Assisted Living Facility Lease
Exhibit
10.29.2
This
lease (hereafter "Lease") is made and entered into this 28th day of September,
2005 ("Effective Date") by and between General Residential Corporation, a
Delaware Corporation (hereafter "Lessor") and Summerville at Cobbco, Inc.,
a
California Corporation (hereafter "Lessee").
WITNESSETH:
That
for
and in consideration of the rental hereinafter reserved, and of the mutual
covenants, agreements, and conditions hereinafter contained, Lessor does
hereby
lease, let, and demise unto Lessee and Lessee does hereby take, accept, and
rent
from Lessor, those certain premises (hereinafter referred to as the "Premises"
or the "Facility") situated in the City of Whittier, County of Los Angeles,
State of California, now commonly know as Summerville at Whittier, 00000
Xxxxxx
Xxxx, XX 00000 and more particularly described in Schedule A– Legal
Description attached hereto and made a part hereof together with all
easements, rights and appurtenances relating to the land and improvements
and
all fixtures and trade fixtures used in connection there with; together with
all
furnishings, equipment, supplies, inventory, and personal property located
on or
used in connection with the Premises and more particularly described in Schedule B Inventory,
and any replacements thereof, including intangibles belonging to the
Lessor and used in connection with the Premises, such as trademarks, trade
names, trade styles, service marks, and similar items.
This
Lease is made for the term and upon the covenants and agreements hereinafter
expressed.
ARTICLE
I: TERM
1.01.
The
term of this Lease shall commence upon October 1, 2005, (Commencement Date"
or
"Commencement").
1.02.
The
initial term of this Lease ("Initial Term") shall, except as hereinafter
provided, end at 11:59 pm on the 30th
day of September,
2030 or twenty-five (25) years from the Commencement Date. As used herein,
"Lease Year" means any twelve (12) month period that commences on the
Commencement Date, or any anniversary of the Commencement Date.
ARTICLE
II: RENTAL
2.01.
During the first year of the Lease Term, Lessee shall pay to Lessor as rent
for
the Premises an amount equal to $204,000 per year in equal monthly installments
of $17,000. From the second year to the fifth year of the Lease term, the
monthly installments will be as follow:
|
Year
2:
|
$18,500
|
|
|
Year
3:
|
$20,000
|
|
|
Year
4:
|
$22,000
|
|
|
Year
5:
|
$24,000
|
2.02.
Effective on the 6th-year anniversary date of the Commencement Date (i.e.
beginning the 61st
full month) and
thereafter on each subsequent anniversary date during the Term hereof, including
any extensions, the rent then in effect shall be increased by the percentage
increase of the Consumer Price Index for all Urban Consumers for the Los
Angeles, Bureau of Statistics as reported for the month prior ("CPI"); provided,
however than in no event shall the percentage increase be less than 2.5%
nor
greater than 5.5% for any one year.
2.03.
The
rent for periods of tenancy of less than a month are to be calculated at
a
pro-rated daily rate. Rent is due and payable on the first (1st) day of each
month, and each of the above rental amounts shall be paid on or before the
ninth
(9th) day
of each
such month in order to avoid imposition of a late charge. Any payment of
rental
amounts received by Lessor after the ninth (9th) day
of any
month shall incur a late charge equal to five percent (5%) of the rental
amount
then due, in order to compensate Lessor by this liquidated damage amount
for
damages suffered by reason of the late receipt of the rent amount from the
Lessee. In addition, any payments still outstanding as of the fifteenth (15th)
day of any
month, including any late charges imposed, shall accrue interest in favor
of
Lessor in an amount equal to ten percent (10%) per annum until paid in
full.
2.04.
Upon the Commencement Date of the Lease, Lessee shall pay. to Lessor first
month's rent in the amount of $17,000.
2.05.
Upon the Commencement Date of the Lease, Lessee shall pay to Lessor a deposit
in
the amount of $150,000 ("Security Deposit") to ensure the faithful performance
of the terms and conditions of the Lease. Lessor may deposit the Security
Deposit in its general account and is under no obligation to pay Lessee interest
thereon. Provided Lessee is not in default pursuant to Article XX, Lessee
may
apply the security deposit towards the rent as follows:
|
October
2006:
|
$17,000
|
|
|
November
2006:
|
$17,000
|
|
|
October
2007:
|
$18,500
|
|
|
November
2007:
|
$18,500
|
|
|
October
2008:
|
$20,000
|
|
|
November
2008:
|
$20,000
|
|
|
October
2009:
|
$22,000
|
|
|
November
2009:
|
$17,000
|
2.06.
Payments of rental hereunder are to be made to:
General
Residential Corporation
00000
Xxxx Xxxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000-0000
Attention:
Xxxxxxx Xxxxx
or
to
such other person or entity and at such other place as shall be designated
in
writing by notice given to Lessee, at least ten (10) days prior to next ensuing
rental payment date. At the request of Lessor, payment will be made by wire
transfer.
2.07.
Whenever Lessee shall be prevented in whole or in material part from the
free,
uninterrupted and unimpeded enjoyment of the use of the Premises, and fixtures
therein, by reason of default of the Lessor, or by reason of Lessor's making
any
repairs, alterations, extensions or additions to the Premises, (but this
shall
not imply an obligation for Lessor to make any repairs except as otherwise
provided herein), or by reason of condemnation or by reason of any casualty
or
by reason of eminent domain proceedings, or by any taking or repair occasioned
thereby, then and in such cases, Lessee shall be allowed an abatement of
rent
and other charges payable hereunder in whole or part based upon the duration
and
the extent of such interrupted enjoyment. In the event Lessee receives any
insurance proceeds pertaining to a loss covered under this paragraph, Lessor
shall be entitled to be paid from said proceeds in an amount equal to the
monthly rent then due.
ARTICLE
III: POSSESSION
3.01.
Lessee agrees that it is taking the property in "as is" condition.
3.02.
The
Lessor agrees that the Lessee, upon paying the rental and performing the
covenants of this Lease, may quietly have, hold and enjoy the Premises during
the Term.
3.03.
Lessee shall not assume any of Lessor's duties, debts, liabilities, or
obligations of any kind or nature and the consummation of the transaction
contemplated herein shall not cause, effect or constitute the assumption
by
Lessee of any duties, debts, liabilities, or obligations of Lessor, which
shall
be and remain the sole and exclusive obligation of Lessor.
ARTICLE
IV: REPRESENTATIONS
AND WARRANTIES OF
LESSOR
4.01.
Lessor hereby represents and warrants to Lessee that the statements set forth
in
this Article IV are true and correct in all respects as of the Effective
Date,
as of the Commencement Date of this Lease and at all times during the Term
of
this Lease.
4.02.
Organization and
Qualification. Lessor is a Delaware Corporation that is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Lessor has the full power and authority to carry on the business in which
it is
engaged, to own the Premises, and to execute and deliver and perform under
this
Lease.
4.03.
Absence of Undisclosed
Liabilities. Lessor has no debts, liabilities or obligations (whether
absolute, accrued, contingent or otherwise) of any material nature whatsoever
arising out of or relating to the Premises.
4.04.
Absence of Changes
or
Events. Solely with respect to the Premises, lessor has not:
(i) mortgaged,
pledged or subjected to lien, charge, security interest
or any other encumbrance or restriction on the Premises, or amended any similar
document currently in effect with respect to such matters.
(ii) sold,
transferred, leased to others or otherwise disposed of any material asset,
or
canceled or compromised any material debt or claim, or waived or released
any
right of substantial value;
(iii) received
any notice of termination of any contract, lease or other agreement or suffered
any damage, destruction or loss (whether or not covered by insurance) which,
in
any case or in the aggregate, has had or may have a Material Adverse Impact
on
the assets, operations or prospects of the Facility;
(iv) instituted,
settled or agreed to settle any litigation, action or proceeding before any
court or governmental body relating to the Facility;
(v) entered
into any agreement or made any commitment to take any of the types of action
described in subparagraphs (i) through (iv) above.
4.05.
Title to and Condition
of Premises: Leases. Lessor agrees to furnish to the Lessee, at Lessee's
cost, a preliminary title report that evidences Lessor's good and marketable
title to the Premises, which is subject to no leases, subleases, agreements,
encumbrances, liens or defects in title other than those disclosed in Schedule D — Liens
and
Encumbrances attached hereto, such documents to be dated as of the
Effective Date.
4.06.
Brokers, Finders,
etc.
All negotiations relating to this Lease and the transactions contemplated
hereby have been carried on without the intervention of any person acting
on
behalf of the Lessor in such manner as to give rise to any claim against
Lessee
for any brokerage or finder's commission, fee or similar
compensation.
4.07.
Representative. Lessor
hereby:
(i) acknowledges
that Xxxxxxx Xxxxx is the manager of the Lessor and shall act as the
representative of Lessor for the Term of the Lease (subject to this Section
4.07);
(ii) authorizes
Lessee to act upon the direction of Xxxxxxx Xxxxx as if such direction was
given
unanimously by Lessor; and
(iii) agrees
that Lessor shall give Lessee ten (10) days prior written
notice, in accordance with Article XXII hereto, if Lessor replaces Xxxxxxx
Xxxxx
as the manager and appoints a new manager.
ARTICLE
V: REPRESENTATIONS
AND WARRANTIES
LESSEE
Lessee
represents and warrants to Lessor that the following statements are true
and
correct in all respects as of the Effective Date, the Commencement Date and
during the Term hereof:
5.01.
Organization_
Standing
and Qualification. Lessee is a corporation duly organized, validly
existing and in good standing under the laws of the State of California,
with
full power and authority to carry on its business as now conducted, to lease
or
own and hold the Premises used by it in its business and to perform its
obligations under this Lease. Lessee is qualified and in good standing to
transact business in California.
5.02.
Brokers, Finders,
etc.
All negotiations relating to this Lease and the transactions contemplated
hereby have been carried on by Lessee without the intervention of any person
acting on behalf of Lessee in such manner as to give rise to any valid claim
against Lessor for any brokerage or finder's commission, fee or similar
compensation.
5.03.
Litigation. There is no legal action, suit, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order,
decree
or judgment in progress, pending or in effect, or to the knowledge of Lessee
threatened, against or relating to Lessee in connection with or relating
to the
transactions contemplated by this Lease, and Lessee does not know, or have
any
reason to be aware, of any basis for the same.
ARTICLE
VI: PRE
AND POST CLOSING
COVENANTS
6.01.
No Publicity.
Neither Lessor nor Lessee shall make public announcement with respect
to
this Lease or the transactions contemplated hereby without the express prior
written consent of the other party. Each party shall hold in confidence,
and
shall cause all of their officers, directors, employees, trustees and agents
hold in confidence, the terms of this Lease and the transactions contemplated
hereby.
6.02.
Assisted Living
Licensure. Lessee shall be responsible for maintaining its assisted
living license, in Lessee's name, for the Facility.
ARTICLE
VII: HOLDING
OVER
7.01.
Lessee shall have the option to hold over beyond the expiration date of this
Lease unless Lessor shall, at least ninety (90) days before said expiration
date, have given Lessee notice of its intention to terminate this Lease on
said
expiration date.
7.02.
If
such notice is not given and Lessee elects to hold over, Lessee shall become
a
tenant from year to year upon the same terms as herein provided, until the
tenancy shall be terminated at the end of any year by the giving of at least
ninety (90) days written notice by either party hereto to the other, stating
the
intention of the party giving such notice to so terminate the
tenancy.
ARTICLE
VIII: USE OF
PREMISES
8.01.
The
Premises may be used by the Lessee for the purpose of conducting any lawful
business or enterprise, including, but not limited to, related to the housing,
feeding and care of senior citizens including without limitation
Alzheimer's/dementia care and/or assisted living.
8.02.
Lessee agrees that it will conduct its business on the Premises in a lawful
manner and in compliance with all governmental laws, rules, regulations,
and
orders, and that Lessee will at its own cost and expense comply with all
such
governmental laws, rules, regulations, and orders as may be applicable to
the
business of Lessee conducted on the Premises.
8.03.
If
at any time after the Commencement Date until expiration or sooner termination
of this Lease, Lessee is prohibited by any federal, state or municipal law,
rule
or regulation from operating the Premises as provided herein, Lessee shall
have
the right to terminate this Lease upon 30 days written notice to Lessor,
whereupon this Lease shall terminate 30 days after the date of such notice
when
Lessee surrenders possession of the Premises to Lessor; provided, however,
that
no such prohibition caused by Lessee's negligence or willful misconduct,
or the
gross negligence or willful misconduct of its employees or officers shall
relieve Lessee of its obligations under this Lease.
ARTICLE
IX: EXTENSION
9.01.
Whenever Lessee shall be prevented from the free, uninterrupted, and unimpeded
enjoyment of the use of the Premises and the fixtures therein by reason of
default of the Lessor, or by reason of Lessors making any repairs, alterations,
extensions, or additions to the Premises, the fixtures therein, or the building
of which the same are a part, or by reason of condemnations, casualty, or
eminent domain proceeding, or any taking or repair occasioned thereby, or
any
other reason beyond the control of Lessee, then, and in each and all such
cases,
Lessee shall have the right of extensions, which right shall be cumulative
and
additional to any other rights given in such cases by this Lease or the law.
The
right of extension shall give Lessee the right (which shall be exercised
at
least ninety (90) days before the conclusion of the term) to add any such
period
or periods of loss of such enjoyment, or the aggregate of all such periods,
to
the Term of this Lease. If any of the matter and things enumerated in the
first
sentence of this paragraph occur during the last year of the Term, and
materially interfere with Lessee's enjoyment of the Premises, Lessee may
terminate this Lease upon thirty (30) days notice to Lessor,
9.02.
In
the event that Lessee shall be in material default in the terms of this Lease
at
the time any notice of extension is required or offered to be given, this
Lease
shall (upon notice from Lessor), at Lessor's option, be terminated, and of
no
further force and effect, at the expiration of the then-current
term.
ARTICLE
X: RIGHT
OF FIRST
OFFER
10.01.
Lessor shall not, at any time prior to the expiration of the term of the
Lease,
as
it may be extended, make the Premises, or any interest therein, available
for
sale
to
third parties without first giving written notice thereof to Lessee ("Notice
of
Sale").
10.02
The
Notice of Sale shall include the terms under which Lessor is willing to sell
the
Premises to Lessee.
10.03
For
a period of fifteen (15) business days after receipt by Lessee of the Notice
of
Sale, Lessee shall have the right to give written notice to Lessor of Lessee's
exercise of Lessee's right to purchase the Premises, or the interest to be
sold,
on the same terms, price and conditions set forth in the Notice of Sale.
If
Lessor does not receive written notice of Lessee's exercise of the right
of
first offer herein granted within said fifteen (15) business day period,
there
shall be a conclusive presumption that Lessee has elected not to exercise
Lessee's right of first offer hereunder, and Lessor may sell the Premises,
or
the interest proposed to be sold, to any third party or parties. If Lessee
declines to exercise its right of first offer after receipt of the Notice
of
Sale, and, thereafter, Lessor and any prospective third party purchaser modify
by more than 5% (i) the sales price, (ii) the amount of the down payment,
or
(iii) interest charged, or in the event that the sale is not consummated
within
270 days after the date of the Notice of Sale, then Lessee's right of first
offer shall be reinstated as of the occurrence of any of the aforementioned
events.
ARTICLE
XI: UTILITIES
11.01.
Lessee covenants to pay during the Term all utilities, including without
limitation, metered electric, water, and gas charges, and all telephone,
television, cable, garbage removal charges in connection with its occupancy
and
use of the Premises.
ARTICLE
XII: COVENANTS
AGAINST LIENS;
TAXES
12.01.
Throughout the Term, all real and personal property taxes on the Premises
and
the fixtures and equipment in the Premises shall be assessed to and paid
(before
delinquency) by the Lessee_ However, Lessee shall not be responsible for
paying
that portion of any increased property taxes that results solely from a sale
or
refinance of the Premises by Lessor. Lessee will be responsible for any
penalties that may occur due to any delinquencies with respect to payment
of
taxes for which its responsible. In the event any payments under this Article
become delinquent and are paid by Lessor, Lessee shall be responsible to
reimburse Lessor for all such payments made, together with interest at the
rate
of ten percent (10%) per annum which Lessee shall include with the following
month's rent.
12.02.
Lessee covenants that it will not, during the Term, suffer or permit any
lien to
be attached to or upon the Premises, or any portion thereof, by reason of
any
act or omission on the part of Lessee, and hereby agrees to save and hold
harmless Lessor from or against any such lien or claim of lien. In the event
any
such lien does attach or any claim of lien is made against the Premises which
may be occasioned by any act or omission upon the part of Lessee, and shall
not
be released within fifteen (15) days after notice from Lessor to Lessee to
do
so, Lessor may (but this shall not be deemed to impose an obligation upon
Lessor
to do so) pay and discharge the same and relieve the Premises from any such
lien, and Lessee agrees to repay and reimburse Lessor, upon demand, for or
on
account of any amount which may be paid by Lessor in discharging such lien
or
claim, together, but not limiting the same to the payment of any fees, costs,
and/or charges in connection with any legal actions which may have been brought
together with interest at the rate of ten percent (10%) per annum from the
date
of the expenditure by Lessor to the date of repayment by Lessee: provided,
however, that if Lessee desires to contest the validity or correctness of
any
such lien it may do so provided that is shall first furnish Lessor with a
good
and sufficient bond within said 15 day period indemnifying Lessor against
any
loss, liability or damages, on account thereof.
12.03.
Lessor agrees that if it fails to pay any assessments or any interest,
principal, costs or other charges upon any Mortgage or other lien or encumbrance
affecting the Premises and to which this Lease may be subordinate when any
of
the same become due, or if Lessor fails to perform any covenant and/or agreement
in this Lease contained on the part of the Lessor to be performed, then and
in
any such event or events, the Lessee, after the continuance of any such failure
or default for fifteen (15) days after notice in writing thereof is given
by the
Lessee to the Lessor may (but this shall not be deemed to impose an obligation
upon Lessee to do so) pay said assessments, interest, principal, costs and
other
charges and cure such defaults all on behalf of and at the expense of the
Lessor, and do all necessary work and make all necessary payments in connection
therewith including but not limiting the same to the payment of any fees,
costs
and/or charges in connection with any legal actions which may have been brought,
and the Lessor agrees to pay to the Lessee forthwith the amount so paid by
the
Lessee, together with interest thereon at the rate of ten percent (10%) per
annum, and agrees that the Lessee may withhold all or a portion of rental
payments and other payments thereafter becoming due to the Lessor pursuant
to
the provisions of this Lease or any extensions thereof and may apply the
same to
the payment of such indebtedness of the Lessor to the Lessee until such
indebtedness is fully paid with interest thereon as herein provided. However,
if
Lessor desires to contest the validity or correctness of any such lien it
may do
so, provided that it shall first furnish Lessee with a good and sufficient
bond
within said 15 day period indemnifying Lessee against any loss, liability,
or
damage on account thereof.
ARTICLE
XIII: REPAIRS
13.01.
Lessee shall keep the Premises including the fixtures, trade fixtures, and
equipment in good condition and repair, excepting for obsolescence, ordinary
physical depreciation, and ordinary wear and tear. Lessee shall replace any
portion of the Premises or the personal property which have exhausted their
useful life with comparable quality improvements for personal property
items.
13.02.
Lessor at all reasonable times shall have the right to post and keep posted
on
the Premises statutory notices of non-responsibility which Lessor may deem
to be
necessary for the protection of Lessor and said Premises from mechanics'
liens
or liens of a similar natures. Lessee shall give Lessor thirty (30) days
prior
written notice of all construction proposed to be undertaken by Lessee, in
order
to permit Lessor to post such notices of non-responsibility.
13.03.
Lessee shall have the right at any time to make such non-structural additions,
repairs, alterations, changes, or improvements, in or to the Premises as
Lessee
may deem necessary, proper or expedient in the operation of the Premises,
without Lessor's approval so long as the value of such work shall not exceed
two
hundred thousand dollars ($200,000) provided always, that no work done by
Lessee
shall adversely affect the structural strength of said building; and provided
further, that Lessee shall pay promptly for all such work done by it or upon
its
order. Lessor shall have reasonable advance notice for all structural or
non-structural changes in excess of two hundred thousand dollars ($200,000)
in
value and Lessor agrees not to unreasonably withhold approval.
13.04.
Lessor hereby reserves the right for itself or its duly authorized agents
and
representatives at all reasonable times during business hours of Lessee to
enter
upon the Premises for the purposes of inspecting the same or to show the
same to
any prospective purchaser, and for the purpose of making any necessary repairs
to or upon the Premises, but such right shall be exercised reasonably and
so as
to cause the least possible inconvenience to Lessee, and so as not to
unreasonably interfere with its business.
13.05.
Lessee shall, at the end of the Term, or of any extensions thereof, or at
any
other termination of this Lease, surrender the Premises together with any
personal property belonging to Lessor, and alterations made thereto, in good
order, repair, and condition, except for damage caused by obsolescence, ordinary
physical deprecation, or ordinary wear and tear.
13.06.
This Article XIII is subject and subordinate to Article XIV of this
Lease.
ARTICLE
XIV: DAMAGE
BY
CASUALTY
14.01.
If
the Premises, or the building of which they are a part, shall be destroyed
or
damaged from any cause other than ordinary wear and tear, ordinary physical
deprecation, obsolescence, or normally uninsurable casualty, Lessee shall
forthwith repair, restore and rebuild the same with all reasonable dispatch
and
diligence including restorations and repair of all fixtures and equipment
from
insurance proceeds made available for that purpose in accordance with section
15.01.
14.02.
Anything in this Article XIV to the contrary notwithstanding, if, by reason
of
any of the causes referred to in paragraph 14.01 hereof, the Premises or
the
building of which the same are a part shall be destroyed or damaged at any
time
prior to the last twelve (12) months of the Term and is not completely restored
within a period of one year from and after the date of the casualty or if
such
damage or destruction occur during the last twelve (12) months of the Term
and
the Premises or the building of which the same are a part is not completely
restored within a period of ninety (90) days from and after the date of the
casualty, this Lease may be terminated upon written notice by Lessee to Lessor.
Upon such termination Lessee shall be relieved from all liabilities hereunder
except the liability to pay rent up to the date of such damage or destruction
and any accrued charges, costs, and expenses required to be paid by Lessee
hereunder, including the costs of restoring the premises.
ARTICLE
XV: INSURANCE
15.01.
Lessee agrees that it will, throughout the Term of this Lease, maintain or
provide to be maintained in force fire insurance with extended coverage
endorsement attached, to the extent of at least the full insurable replacement
value thereof to current code (less deductible) on the Premises, and on all
fixtures, trade fixtures, and equipment therein on which Lessor is legal
owner
and for loss of rents for at least twelve (12) months following any such
insurable loss, in good and solvent insurance companies. The policies evidencing
such fire and extended coverage insurance shall, by endorsement or otherwise,
provide that the proceeds of such insurance shall be deposited with the first
mortgagee or holder of a first deed of trust if it be an institutional lender
named in a loss payable endorsement attached to the policy, or, in the absence
of such attachment, in any bank or trust company agreed on by Lessor and
Lessee,
to constitute a trust fund for the repair, restoration, and rebuilding as
provided in Article XIV of this Lease, to be withdrawn only on architect's
certificates to pay for such work of repair, restoration, and rebuilding.
The
provisions of this paragraph shall not be deemed to prevent the attachment
of
the usual form of mortgagee clause to any first insurance policy carried
by the
Lessor on the Premises.
15.02.
Lessor and Lessee each hereby release the other, its officers, and employees,
and waive any claim against the other, its officers, and employees, for damages
to or destruction of each other's property, real or personal, caused by fire
or
any risk enumerated in a standard form of fire insurance policy and extended
coverage endorsement, whether due to the negligence of either Lessor or Lessee,
or otherwise.
15.03.
Lessee agrees that it will at all times during the Term of this Lease maintain
or provide to be maintained in force general and professional liability
insurance with responsible companies in such amounts and against such risks
as
is customarily maintained by operators of similar properties in the same
general
area, based on industry norms (currently $1 million per occurance and $3
million
aggregate coverage per policy year).
15.04.
Lessee agrees that it will at all times during the Term of this Lease maintain
or provide to be maintained in force insurance for liability in connection
with
the ownership and/or operation of motor vehicles by Lessee or its
employees.
15.05_
Lessee shall cause to be issued or provided to Lessor, at any time upon request,
appropriate certificates of insurance evidencing compliance with the foregoing
covenants. Such certificates shall provide that if the insurance is canceled
or
materially changes during the policy period, the insurance carrier shall
notify
the party to whom such certificate is addressed thirty (30) days prior to
the
effective date of cancellations or material change.
ARTICLE
XVI: ASSIGNMENT
AND
SUBLETTING
16.01.
Lessee shall have the right to sublease, assign or transfer this Lease, the
Premises or any part thereof for any lawful purpose permitted under this
Lease
with the previous written consent of the Lessor first had and obtained, such
consent of Lessor not to be unreasonably withheld. Lessor's approval of
assignment or transfer shall be deemed to remove Lessee from any liability
under
this Lease during the Term. However, Lessor's consent may be reasonably withheld
if the proposed assignee does not provide adequate evidence of ability and
capital to properly operate the Premises and business in question.
16.02.
This Lease binds, applies to and inures to the benefit of, as the case may
be,
the heirs, executors, administrators, successors, and assignees of the Lessor
and the heirs, executors, administrators, successors and assignees of the
Lessee.
ARTICLE
XVII: EMINENT
DOMAIN
17.01.
If
any significant or material part of the Premises shall be taken under the
power
of eminent domain, then and in any such events, Lessee may, by giving written
notice to Lessor within sixty (60) days after such taking, terminate this
Lease
as of the date of such notice. In the event that Lessee elects not to exercise
such right within said sixty (60) day period, then Lessor shall make such
repairs and alterations as may be necessary to restore the affected portion
of
the Premises as nearly as practicable to complete units of like quality and
character as existed just prior to such taking. The rent from and after any
such
taking shall be abated equitably to and as a result of the effect of the
condemnation.
17.02.
The condemnation award shall belong solely to the Lessor. However, Lessee
shall
have the right to claim any compensation as may be separately awarded or
receivable by Lessee in Lessee's own right on account of any cost or loss
Lessee
may suffer for the removal of its furniture, fixtures or equipment, the loss
of
the unamortized value of the improvements made by Lessee under this Lease,
Lessee's lost profits due to the condemnation, or any other element of special
damage separately recoverable by the Lessee.
ARTICLE
XVIII: DISPUTES
BETWEEN
PARTIES
Notwithstanding
anything to the contrary contained in this Lease, in any action, arbitration,
or
other proceeding between the parties hereto arising out of or relating to
this
Lease, the prevailing party in such action shall be entitled to its costs
and
expenses incurred, including reasonable attorneys' fees, in addition to such
other relief as may be awarded.
ARTICLE
XIX: PERMITS
AND
LICENSES
19.01.
Lessor hereby irrevocably constitutes and appoints Lessee its
attorney-infact with full power of substitution to apply for and secure any
building permit or permission of any duly constituted authority for the purpose
of doing any of the things which Lessee is required or permitted to do under
the
provisions of this Lease. Before exercising any authority to act for the
Lessor
as attorney-in-fact hereunder, Lessee shall give at least 5 business days
prior
written notice thereof to the Lessor and shall specify in said notice the
act or
actions intended to be taken under such authority, and shall submit for Lessor's
approval all plans and specifications Lessee is required to submit to the
duly
constituted authority.
19.02.
Lessee agrees to indemnify and save harmless Lessor from loss or damage by
reason of any appointment or authority granted in this Article XIX or by
reason
of any such applications or consent.
ARTICLE
XX: DEFAULT
The
occurrence of any of the following shall constitute an "Event of Default"
by the
party failing to perform its obligations hereunder or committing an act of
bankruptcy or similar acts, as further provided in this Article XX:
20.01.
Lessee or Lessor shall fail to make or cause to be made any payment required
to
be made hereunder and such failure shall continue for a period of 30 days
after
written notice thereof labeled "Notice of Default".
20.02.
Lessee or Lessor shall fail to keep, observe or perform any agreement, term
or
provision of this Lease, and such failure shall continue for a period of
30 days
after written notice thereof, labeled "Notice of Default", and shall have
been
given to the defaulting party by the other party hereto, which notice shall
specify the event or events constituting the default, or if the matter alleged
to be in default is not one which, by its nature, can be cured within thirty
(30) days, then defaulting party shall have a reasonable length of time as
judged by the nature of the matter, to cure the default; provided, however,
that
defaulting party must have commenced its efforts to cure within the thirty
(30)
day cure period and must diligently pursue its efforts to cure, and further
provided that the other party shall not be deemed to be in violation of this
Lease, and no Event of Default shall have occurred, if defaulting party is
prevented from performing any of its obligations hereunder for any reason
beyond
its control, including without limitation, strikes, shortages, war, acts
of God,
acts of the other party hereto or its officers, directors, employees or agents,
or any change of law, regulation or rule of federal, state or local government
or agency thereof.
20.03.
Lessee or Lessor, as the case may be, shall be dissolved or shall apply for
or
consent to the appointment of a receiver, trustee or liquidator of all or
a
substantial part of its assets, file a voluntary petition in bankruptcy,
or
admit in writing its inability to pay its debts as they become due, make
a
general assignment for the benefit of creditors, file or have filed against
it,
a petition or an answer seeking reorganization or arrangement with creditors
or
taking advantage of any insolvency law; or an order, judgment or decree shall
be
entered by a court of competent jurisdiction, on the application of a creditor,
adjudicating Lessee or Lessor a bankrupt or insolvent or approving a petition
seeking reorganization of Lessee or Lessor , or appointing a receiver, trustee
or liquidator of Lessee or Lessor or all or a substantial part of its assets
and
such order shall remain undismissed, undischarged or unbonded for a period
of 60
days.
ARTICLE
XXI: REMEDIES
UPON
DEFAULT
21.01.
Upon the determination of an Event of Default, the non-defaulting party may,
at
its discretion, without limiting its exercise of any right or remedy at law
or
in equity that it may have by reason of such default:
(i)
Maintain this Lease in full force and effect and recover monetary charges
or
payments as they become due without terminating Lessee's right to
possession.
(ii)
Terminate Lessee's right to possession by any lawful means in which case
this
Lease shall terminate and Lessee shall immediately surrender possession of
the
Premises to Lessor. In such event, the non-defaulting party shall be entitled
to
recover from the defaulting party all damages incurred by reason of such
default
and any other right or remedy available to it under applicable law subject
to
this Lease.
21.02.
In
the event of Lessee's default, all of Lessee's fixtures, furniture, equipment,
improvements and additions, alterations, and other personal property shall
remain a part of the Premises and in that event, and continuing during the
length of said default, Lessor shall have the right to take the exclusive
possession of same and to use same, rent or charge free, until all defaults
are
cured or, at its option, at any time during the Term of this Lease, to require
Lessee to forthwith remove same.
21.03.
The non-defaulting party shall be under no obligations to observe or perform
any
covenant of this Lease on its part to be observed or performed that accrues
after the date of any default by the other party hereunder, provided that
once
the default has been cured, such party shall no longer be relieved from said
obligations and liabilities.
ARTICLE
XXII: NOTICES
22.01.
Any notices, demands, and the like, which are required to be given hereunder
or
which either party hereto may desire to give to the other shall be given
in
writing by personal delivery, by mailing the same by certified United States
mail, return receipt requested, postage prepaid, or via prepaid private express
mail service, or via facsimile transmission addressed to the Lessor
at
General
Residential Corporation
00000
Xxxx Xxxxxx Xxxxx Xxxxxx Xxxx, XX 00000-0000
Fax
#:
(000) 000-0000
Attention:
Xxxxxxx Xxxxx
or
to
Lessee care of:
Summerville
Senior Living, Inc.
0000
Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxx Xxxxx, XX 00000
Fax
# :
(000) 000-0000
Attention:
Xxxxxxx Xxxx, President/CEO
or
to
such other addresses as the respective parties may from time to time designate
by notice given as provided in this Lease.
22.02.
If
the Lessor be more than one person or entity, notice by Lessee or payment
by
Lessee to any one of them is notice or payment to all. If the Lessor be more
than one person or entity, Lessee may act on notice from any Lessor, and
in the
case of conflicting notices may recognize any one of them as valid and disregard
the others. If Lessor collectively forms a single partnership, corporation
or
limited liability company, Lessee may act on any notice given by any officer,
partner, member or agent of such corporation, partnership or limited liability
company, but may treat any notice in such case as of no effect unless signed
by
the President or a Vice-President of the corporation, a partner in the
partnership or the manager of a limited liability company.
ARTICLE
XXIII: SHORT FORM
LEASE
23.01.
As
soon as possible after the execution and delivery of this Lease, the parties
hereto agree to execute a short form of Lease attached as Schedule E — Short
Form
of Lease
for recording. This Lease and such short form shall be construed together
as one instrument.
23.02.
This Lease and such short form Lease are the only agreements between the
parties
hereto. All negotiations and oral agreements acceptable to both parties are
included herein.
ARTICLE
XXIV: INDEMNIFICATION
24.01.
Lessee will indemnify and defend Lessor and save it harmless from and against
any and all claims, actions, damages, liability, and expense (including without
limitation attorney's fees) in connection with the loss of life, bodily injury
or damage to Premises or business arising from any cause whats0ever occurring
during the Term, except the willful misconduct or gross negligence of Lessor
or
its officers, directors, employees, or agents. Lessor will indemnify and
defend
Lessee and save it harmless from and against any and all claims, actions,
damages, liability and expense (including without limitation attorneys fees)
in
connection with the loss of life, bodily injury or damage to Premises or
business arising from any cause whatsoever occurring prior to the Commencement
Date, except the willful misconduct or gross negligence of Lessee or its
officers, directors, employees or agents. The provisions of this Article
XXIV
shall expressly survive termination of this Lease
24.02.
Notwithstanding anything to the contrary herein contained, Lessor and Lessee
do
mutually each release and discharge the other from all suits, claims, and
damages whatsoever for loss or damage to the Premises of the other (and their
respective officers, directors, shareholders, agents, employees, contractors,
or
tenants) arising from an insured casualty or peril, caused by or occurring
through or as a result of any acts or omissions, whether negligent or otherwise,
of the parties or their respective officers, directors, shareholders, agents,
employees, contractors, or tenants.
ARTICLE
XXV: MISCELLANEOUS
PROVISIONS
25.01.
Whenever in this Lease any words of obligations or duty regarding either
of the
parties are used, such words shall have the same force and effect as though
in
the express form of covenants. Whenever appropriate from the context, the
use of
any gender shall include any other or all genders, and the singular number
shall
include the plural, and the plural shall include the singular.
25.02.
The captions heading the various articles of this Lease are for convenience
and
identification only, and shall not be deemed to limit or define the contents
of
their respective paragraphs.
25.03.
The waiver by either party of any breach of any term, covenant, or condition
herein contained shall not be deemed to be a waiver of such term, covenant,
or
condition or any subsequent breach of the same, or any other term, covenant,
or
conditions herein contained. The subsequent acceptance of rent hereunder
by
Lessor shall not be deemed to be waiver of any preceding breach of Lessee
of any
term, covenant, or conditions of this Lease, other than the failure of Lessee
to
pay the particular rent so accepted, regardless of Lessor's knowledge of
such
preceding breach at the time of acceptance of such rent. No covenant, term,
or
conditions of this Lease shall be deemed to have been waived by either party
unless such waiver be in writing and signed by that party.
25.04.
Lessee may make any payment or give any notice to Lessor, despite any succession
or assignments, and be protected in so doing, until it has written notice
from
Lessor. If there be conflicting claims to money payable by Lessee under this
Lease, or reasonable doubt as to whom the money is payable, Lessee may discharge
its obligations to pay by depositing such money in the bank or trust company
in
the county in which the Premises is located, to abide the litigation of any
such
matters, but Lessee need not recognize any such adverse claims, and may pay
the
money to Lessor. All sums payable hereunder by either party to the other
are
payable in lawful money of the United States of America
25.05.
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
regulation or other causes without fault and beyond the control of the party
obligated (financial inability excepted) performance of such acts shall be
excused for the period of the delay and the period for the performance of
any
such acts shall be extended for a period equivalent to the period of such
delay.
25.06.
Any provision of this Lease calling for interest to be paid on any amounts
of
money owed to either party shall not be deemed to be invalid in the event
that
the rate stated in the Lease is deemed to be usurious under the laws of the
State of California then in effect. In such event, the maximum rate of interest
which can be charged under the Lease shall not exceed the maximum rate allowable
by the law at the time of the event giving rise to the interest
change.
25.07.
This Lease may be executed in counterparts, by facsimile signature. 25.08.
The
following schedules are attached hereto and by this reference made a part
hereof.
Schedule
A — Legal Description
Schedule
B - Inventory
Schedule
C - Liabilities
Schedule
D - Liens and Encumbrances
Schedule
E - Short Form Lease
ARTICLE
XXVI: ARBITRATION
Either
party may request arbitration of any matter in dispute under this Lease,
upon
which the following procedures shall apply. The party desiring such arbitration
shall give notice to the other party. The parties shall select a mutually
agreed
upon arbitrator. If the parties cannot mutually agree upon an arbitrator,
each
party shall, within ten (10) days thereafter appoint an arbitrator, and advise
the other party of the arbitrator so appointed. A third arbitrator shall,
within
ten (10) days following the appointment of the two (2) arbitrators, be appointed
by the two arbitrators so appointed or by the American Arbitration Association
(herein called the "AAA"), if the two arbitrators are unable to agree on
the
third arbitrator. If either party fails to appoint an arbitrator the arbitrator
appointed by the other party shall resolve such dispute or make the
determination in question. Any arbitrator(s) appointed shall be experienced
in
the issue with which the arbitration is concerned and shall have been actively
engaged in such field for a period of at least ten (10) years before the
date of
his appointment as arbitrator hereunder. All arbitrators chosen or appointed
shall (a) be sworn fairly and impartially to perform their respective duties
as
such arbitrator and (b) not be an employee or past employee of Lessor or
Lessee
or of any other person, partnership, corporation or other form of business
or
legal association or entity that controls, is controlled by or is under common
control with Lessor or Lessee. Within sixty (60) days after the appointment
of
such arbitrator(s), such arbitrator(s) shall determine the matter which is
the
subject of the arbitration and shall issue a written opinion. The decision
of
the arbitrator(s) shall be conclusively binding upon the parties, and judgment
upon the decision may be entered in any court having jurisdiction. Lessor
and
Lessee shall each pay fifty (50%) percent of the fees and expenses of the
arbitrator(s) appointed. The losing party shall reimburse the prevailing
party
for the reasonable counsel fees and disbursements incurred by the prevailing
party in connection with such arbitration.
ARTICLE
XXVII: GOVERNING
LAW
This
Lease was negotiated in the State of California, which state the parties
agree
has a substantial relationship to the parties and to the transaction embodied
hereby. This Lease and the obligations arising hereunder shall be governed
by,
and construed in accordance with, the laws of the State of California applicable
to contracts made and performed in such state (without regard to principles
of
conflict laws) and any applicable law of the United States of America. To
the
fullest extent permitted by law, Lessor and Lessee hereby unconditionally
and
irrevocably waive any claim to assert that the law of any other jurisdiction
governs this Lease. Any legal suit, action or proceeding against Lessor or
Lessee arising out of or relating to this Lease may be instituted in any
federal
or state court in the County of Los Angeles, and State of California, and
Lessor
and Lessee waive any objections which they may now or hereinafter have based
on
venue and/or forum non conveniens of any such suit, action or proceeding,
and
Lessor and Lessee hereby irrevocably submit to the jurisdiction of any such
court in any suit, action or proceeding.
[signatures
appear on next page]
SCHEDULE
E
IT
WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year
first above written.
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LESSOR;
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General
Residential Corporation
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By:
/s/ Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
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Its:
President, CEO
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LESSEE:
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Summerville
at Cobbco, Inc.
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By:
/s/ Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
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Its:
President, CEO
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SHORT
FORM LEASE
Memorandum
of
Lease
Under
date of September 28, 2005,
General
Residential Corporation, a Delaware Corporation, (hereafter "Lessor") and
Summerville at Cobbco, Inc., a California Corporation (hereafter "Lessee")
entered into a lease dated as of September 28 , 2005
(the
"Lease"), which provides, among other things, that in consideration of the
rent
therein reserved and upon the terms, conditions, covenants, and provisions
set
forth at length therein, Lessor leases, lets, and demises to Lessee and Lessee
takes, accepts and rents from. Lessor, for the term set forth in the Lease,
those certain premises (hereinafter referred to as the "Premises" or the
"Facility") situated in the City of Whittler, County of Los Angeles, State
of
California, now commonly know as Summerville at Whittler, 00000 Xxxxxx Xxxx,
Xxxxxxxxxx 00000 and more particularly described in Schedule A — Legal
Description attached hereto and made a part hereof, together with all
easements, rights and appurtenances relating to the land and improvements
and
all fixtures used in connection there with; together with all furnishings,
equipment, supplies, inventory, and personal property located on or used
in
connection with the Premises.
The
Lease
was made upon the terms, conditions, covenants, and provisions set forth
at
length therein, including, without limitation, the right of first offer for
Lessee to purchase the Premises, which terms, conditions, covenants, and
provisions are hereby incorporated herein with the same force and effect
as if
set out at length herein. In witness hereof, the parties have executed this
Memorandum of Lease as of the day and year first above written.
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LESSOR:
|
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General
Residential Corporation
|
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By:
/s/ Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxx
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Its:
Authorized Agent
|
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LESSEE:
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Summerville
at Cobbco, Inc.
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By:
/s/ Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
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Its:
President, CEO
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