ex10_282.htm


    
      

    

    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 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
        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 1 East Commonwealth ,
        Alhambra, 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 $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

      

      
        


      

      
        	
                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:

              	
                /s/  David
                  H. Smith

              	 
	 	
                Name:
                  David H. Smith

              	 
	 	
                Title:
                  Secty

              	 
	 	 	 
	 	 	 
	
                New
                  Tenant’s  Address for Notice Purposes:

              	 
	 	 	 
	  	 
	  	 
	  	 
	
                Attention:

              	
                 

              	 
	
                Phone:

              	
                 

              	 
	
                Facsimile: