ex10_286.htm


    
      

    

    Exhibit
      10.28.6

     

    
      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 CLAIREMONT ROYALE, a California general partnership
        ("Landlord"), PACIFICA MANOR, INC., a California corporation, and JERRY AGAM,
        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
        4, 1994, with Original Tenant (the "Lease'), pursuant to which Original Tenant
        leased from Landlord that certain licensed residential care facility for
        the
        elderly commonly known as "Clairemont Royale" and located at 5219 Clairemont
        Mesa Boulevard, San Diego, California (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
        $38,828.00; which monthly rent is subject to adjustment on April 1, 1999,
        as provided in the
        Lease, (b) the current Security Deposit held by Landlord is $107,000.00,
        and (c)
        the current monthly impound amount for real estate taxes is
        $2,868.00.

      


      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.


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      


      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 $107,000.00 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 $107,000.00
        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.


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      


      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 shall be construed
        as
        a waiver by

      


      (e)           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.

      


      (f)           Subject
        to the removal of tenant alterations and additions upon the termination of
        the
        Lease and the repair of any damage incident to such removal and any routine
        cleaning, the Premises are, to Original Tenant's knowledge, in a condition
        sufficient to satisfy the requirements imposed upon the tenant under the
        Lease
        respecting the condition of the Premises upon termination of the
        Lease.

      


      10.           No
        Amendment-or Assignment
        of Lease. On or after the Effective Date, New Tenant shall not agree to
        any amendment, modification or supplement of the Lease, nor assign all or
        any
        part of New Tenant's interest under the Lease to any party other than
        Summerville, without the prior written consent of Original Tenant (which
        consent
        shall not be unreasonably withheld) and Landlord (which consent shall be
        pursuant to the terms and conditions of the Lease). Notwithstanding the above,
        new Tenant and Summerville shall not require Original Tenant's consent to
        exercise any presently existing rights of tenant under Section 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 farther or additional assignment of the Lease shall
        be
        subject to the terms and conditions of the Lease.


      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      


      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.


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      


      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” 

              	 
	 	 	 
	
                CLAIREMONT ROYALE,
                  a California 

              	 
	
                general
                  partnership 

              	 
	 	 	 
	
                By:

              	
                /s/
                  Jona Goldrich

              	 
	 	
                Jona Goldrich,
                  as Trustee of The

              	 
	 	
                Goldrich
                  Trust No. 1,  a General Partner

              	 
	 	 	 
	
                “ORIGINAL
                  TENANT” 

              	 
	 	 	 
	
                PACIFICA
                  MANOR, INC., 

              	 
	
                a
                  California corporation 

              	 
	 	 	 
	
                By:

              	
                /s/
                  Jerry Agam

              	 
	 	
                Jerry Agam,
                  President

              	 
	 	 	 
	 	
                /s/
                  Jerry Agam

              	 
	 	
                Jerry Agam,
                  an individual

              	 
	 	 	 
	
                “NEW
                  TENANT” 

              	 
	 	 	 
	
                COBBCO
                  INC., 

              	 
	
                a
                  California corporation 

              	 
	 	 	 
	
                By:

              	
                /s/
                  Granger Cobb

              	 
	 	
                Name:
                  Granger Cobb

              	 
	 	
                Title:
                  President

              	 
	 	 	 
	
                By:

              	 	 
	 	
                Name:

              	 	 
	 	
                Title:

              	 	 


      

      
        


      

      
        New
          Tenant’s  Address for Notice Purposes:

      

      
        


      

      
        	
                12403.
                  Alcosta Blvd , Ste 2A

              	 	 
	
                San
                  Ramon , CA 94583

              	 	 
	 	 	 
	 	 	 
	
                Attention:

              	 	 
	
                Phone:

              	 	 
	
                Facsimile:

              	 	 


      


      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      


      
        G
&
K Management
Co.,
Inc.

      

      
        LEADERS   IN   PROPERTY   MANAGEMENT   SINCE   1957

      

      
        


      

      
        March
          3,
          1999

      

      
        


      

      
        Mr. Jim Murphy

      

      
        COBBCO,
          Inc.

      

      
        12903
          Alcosta Blvd., Suite 2A

      

      
        San
          Ramon, CA 94582

      

      
        


      

      
        Re:           Clairemont Royale

      

      
        


      

      
        Dear
          Mr. Murphy:

      

      
        


      

      
        In
          accordance with your lease agreement dated November 1, 1994 and amendment
          to
          lease agreement dated August 1, 1998, the Clairemont Royale facility is to
          receive an increase in monthly rent effective April 1, 1999.

      

      
        


      

      
        The
          increase is calculated based on the Consumer Price Index (CPI) for Los
          Angeles -
          Long Beach - Anaheim for all urban wage earners and clerical workers, and
          shall
          not be less than 2.5% or more than 4%.

      

      
        


      

      
        As
          of the
          date of this letter, the March 1,1999 CPI is not available. Therefore,
          we will
          use the minimum percentage increase of 2.5%, for now. Please note that
          when we
          receive the March 1, 1999 CPI, we will recalculate your rent, if
          required.

      

      
         

      

      
        	
                
                  March
                    1999 rent

                

              	 	$	
                
                  38,221.00

                

              	 
	
                
                  Increase
                    at 2.5%

                

              	 	 	
                
                  956.00

                

              	 
	
                
                  New
                    rent effective April 1, 1999

                

              	 	$	
                
                  39,177.00

                

              	 


      

      
        


      

      
        


      

      
        Your
          April 1, 1999 rent payment should include the $607.00 of deferred rent
          in
          accordance with Section 3.2 of your lease agreement.

      

      
        


      

      
        Sincerely,

      

      
        


      

      
        G
&
K
          MANAGEMENT CO., INC.

      

      
        


      

      
        /s/
          Michael E.
          Drandell                                              

      

      
        Michael
          E. Drandell,
          CPA

      

      
        Vice
          President/Controller

      

      
        


      

      
        MED:
          st

      

      
        


      

      
        
          	
                  cc:

                	
                  Sol Kest

                


        

      

      
        
          	
                   

                	
                  Warren Breslow

                


        

      

      
        
          	
                   

                	
                  Carmi Cohen

                


        

      

      
        


      

      
        5150
          Overland Avenue   • Culver
          City,  California 90230

      

      
        310.204.2050     fax
          310.
          204.  1900     www.GKind.com