, conditions, restrictions, easements and rights of way affecting
the
Premises or the real property on which the Premises are located. At Landlord's
request, Tenant shall furnish any bond which may be required by law in
connection with the holding of any funds from residents, including resident's
trust funds, and an accounting therefor. Tenant shall be fully responsible
for
such funds, and agrees to indemnify, defend and hold Landlord harmless from
and
against any losses, liabilities, costs or expenses arising in connection
therewith. 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.
11.2
Licensing;
Continuous
Operation. Tenant
shall
cause the Premises to be and remain
licensed and certified by the applicable federal, state and/or local
governmental agencies as an RCFE, and shall maintain such license(s) and
certifications in good standing throughout the Term of this Lease. Provided
that
Tenant is given access to the current Executive Director and receives a copy
of
the most recent licensing application, then within ten (10) days of the
execution of this Lease, Tenant shall, at Tenant's expense, promptly file
and
diligently pursue a complete application with the California Department of
Health Services for a license to operate an RCFE on the Premises. Tenant's
failure to timely file such application shall constitute a material default
of
Tenant under this Lease. Tenant and Xxxxxx Management Co., LLC shall enter
into
an interim management agreement to allow Tenant to utilize the existing RCFE
license for a period not to exceed four (4) months.
Tenant
shall promptly forward copies to Landlord of any and all notices received
by
Tenant from any applicable federal, state and/or local governmental licensing
agency with respect to the status of Tenant's license to operate an RCFE
on the
Premises. From and after Tenant's acceptance of possession of the Premises
and
at Tenant's sole cost and expense, Tenant shall continuously operate the
Premises as an RCFE without interruption throughout the Term hereof (subject
to
reasonable periods relating to casualty, condemnation, force majeure or
renovations), and Tenant shall cause the Premises to comply with any and
all
requirements and/or regulations governing the operation of an RCFE, including,
without limitation, Tenant's obligations to comply with Applicable Laws and
maintain and repair the Premises, as hereinafter set forth. Tenant's failure
to
provide Landlord, within five (5) business days of Tenant's receipt thereof,
with copies of any notice(s) received by Tenant from any applicable federal,
state and/or local governmental licensing agency with respect to the status
of
Tenant's license to operate an RCFE on the Premises, or Tenant's failure
to
continuously operate (subject to reasonable periods relating to casualty,
condemnation, force majeure or renovations) an RCFE on the Premises throughout
the Term of this Lease (whether voluntarily, by decree of any licensing agency
or by operation of law) shall each independently constitute a material default
hereunder in accordance with the terms of Section 18, and shall, at Landlord's
option by written notice to Tenant, immediately terminate this
Lease.
11.3
Hazardous
Substances. 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 other materials that are or may be hazardous or injurious
to
the environment or to persons or property (collectively "hazardous substances").
Excluded from this prohibition are hazardous substances of the type commonly
used in an RCFE in California, subject to the condition that all such substances
used by Tenant on the Premises are used, stored, and disposed of in accordance
with all Applicable Laws (as such term is defined in Paragraph 13 below).
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 or similar 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 thereto.
12. MAINTENANCE
AND REPAIR;
CAPITAL IMPROVEMENTS; SURRENDER.
12.1
Maintenance of
Premises.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, the roof, plate glass, wiring, plumbing, heat and air conditioning
units, parking and service areas, landscaping, elevator and the approaches
thereto and appurtenances thereof, including all adjacent sidewalks and alleys.
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 reasonably required by Landlord. Tenant
acknowledges that Tenant's maintenance and repair obligations hereunder shall
include replacement of carpet, paint and wallpaper at the expiration of their
useful life if replacement has not previously been required hereunder.
Notwithstanding the foregoing, all carpet in the Premises shall have been
replaced within the last 3 years prior to the termination of this Lease,
whether
by expiration of the Term or otherwise. Landlord shall not have any
responsibility to maintain the Premises or any part thereof, whether structural
or non-structural, interior or exterior. Tenant hereby waives all rights
under
any applicable law, rule or ordinance that provides or allows for Tenant's
right
to make repairs and deduct the cost of such repairs from the Monthly Rent
or any
other Payment due and payable by Tenant hereunder. Landlord reserves and
retains
the right to lease the roof and exterior portions of the Premises (provided
such
lease does not materially interfere with Tenant's signage rights pursuant
to
Section 23.2) to third parties for the installation of satellite dishes,
antenna, billboards, among other things and Tenant shall not be entitled
to any
abatement of Monthly Rent and/or any portion of the revenue from such leases;
provided, Tenant shall have the right to reasonably approve: (i) the type
of
materials and method of attachment, (ii) the cosmetic impact of any attachment
such that it will not negatively impact the marketability of the Premises,
and
(iii) the content, so that no disreputable or competitive advertisements
are
installed. Furthermore, Landlord shall be responsible for any damage and
any
ongoing required maintenance directly caused by such installation.
12.2
Maintenance of
Personal Property. 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, including, without
limitation, all repairs, alterations, replacements and additions to the Premises
required by law and/or as necessary to obtain and maintain licensing for
the
operation of the Premises as an RCFE and all Standard Furnishings located
on the
Premises at the commencement of the Term (as more particularly described
on
Exhibit "B" and shown on the video referenced in Paragraph 10 above). Tenant
shall have the right to install on the Premises any and all additional equipment
and fixtures that Tenant desires to install thereon and which are necessary
or
convenient to Tenant's use of the Premises as permitted herein, without
Landlord's consent, provided that Tenant shall provide Landlord with a detailed
description of all of such additional equipment (as well as any subsequent
replacements thereto) so that such additional equipment may be distinguished
from the Standard Furnishings to be surrendered by Tenant to Landlord upon
the
expiration or sooner termination of this Lease. All such additional property
so
installed by Tenant shall remain Tenant's property and, provided Tenant is
not
in default hereunder, may be removed by Tenant from the Premises. Tenant
shall
not remove any of the Standard Furnishings installed by Landlord and/or any
replacements or substitutions therefor, or any part thereof, from the Premises,
without the prior written consent of Landlord. As a part of Tenant's maintenance
obligations hereunder, Tenant shall purchase and replace, with substitutes
of
equal or higher quality, any worn out or broken items of Standard Furnishings
throughout the Term at Tenant's sole cost and expense. Such items being replaced
by Tenant, to the extent that they are in substitution for items originally
provided by Landlord, shall immediately become the property of Landlord.
Tenant
agrees to periodically provide Landlord with a detailed list of all such
replacements or substitutions, and upon written request from Landlord, to
execute any and all documents necessary to fully evidence Landlord's ownership
of all such personal property
12.3
Capital Improvement
Fund. During every twelve (12) month period commencing May 1, 2005,
Tenant shall complete at least $40,000 of capital improvements at the Premises.
On or before May 1, 2006 and annually thereafter, Tenant shall deliver to
Landlord: (i) a schedule with detailed descriptions and documentation reasonably
satisfactory to Landlord evidencing the amount of capital improvements completed
in the prior 12-month period commencing May 1; (ii) if such amount is less
than
$40,000, cash equal to the difference between $40,000 and the total of the
documented, completed capital improvements; and (iii) requests (if any) for
disbursement from the Capital Improvement Fund in accordance with the terms
and
provisions of this Section 12.3. Such funds shall be held by Landlord in
a
"Capital Improvement Fund", which shall not bear interest for the benefit
of
Tenant. If Tenant completes more than $40,000 of capital improvements at
the
Premises during a 12-month period commencing May 1, Tenant shall be entitled,
upon prior written request to Landlord and subject to Landlord's reasonable
approval, to either (1) withdraw funds (to the extent such funds have been
deposited by Tenant in prior years) from the Capital Improvement Fund to
cover
the costs in excess of $40,000 incurred by Tenant for capital improvements
to
the Premises; provided, further each such withdrawal request shall be for
a
minimum of $5,000 and each item comprising such request shall be for a minimum
of $1,000, or (2) to the extent insufficient funds exist in the Capital
Improvement Funds, Tenant shall be entitled to a "Capital Improvement Credit",
which may be carried forward and applied against the required $40,000 of
capital
improvements to be completed in a subsequent 12-month period.
12.4
Surrender.Tenant
hereby acknowledges and agrees that upon the commencement date of the Term
hereof, the Premises are a fully-equipped and furnished facility in a manner
consistent with a fully licensable facility for operation as an RCFE. As
an
express and material condition precedent to Landlord's agreement to enter
into
this Lease, and as a material element of consideration hereunder, Tenant
hereby
agrees and covenants that Tenant shall surrender possession of the Premises
to
Landlord upon the expiration or any sooner termination of this Lease in good
and
complete condition, equivalent to or better than the condition as of the
date
Lessee first took possession of the Premises at the commencement of the Lease
and fully operable and leasable as an RCFE, and, as a part thereof, Tenant
shall
also surrender possession of and return to Landlord, in good and complete
condition and repair (equivalent to or better than the condition at the
commencement of the Term) all Standard Furnishings installed on the Premises
at
the commencement of the Term (as more particularly described on Exhibit "B"
and
shown on the video referenced in Paragraph 10 above), and any and all
replacements and substitutions therefor, all of which shall be and remain
the
property of Landlord.
13. COMPLIANCE
WITH LAWS
Tenant shall, at Tenant's sole cost and expense, comply with all municipal,
state and federal laws, ordinances, rules, regulations, orders or directives
in
force or promulgated during the Term hereof as the same shall apply to the
Premises, Tenant's use thereof, and Tenant's operation of an RCFE (collectively,
all "Applicable Laws"). In light of the length of the Term of this Lease,
it is
the express intention and understanding of Landlord and Tenant that Tenant
shall
bear full responsibility for any and all measures necessary or appropriate
in
order to cause the Premises and Tenant's operation of the RCFE to comply
with
all Applicable Laws throughout the entire Term hereof, to the same extent
as if
Tenant were the owner of the Premises. 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
relating to the Premises or Tenant's use thereof or business thereon, shall
be
conclusive of that fact as between the Landlord and Tenant, and shall, subject
to Section 18, at Landlord's option, terminate this Lease. 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
renew a license to allow Tenant to operate an RCFE. Any termination or
conditional or provisional reissuance of such license shall constitute a
material default under this Lease, subject to Section 18. In the event that
any
investigation, litigation, accusation, or other administrative or legal action
or proceeding (collectively, "Action") is initiated or threatened by a public
agency against Tenant and/or the Premises, within five (5) business days
after
Tenant becomes aware or receives written notice of such Action, Tenant shall
give written notice to Landlord of such Action and shall concurrently and
thereafter deliver to Landlord copies of all written materials and/or documents
regarding such Action.
14. ALTERATIONS.
Tenant
shall not make, or suffer to be made, any alterations or additions to the
Premises, or any part thereof, without the prior written consent of Landlord,
and any such 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. To the extent that Tenant shall desire to make any
alterations or additions to the Premises, Tenant shall submit to Landlord
for
Landlord's review and approval, detailed plans and specifications for the
proposed alterations or additions. Any such alterations or additions approved
by
Landlord shall be constructed by a contractor selected by Tenant but approved
by
Landlord, shall be constructed in a good and workmanlike manner and of good
and
sufficient materials, in accordance with the plans and specifications approved
by Landlord, and in accordance with all Applicable Laws. Tenant shall be
responsible for obtaining and complying with the terms and provisions of
any
permits or approvals required in connection with any alterations or additions
to
the Premises constructed by Tenant. Tenant shall, promptly upon completion
of
any such alterations or improvements to the Premises deliver to Landlord
all
as-built plans and specifications therefor. Landlord may, but shall not be
obligated to, condition Landlord's consent to any alterations or additions
to
the Premises costing $10,000 or more upon Tenant's delivery of a lien and
completion bond in an amount equal to one hundred fifty percent (150%) of
the
estimated cost of the proposed alterations or additions to the Premises.
In any
case, Tenant shall keep the Premises free from any liens arising out of any
work
performed, material furnished, or obligation incurred by Tenant, whether
in
connection with any alterations or additions to the Premises or
otherwise.
15. DAMAGE
AND
DESTRUCTION.
15.1
In
the event that any portion of the Premises shall be damaged or destroyed
by fire
or other casualty, but the Premises are not thereby rendered untenantable
in
whole or in part, Landlord shall cause such damage or destruction to be repaired
at Landlord's cost and expense (in excess of any insurance proceeds paid
in
connection with such damage or destruction, all of which proceeds shall be
promptly paid or made available to Landlord), and the Monthly Rent and all
other
Payments provided for under this Lease shall not be abated during the repair
period as to any portion of the Premises, including, without limitation,
the
portion rendered untenantable, but only to the extent that the repair period
does not exceed the period for which coverage is to be provided under the
business interruption insurance to be maintained by Tenant (whether or not
such
insurance is actually in place). Notwithstanding the foregoing, Tenant shall
be
solely responsible for the cost of any repair to or restoration of the Premises
required as the result of the negligence or willful misconduct of Tenant
or
Tenant's employees, agents or invitees.
15.2
In
the event that the Premises are damaged or destroyed by fire or other casualty,
and the Premises or any substantial portion thereof shall be rendered
untenantable, Landlord shall have the option to: (a) repair the damage at
Landlord's cost and expense (in excess of any insurance proceeds paid in
connection with such damage or destruction, all of which proceeds shall be
promptly paid or made available to Landlord), in which case the Monthly Rent
and
all other Payments provided under this Lease shall not be abated during the
repair period as to any portion of the Premises, including, without limitation,
the portion rendered untenantable, but only to the extent that the repair
period
does not exceed the period for which coverage is to be provided under the
business interruption insurance to be maintained by Tenant (whether or not
such
insurance is actually in place) or (b) terminate this Lease upon thirty (30)
days prior written notice to Tenant of Landlord's election to do so. If Landlord
elects to terminate this Lease, all Monthly Rent and other Payments and
obligations hereunder shall be prorated as of the date upon which the coverage
to be provided under the business interruption insurance to be maintained
by
Tenant does expire or would have expired (whether or not such insurance is
actually in place). Notwithstanding the foregoing, in the event that Landlord
elects not to repair such damage to the Premises, Tenant shall have the option
to elect to not to have the Lease terminate, but instead to bear the cost
of all
such repairs, subject to the following conditions: (a) Tenant shall notify
Landlord of such decision in writing within thirty (30) days after receipt
of
notice that Landlord has elected to terminate the Lease; (b) all repairs
to be
performed by Tenant shall be performed in accordance with the provisions
of
Paragraph 14 above (governing Tenant's construction of alterations and additions
to the Premises); (c) all repairs and or restorations so constructed shall
immediately become a part of the Premises and the property of Landlord; and
(d)
Tenant shall diligently pursue and cause all such repairs to be completed
as
soon as possible, but in no event later than six (6) months after the date
upon
which Tenant elects to perform such repairs. In the event that Tenant shall
elect to proceed with such repairs in accordance with the immediately preceding
sentence, Landlord and Tenant agree that: (i) Landlord shall make available
all
insurance proceeds paid or payable to Landlord in connection with such damage
or
destruction, and (ii) any and all cost and expense of such repairs in excess
of
the foregoing insurance proceeds shall be solely Tenant's
obligation.
Notwithstanding
any contrary provision of this Lease or the unavailability of insurance
proceeds, Tenant shall be solely responsible for the cost of any repairs
required as a result of the negligence or willful misconduct of Tenant or
Tenant's employees, agents or invitees. To the extent applicable, Tenant
hereby
waives any provisions of any California statute, rule, or ordinance or law
governing the respective obligations of landlords and tenants in the event
of
any damage to or destruction of leased premises, and Landlord and Tenant
agree
that the respective rights and obligations of Landlord and Tenant in the
case of
any such damage or destruction shall be governed by the provisions of this
Lease.
16. WAIVER
AND
INDEMNIFICATION. 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 on or after the Commencement
Date, other than the gross negligence or willful misconduct of Landlord or
Landlord's partners, principals, agents, employees, contractors, attorneys
and
their respective successors, heirs and assigns. Except to the extent directly
caused by the gross negligence or willful misconduct of Landlord or Landlord's
partners, principals, agents, employees, contractors, attorneys and their
respective successors, heirs and assigns, Tenant hereby agrees to indemnify,
defend (with counsel reasonably satisfactory to Landlord), protect and hold
Landlord and Landlord's partners, principals, agents, employees, contractors,
attorneys and their respective successors, heirs and assigns free and harmless
from and against any and all costs, losses, liabilities or expenses of any
nature whatsoever to the extent arising, whether directly or indirectly on
or
after the Commencement Date, and (a) relating in any manner to Tenant's
occupancy, use, operation, maintenance or repair of the Premises, (b) arising
in
connection with any damage to or destruction of the Premises or any personal
property thereon or any person therein during the Term hereof for any reason,
(c) resulting from any failure of Tenant to maintain the Premises as a licensed
RCFE at any time during the Term of this Lease, (d) arising in connection
with
any Actions concerning the Premises, Tenant or Tenant's business, and/or
(e)
arising as a result of or in connection with the presence of any hazardous
substances on, about or under the Premises, but specifically excluding any
conditions existing prior to the Commencement Date. All indemnification
obligations set forth in this paragraph and elsewhere in this Lease shall
survive the expiration or any sooner termination of this Lease.
17. ASSIGNMENT
AND
SUBLETTING. 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 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 and absolute discretion
of
Landlord. Any prospective assignee or sublessee shall have both financial
experience and operating experience for an RCFE. In connection with any such
proposed assignment, Tenant shall deliver to Landlord the financial statement
and experience resume of any potential new lessee, together with any other
information requested by Landlord. A change in control or ownership of Tenant
(or Tenant's operating entity, if Tenant is an individual or individuals)
shall
constitute an assignment requiring Landlord's consent. Any transfer, on a
cumulative basis, of more than twenty-five percent (25%) of the voting control
and/or equity ownership of Tenant (or Tenant's operating entity, if Tenant
is an
individual or individuals) shall constitute a "change in control" of Tenant
for
purposes of this Paragraph.
Notwithstanding
anything to the contrary hereinabove, Tenant may assign the Lease to Summerville
Senior Living, Inc., a Delaware corporation ("SSL") or its affiliates, without
Landlord's consent, and a subsequent change of control of SSL shall not require
Landlord's consent; provided that in each instance Tenant pays to Landlord
any
and all costs incurred (including in-house counsel costs and expenses) in
connection with review and documentation of such assignment. Landlord's consent
to one assignment, subletting or occupation shall not be deemed to be Landlord's
consent to any subsequent assignment, subletting or occupation. Landlord's
consent to an assignment, subletting or occupation or a transfer permitted
without Landlord's consent hereunder shall not in any event release the original
named Tenant (or any successor tenant) from liability for the continued
performance of all of the terms and provisions on the part of Tenant to be
kept
and performed hereunder, unless Landlord specifically and in writing releases
the original named Tenant (or any successor tenant, as the case may be) from
said liability.
Notwithstanding
the foregoing, any private or public offering involving all or substantially
all
of the assets of Tenant, SSL or its affiliates shall be a permitted transfer
under the Lease which does not require Landlord's consent. The original named
Tenant, SSL or its affiliate shall be released from liability for the continued
performance of all of the terms and provisions on the part of Tenant to be
kept
and performed hereunder, provided the new tenant after such private or public
offering has a current net worth, calculated in accordance with generally
accepted accounting principles, consistently applied, greater than Fifteen
Million Dollars ($15,000,000.00).
Any
assignment or subletting (for which Landlord's consent is required) without
the
prior written consent of Landlord shall be void and shall, at the option
of
Landlord, terminate this Lease. In the event that Tenant (or any successor
tenant) assigns this Lease or sublets the Premises (subject to Landlord's
consent rights as set forth in this Lease, if required), and if any
consideration or rent payable to such Tenant in connection with said assignment
or subletting (in whatever form, including,
without
limitation, any down payment or bonus payment, any transfer fee or
consultation fee, or any consideration or payment for goodwill inherent in
Tenant's conduct of its business at the Premises) is greater than the rent
to be
paid by Tenant to Landlord under this Lease during the period of time which
said
assignment or subletting remains in effect (such excess, hereinafter the
"Excess
Consideration"), then Tenant shall pay to Landlord, as additional rent under
this Lease, one half (1/2) of such Excess Consideration immediately as and
when
such Excess Consideration is payable to Tenant. In the event of a subletting
of
only a portion of the Premises, in calculating whether any Excess Consideration
will be generated by such subletting, the rent payable under the Lease shall
be
prorated according to the square footage involved in order to reflect the
rent
applicable to the space sublet. This Section 17 shall not apply to the
subleasing of space to RCFE ancillary service providers, such as beauty shop
operators, therapy providers, health care providers, and the like.
Notwithstanding anything to the contrary hereinabove, this Excess Consideration
shall not apply with respect to any transfer for which Landlord's consent
is not
required pursuant to this Section 17.
18. DEFAULT
18.1
Notwithstanding anything to the contrary in this Lease, only the
occurrence
of any one of the following events shall constitute a "Default" hereunder
by
Tenant:
(a) The
failure by Tenant to make any payment of rent or of any other payment required
to be made by Tenant under this Lease within five (5) business days after
Landlord delivers to Tenant written notice that the same is due and
payable.
(b) The
failure by Tenant to observe or perform any of the other covenants or conditions
of this Lease to be observed or performed by Tenant within thirty (30) days
after Landlord delivers written notice thereof to Tenant; provided, however,
that if the nature of Tenant's obligation is such that more than thirty (30)
days are reasonably required for its performance, then Tenant shall not be
deemed to be in default if it commences performance within such thirty (30)
day
period and thereafter diligently prosecute the same to completion.
In
the
event that a Default occurs under this Lease, then in addition to any other
rights or remedies of Landlord hereunder or at law or in equity, Landlord
shall
have the immediate right of reentry and may remove all persons and property
from
the Premises, using any legal proceedings that may be available, 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 of the Premises 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
Landlord's sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises.
18.2
Upon
such reletting: (a) Tenant shall be immediately liable to pay to Landlord,
in
addition to any other obligations of Tenant to Landlord hereunder, the cost
and
expenses of such reletting (and any related alterations to or repairs of
the
Premises) 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 Premises for the
period of such reletting, or (b) at the option of Landlord, rents received
by
such Landlord from such reletting shall be applied as follows: (i) first,
to the
payment of any obligations of Tenant to Landlord other than the Monthly Rent
and
other Payments called for hereunder; (ii) second, to the payment of any costs
and expenses of such reletting and of any related alterations and/or repairs;
(iii) third, to the payment of Monthly Rent and other Payments due and unpaid
hereunder; and the residue, if any, shall be held by Landlord and applied
in
payment of future obligations of Tenant as the same may become due and payable
hereunder. If Tenant has been credited with any rental payments to be received
by such reletting under option (a), and such rental payments shall not be
promptly paid to Landlord by the successor occupant of the of the Premises,
or
if such rental payments received from reletting under option (b) during any
month shall be less than the obligations of Tenant to be paid during that
month
hereunder, then in such case, Tenant shall promptly pay any such deficiency
to
Landlord on a monthly basis.
18.3
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 reletting
without termination, Landlord may at any time thereafter elect to terminate
this
Lease for such previous Default.
18.4
Should Landlord at any time elect to terminate this Lease for any Default,
in
addition to any other remedies Landlord may have hereunder or at law or in
equity, Landlord may recover from Tenant all damages incurred by Landlord
by
reason of such Default, 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 other charges equivalent to rentals and charges reserved
in this Lease for the remainder of the Term of this Lease over the then
reasonable rental value of the Premises for the remainder of the Term, all
of
which amounts shall be immediately due and payable from Tenant to
Landlord.
18.5
Notwithstanding anything to the contrary set forth herein, at Landlord's
option,
any Default of Tenant hereunder shall constitute a default under all other
leases between Landlord (or Landlord's affiliates) and Tenant (or Tenant's
parent or affiliates, including, but not limited to, Summerville Investors,
LLC
and Summerville Senior Living, Inc. (or SSL's subsidiaries or affiliates)
from
and after a transfer to SSL pursuant to Section 17 above) (collectively,
the
"Related Party Leases"), and vice versa, and to that end, Tenant hereby agrees
that all Related Party Leases shall be and hereby are amended to reflect
that
any default of Tenant following applicable cure periods, respectively or
collectively, thereunder shall constitute a Default of Tenant under this
Lease.
As used herein, the term "Related Party Leases" shall also mean and refer
to any
and all subsequent leases entered into by and between Landlord (and/or its
affiliates) and Tenant (and/or its affiliates). Tenant hereby agrees to execute
and to cause any affiliate of Tenant executing any future lease with Landlord
or
Landlord's affiliate to promptly execute and deliver to Landlord an amendment
to
the Lease and/or such Related Party Lease effectuating the cross-default
provision set forth in this paragraph.
As
used
herein, the term "Related Party Leases" shall mean and refer, without
limitation, to this Lease and to each of the following leases (including
any
amendments thereto or restatements thereof) from and after a transfer to
SSL
pursuant to Section 17 above, a transfer of this Lease to a parent or affiliate
of the then tenants set forth below, and/or a transfer of the lessee's interest
under the following leases to a parent or affiliate of the then tenant under
this Lease:
(i) that
certain Amended and Restated Lease Agreement dated as of November 1, 1994,
between Landlord's affiliate, ALHAMBRA ROYALE, a California limited partnership,
as landlord and XXXXX XXXX, an individual, and PACIFIC MANOR, INC., a California
corporation, collectively as tenant, for premises located at 0 X. Xxxxxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx, as amended by that certain Amendment to Lease Agreement
and Consent Agreement dated August 28, 1998, by and among ALHAMBRA ROYALE,
a
California limited partnership, as landlord, PACIFICA MANOR, INC., a California
corporation, and XXXXX XXXX, collectively as Original Tenant, and COBBCO
INC.,
as New Tenant pursuant to which landlord consented to the assignment and
assumption of the Lease by Summerville at Cobbco, Inc., provided that Original
Tenant remains liable for the performance of Tenant's obligations under the
Amended and Restated Lease Agreement;
(ii) that
certain Amended and Restated Lease Agreement dated as of November 1, 1994,
between Landlord's affiliate, CHATSWORTH ROYALE, a California limited
partnership, as landlord and XXXXX XXXX, an individual, and PACIFIC MANOR,
INC.,
a California corporation, collectively as tenant, for premises located at
00000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, as amended by that certain Amendment
to Lease Agreement and Consent Agreement dated August 28, 1998, by and among
CHATSWORTH ROYALE, a California limited partnership, as landlord, PACIFICA
MANOR, INC., a California corporation, and XXXXX XXXX, collectively as Original
Tenant, and COBBCO INC., as New Tenant pursuant to which landlord consented
to
the assignment and assumption of the Lease by Summerville at Cobbco, Inc.,
provided that Original Tenant remains liable for the performance of Tenant's
obligations under the Amended and Restated Lease Agreement; and
(iii)
that certain Amended and Restated Lease Agreement dated as of November 1,
1994,
between Landlord's affiliate, CLAIREMONT ROYALE, a California limited
partnership, as landlord and XXXXX XXXX, an individual, and PACIFIC MANOR,
INC.,
a California corporation, collectively as tenant, for premises located at
0000
Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx, as amended by that certain
Amendment to Lease Agreement and Consent Agreement dated August, 1998, by
and
among CLAIREMONT ROYALE, a California limited partnership, as landlord, PACIFICA
MANOR, INC., a California corporation, and XXXXX XXXX, collectively as Original
Tenant, and COBBCO INC., as New Tenant pursuant to which landlord consented
to
the assignment and assumption of the Lease by Summerville at Cobbco, Inc.,
provided that Original Tenant remains liable for the performance of Tenant's
obligations under the Amended and Restated Lease Agreement.
18.6
Landlord shall be in default under this Lease if Landlord fails to perform
any
material obligation required to be performed by Landlord under this Lease
within
thirty (30) days after the receipt of notice thereof from Tenant; provided,
however, that if the nature of such default is such that the same cannot
reasonably be cured within such thirty (30) day period, Landlord shall not
be
deemed to be in default if Landlord shall within such period commence such
cure
and thereafter diligently prosecute the same to completion. Upon any such
material default by Landlord, Tenant may exercise such rights and remedies
as
are provided in this Lease or at law or in equity.
19.
SUBORDINATION,
ATTORNMENT;
ESTOPPELS. This Lease and all rights of Tenant herein shall be and remain
subject and subordinate to the lien or charge of any mortgage or deed of
trust
in favor of any bank, insurance company or other lending institution, now
or
hereafter in force and encumbering the land and/or 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 modifications, supplements and
advances made or hereafter to be made upon the security thereof. Tenant
shall
promptly execute and deliver any writing reasonably required by Landlord
or any
mortgagee or lender of Landlord to evidence such subordination, provided
that
such writing also includes commercially customary nondisturbance provisions
reasonably acceptable to Tenant. In the event that 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 Landlord encumbering the Premises, Tenant
shall attorn to the purchaser upon any such foreclosure or sale and recognize
such purchaser as the Landlord under this Lease. 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 Landlord, Tenant
shall
execute and deliver to Landlord an estoppel statement in form and content
reasonably satisfactory to Landlord or any prospective mortgagee, lender
or
purchaser confirming the primary terms of this Lease and certifying, among
other
things, that this Lease is in full force and effect (if such be the case)
and
that Tenant has no offsets, claims or defenses whatsoever under this Lease,
other than those expressly set forth in such estoppel statement. Landlord
shall
use commercially reasonable efforts to obtain a Subordination and Nondisturbance
Agreement from Union Bank of California, N.A. Within ten (10) days after
request
therefor by Tenant, Landlord shall execute and deliver to Tenant an estoppel
statement in form and content reasonably satisfactory to Tenant confirming
the
primary terms of this Lease and certifying, among other things, that this
Lease
is in full force and effect (if such be the case).
20. CONDEMNATION.
If
the
Premises or any part thereof are taken by eminent domain or sold under the
threat of exercise of such power, this Lease shall terminate as to the part
so
taken effective as of the date upon which the condemning authority takes
title
or possession, whichever is earlier. If more than twenty-five percent (25%)
of
the of the floor area of the Premises is taken by condemnation, Tenant may,
at
Tenant's option, terminate this Lease by forwarding written notice to Landlord
not less than five (5) days after Tenant receives written notice of such
condemnation from Landlord or the condemning authority. If Tenant does not
elect
(or fails to timely notify Landlord of Tenant's election) to terminate this
Lease pursuant this paragraph, this Lease shall remain in full force and
effect
as to the portion of the Premises remaining, except that the Monthly Rent
shall
be reduced in the same proportion as the area of the portion of the Premises
taken bears to the area of the entire Premises before the taking, provided,
however, that no reduction of Monthly Rent shall occur if the only portion
of
the Premises taken is land upon which there is no building. Any award or
payment
made in connection with the exercise or threat of exercise of the power of
eminent domain as to all or any portion of the Premises shall be the property
of
Landlord, whether such award shall be made as compensation for diminution
in
value of the leasehold or for the taking of the fee, or as severance damages;
provided, however, that Tenant shall be entitled to any compensation separately
awarded to Tenant for Tenant's relocation expenses and/or loss of the trade
fixtures owned by Tenant, which trade fixtures Tenant would have had a right
to
remove upon the expiration or other termination of this Lease. In the event
that
this Lease is not terminated by reason of such condemnation, Landlord shall,
to
the extent of its net severance damages received (over and above the legal
fees,
costs and expenses incurred by Landlord in connection with the condemnation),
promptly repair any damages to the Premises occasioned by such condemnation,
except to the extent that Tenant has been separately reimbursed therefor
by the
condemning authority. Tenant shall be responsible for the payment of any
amount
in excess of such net severance damages required to complete such
repair.
21. COVENANT
OF TENANT.
Landlord and Tenant agree and acknowledge that Brookhurst Royale has
been
financed by the issuance of Westminster Redevelopment Agency Variable Rate
Demand Multifamily Housing Revenue Bonds (Brookhurst Royale Senior Assisted
Living Project) 2000 Series A and 2000 Series A-S, and that this Lease is
subject to the certain restrictions more fully set forth in the following
agreements: (i) Section 3, 4, 5, 6 and 7 of the Regulatory Agreement and
Declaration of Restrictive Covenants dated as of December 1, 2000 by and
among
Westminster Redevelopment Agency, State Street Bank and Trust Companyof
California, N.A. and Brookhurst Royale, LLC; (ii) Exhibit A to CDLAC Resolution
No. 00140 adopted on September 14, 2000; and (iii) Section 10.13 of the
Reimbursement Agreement dated as of December 1, 2000 by and between Union
Bank
of California, N.A. and Brookhurst Royale, LLC.
Tenant
covenants that it shall comply with all of the duties and obligations of
the
Owner under the above-referenced agreements, including, but not limited to,
delivering to Landlord monthly low income reports in the required form, and
Tenant acknowledges and agrees that the Westminster Redevelopment Agency
is a
third party beneficiary of this covenant and the Westminster Redevelopment
Agency is entitled to enforce this covenant against Tenant.
Landlord
and Tenant also acknowledge and agree that before this Lease can be operative
the consent, in writing, by the following entities may be required: Union
Bank
of California, N.A., Westminster Redevelopment Agency and State Street Bank
and
Trust Company of California, N.A.. Landlord shall use commercially reasonable
efforts to obtain any necessary consents.
22. NOTICES.
Wherever in this Lease it shall be required or permitted that notice
or
demand
be given or served by either party to this Lease to or on the other party,
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 postage prepaid, by
registered or certified mail, return receipt requested, or via recognized
overnight courier, addressed as follows (or to such other address(es) as
the
parties may subsequently designate in writing):
If
to
Landlord:
Brookhurst
Royale, LLC
0000
Xxxxxxxx Xxxxxx
Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx and Assistant General Counsel
If
to
Tenant:
Summerville
13, LLC
0000
Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000
Attention:
Mr. Xxxxxxx Xxxx
Tel.
No.:
(000) 000-0000
Fax
No.:
(000) 000-0000
23. MISCELLANEOUS.
23.1
Abandonment.
Tenant
shall not vacate or abandon the Premises at any time during the
Term (except for reasonable periods relating to casualty, condemnation, force
majeure or renovations). In the event that 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.
23.2
Signs. Tenant
may affix and maintain upon the exterior (including those parts of the interior
visible from the exterior) of the Premises only such signs, advertising,
placards, names, insignia, trademarks and descriptive material as shall comply
with all Applicable Laws and shall have been approved by Landlord in advance
as
to size, type, color, location, copy, nature and display qualities.
Notwithstanding the foregoing, under no circumstances shall Tenant be entitled
to affix any sign to the roof of the Premises.
23.3
Entry and Inspection.
Tenant shall permit Landlord and Landlord's agents, employees and
contractors to enter onto and upon the Premises upon one (1) business days
written notice and at all reasonable times for the purpose of inspecting
the
same, for the purpose of exercising any right of Landlord hereunder, for
the
purpose of posting notices of non-responsibility for alterations,
additions or repairs, or for the purpose of placing upon the Premises any
usual
or ordinary "For Sale" signs. In addition, at any time within six (6) months
prior to the expiration of he Term of this Lease, Landlord may enter onto
the
Premises for the purpose of posting "For Lease" signs and exhibiting the
Premises to prospective Tenants. Landlord shall be permitted to exercise
all
such entry rights without any abatement of Monthly Rent or other charges,
and
without any liability to Tenant for any loss of quiet enjoyment of the Premises
thereby occasioned; provided, however, that (a) Landlord shall use reasonable
efforts to minimize interference with the operation of Tenant's business,
and
(b) Landlord shall indemnify Tenant for damage or injury to the extent directly
caused by Landlord, its employees, agents, representatives, or
contractors.
23.4
Insolvency of
Tenant.
Tenant agrees that, in the event that all or substantially all of
Tenant's assets are placed in the hands of a receiver or trustee, and in
the
event that 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 Tenant under such bankruptcy 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 Landlord's 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. Landlord, at Landlord's
option, may require Tenant to cooperate in connection with and coordinate
the
removal of residents of the Premises to satisfy the state or governmental
agencies.
23.5
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 subleases or subtenancies
or
may, at the option of Landlord, operate as an assignment to Landlord of any
or
all of such subleases or subtenancies.
23.6
Holding Over.
Upon the expiration of the Term or any sooner termination of this
Lease,
whether by lapse of time, cancellation, forfeiture, or otherwise, Tenant
shall
immediately surrender possession of the Premises and all Standard Furnishings
as
provided under Paragraph 12.4 above, and Tenant hereby acknowledges that
Tenant
shall have no right to holdover without the prior written consent of Landlord.
In the event that Tenant shall holdover without Landlord's consent, then
in that
case, Tenant shall be responsible for paying to Landlord (in addition to
any
other sums payable hereunder or damages arising as a result of such holdover)
Monthly Rent for the duration of such holdover period in an amount equal
to one
hundred fifty percent (150%) of the Monthly Rent payable at the time of the
expiration or termination of this Lease. Notwithstanding the foregoing, Tenant
agrees to fully cooperate with Landlord in turning possession and operation
of
the Premises over to Landlord (or to any successor tenant) so as to assure
the
uninterrupted care of all residents of the Premises.
23.7
Noncompetition.
Each of Landlord and Tenant acknowledges that the other
party or its affiliates currently own or in the future may own RCFE and/or
apartment complexes within fifteen (15) miles of the Premises.
23.8
Preservation of
Residents' Records; Service; Census. Tenant
shall
preserve all resident records as required by Applicable Laws and promptly
deliver the same to Landlord (or at Landlord's direction, to the successor
tenant) upon the expiration or sooner termination of this Lease. Tenant shall
take all reasonable and appropriate steps to maintain the highest level of
quality resident care and services, and to promote and maintain a high resident
census at the Premises consistent with all Applicable Laws and ethical standards
governing the operation of an RCFE.
23.9
Financial
Statements. Tenant shall promptly provide to Landlord, within thirty (30)
days after the end of each fiscal quarter, or within ten (10) days after
Landlord's request therefor (provided that such additional requests shall
be
made no more frequently than once per quarter), copies of Tenant's current
rent
roll, financial statements and operating statements for the Premises, including
a current profit and loss statement and balance sheet. In addition, Tenant
shall
promptly provide to Landlord any other personal or financial information
about
Tenant or the Premises which may be requested by Landlord or any existing
or
prospective purchaser, mortgagee or lender of the Premises (provided that
such
additional requests shall be made no more frequently than once per
quarter).
23.10
Construction.
It is acknowledged that all parties have had the opportunity to consult
their respective attorneys concerning the terms and provisions of this Lease.
This Lease has been jointly negotiated and drafted. The language of this
Lease
shall be construed as a whole according to its fair meaning and not strictly
for
or against any of the parties.
23.11
Attorneys'
Fees. In the event the Landlord retains an attorney to enforce
any right or remedy of Landlord hereunder, then in addition to any other
damages
or relief to which Landlord may be entitled, Tenant shall promptly reimburse
Landlord for all reasonable attorneys' fees and costs (including the reasonably
allocable cost of in-house counsel) incurred by Landlord in connection with
such
enforcement, whether or not any legal action is filed. In the event of any
litigation, or other enforcement proceeding regarding the terms and provisions
of this Lease, the prevailing party shall be entitled to recovery of all
expenses incurred in connection therewith, including, without limitation,
reasonable attorneys' fees and costs (including the reasonably allocable
cost of
in-house counsel), costs of investigation, travel expenses, trial and appellate
court costs and deposition and trial transcript expenses.
23.12
Authority; Successors
and Assigns. The execution of this Lease has been authorized by all
necessary action on the part of Tenant and Landlord. Each individual who
has
executed this Lease on behalf of Tenant or Landlord in his or her respective
capacities has the right, power, legal capacity and authority to execute,
deliver and perform this Lease on behalf of Tenant or Landlord. Subject to
the
provisions concerning assignment, all of the terms and provisions of this
Lease
shall be binding upon and inure to the benefit of the heirs, successors,
executors, administrators and assigns of the parties hereto.
23.13
Severability. If
any term,
covenant, condition or provision of this Lease is
held
by a court of competent jurisdiction to be invalid, void or unenforceable,
such
term shall be stricken and the remainder of the provisions hereof shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
23.14
Captions. The
various headings, captions and numbers used in this Lease
are
used for convenience only and shall not be used in the interpretation of
this
Lease.
23.15
Time. Time
is
of the essence to all of the terms and provisions of this Lease.
23.16
Brokers. Landlord
and
Tenant each hereby represent and warrant to the
other
that neither party has had any dealings with any person, firm, broker or
finder
in connection with the negotiation of this Lease and/or the consummation
of the
transaction contemplated hereby other than JCH Consulting Group, Inc. (whose
commission Landlord shall pay), and that no other person, firm, broker or
finder
is entitled to any commission, fee or other compensation in connection herewith.
Landlord and Tenant each hereby agree to indemnify, defend, protect and hold
the
other, and such party's agents, employees, attorneys, and their respective
successors and assigns free and harmless from and against liability for
compensation or charges which may be claimed by any such person, firm, broker
or
finder by reason of any actions of or dealings with the indemnifying
party.
23.17
Governing
Law. This Lease shall be governed and construed in accordance with
the laws of the State of California.
23.18
Inducement
Recapture. Any agreement by Landlord for free, abated or
deferred rent or other charges applicable to the Premises, or for the giving
or
paying by Landlord to or for Tenant of any cash or other bonus, inducement
or
consideration for Tenant's entering into this Lease (collectively, any
"Inducement Provisions") shall be deemed conditioned upon Tenant's full and
faithful performance of all of the terms, covenants and conditions of this
Lease
to be performed or observed by Tenant. Upon the occurrence of any Default
hereunder by Tenant, any such Inducement Provisions shall automatically be
deemed deleted from this Lease and of no further force or effect, and any
rent,
other charge, bonus, inducement or consideration previously abated, deferred,
given or paid by Landlord under such Inducement Provisions shall be immediately
due and payable by Tenant to Landlord as additional rent hereunder,
notwithstanding any subsequent cure of said breach by Tenant. The acceptance
by
Landlord of rent or the cure of the Default that initiated the operation
of this
paragraph shall not be deemed a waiver by Landlord of the provisions of this
paragraph unless specifically so stated in writing by Landlord at the time
of
such acceptance.
23.19
Waiver. No
waiver by Landlord of any provision of this Lease shall be
deemed
a waiver of any other provision hereof or any subsequent breach by Tenant
of the
same or any other provision. Landlord's consent to or approval of any act
or
omission by Tenant shall not be deemed to render unnecessary the obtaining
of
Landlord's consent or approval with respect to any subsequent act or omission
by
Tenant. The acceptance of Monthly Rent or any other Payment from Tenant
hereunder shall not be deemed a waiver of any preceding breach or default
of
Tenant with respect to any provision hereof, other than the failure of Tenant
to
pay the particular rent so accepted, regardless of Landlord's knowledge of
any
preceding breach or default at the time that such Monthly Rent or other Payment
is accepted. No waiver by Tenant of any provision of this Lease shall be
deemed
a waiver of any other provision hereof or any subsequent breach by Landlord
of
the same or any other provision. Tenant's consent to or approval of any act
or
omission by Landlord shall not be deemed to render unnecessary the obtaining
of
Tenant's consent or approval with respect to any subsequent act or omission
by
Landlord.
23.20
Payments Constituting
Rent. All Monthly Rent and any other Payments due and payable by
Tenant hereunder (excluding only the security deposit) shall be deemed to
be
rent hereunder.
23.21
Joint and
Several. If the Tenant hereunder is comprised of more than
one
(1)
individual or entity, the liability of each such individual or entity hereunder
shall be joint and several.
23.22
Mediation;
Arbitration. Except with regard to any claim, counterclaim,
dispute, and other matter relating to the payment of rent from Tenant to
Landlord under this Lease, Landlord and Tenant agree that any and all other
claims, counterclaims, disputes, and other matters in question between them
shall be sent to mediation administered by JAMS/Endispute under its mediation
rules before a single mediator, prior to either of them initiating a demand
for
arbitration pursuant to this section. All expenses of mediation shall be
borne
by the parties equally; however, each party shall bear the expense of its
own
counsel, experts, witnesses, and preparation and presentation of proofs.
Except
with regard to any claim, counterclaim, dispute, and other matter relating
to
the payment of rent from Tenant to Landlord under this Lease, Landlord and
Tenant agree that, if and to the extent that any other claim, counterclaim,
dispute or other matter in question between them cannot be resolved through
mediation, then the matter shall be settled by arbitration before a single
arbitrator of JAMS/Endispute in their Santa Monica, California office in
accordance with the then prevailing rules of JAMS/Endispute for arbitration
of
commercial disputes. The parties hereto shall mutually select such single
arbitrator. If the parties are not able to agree upon a single arbitrator,
the
parties shall request that the arbitration administrator of JAMS/Endispute
select the single arbitrator. Notwithstanding the foregoing, nothing contained
in this section shall be deemed to limit or restrict Landlord's rights to
file
and prosecute an unlawful detainer action under California Code of Civil
Procedure Sections 1161 et. seq.
23.23
NO WARRANTIES
BY
LANDLORD. TENANT HAS THOROUGHLY INSPECTED THE PREMISES AND HEREBY ACCEPTS
POSSESSION OF THE PREMISES IN THEIR CONDITION "AS-IS" AS OF THE COMMENCEMENT
OF
THIS LEASE, WITHOUT REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED,
FROM
LANDLORD OR ANY THIRD PARTY CONCERNING THE CONDITION OF THE PREMISES OR ANY
PART
THEREOF, INCLUDING, WITHOUT LIMITATION, THE PREMISES' FITNESS FOR ANY PARTICULAR
USE OR OCCUPANCY. LANDLORD HEREBY FURTHER 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 PERMUTED 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 USE 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 AS AN RCFE, AND
TENANT
SHALL BE FULLY RESPONSIBLE FOR THE COST OF AND FOR EFFECTUATING ANY AND ALL
SUCH
ALTERATIONS, REPAIRS AND REPLACEMENTS REQUIRED TO BE MADE FOR THE CONTINUED
LICENSING AND CERTIFICATION OF THE PREMISES AS AN RCFE, AS WELL AS ALL
ALTERATIONS AND REPLACEMENTS REQUIRED TO MAINTAIN AND PRESERVE THE PREMISES
IN
THE CONDITION CALLED FOR HEREUNDER. THE PARTIES HEREBY ACKNOWLEDGE THAT LANDLORD
IS NOT RESPONSIBLE FOR, AND TENANT SHALL INDEMNIFY, DEFEND AND HOLD LANDLORD
HARMLESS FROM AND AGAINST ALL LIABILITY, COST OR EXPENSE IN CONNECTION WITH
ANY
SUCH REPAIRS, REPLACEMENTS, AND/OR ALTERATIONS TO THE PREMISES FOR ANY REASON
WHATSOEVER. THE INDEMNIFICATION OBLIGATIONS OF TENANT HEREUNDER AND ELSEWHERE
UNDER THIS LEASE SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS
LEASE.
23.24
Tenant shall, so long as no Default occurs during the Term, peaceably and
quietly have, hold and enjoy the Premises subject to the terms of this Lease
without interference by any persons lawfully claiming by or through
Landlord.
IN
WITNESS WHEREOF, the parties have duly executed this Lease as of the day
and
year first above written.
|
“Landlord”
|
||
|
BROOKHURST
ROYALE, LLC,
|
||
|
a
California limited liability company
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx,
Trustee of the
|
||
|
Xxxxxx
X. Xxxxxxx Trust, a managing member
|
||
|
“Tenant”
|
||
|
SUMMERVILLE
13, LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Xxxxxxx
Xxxx, President
|
||
