AMENDMENT TO LEASE AGREEMENT AND CONSENT AGREEMENT
Exhibit
10.28.2
AMENDMENT
TO LEASE AGREEMENT
AND CONSENT AGREEMENT
THIS
AMENDMENT TO LEASE AGREEMENT AND
CONSENT AGREEMENT (this "Amendment") is entered into as of this 28th day
of August,
1998, by and among ALHAMBRA ROYALE, a California limited partnership
("Landlord"), PACIFICA MANOR, INC., a California corporation, and ▇▇▇▇▇ ▇▇▇▇,
an
individual (collectively, "Original Tenant'), and COBBCO INC., a California
corporation ("New Tenant"),with reference to the following facts and
circumstances.
RECITALS
A. Landlord
entered into that certain Amended and Restated Lease Agreement, dated November
1, 1994, with Original Tenant (the "Lease'), pursuant to which Original Tenant
from Landlord that certain licensed residential care facility for the elderly
commonly known as "Alhambra Royale" and located at ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Premises"). A true and correct copy of the Lease
is
attached hereto as Exhibit "A" and the terms of the Lease are incorporated
herein by this reference.
B.
Original Tenant has advised Landlord that it intends to sell substantially
all
of the residential care facility for the elderly assets of the Original Tenant,
including those operated at the Premises, to New Tenant, as of the Effective
Date (as defined below). Accordingly, Original Tenant and New Tenant desire
to
effectuate an assignment and assumption of the Lease pursuant to which New
Tenant shall expressly assume the obligations of Original Tenant under the
Lease
upon consummation of such purchase. •
C.
New Tenant has advised Landlord that, subsequent to the assignment of the
Lease
from Original Tenant to New Tenant, New Tenant will be merged into Summerville
at Cobbco, Inc., a California corporation ("Summerville"); which entity
to-be-formed will be a wholly-owned subsidiary of Summerville Healthcare
Group,
a Delaware corporation.
D.
Pursuant to
Section 11 of the Lease, Original Tenant may not effectuate the assignment
to
New Tenant or the merger
of New Tenant into
Summerville without obtaining Landlord's prior written
consent
E. Landlord
is
unwilling to consent to such assignment and such subsequent merger except
upon
the terms and conditions of this Amendment
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, Landlord, Original Tenant and New Tenant hereby
agree as follows:
1.
Incorporation
of Recitals.
The foregoing recitals are hereby incorporated into the body of this
Amendment.
2. Effective
Date. This
Amendment, upon complete execution and delivery hereof, shall become effective
and shall be deemed effective on the same date upon which New Tenant's
acquisition of Original Tenant's business is consummated (the "Effective
Date").
Original Tenant and New Tenant shall jointly and promptly give written notice
to
Landlord of the Effective Date.
3.
Representations,
Warranties and
Covenants by New Tenant. New Tenant represents and warrants
to Landlord that all financial statements or other documentation delivered
by
New Tenant to Landlord in anticipation of the assignment and assumption of
the
Lease to New Tenant and the subsequent merger of new Tenant into Summerville
are
true and correct and accurately reflect the financial position of New Tenant
as
of the Effective Date. New Tenant further represents and warrants that it
is
licensed to operate, and does operate, residential care facilities for the
elderly which are comparable to the Premises, and is acquainted with, and
does
accept, the Premises in an "as is" condition. Throughout the remaining term
of
the Lease, New Tenant and Summerville shall deliver
to Landlord such financial and other information about New Tenant and/or
Summerville as may be requested from time to time in writing by Landlord.
New
Tenant acknowledges that (a) the current monthly rent for the premises under
the
Lease is $31,934.00; which monthly rent is subject to adjustment on May 1,
1999,
as provided in the Lease, (b) the current Security Deposit held by Landlord
is
$88,000.00, and (c) the current monthly impound amount for real estate taxes
is
$4,079.00.
4. Assignment
by
Original
Tenant: Assumption by
New Tenant Subject to Paragraphs 5 and 6 of this Amendment and effective as of the Effective
Date, Original Tenant hereby assigns to New Tenant all of Original Tenant's
right, title and interest in and to the Lease, and New Tenant hereby assumes
all
of the obligations of Original Tenant under the Lease, as if new Tenant had
originally executed and delivered the Lease, New Tenant hereby acknowledges
that
New Tenant has reviewed all of the terms and provisions of the Lease and
that
New Tenant understands and expressly agrees to each of the same.
5. Consent
of Landlord to
Transfer. Upon Landlord's receipt of a fully-executed counterpart of this
Amendment from Original Tenant and New Tenant, Landlord hereby consents to
the
assignment of the.
Lease by Original
Tenant to New Tenant, and the assumption by New Tenant of Original Tenant's
obligations thereunder as of the Effective Date; provided, however, as
consideration for this Amendment and pursuant to Section 11 of the Lease,
the
Original Tenant agrees and reaffirms that Original Tenant, and each of them,
shall remain liable for the continued performance of all of the terms and
provisions of the Lease on the part of the "Tenant" thereunder throughout
the
remainder of the Term of the Lease; which liability shall be joint and several
with New Tenant. The continued liability of Original Tenant shall survive
the
execution of this Amendment. the assignment of the Tenant's interest in the
Lease to New Tenant, the close of New Tenant's acquisition of Original Tenant's
business, and the Effective Date.
6.
Consent
of Landlord to
Merger. Upon Landlord's receipt of a fully-executed counterpart of this
Amendment from Original Tenant and New Tenant, Landlord hereby consents to
the
assignment of the Lease by New Tenant to Summerville upon the merger of New
Tenant into Summerville, and the assumption by Summerville of New Tenant's
obligations thereunder; provided, however, as
consideration for this Amendment and pursuant to Section 11 of this Lease,
the
Original Tenant agrees and reaffirms that Original Tenant, and each of them,
shall remain liable for the continued performance of all of the terms and
provisions of the Lease on the part of the "Tenant" thereunder throughout
the
remainder of the Term of the Lease; which
liability
shall be joint and several with Summerville after the merger of New Tenant
into
Summerville. The continued liability of Original Tenant shall survive
the
merger of New Tenant into Summerville and the concurrent assignment of the
Lease
to Summerville.
7.
Security
Deposit.
Upon New Tenant's execution and delivery of this Amendment, New Tenant
and Original Tenant agree that the Security Deposit of $88,000.00 held by
Landlord shall
be retained
by Landlord, the benefit thereof shall be transferred to New
Tenant, and the Security Deposit shall continue to be held by Landlord in
accordance with the provisions of Section 34.2 of the Lease. Likewise, upon
the
merger of New Tenant into Summerville, the Security Deposit of $88,000.00
held
by Landlord shall be retained by Landlord, the benefit thereof shall be
transferred to Summerville,
and
the Security
Deposit Shall
continue
to be held by Landlord in accordance with—Section 34.2 of the
Lease.
8.
Indemnifications.
Upon the Effective Date, the parties and each of them, agree as
follows:
(a) Original
Tenant hereby agrees to indemnify, defend, protect and hold harmless Landlord,
New Tenant and their respective partners, officers, agents, representatives,
employees, attorneys, heirs, successors and assigns from and against any
and all
liability, damages, losses, claims, judgments, awards, and/or causes of action,
including attorneys' fees and litigation and arbitration expenses, arising
directly or indirectly from or related to the Premises and/or the Lease prior
to
the Effective Date.
(b) New
Tenant and, upon the merger of New Tenant into Summerville, Summerville hereby
jointly and severally agree to indemnify, defend, protect and hold harmless
Landlord, New Tenant and their respective partners, officers, agents,
representatives, employees, attorneys, heirs, successors and assigns from
and
against any and all liability, damages, losses, claims, judgments, awards,
and/or causes of action,
including attorneys' fees
and litigation
and arbitration expenses, arising directly or indirectly
from or related to the Premises and/or the Lease on or after the Effective
Date.
(c) Each
of the indemnification obligations set forth in this Paragraph 8 shall survive
any
termination of the Lease, the Effective Date, the consummation of New Tenant's
purchase of the assets of Original Tenant, the merger of New Tenant into
Summerville and each of
the transfers of the Lease consented to in this Amendment.
9.
Representations
of Original
Tenant. In connection with the foregoing, Original Tenant represents and
warrants to New Tenant and Landlord, which representations and warranties
shall
be deemed remade as of the Effective Date, that:
(a) A
true and correct copy of the Lease and any and all addendums, supplements,
amendments and modifications thereof have been previously provided to New
Tenant;
(b) The
Lease is in full force and effect according to the terms set forth in the
document(s) previously provided to New Tenant
(c) Original
Tenant has not previously assigned or transferred any of its rights, title
or
interest in, to or under the Lease, and it holds such right, title and interest
free and clear of any liens, claims or encumbrances.
(d) As
of the Effective Date: (i) Original Tenant is current in the payment of all
rents and other amounts due under the Lease, including, without limitation,
amounts due with respect to taxes, utilities and insurance, and to Original
Tenant's knowledge, Original Tenant is not in default of any of its obligations
thereunder, nor has any event or condition occurred which, with notice or lapse of time,
would mature
into a default under this lease; (ii) there are no claims, rights or
actions that have accrued or could be asserted by Original Tenant against
New
Tenant for any default, breach or violation by Landlord under the Lease;
and
(iii) Original Tenant does not have any offsets or defenses that could be
asserted in any action against the Landlord for payments or other obligations
due under the Lease. Nothing contained herein chart be construed as a waiver
by
Landlord of any rights that it may have for any default, breach, or violation
of
any term or provision of the Lease, regardless of when such right might accrue
or default, breach or violation might occur.
(e) Subject
to the removal of tenant alterations and additions upon the termination of
the
Lease and the repair of any damage incident to such removal and any routine
cleaning, the Premises are, to Original Tenant's knowledge, in a condition
sufficient to satisfy the requirements imposed upon the tenant under the
Lease
respecting the condition of the Premises upon termination of the
Lease.
10.
No
Amendment or Assignment
of Lease. On or after the Effective Date, New Tenant shall not agree to
any amendment, modification or supplement of the Lease, nor assign all or
any
part of New Tenant's interest under the Lease to any party other than
Summerville, without the prior written consent of Original Tenant (which
consent
shall not be unreasonably withheld) and Landlord (which consent shall be
pursuant
to the terms and conditions of the Lease). Notwithstanding the above,
new
Tenant and Summerville shall not require Old Tenant's consent to exercise
any
presently existing rights of tenant under Section 34 of the Lease.
11.
No
Further Consented
Assignments. This Amendment shall be
deemed to
consent only to the assignment of the Lease to New Tenant and the subsequent
merger of New Tenant into Summerville. Any further or additional assignment
of
the Lease shall be subject to the terms and conditions of the
Lease.
12.
Entire Agreement.
This Amendment represents the entire agreement of the parties hereto,
and
Original Tenant and New Tenant hereby acknowledge that Landlord has made
no
representations, warranties or agreements with Original Tenant or New Tenant
other than those expressly set forth herein or in the Lease.
13. Counterparts.
This
Amendment may be executed in one or-more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14. Authority
to Execute.
Each individual executing this Amendment on behalf of a party represents
and warrants to each other party that he has the full authority, acting alone,
to execute and deliver this Amendment on behalf of such party, and, if such
party is a corporation, any appropriate resolution of the Board of Directors
of
such corporation has been duly executed which grants such authority to the
signing individual.
15. No
Further Amendments.
Except as expressly amended in this Amendment, the Lease shall remain
in
full force and effect, and the Lease, as amended by this Amendment shall
be
construed as one (1) document.
IN
WITNESS WHEREOF, Landlord,
Original Tenant and New Tenant have executed this Amendment as of the day
and
year first hereinabove written, but effective as of the Effective
Date.
“LANDLORD”
ALHAMBRA
ROYALE, a California
limited
partnership
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By:
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/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇
▇▇▇▇▇▇▇▇, as Trustee of The
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▇▇▇▇▇▇▇▇
Trust No. 1, a General Partner
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“ORIGINAL
TENANT”
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PACIFICA
MANOR, INC.,
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a
California corporation
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By:
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/s/
▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇
▇▇▇▇, President
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/s/
▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇
▇▇▇▇, an individual
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“NEW
TENANT”
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COBBCO
INC.,
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a
California corporation
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇
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Title:
President
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By:
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/s/ ▇▇▇▇▇
▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Secty
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New
Tenant’s Address for Notice Purposes:
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Attention:
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Phone:
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Facsimile:
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