Exhibit 10.62
AMENDED AND RESTATED GROUND LEASE AGREEMENT
This Amended and Restated Ground
Lease Agreement (this “Lease”) made and entered into
this 29 th day of August,
2003, by and between (i) PAUL J. KLAASSEN AND TERESA M.
KLAASSEN (hereinafter together referred to as
“Lessor”), and (ii) SUNRISE FAIRFAX ASSISTED
LIVING, L.L.C., a Virginia limited liability company (hereinafter
referred to as “Lessee”).
RECITALS
A. Lessor is the sole owner of
certain real property (the “Original Property”) as
described in that certain Amended and Restated Lease Agreement and
Assignment of Leasehold Right (the “Ground Lease”)
entered into as of the 6 th day of June,
1994 and recorded among the land records of Fairfax County,
Virginia in Deed Book 9147 at page 1757, by and among Barbara M.
Volentine and Teresa M. Klaassen, as beneficiaries of the Residuary
Estate of the Last Will and Testament of Eldon J. Merritt, and
Lowell John Johnson, Jr., the Executor of the Estate of Eldon J.
Merritt, as lessor (the “Estate”), Sunrise Assisted
Living Limited Partnership, as new lessee and assignee, Assisted
Living — Fairfax Associates, as current lessee and assignor,
Sunrise Foundation, Inc. (now known as “Sunrise Assisted
Living Foundation” and hereinafter referred to as the
“Foundation”), as sublessee, and Paul J. Klaassen and
Teresa M. Klaassen, as original lessee.
B. By Special Warranty Deed made
as of July 3, 1996, the Estate did convey unto Lessor the
Original Property subject to the Ground Lease.
C. By a First Amendment to
Amended and Restated Lease Agreement and Assignment of Leasehold
Right dated May 8, 2001 and recorded on May 11, 2001 in
Deed Book 11897 at page 1595, all right, title and interest of
Sunrise Assisted Living Limited Partnership, as lessee under the
Ground Lease, was assigned to Lessee.
D. The Foundation was a
subtenant under the Ground Lease, pursuant to which the Foundation
occupied a portion of the Original Property (the “Subleased
Premises”).
E. Pursuant to that certain plat
attached to Deed of Subdivision (the “Subdivision
Plat”) dated as of March 14, 2003, and recorded in Deed
Book 14587 at page 1319, the Original Property was subdivided into
two (2) parcels. One parcel is the portion of the Original
Property occupied by Lessee and not subject to the sublease to the
Foundation. The second parcel is the same as the Subleased
Premises. As a result of the Subdivision Plat, the Original
Property may be leased separately to each of the Lessee and the
Foundation.
F. The parties hereto desire to
amend and restate the Ground Lease in order to create two separate,
independent leasehold estates, one with Lessee hereunder as lessee
(“Parcel One”), and the other with the Foundation as
Lessee of the Subleased Premises (“Parcel Two”). Lessor
is simultaneously with the execution hereof entering into a direct
ground lease with the Foundation.
NOW, THEREFORE, for and in
consideration of the premises, the mutual covenants and conditions
contained herein, and other good and valuable consideration, the
parties hereto do agree as follows:
1. Premises. That
certain real property located in Fairfax, Virginia, as more
particularly described in Exhibit A hereto, together
with all existing easements and covenants (the
“Property”), together with a non-exclusive right with
the Foundation to use all common areas on Parcel One and Parcel Two
as shall be designated by Lessor (the “Common Areas”).
The use and maintenance of the Common Areas shall be subject to
such rules as shall be mutually agreed by Lessor, Lessee and the
Foundation.
2. Term and Rent .
Lessor leases the Property for a term (the “Lease
Term”) commencing on the date hereof (the “Commencement
Date”) and ending on the 31st day of May, 2085, at 12:00
midnight, at a monthly rental of $12,926.42 plus “CPI
adjustment” (“defined below), payable on the first day
of each month for that month’s rental, during the term of
this Lease. The rent payable under this Agreement shall be subject
to annual cost of living adjustments (the “CPI
adjustment”) in accordance with the following provisions:
(a) the Consumer Price Index for urban wage earners and
clerical workers, U.S. city average all items, as promulgated by
the Bureau of Labor statistics of the U.S. Department of Labor, for
the month of December, 2002 shall be designated the Base Price
Index; (b) promptly after December 31 2003, and after
December 31 of each year thereafter, the rent shall be
adjusted so that the ratio of the Price Index for January following
December 31 of each such year to the adjusted rental (to be
paid) shall be the same as the ratio of the Base Price Index to the
rent (then being paid); (c) no adjustment shall reduce the
adjusted rental to be paid below the rent then being paid. All
rental payments shall be made to Lessor at such place as Lessor may
from time to time designate. It is the intention of the parties
hereto that the rent herein specified shall be net to the Lessor in
each year during the term of this Lease; that all costs, expenses,
and obligations of every kind relating to the Property (unless
otherwise specifically provided herein) which may arise or become
due during the term of this Lease shall be paid by the Lessee
except Lessor’s rental license and that the Lessor shall be
indemnified by the Lessee against such costs, expenses and
obligations.
3.
Condition of Premises . Lessee accepts the Property in its
present physical condition, and Lessor shall not be obligated in
any way to make improvements thereto or perform any maintenance
thereon, all of which Lessee agrees to do. Lessor hereby agrees
that Lessee may develop the Property without the prior written
consent of the Lessor. Lessee shall keep the improvements located
on the Property in good condition and shall continue to use the
Property throughout the Lease Term so as not to commit economic
waste. Lessee further agrees to keep the Property free and clear of
rubbish and refuse. Lessor grants to Lessee the right to apply for
appropriate land use or zoning changes/permits and Lessor further
grants to Lessee the right to convey by grant or proffer all
necessary easements, rights of way or restrictions that may
reasonably be required by the appropriate governmental authority or
public utility provider.
4.
Repairs . Lessee shall at all times during this Lease and at
its own cost and expense, repair, replace and maintain in a good,
safe, and substantial condition, all buildings and any
improvements, additions and alterations thereof.
2
5.
Taxes . Lessee shall pay all taxes, assessments, and other
governmental charges and the cost of required improvements to the
service road in front the Property that shall or may during the
lease term be imposed on, or arise in connection with the use of
the Property or any part thereof.
6.
Utilities . All applications and connections for necessary
utility services on the Property shall be made in the name, and at
the cost, of Lessee only, and Lessee shall be solely liable for
utility charges as they become due, including those for sewer,
water, oil, gas, electricity and telephone services.
7.
Insurance . During the term of this Lease and for any
further time that Lessee shall hold the Property, Lessee shall
obtain and maintain at its expense the following types and amounts
of insurance.
a.
Fire Insurance . Lessee shall keep all buildings,
improvements and equipment now on the Property or any that may
hereafter be erected thereon, fully insured against loss or damage
by fire or other hazard under Fire and Extended Coverage, in an
approved stock insurance company for an amount acceptable to the
Lessor. Lessor shall be named as an additional insured in all such
policies.
b.
Personal-Injury and Property Damage Insurance . Insurance
against liability for bodily injury and property damage and
machinery insurance, all to be in amounts and in forms of insurance
policies as may from time to time be required by Lessor, shall be
provided by Lessee. Lessor shall be named as an additional insured
in all such insurance policies.
8.
Unlawful or Dangerous Activity . Lessee shall neither use
nor occupy the Property or any part thereof for any unlawful,
disreputable, or ultrahazardous business purpose nor operate or
conduct its business in a manner constituting a nuisance of any
kind. Lessee shall immediately, on discovery of any unlawful,
disreputable or ultrahazardous use, take action to halt such
activity. Lessee agrees to maintain the Property in a lawful manner
and in accordance with all applicable statutes, laws and
ordinances.
9.
Default . The occurrence of any one or more of the following
events shall constitute an event of default by Lessee under this
Lease: If Lessee shall default in the punctual payment of the rent
payable with respect to, or in the performance of any of the terms
and conditions of, this Lease, provided the default in such payment
shall continue for ten (10) days or the default in any such
non-monetary performance shall continue for thirty (30) days;
or if Lessee shall default in the observance or performance of any
term, covenant or agreement contained herein and such default shall
continue for more than 30 days; or if the Property shall be
vacated by Lessee during the term of this Lease, and such vacation
continues for more than 30 days; or if Lessee shall become
insolvent (however such insolvency may be defined or evidenced),
commit an act of bankruptcy, m
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