ex10_284.htm


    
      

    

    Exhibit
      10.28.4

     

    
      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 CHATSWORTH ROYALE, a California limited
        partnership ("Landlord"), PACIFICA MANOR, INC., a California corporation,
        and
        JERRY AGA.M, 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
        leased from Landlord that certain licensed residential care facility for
        the
        elderly commonly known as
"Chatsworth Royale"
        and located at 20801 Devonshire Street, Chatsworth,
        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 12 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 arc 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 $86,720.00; which monthly rent is subject to adjustment on October
        1, 1998, as provided in the Lease, (b) the Current Security Deposit held
        by
        Landlord is $200,000.00, and (c) the current monthly impound amount for real
        estate taxes is $7,291.00.

      


      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 12 of the Lease,
        the
        Original Tenant agrees and reaffirms that Original Tenant, and each of them,
        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 12 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
        $200,000.00 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 5 of the Lease. Likewise,
        upon the merger of New Tenant into Summerville, the Security Deposit of
        $200,000.00 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 5 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
        documents) previously provided to New Tenant;

      


      (c)           Original
        Tenant has not previously assigned or transferred any of its tights, 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 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 Original
        Tenant's consent to exercise any presently existing rights of tenant under
        Section 12 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.


      
        
          
          

        

        
          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” 

              	 
	 	 	 
	
                CHATSWORTH 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:

              	
                 

              	 
	 	
                Name:

              	 	 
	 	
                Title:

              	 	 


      

      
        


      

      
        


      

      
        New
          Tenant’s  Address for Notice Purposes:

      

      
         

      

      
        	
                 

              	
                 

              	 
	
                 

              	
                 

              	 
	
                 

              	
                 

              	 
	
                Attention:

              	
                 

              	 
	
                Phone:

              	
                 

              	 
	
                Facsimile:

              	
                 

              	 


      

      
         

        
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