EXHIBIT 10.38
DEED OF LEASE
[BUILDING TWO]
------------
By and between
VTC TWO LLC,
as Landlord,
and
AMERIGROUP CORPORATION,
as Tenant.
Dated September 15, 2003
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TABLE OF CONTENTS
I. SUMMARY OF BASIC LEASE PROVISIONS........................................................ 1
1. Premises.............................................................................. 2
2. Term.................................................................................. 2
3. Renewal Terms......................................................................... 3
4. Use of Premises....................................................................... 3
5. Rent.................................................................................. 3
6. Insurance............................................................................. 9
7. No Liability of Landlord; Indemnification; Limitation of Landlord's Liability......... 9
8. Waiver of Subrogation................................................................. 10
9. Services and Utilities................................................................ 10
10. Alterations.......................................................................... 11
11. Tenant Property...................................................................... 11
12. Parking.............................................................................. 12
13. Signs................................................................................ 12
14. Damage or Destruction................................................................ 12
15. Repairs.............................................................................. 13
16. Entry................................................................................ 14
17. Condemnation......................................................................... 14
18. Tenant's Default; Landlord's Remedies; General Default Provisions.................... 15
19. Landlord's Default; Tenant's Remedies................................................ 17
20. Taxes................................................................................ 18
21. Assignment and Subletting............................................................ 19
22. Subordination, Non-Disturbance and Attornment........................................ 20
23. Estoppel Certificate................................................................. 21
24. Short Form Deed of Lease - Notice of Termination..................................... 21
25. Force Majeure........................................................................ 22
26. Landlord's Authority................................................................. 22
27. Tenant's Authority................................................................... 22
28. Broker's Commission.................................................................. 22
29. Venue................................................................................ 22
30. Surrender; Holdover.................................................................. 22
31. Notices.............................................................................. 23
32. Heirs and Assigns.................................................................... 23
33. Covenant of Quiet Enjoyment.......................................................... 23
34. Relationship of Parties.............................................................. 23
35. Section Headings..................................................................... 23
36. Complete Agreement................................................................... 23
37. Waiver of Jury Trial................................................................. 23
38. Jurisdiction......................................................................... 24
39. Counterparts......................................................................... 24
40. Exhibits............................................................................. 24
41. Early Termination.................................................................... 24
i
42. Grant Proceeds....................................................................... 24
43. Street Closure Area.................................................................. 24
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DEED OF LEASE
THIS DEED OF LEASE ("Lease") is made as of the 15th day of September,
2003, between VTC TWO LLC, a Virginia limited liability company ("Landlord"),
and AMERIGROUP CORPORATION, a Delaware corporation ("Tenant").
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, covenant and agree as set forth below:
I. SUMMARY OF BASIC LEASE PROVISIONS ("Lease Summary"). The following
capitalized terms shall have the meanings set forth in this Section A:
A. Landlord: VTC Two LLC
B. Tenant: AMERIGROUP Corporation
C. Building: The four story commercial office building consisting of
approximately 106,000 square feet to be constructed in accordance with the terms
of Exhibit C to this Lease. Project: The Building, facilities appurtenant to the
Building (including parking and ingress/egress facilities), and the land on
which the Building and appurtenant facilities are located, as shown on the Site
Plan ("Site Plan") attached as Exhibit A to this Lease, such land being more
particularly described in Exhibit A-1 to this Lease.
D. Premises: The entire Project, including the Building consisting of
approximately 106,000 square feet as generally shown on the Site Plan, including
all rights appurtenant to the Project pursuant to the "ECR" defined below.
E. Initial Term: Beginning on the "Commencement Date" (defined in
Section 2(a) below) and ending on the date (the "Expiration Date") that is the
last day of the month in which the fifteenth (15th) anniversary of the
Commencement Date occurs. The Expiration Date may be extended pursuant to
exercised Renewal Terms.
F. Commencement Date: The date determined under Section 2(a) below.
G. Renewal Terms: Three (3) renewal terms of five (5) years each, as
more particularly set out in Section 3 below. Tenant's options to renew for the
Renewal Terms shall be referred to in this Lease as the "Renewal Options".
H. Base Rent: Base Rent shall be determined in accordance with Section
5 below.
I. Notice Addresses: (See Section 32 for Notice requirements):
1. Tenant's Notice Address: AMERIGROUP Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax #: ▇▇▇-▇▇▇-▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel,
AMERIGROUP Corporation,
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax #: ▇▇▇-▇▇▇-▇▇▇▇, and
a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire, ▇▇▇▇▇▇▇ & Savage, P.C., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax #: ▇▇▇-▇▇▇-▇▇▇▇.
2. Landlord's Notice Address: VTC Two LLC, ▇/▇ ▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esquire,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, FAX# 757/▇▇▇-▇▇▇▇, and with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Esquire,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Fax #: ▇▇▇-▇▇▇-▇▇▇▇.
J. Broker: Advantis Real Estate Services Company ("Advantis").
K. Parking Spaces: At least 696 spaces reserved for Tenant's use as
provided in Section 12 below.
L. Ground Lease: The Deed of Ground Lease dated September 15, 2003, by
and between the Christian Broadcasting Network, Inc. ("CBN"), as landlord, and
the Landlord, as tenant.
M. ECR: The Declaration and Deed of Easements, to be granted by the
Christian Broadcasting Network, Inc. regulating the operation of the Premises
and certain other adjacent land, in the form attached to this Lease as Exhibit
H.
If any of the provisions of this Lease set forth below conflict with
this Lease Summary, the specific Lease provisions shall govern.
1. Premises. Subject to and upon the terms, provisions and conditions
set forth in this Lease, and in consideration of the duties, covenants and
obligations of each other under this Lease, Landlord leases to Tenant, and
Tenant leases from Landlord, the Premises.
2. Term.
(a) The Initial Term of this Lease shall be for the period set forth
in the Lease Summary. The Commencement Date shall be the date that is one (1)
month after the date of "Substantial Completion" determined in accordance with
Exhibit C to this Lease. Upon the request of either party, Landlord and Tenant
agree to execute a lease addendum confirming the actual Commencement Date and
Expiration Date when the same are finally determined. As used in this Lease, the
word "Term" shall refer to the Initial Term and all Renewal Terms (if any)
exercised, and the term "Lease Year" shall mean each consecutive twelve (12)
full calendar month period during the Term commencing on the first day of the
first month following the Commencement Date and each anniversary thereof, except
that the first "Lease Year" shall start on the Commencement Date and shall
include the period from the Commencement Date to the last day of the month in
which the Commencement Date occurs.
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(b) Landlord's Work. Set forth on Exhibit C attached to this Lease
are various items of "Landlord's Work". Landlord agrees to perform all of
Landlord's Work in accordance with the provisions of Exhibit C.
3. Renewal Terms. Provided that Tenant is not then in "Default" under
this Lease as defined under Section 18(a) below, Tenant may extend the Initial
Term of this Lease by exercising one or more of the Renewal Options. All terms
and conditions of this Lease shall continue in each Renewal Term, including the
adjustments to Base Rent provided under Section 5(b) below. Tenant shall give
Landlord written notice of its exercise of a Renewal Option at least twelve (12)
months prior to the expiration of the then current Term. If Tenant neglects to
timely exercise any Renewal Option, Tenant's right to exercise such Renewal
Option shall not expire or lapse unless Tenant fails to exercise such Renewal
Option with fifteen (15) days after Tenant's receipt of written notice from
Landlord of Tenant's failure to timely exercise the Renewal Option. Landlord
will pay Tenant a refurbishing allowance (the "Renewal Refurbishing Allowance")
of Five Dollars ($5.00) for each square foot of rentable area of the Building
upon the commencement date of the first Renewal Term, if exercised. The entire
Renewal Refurbishing Allowance shall be paid by Landlord to Tenant upon the
commencement of the first Renewal Term to be applied by Tenant to refurbishing
the Building and other portions of the Premises and other expenses of Tenant
approved in advance in writing by Landlord (which approval shall not be
unreasonably withheld).
4. Use of Premises.
(a) The Premises may be used for general office purposes and for any
related ancillary purposes typically found in a general commercial office
building. The Premises shall not be used for any other purpose without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed.
(b) Tenant agrees that its use of the Premises shall be in
conformity with all applicable federal, state and local laws, ordinances and
regulations and shall comply with local zoning requirements. Tenant agrees not
to use or permit the use of the Premises for the generation, storage, treatment,
use, transportation or disposal of any chemical, material or substance that
could pose a hazard to the health or safety of the occupants or employees in the
Building other than the storage and utilization of products and supplies
incidental to office purposes, provided such storage and utilization is in
compliance with all applicable laws, ordinances, rules and regulations.
(c) Landlord warrants that, upon completion of Landlord's Work, the
Project and related improvements will comply with all applicable federal, state
and local laws, ordinances and regulations and shall comply with then current
local zoning requirements and that the Project will be currently zoned to allow
Tenant's use as set forth in subparagraph (a) above.
5. Rent.
(a) Base Rent. Base Rent shall be payable in equal monthly
installments, in advance. The first payment of Base Rent shall be due on the
Commencement Date, and the second and subsequent monthly payments shall be made
on the first day of each and every calendar month thereafter. If the Term begins
on a date other than on the first day of the month or ends other than on the
last day of a month, Base Rent for any such month shall be prorated on a daily
basis (at the rate of 1/365th of the annual Base Rent) for each day the Term of
this Lease is in effect for such month.
(b) Increases in Base Rent. Base Rent shall be increased on the
fifth anniversary of the Commencement Date and every five (5) years thereafter
to equal the product of (i) the Base Rent in effect for the immediately
preceding twelve (12) month period multiplied by (ii) one hundred ten percent
(110%).
(c) Base Rent Formula. The annual "Base Rent" for the first Lease
Year shall be an annual amount determined by multiplying (i) the "Rent
Determination Base" (as defined in Section 5(d) below) by (ii) a "Rent Constant"
equal to the sum of (1) the "LCR" (Loan Constant Rate) (as defined in Section
5(e) below) plus (2) three hundred thirty-two (332) basis points.
(d) Rent Determination Base. The term "Rent Determination Base" as
used in this Lease shall be the sum of the following items:
(i) Construction Costs. All construction, site work and
landscaping costs and fees related to the Premises actually incurred by
Landlord, but not including any costs for which Landlord has been reimbursed by
the proceeds of any grant funds paid on account of the City of Virginia Beach's
Economic Development Incentive Program ("EDIP") or under the Governor's
Opportunity Fund Programs ("GOF") (collectively, the "Grants"), including
without limitation: labor; materials; supplies; warranties; license and permit
fees; utility tap, permit and impact charges and fees; premiums for any surety
bonds required by the City of Virginia Beach during construction; and architect,
engineering, surveyor, environmental and supervision fees relating to site work,
construction of the improvements and landscaping on the Premises. Construction
Costs shall include the "Tenant Improvement Allowance" of $1,590,000 ($15.00 per
rentable square foot of the Building) to be provided by Landlord pursuant to
Exhibit C to this Lease; however, the "Excess Tenant Improvement Costs" to be
paid by Tenant pursuant to Paragraph L of Exhibit C to this Lease shall not be
included in the Rent Determination Base.
(ii) Loan, Professional and Leasing Fees and Expenses. The sum
of (A) all "Loan and Professional Fees" paid or incurred by Landlord in
obtaining and closing the loan (the "Construction Loan") to finance the
construction of improvements to the Project and the Initial Permanent Mortgage
Loan (as defined in Section 5(e) below), and (B) all interest paid or owed by
Landlord in connection with the Construction Loan from the date Landlord
commences construction of Landlord's Work pursuant to Exhibit C (the "Work
Commencement Date") until the Commencement Date. If Landlord obtains a
construction/permanent loan, such loan will be considered to be both the
Construction Loan and the Initial Permanent Mortgage Loan for all purposes under
this Lease. "Loan and Professional Fees" shall include all costs and expenses
paid or incurred by Landlord in obtaining and closing any financing of the
Premises,
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including all loan origination, brokerage and loan placement fees (collectively,
the "Loan Origination Fees"); title insurance premiums; appraisal fees;
recording taxes and fees; and all legal, accounting, architectural, engineering,
surveying, environmental and other professional fees and expenses. However, the
Loan Origination Fees included in the Rent Determination Base shall not exceed
five percent (5%) of the original principal amount of the Construction Loan or
the Initial Permanent Mortgage Loan, as applicable, and in no event shall
discount points or similar fees be included in the Loan Origination Fees or the
Rent Determination Base. All brokerage/leasing commissions and fees incurred by
Landlord in connection with this Lease (the "Leasing Commissions") payable to
Advantis shall also be included in the Rent Determination Base; however, the
Leasing Commissions included in the Rent Determination Base shall not exceed
three percent (3%) of the Base Rent payable under this Lease for the first ten
(10) Lease Years and the final amount the Leasing Commissions shall be subject
to approval by Tenant. Furthermore, all legal fees and expenses incurred by
Landlord in connection with the preparation of this Lease (the "Leasing Legal
Fees") shall be included in the Rent Determination Base. Legal fees and other
expenses incurred by Landlord in connection with the acquisition or leasing of
the land to be included within the Premises or the organization of Landlord's
entity, and any other "joint venture" arrangements or transactions between the
members of Landlord or their affiliates, shall not be included within the Rent
Determination Base.
(iii) Development Fee. A development fee in the amount of Two
Hundred Thousand Dollars ($200,000.00). No other management, development,
consulting or similar fees shall be included within the Rent Determination Base.
(iv) Real Estate Taxes. All Real Estate Taxes (as defined in
Section 5(h) below) incurred with respect to the Premises that accrue between
the Work Commencement Date and the Commencement Date. If the Premises is not
separately assessed, the Real Estate Taxes to be included in the Rent
Determination Base under this item (iv) shall equal the sum of (A) the Real
Estate Taxes attributable to the land in the tax parcel of which the Premises is
a part (the "Tax Parcel") multiplied by a fraction, the numerator of which is
the acreage of the Premises and the denominator of which is the acreage of the
Tax Parcel; and (B) the Real Estate Taxes attributable to the Building and other
improvements on the Premises to the extent the same have been assessed and
billed for real estate tax purposes (based on the City of Virginia Beach tax
records); if there is not separate assessment information therefor, the Real
Estate Taxes on the Building and other improvements on the Premises shall be
determined by multiplying the total Real Estate Taxes attributable to
improvements on the Tax Parcel by a fraction, the numerator of which is the
square footage of the Building and the denominator of which is the square
footage of all other improvements on the Tax Parcel assessed and billed with the
Premises.
(v) Insurance. All charges for builder's risk insurance and
public liability insurance up to a maximum coverage of $5,000,000.00 paid or
incurred by Landlord with respect to the Premises between the Work Commencement
Date and the Commencement Date. Tenant's share of the foregoing liability
insurance shall be determined by dividing the acreage of the Premises by the
acreage insured under the applicable insurance policies.
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(vi) Land Rent Component. The Rent Determination Base shall
include a "Land Rent Component" calculated based on a monthly rate of $12,000.00
per month (prorated on a per diem basis) and the number of days between the
"Land Rent Commencement Date" and the Commencement Date. The "Land Rent
Commencement Date" shall be the date that is the later of (A) the date Tenant
gives Landlord the Commencement Notice pursuant to Paragraph M of Exhibit C to
this Lease, or (B) twelve (12) months following the "Commencement Date" under
the "Building One Lease" (as defined in Section 12 below).
(e) Loan Constant Rate ("LCR"). The term "LCR" (Loan Constant Rate)
shall mean the annual constant necessary to fully amortize the Rent
Determination Base through level monthly payments of principal and interest
calculated using the actual interest rate (the "Interest Rate") on the initial
permanent mortgage loan to be obtained by Landlord with respect to the Premises
(the "Initial Permanent Mortgage Loan") and using an amortization period of
three hundred (300) months. The determination of such annual constant shall be
made by reference to the Thorndike Encyclopedia of Banking and Financial Tables,
such other generally accepted mortgage amortization schedules or tables or
computer-generated amortization schedules otherwise agreed to by the parties
(collectively the "Amortization Schedule").
(f) Records of Rent Determination Base. During the course of
construction of the Project and for a period of three (3) years after the
Commencement Date, Landlord shall maintain a complete and accurate accounting of
all sums to be included in the Rent Determination Base, and Landlord's records
of the Rent Determination Base shall be subject to periodic reviews and/or
audits by Tenant's representatives. Upon the closing of the Initial Permanent
Mortgage Loan or as soon as all components of the Rent Determination Base can be
accurately determined, Landlord shall submit to Tenant a complete summary (the
"Summary") of the Rent Determination Base, and Tenant shall have thirty (30)
days to check and verify all figures included in the Rent Determination Base.
For the purpose of verifying the amount of the Rent Determination Base, Tenant
may examine Landlord's records of the Rent Determination Base at Tenant's
expense upon reasonable advance notice to Landlord. Within thirty (30) days
after Tenant's receipt of the Summary, Tenant shall either (i) acknowledge in
writing Tenant's confirmation of the Rent Determination Base as stated in the
Summary, or (ii) notify Landlord in writing of any amount that Tenant questions
as being accurate or as being includable in the Rent Determination Base. If no
notice is given to Landlord within five (5) days after Tenant has received a
reminder notice to make such determination with respect to the Summary, the Rent
Determination Base as set forth in the Summary shall be deemed approved. If
Tenant questions the accuracy of any figure in the Summary or its inclusion in
the Rent Determination Base, Landlord and Tenant shall make a good faith attempt
to resolve such issue. If they are unable to resolve all such issues within
fifteen (15) days from the date of Tenant's written notice raising such issues,
Landlord and Tenant shall each name an individual and these two individuals
shall together select a third individual, and these three individuals shall
constitute a board of arbitration to determine the Rent Determination Base. No
individual shall be appointed as an arbitrator who is not familiar with
construction costs in similar real estate developments and with industry
practices in the Hampton Roads, Virginia area. The charges of the arbitrators
shall be
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paid equally by Landlord and Tenant. The decision of the majority of the three
arbitrators shall be final and binding upon both Landlord and Tenant.
(g) Budget Comparison. Promptly following Tenant's delivery to
Landlord of the "Commencement Notice" defined in Exhibit C to this Lease, the
parties will proceed to determine the Base Rent payable pursuant to this Section
5 in accordance with the following. Landlord shall use commercially reasonable
efforts to obtain the lowest possible Interest Rate under the Initial Permanent
Mortgage Loan and shall consult in good faith with Tenant as to locking in the
Interest Rate for the Initial Permanent Mortgage Loan. Simultaneously therewith,
Landlord and Tenant shall proceed in good faith to finalize the "Final Plans and
Specifications" defined in Exhibit C and agree upon a pro-forma project budget
(the "Pro-Forma Budget") for construction of the Premises in accordance with
such Final Plans and Specifications. Upon determination of the Interest Rate and
the LCR pursuant to Section 5(e) above and the parties' agreement on the
Pro-Forma Budget, Landlord and Tenant shall calculate the Base Rent payable
under this Lease pursuant to the formula set forth in this Section 5 using the
actual LCR and the estimated Rent Determination Base reflected in the Pro-Forma
Budget. Upon determination of such Base Rent, Landlord and Tenant shall enter
into a written addendum (the "Addendum") to this Lease memorializing such Base
Rent and the Pro-Forma Budget. In the event Landlord and Tenant have not reached
mutual agreement regarding the foregoing and entered into the Addendum on or
prior to the date that is six (6) months after the date Tenant gives Landlord
the Commencement Notice, either party shall have the right to terminate this
Lease by giving written notice to the other party at any time prior to the
parties mutual agreement to the foregoing matters and mutual execution of the
Addendum. Upon determination of the actual Rent Determination Base pursuant to
Section 5(f) above, the actual Rent Determination Base shall be compared to the
Pro-Forma Budget, and Tenant shall be entitled to a credit against the Base Rent
initially payable under this Lease equal to the amount by which the total of the
Pro-Forma Budget exceeds the actual Rent Determination Base. In the event the
actual Rent Determination Base exceeds the total reflected in the Pro-Forma
Budget, Tenant shall pay Landlord the amount of any such excess costs as
additional rent within thirty (30) days after final determination of the Rent
Determination Base pursuant to Section 5(f) above.
(h) Taxes, Insurance and BMP Charges. Tenant shall pay to Landlord
as additional Rent the Real Estate Taxes, Insurance Charges and BMP Charges
incurred during each fiscal year. The terms "Real Estate Taxes", "Insurance
Charges" and "BMP Charges" shall have the meanings set forth in this Section
5(h).
The term "Real Estate Taxes" shall include:
(i) All real property taxes or payments in lieu thereof due with
respect to the Premises or any portion thereof including, by way of illustration
and not limitation, the Property and the Improvements to be constructed thereon;
(ii) Any taxes which may in the future become due upon or with
respect to the leasehold estate created by this Lease, or the rents payable or
paid by Tenant to Landlord, including any business and occupation taxes, but
excluding any tax measured by net
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income of Landlord, due to a change in the law and/or method of assessment, it
being acknowledged by the parties that no such taxes under this item (ii) are
currently payable under the methods of taxation in effect as of the date of this
Lease;
(iii) All assessments for public improvements or benefits which
are assessed during the Term of this Lease, and similar assessments and charges
with respect to the Premises; and
(iv) All other rents, rates and charges, excises, levies,
license fees, permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including interest
and penalties thereon), which at any time during or in respect of the Term may
be assessed, levied, confirmed or imposed on or in respect of or be a lien upon
the Premises or any part thereof, or any estate, right or interest therein, or
any occupancy, use or possession of or activity conducted on the Premises or any
part thereof, excluding any of the foregoing that may be payable in connection
with the performance of Landlord's Work.
However, Real Estate Taxes shall not include any rollback taxes, penalties,
interest or franchise, capital stock, income, estate or inheritance taxes
personal in nature to Landlord.
The term "Insurance Charges" shall include all insurance
premiums attributable to the insurance required to be carried by Landlord
pursuant to this Lease.
The term "BMP Charges" shall include Tenant's pro-rata share of
all cost and expenses incurred by
Landlord in connection with the obligations imposed on Landlord
pursuant to the ECR for BMP maintenance. For so long as the Premises and
Building One (as defined in Section 12 below) are the only facilities served by
the BMP, Tenant's pro-rata share shall equal fifty percent (50%) of such costs
and expenses. If additional facilities are serviced by the BMP, then Tenant's
pro-rata share shall be based upon the portion allocated to the Premises
pursuant to the ECR.
Landlord agrees to pay directly all Real Estate Taxes, Insurance
Charges and BMP Charges, and Tenant shall reimburse Landlord therefor on the
same basis as paid by Landlord (i.e., annually, semi-annually, quarterly or
monthly) within thirty (30) days after Tenant's receipt of an itemized invoice
therefor (including copies of paid receipts evidencing payment of Real Estate
Taxes, Insurance Charges and BMP Charges).
(i) Late Payments. Following a "Default" as defined in Section 18(a)
below, any installment of Rent not paid on the due date shall bear interest at
the "Applicable Rate" from the date such installment became due to the date of
Landlord's receipt of such Rent from Tenant. The "Applicable Rate" shall be the
lesser of (i) three percent (3%) over the "prime rate" in effect from time to
time at Wachovia Bank, N.A., Charlotte, North Carolina (or its successor(s)), or
(ii) the maximum interest rate permitted by law.
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(j) General Rent Provisions. Tenant will pay, without notice or
demand and without deduction or set-off (except as expressly provided in Section
19 below), all Rent to Landlord at Landlord's address for notices under Section
31 or to such other party or to such other address as Landlord may designate by
written notice from time to time. If not otherwise expressly provided in this
Lease, all payments of Rent shall be due on the later of (i) the next due date
for Base Rent or (ii) twenty (20) days after Tenant's receipt of an itemized
billing therefor.
6. Insurance.
(a) Landlord shall maintain fire and all-risk property and casualty
insurance on the Building, with extended coverage endorsements, written at 100%
of the replacement cost value (excluding the cost of excavation, foundations and
footings) of the Building and including both an agreed amount endorsement and
replacement cost endorsement (the "Property Insurance"). All proceeds of the
Property Insurance shall be applied in accordance with Section 14 of this Lease,
and Tenant shall be named as a "loss payee" under the Property Insurance
policies. Landlord shall also maintain rent interruption insurance in an amount
equal to one year's Rent, either separately or as part of the Property
Insurance.
(b) Tenant shall maintain comprehensive liability insurance
including public liability and property damage, on the Project, with a limit of
not less than Two Million Dollars ($2,000,000.00) combined single limit coverage
and provide additional coverage totaling not less than Five Million Dollars
($5,000,000.00) through a combination of additional base and/or umbrella/excess
liability insurance coverage. Certificates of the applicable insurance coverage
shall be furnished by Tenant upon written request. Each policy shall include an
undertaking by the insurer to give Landlord at least ten (10) days' prior
written notice of any cancellation, non-renewal, or change in scope or amount of
coverage of such policy. Landlord, Landlord's mortgagee and the fee simple owner
of the Project shall be named as additional insureds, as their interests may
appear, with respect to the Project on Tenant's liability insurance policies.
7. No Liability of Landlord; Indemnification; Limitation of Landlord's
Liability.
(a) Landlord shall not be liable to Tenant, or its employees,
agents, business invitees, licensees, customers, clients, family members or
guests (collectively "Tenant Related Parties") for any damage, compensation or
claim directly or indirectly arising from the necessity of repairing any portion
of the Premises or the Building, the interruption and the use of the Premises,
any accident or damage resulting from the use or operation of the elevators or
heating, cooling, electrical or plumbing equipment or apparatus, or the
termination of this Lease by reason by the destruction of the Premises,
resulting from any fire, robbery, theft, mysterious disappearance and/or any
other casualty, or from any leakage in any part or portion of the Premises or
the Building, or from water, rain or snow that may leak into, or flow from, any
part of the Building, or from drains, pipes or plumbing work in the Building, or
from any other cause whatsoever. Any Tenant Property stored or placed in or
about the Project shall be at the sole risk of Tenant or other owner thereof,
and Landlord shall not in any manner be held liable or responsible therefore.
9
(b) Tenant agrees to indemnify, defend and save Landlord harmless
from any and all costs, expense, loss, claim or damage (including reasonable
attorney's fees) incurred by or claimed against Landlord, directly or
indirectly, as a result of or in any way arising out of third-party claims
resulting from (i) any accident, injury or damage to any person or property
occurring in, upon or about the Premises during the Term, or (ii) Tenant's
failure to perform its obligations under this Lease. The foregoing indemnity
obligations of Tenant shall not apply to any cost, damage, claim, liability,
loss or expense occurring as a result of, or in any way arising from, the
negligence or willful misconduct of Landlord or Landlord's agents, employees or
contractors.
(c) Landlord's liability under this Lease shall be limited to
Landlord's equity interest in the Project (including any insurance and
condemnation proceeds, future rents and the proceeds of a sale received upon
execution of any judgment, decree, order or levy thereon against Landlord's
equity interest in the Project), and any judgments against Landlord shall be
satisfied solely out of the proceeds of sale of Landlord's equity interest in
the Project. No judgment rendered against Landlord shall give rise to any right
of execution or levy against Landlord's other assets. No individual who is
Landlord or any member or partner or any joint venture, tenancy-in-common, firm,
partnership, limited liability company or other form of joint ownership that is
Landlord, or their heirs, personal representatives, executors, successors and
assigns, shall have any personal liability to Tenant, or to any person claiming
under or through Tenant for any amount or in any capacity. Such exculpation of
liability shall be absolute and without exception whatsoever. Nothing in this
provision, however, shall bar Tenant from seeking and enforcing any equitable
remedy of Tenant against Landlord, or from pursuing any other rights Tenant may
have by virtue of this Lease or at law or in equity, including without
limitation, all rights of self-help and the right to deduct any amounts expended
in connection therewith from Rent as set forth in this Lease or otherwise
allowed by applicable law, but any such equitable remedy that can be cured by
the expenditure of money may be enforced personally against Landlord only to the
extent of Landlord's equity interest in the Project.
8. Waiver of Subrogation. Landlord and Tenant mutually release and
discharge each other (as well as the officers, directors, partners, agents and
employees of each other) from responsibility and liability (by way of
subrogation or otherwise) for loss or damage to any building, structure or other
real or personal property of the other, or any resulting loss of income, that
may arise from a fire or other peril that is covered by insurance or could be
covered under an "all risk" or "special" form insurance policy. The above
releases also shall apply to any third party, including any insurance company,
claiming through or under a party as a result of a right of subrogation. All
insurance policies required to be maintained by the parties on such real or
personal property shall contain "waiver of subrogation" clauses to carry out
these release provisions.
9. Services and Utilities. Except as otherwise provided in this Lease,
Tenant will pay and be responsible for all operating expenses of the Premises,
including but not limited to, the cost of heating, lighting, gas, water, sewer,
air conditioning, janitor service, elevator service, and telephones when due.
Tenant agrees that the unavailability of any services or utilities shall not
10
constitute grounds for or entitle Tenant to any abatement of rent or termination
of the Lease, unless such results from Landlord's negligence or willful
misconduct.
10. Alterations.
(a) Tenant shall not make any alterations, additions or improvements
(collectively "Alterations") of a structural nature in or to the Building or any
Alterations to the exterior of the Building, without Landlord's prior written
consent, which consent may be withheld in Landlord's sole discretion, in each
instance. Tenant shall be permitted to make interior, non-structural alterations
without Landlord's consent.
(b) Tenant shall give Landlord at least twenty (20) days prior
written notice before commencing any Alterations requiring Landlord's consent
and shall submit Tenant's plans for such Alterations at the same time. All
Alterations shall be done in a good and workmanlike manner, and Tenant shall
ensure that all of Tenant's contractors engaged in such work shall at all times
maintain satisfactory builders risk insurance, workmen's compensation insurance
and adequate public liability and property damage insurance. Tenant agrees to
indemnify Landlord for any loss, cost, damage or expense, including reasonable
attorney's fees, resulting from any mechanic's lien being filed on the Premises
and to release any such lien within thirty (30) days after receipt of written
notice of such filing. Following completion of any material Alterations costing
in excess of $50,000.00, Tenant shall provide Landlord with a set of plans
showing such Alterations.
(c) All Alterations made by Tenant or by Landlord on Tenant's behalf
pursuant to the provisions of this Lease shall remain the property of the Tenant
during the Term. All Alterations (including wall to wall carpet) to the Premises
shall remain upon the Premises and be surrendered with the Premises at the
expiration of the Term without disturbance, molestation or injury. At the
expiration of the Term, Tenant shall be required to remove any Alterations that
would be considered atypical in a commercial office building unless Tenant has
obtained Landlord's consent to such Alterations prior to the installation
thereof (which consent shall not be unreasonably withheld, conditioned or
delayed).
11. Tenant Property. Upon the expiration of the Term of this Lease,
Tenant shall have the right to remove from the Premises, all personal property,
equipment, trade fixtures, special lighting fixtures and signage ("Tenant
Property") belonging to Tenant, including the "Removable Property" described on
Exhibit B to this Lease. Tenant shall be responsible for repairing any damage to
the Premises resulting from such removal. Landlord may notify Tenant to remove
any Tenant Property remaining in the Building subsequent to the Expiration Date,
and if Tenant fails to complete such removal promptly, Landlord may remove the
Tenant Property in question at Tenant's expense. Tenant agrees to reimburse
Landlord for the cost of such removal and resulting repairs to the Premises. Any
Tenant Property not so removed shall become the property of Landlord. Landlord
waives any lien or claim with respect to all Tenant Property provided by law,
this Lease or otherwise.
11
12. Parking. Landlord and Tenant acknowledge that, simultaneously with
this Lease, Tenant and Landlord (or an entity under common ownership with
Landlord) are entering into a separate lease (the "Building One Lease")
providing for construction and occupancy by Tenant of the adjacent building and
appurtenant facilities ("Building One") shown on the Site Plan. Subject to the
ECR, Landlord agrees that Tenant shall have the exclusive right to use the
parking facilities in the Project. Tenant shall have the benefit of all rights
appurtenant to the Project pursuant to the ECR, including all rights of ingress
and egress and parking contained therein. Landlord agrees that at least 696
parking spaces will be constructed and available on the Premises for Tenant's
use, which will be subject to cross-parking easements as provided in the ECR.
Landlord agrees to provide at least 750 parking spaces on the Premises in the
event the "Additional Property" (as defined in Section 43 below) is added to the
Premises. Landlord agrees that there will be at least 1,402 total parking spaces
located on the Project and the adjacent Building One.
13. Signs. During the Term of this Lease, Tenant shall have the
exclusive right to all signage for the Building. Subject to applicable
governmental approvals and Landlord's prior written consent, not to be
unreasonably withheld, Tenant may, at its own expense, place, erect and maintain
exterior signs on the Building and a monument sign on the Project. Tenant will
maintain at its sole cost and expense all its signage on the Project in
reasonably good condition and repair. Landlord agrees to cooperate with Tenant,
at no cost to Landlord, in procuring any necessary permits needed to allow the
erection of Tenant's signs.
14. Damage or Destruction.
(a) If all or any part of the Building shall be destroyed or damaged
by fire or other casualty required to be insured against under Section 6(a) of
this Lease, then Landlord shall, as promptly as feasible (taking into account
the time necessary to conclude a satisfactory settlement with any insurance
company involved), repair such damage and restore the Building as nearly as
possible to the condition that existed immediately prior to the occurrence of
such casualty. If the damage or destruction occurs during the last two (2) years
of the Initial Term or during any Renewal Term, and the restoration of the
Premises cannot be diligently completed within a twelve (12) month period after
the date of the damage or destruction, then either party may terminate this
Lease by giving the other party notice of termination. Such termination shall be
effective twenty (20) days following receipt of the notice by the other party,
except that a notice of termination by Landlord shall be of no force or effect
if within twenty (20) days after receipt of such notice Tenant gives written
notice ("Nullification Notice") to Landlord of Tenant's exercise of any
available renewal option. In addition, if Landlord fails to complete such
restoration prior to the applicable "Restoration Date" described below, Tenant
shall have the option to terminate this Lease by giving written notice to
Landlord at any time prior to the commencement or completion of restoration, as
applicable. For purposes of the preceding sentence, if the extent of the damage
or destruction is less than twenty-five percent (25%) of the replacement cost
value of the Building, the "Restoration Date" shall be the date that is twelve
(12) months after the date of the damage or destruction, and if the extent of
the damage or destruction is equal to or greater than twenty-five percent (25%)
of the replacement cost of the
12
Building, the "Restoration Date" shall be the date that is eighteen (18) months
after the date of the damage or destruction. If this Lease is not terminated or
if Landlord's termination is nullified by a Nullification Notice, Landlord shall
be obligated to restore the Premises as provided above. If this Lease is
terminated, all insurance proceeds for the Premises and other improvements
payable under Landlord's policies and derived from such damage or destruction
shall be paid solely to Landlord, and all Rent shall ▇▇▇▇▇ and be prorated as of
the date of the damage or destruction (with any surplus rent paid in advance
being refunded to Tenant).
(b) If Tenant is deprived of the use of all or any portion of the
Building by reason of any such damage or casualty or the repair thereof, the
Rent shall be abated in proportion to the portion of the Building rendered
untenantable from the date of the casualty until the Building has been fully
restored and rendered tenantable. In the event that such damage precludes Tenant
from conducting its usual business in the Building (in Tenant's reasonable
judgment) or renders the entire Building untenantable, Rent shall completely
▇▇▇▇▇ until such time as the Building is fully restored and rendered tenantable.
15. Repairs.
(a) Landlord shall make all necessary repairs, maintenance or
replacements to the Premises arising from faulty material used or defective
workmanship employed in the construction of the Premises or Landlord's Work, and
Landlord shall be responsible for enforcing all warranties to be obtained in
connection with Landlord's Work pursuant to the "Final Plans and Specifications"
(as defined in Exhibit C) and make all necessary repairs, maintenance or
replacements required thereunder. Landlord, at its sole cost and expense, agrees
to keep in good condition and repair, and make all necessary maintenance,
repairs or replacements to, the roof and structural portions of the Building.
(b) Subject to Landlord's obligations under Sections 14 and 15(a)
above and Section 17 below, Tenant shall maintain the Premises in a clean, safe
and sanitary condition and in good condition and repair take good care thereof,
suffer no waste or injury thereto, and at the expiration of the Term of this
Lease, surrender the Premises, broom clean, in the same order and condition in
which the Premises is on the Commencement Date, ordinary wear and tear and
damage by fire or other casualty (subject to the provisions of Section 14)
excepted.
(c) In the event that Tenant makes any upgrades, repairs or
replacements to the Premises of a capital nature (i.e., any such upgrades,
repairs or replacements which add to the value of the Premises or extend the
useful life of the improvements on the Premises) for any reason, including
without limitation, by reason of changes in applicable law or as a result of the
deterioration of a component of the improvements due to normal wear and tear or
frequency of repairs, Landlord agrees that upon the expiration or earlier
termination of this Lease, Landlord shall reimburse Tenant, on a straight line
basis, without interest, for the unamortized costs borne by Tenant of such
upgrades, repairs and replacements based upon the anticipated useful life of
such upgrades and replacements as determined below. To facilitate reimbursement,
at the time of the completion of such upgrades or replacements, Landlord and
Tenant shall agree, in writing, upon the anticipated useful life of each capital
upgrade or replacement. If Landlord and Tenant
13
are unable to agree, they shall submit the determination of anticipated useful
life to an independent, unaffiliated arbitrator to be chosen and to conduct the
determination pursuant to the Commercial Rules of the American Arbitration
Association, whose decision shall be final and binding upon the parties. The
parties shall equally bear the costs of such arbitrator.
16. Entry. Landlord shall have the right to enter the Premises at all
reasonable hours to examine the same as well as for maintenance purposes. Any
such entry by Landlord shall be subject to Landlord's compliance with Tenant's
security and confidentiality procedures. Landlord shall, in connection with the
performance of any such work, use its best efforts to minimize the
inconvenience, annoyance or disturbance caused to Tenant during such work and
shall schedule such work outside of regular business hours if reasonably
possible. During the last four months of the Term, upon advance oral notice,
Landlord shall have the right to enter the Premises at reasonable hours to
exhibit the same for rental. Landlord may also enter the Premises at reasonable
times upon advance oral notice to Tenant to show the Premises to prospective
purchasers and lenders.
17. Condemnation.
(a) In the event of condemnation by eminent domain or similar law,
including a sale in lieu thereof to an authority or other entity having the
power of eminent domain (a "Taking"), of all or any portion of the Project,
which (i) involves a taking of any portion of the Building; (ii) results in a
taking of more than ten percent (10%) of the parking spaces available to Tenant;
or (iii) materially adversely affects ingress and egress to the Project, then,
in any of such events, Tenant may terminate this Lease by giving notice to
Landlord not more than thirty (30) days after the later of the date on which
title vests in the condemning authority or the date when Tenant receives notice
of such vesting.
(b) In the event that this Lease is not terminated as a result of
any such Taking, Landlord shall promptly restore the Project to a condition
reasonably equivalent to that existing prior to such Taking and shall apply the
"Award" (as defined below) to the cost of such restoration. In such event, the
rent payable by Tenant under this Lease shall be equitably abated and
appropriately rebated based on the effect of the Taking on the rental value of
the Premises and Tenant's business operations at the Premises.
(c) In the event of a Taking pursuant to the provisions of this
Lease, Tenant waives all rights to make a claim against Landlord or the
condemning authority for any portion of the award or other compensation
(collectively the "Award"), for a Taking, including without limitation any Award
for the Taking of Tenant's leasehold interest. However, Tenant may, if allowed
by statute, seek such separate awards or damages for moving expenses, loss of
Tenant's business goodwill and taking of fixtures and other equipment installed
and owned by Tenant which do not, under the terms of this Lease, become the
property of Landlord at the termination of this Lease. Such awards or damages
must be made by a condemnation court or other authority, be separate and
distinct from any award to Landlord for the Project, and not diminish any award
to Landlord.
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(d) If this Lease is terminated as the result of a taking, Landlord
shall promptly refund to Tenant all unearned Base Rent and other amounts paid in
advance by Tenant.
18. Tenant's Default; Landlord's Remedies; General Default Provisions.
(a) Defaults. The occurrence of any one or more of the following
events ("Defaults") shall constitute a default and breach of this Lease:
(i) Tenant shall fail to pay the Base Rent, or any other rent
owed under this Lease when due and such failure shall continue for ten (10) days
after Tenant's receipt of written notice from Landlord, provided, however,
Landlord shall not be obligated to give such notice and opportunity to cure more
than two times in any calendar year;
(ii) Tenant shall neglect or fail to perform or observe any
other term, covenant or condition set forth in this Lease on Tenant's part to be
performed or observed and Tenant shall fail to remedy the same within thirty
(30) days after receipt of written notice specifying such neglect or failure, or
if such failure is of such a nature that Tenant cannot reasonably remedy the
same within such thirty (30) day period, Tenant shall fail to commence to remedy
the same within such thirty (30) day period and to prosecute such remedy to
completion with reasonable diligence;
(iii) A general assignment by Tenant for the benefit of Tenant's
creditors, any voluntary filing, petition or application by Tenant under any law
relating to insolvency or bankruptcy, whether for declaration of bankruptcy, a
reorganization, an arrangement or otherwise;
(iv) The involuntary filing against Tenant of (A) a petition to
have Tenant declared bankrupt, or (B) a petition for reorganization or
arrangement of such party under any law relating to insolvency or bankruptcy,
unless in the case of any such involuntary filing, the same is dismissed within
sixty (60) days; or
(v) the appointment of a trustee or receiver to take possession
of all or substantially all of the assets of the Tenant, or the attachment,
execution or other judicial seizure of all or substantially all of Tenant's
assets located at the Premises, or of Tenant's interest in this Lease, unless
such appointment, attachment, execution or seizure is discharged within thirty
(30) days.
(b) Remedies. Upon the occurrence and continuance of a Default,
Landlord, without notice to Tenant in any instance (except as provided for
below) may do any one or more of the following: (i) re-enter the Premises
without terminating this Lease upon fifteen (15) days' prior written notice to
Tenant and remove all persons and property from the Premises, by any suitable
action or proceeding at law, or without judicial process (if permitted by
applicable law) as Landlord may elect, without Landlord being liable for any
prosecution therefor or damages therefrom, and repossess and enjoy the Premises
including reletting the Premises at Landlord's option (as provided below); (ii)
terminate this Lease upon not less than five (5) days' written
15
notice to Tenant, at which time the Term of this Lease shall expire, but with
Tenant's liability as set forth below in this Section 18 to continue; or (iii)
exercise any other legal or equitable rights or remedies available to Landlord,
including those additional rights set forth in this Lease.
In exercising any of the above remedies, Landlord may remove Tenant
Property from the Premises and store the same at Tenant's expense without resort
to legal process if permitted by applicable law and without Landlord being
deemed guilty of trespass or becoming liable for any loss or damage occasioned
thereby, and Landlord may also sell such Tenant Property at public or private
sale, with the proceeds being applied to costs of storage and sale (including
reasonable attorney's fees), amounts owed to Landlord under this Lease, and with
any surplus paid to Tenant, in that order. Tenant waives any right to re-enter
the Premises and rights of redemption.
If Landlord re-enters the Premises as provided in item (i) above or
takes possession of the Premises pursuant to legal proceedings or otherwise in
accordance with applicable law, then, if Landlord does not elect to terminate
this Lease, Landlord agrees to use reasonable efforts to re-let the Premises, in
one or more leases, either in Landlord's own right or as agent for Tenant, for a
term or terms that may be greater or less than the balance of the Term of this
Lease, and Landlord may grant reasonable concessions or reasonable free rent
without in any way affecting Tenant's liability for the Rent payable under this
Lease. Tenant's liability under this Lease shall not be affected or diminished
in any way whatsoever for Landlord's failure (after using reasonable efforts) to
re-let the Premises, or if the Premises are re-let, for Landlord's failure
(absent bad faith) to collect the rentals under such re-letting. In connection
with any re-letting, Landlord may make or do any alterations, maintenance,
repairs, painting and/or decorations (collectively "Re-letting Preparations") in
the Premises that are advisable and necessary in Landlord's reasonable business
discretion, and such Re-letting Preparations shall not release Tenant from any
liability under this Lease. Landlord's reletting of the Premises shall not
preclude Landlord from thereafter exercising at any time its remedy to terminate
this Lease.
(c) Damages. If a Default occurs, Tenant shall remain liable for (i)
all Rent and damages that may be due or sustained by Landlord up to the date
this Lease terminates or the date Landlord takes possession of the Premises,
whichever occurs earlier, and the performance of all other obligations of Tenant
accruing under this Lease through such date (collectively "Accrued Damages");
(ii) all reasonable costs, fees and expenses (including without limitation
reasonable brokerage commissions and reasonable attorney's fees) incurred by
Landlord in pursuit of its remedies under this Lease and in renting the Premises
to others from time to time (all such Accrued Damages, costs, fees and expenses
being referred to collectively as the "Default Damages"); and (iii) Future
Damages (as defined below). Future Damages shall be equal to the deficiency (the
"Deficiency") between (A) the monthly Rent reserved under this Lease to the date
that the Term then in effect would have originally ended, and (B) the rent, if
any, that Landlord receives during the applicable month from others to whom the
Premises is rented, from which rent Landlord may deduct all Default Damages and
interest thereon remaining unpaid. Tenant shall pay the monthly Deficiency to
Landlord within ten (10) days after Tenant is given written notice of the amount
due. All Default Damages and Future
16
Damages shall bear interest at the Applicable Rate from the date when the same
accrues until paid in full. Landlord agrees to use reasonable efforts to
mitigate Landlord's damages.
(d) Attorney's Fees and Expenses. If Landlord and Tenant are
involved in any litigation or other judicial proceeding regarding the
performance of their obligations under this Lease, then in addition to all other
rights and remedies the parties may have under this Lease, the unsuccessful
party by final order, decree or judgment in such litigation or other judicial
proceeding by a court of competent jurisdiction shall reimburse the successful
party for all reasonable legal fees and expenses incurred by such successful
party in connection with such litigation.
(e) Remedies Cumulative. Each remedy provided for in this Lease for
both Landlord and Tenant shall be cumulative and concurrent and shall be in
addition to every other remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute. The exercise of any remedies shall
not preclude the simultaneous or later exercise of the same or any other
remedies.
(f) No Waivers. The failure of Landlord to insist upon a strict
performance of any of the terms, covenants and conditions of this Lease shall
not be deemed a waiver of any other than existing or subsequent breach or
default, except for any breach or default that Landlord expressly waives in
writing. The maintenance of any action or proceeding to recover possession of
the Premises, or to recover any installments of Rent that may be due from Tenant
to Landlord, shall not preclude Landlord from thereafter instituting and
maintaining subsequent actions or proceedings for the recovery of possession of
the Premises or of any Rent that is or may become due from Tenant. Landlord may
institute suit on one or more occasions to recover Rent, Default Damages and/or
Future Damages or any other amounts owed by Tenant under this Lease,
notwithstanding that Landlord has previously instituted suit for any or all of
the amounts claimed to be due. No payment by Tenant or receipt by Landlord of
the stated Rent amount shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any check or
letter accompanying a check for payment of Rent be deemed in accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent, or to pursue any other
remedy provided in this Lease. No re-entry by Landlord, reletting of the
Premises, alterations to the Premises in connection with a reletting or
acceptance of keys or other similar action shall be considered an acceptance of
a surrender of this Lease or constitute a constructive eviction.
19. Landlord's Default; Tenant's Remedies. If during the Term of this
Lease, Landlord fails to comply with any of the terms, conditions or provisions
of this Lease, or if Landlord breaches any warranty contained in this Lease, and
Landlord does not cure such failure or breach within thirty (30) days after
receipt of written notice from Tenant specifying such non-compliance or breach,
or if such failure or breach is of such a nature that Landlord cannot reasonably
remedy the same within such thirty (30) day period, Landlord shall fail to
commence to remedy the same within such thirty (30) day period and to prosecute
such remedy to completion with reasonable diligence, then, in any of said
events, provided that Tenant has also
17
given Landlord's mortgagee notice of such breach or default as required in this
Section 19 below, Tenant shall have the right, at Tenant's option, to cure such
default or perform such covenant or obligation on the part of Landlord, and
Landlord shall be liable for all reasonable out-of-pocket costs and expenses so
incurred by Tenant. Notwithstanding the foregoing provisions, in the event of an
emergency when action is required to be taken forthwith to avoid personal injury
or damage to the Premises or to Tenant's equipment and other personal property,
Tenant may take curative action as contemplated under this Section even though
the applicable cure period (which applies when an emergency does not exist) of
the Landlord has not yet expired. Tenant shall endeavor to give Landlord such
prior notice (written or oral), if any, as may be reasonable under the
circumstances and shall in any event notify Landlord as soon as possible after
taking curative action.
If Landlord fails to reimburse Tenant for all such amounts expended
within twenty (20) days after receipt of a billing therefor, or if Landlord
fails to pay Tenant any other amounts due under this Lease within ten (10) days
after Tenant notifies Landlord that such sums are past due, Tenant may deduct
such amounts, together with interest thereon at the Applicable Rate from the
date of Landlord's receipt of the above billing, from one or more installments
of Rent due to Landlord until Tenant is fully reimbursed. Tenant agrees that its
right of self-help shall be carefully and judiciously exercised, it being
understood and agreed that, whenever possible, Landlord shall be given
sufficient opportunity to perform its obligations, in order to avoid any
conflict with respect to whether or not self-help action should have been taken.
Tenant agrees to give Landlord's mortgagee, by certified mail,
return receipt requested, a copy of any notice of default sent to Landlord,
provided that Tenant has been notified in writing, (by way of Notice of
Assignment of Rents and Leases or otherwise) of the address of Landlord's
mortgagee. Tenant further agrees that if Landlord shall have failed to cure such
default within the time provided for in this Lease, then prior to Tenant
exercising any right to terminate this Lease on account of such default,
Landlord's mortgagee shall have an additional thirty (30) days within which to
cure such default. If such default cannot be cured within that time, Landlord's
mortgagee shall have additional time as may be necessary if within such thirty
(30) days, Landlord's mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary to effect such cure).
Tenant may not exercise any right to terminate this Lease on account of any such
default by Landlord, whether available under this Lease, or at law or in equity,
while such remedies are being so diligently pursued by Landlord's mortgagee.
20. Taxes.
(a) Landlord agrees to pay, or cause to be paid, all real estate
taxes, real estate assessments, real estate excises and real estate levies,
general and special, ordinary and extraordinary, of any kind and nature
whatsoever, levied, imposed or becoming a lien upon the Project. Tenant shall
pay any and all taxes imposed upon Tenant's fixtures, equipment and other
personal property.
18
(b) Tenant shall have the right to contest the amount or validity of
any real estate taxes by appropriate legal proceedings, diligently pursued, in
the name of Landlord if required by applicable law, provided that (A) Tenant
shall first reimburse Landlord for any contested payments that are currently due
(Landlord to make such payments under protest if Tenant desires); (B) the
Project is not in any danger of being sold, forfeited, lost or interfered with;
and (C) all expenses incurred in connection with such proceedings shall be paid
by Tenant. Tenant agrees to indemnify and hold Landlord harmless from all costs,
expenses (including reasonable attorneys' fees), claims or damages accruing by
reason of, or in connection with, or resulting from any such action or
proceeding.
21. Assignment and Subletting.
(a) Consent Required. Tenant shall not assign, transfer, mortgage,
or otherwise encumber this Lease or sublet (or otherwise permit the occupancy or
use of) the Premises or any part thereof (collectively such events are referred
to as "Transfers") without obtaining the prior written consent of Landlord as
provided in this Section 21. Similarly, no assignment or transfer of this Lease
or the right of occupancy under this Lease shall be effectuated by operation of
law or otherwise without the prior written consent of Landlord as provided. The
consent by Landlord to any Transfer, or Landlord's collection or acceptance of
Rent from any such assignee, subtenant or other occupant (collectively
"Transferee") shall not constitute a waiver or reliance of Tenant of any
covenant or obligation contained in this Lease or approval of any Transfer that
has not been approved by Landlord in writing. Consent by Landlord in one or more
instances to any Transfer shall not be construed to relieve Tenant from the
requirement of obtaining Landlord's consent to any future Transfer. If Tenant is
in default under this Lease beyond applicable cure periods, Landlord shall be
satisfied to all rent due Tenant from subtenants or other occupants of the
Premises, and Tenant hereby authorizes each such party to pay said Rent directly
to Landlord. In the event of any Transfer permitted under the terms of this
Section 21(a), (i) Tenant and any subsequent assignee who in turn enters into a
Transfer, shall each remain fully and primarily liable for all of the
obligations of Tenant under this Lease (regardless of any subsequent amendment
or modification of this Lease and regardless of any further Transfers, all of
which are deemed to be consented to by Tenant and subsequent Transferees); (ii)
each assignee must agree in writing to assume the obligations of Tenant under
this Lease and a copy of such written assumption must be delivered to Landlord
within ten (10) days after the effective date of the Lease Assignment; and (iii)
each Sub-Tenant or Transferee must agree in writing (delivered to Landlord
within ten (10) days after the Sub-Lease or other Occupancy Agreement is
executed) that Landlord may collect Rent under the Sublease or Occupancy
Agreement directly from the Sub-Tenant or Occupant if there is a Default (as
defined in Section 18(a) of this Lease) under this Lease and agree to attorn to
Landlord should this Lease be terminated (with Landlord likewise agreeing to
recognize the Sub-Lease or other Occupancy Agreement and not disturb the
possession of such Sub-Tenant or Transferee if this Lease is terminated).
19
(b) Other Requirements.
(i) If Tenant desires to enter into a Transfer, Tenant shall
give Landlord written notice at least ten (10) business days in advance of the
date on which the Transfer is to take effect, such notice to include the terms
and conditions of the proposed Transfer, financial information on the proposed
Transferee and other information as the Landlord may reasonably require relating
to the proposed Transfer and Transferee.
(ii) If Landlord's consent is required under this Section 21,
Landlord agrees not to unreasonably withhold, condition or delay its consent to
the proposed Transfer providing all of the following requirements are satisfied:
(1) the financial strength of the proposed Transferee must
be at such level that the Landlord and the Landlord's mortgagee would generally
approve the Transferee as a tenant;
(2) The business reputation of the proposed Transferee must
be in accordance with generally accepted commercial standards;
(3) The use of the Premises by the proposed Transferee must
comply in all respects with the requirements of this Lease;
(4) No outstanding Defaults exist under this Lease; and
(5) Such other standards as are then commercially reasonable
at the time of the proposed Transfer as determined in Landlord's reasonable
business judgment.
(c) Landlord Transfer. Upon Landlord's sale or transfer of its
interest in the Project, Landlord shall be released from all further liability
under this Lease accruing subsequent to such sale provided that the party
acquiring such interest in the Project has assumed the obligations of the
Landlord under this Lease accruing subsequent to such sale.
(d) Landlord Consent Not Required. Notwithstanding any other
provision of this Section to the contrary, Tenant may assign this Lease or
sublet the Premises without Landlord's consent to any entity which controls, is
controlled by or is under common control with Tenant, or to any entity resulting
from a merger, acquisition, consolidation, or name change of or with Tenant, or
in connection with the sale of all or substantially all of the assets of Tenant.
In the event of any Transfer permitted under the terms of this Section 21(d),
Tenant shall remain fully and primarily liable for all of the obligations of
Tenant under this Lease.
22. Subordination, Non-Disturbance and Attornment.
(a) Subject to the provisions of subsection (b) below, (i) this
Lease and all rights of the Tenant are, and shall be subject and subordinate to
the lien of any first mortgage, deed of trust or any other security interest
which have been or which hereinafter may affect the
20
Premises, and to all renewals, modifications, consolidations, replacements and
extensions thereof; (ii) Tenant agrees to attorn to any successor to Landlord's
interest in the Premises, or to any purchaser at foreclosure (or by deed in lieu
of foreclosure) upon all of the terms and conditions of this Lease; and (iii)
Tenant covenants and agrees that it shall, within fifteen (15) days after
Landlord's request therefor, execute and deliver such agreements confirming the
above subordination and attornment as are reasonably requested by Landlord or
Landlord's lender. Any subordination, non-disturbance and attornment agreement
or other similar document required to be executed by Tenant pursuant to the
terms of this Lease which is not substantially the same as the form attached
hereto as Exhibit D shall be subject to Tenant's reasonable approval of the form
and substance thereof.
(b) Before any subordination and/or attornment by Tenant shall be
effective, Landlord shall cause any mortgagee, holder of a deed of trust or
security interest, or ground or underlying lessor (collectively the "Mortgagee")
to deliver to Tenant a non-disturbance agreement stating that so long as no
Default has occurred under this Lease beyond any applicable cure periods, (i)
any action or proceeding to foreclose any mortgage, deed of trust or security
interest will not result in any disturbance of Tenant's possession of the
Premises, and (ii) Tenant's rights under this Lease shall not be interfered with
or otherwise affected.
(c) Tenant's obligations under this Lease are conditioned upon
receipt of a satisfactory non-disturbance agreement from the ground lessor under
the Ground Lease providing for the continuation of this Lease as a direct lease
between Tenant and such ground lessor on all of the terms and conditions
contained in this Lease in the event of any termination of the Ground Lease.
Such non-disturbance agreement shall be in the form attached as Exhibit E to
this Lease.
23. Estoppel Certificate. Within fifteen (15) days after receipt of a
request, Landlord and Tenant each agree to deliver to the other party a duly
executed and acknowledged instrument certifying to the party's best knowledge
(i) whether this Lease is in full force and effect (and if not, why), (ii) as to
the existence of any Default, including the nature or extent of such Default,
(iii) whether there are any defenses, counterclaims or offsets to such Default,
(iv) whether there has been any modification or amendment to this Lease and
specifying the nature of such modification, (v) as to the commencement and
expiration dates of the Term, (vi) as to the date to which Base Rent has been
paid, and (vii) as to such other matters relating to this Lease as may be
reasonably requested. Any such certificate may be conclusively relied upon by
the requesting party and by any other person to whom it has been exhibited or
delivered, and the contents of the certificate shall be binding upon the party
executing such certificate. If Tenant shall fail to respond within fifteen (15)
days after receipt by Tenant of a written request by Landlord as herein
provided, Tenant shall be deemed to have given such certificate as provided
without modification and shall be deemed to have admitted accuracy of any
information supplied by Landlord to a prospective purchase or lender.
24. Short Form Deed of Lease - Notice of Termination. A short form
Memorandum of Lease, suitable for recording purposes, shall be entered into by
Landlord and Tenant following
21
the execution of this Lease at the request of either party. The cost of
recording such Memorandum of Lease shall be at the expense of the party that
requests such recording. If a Memorandum of Lease is recorded, the parties agree
at the expiration or earlier termination of this Lease to execute a Notice of
Termination of this Lease in recordable form.
25. Force Majeure. In the event that Landlord or Tenant shall be
delayed, or hindered, or prevented from the performance of any act required
under this Lease (except for the payment of Rent or other monies), by reason of
governmental restrictions, scarcity of labor or materials, or for other
reasonable reasons beyond such party's control, the performance of such act
shall be excused for the period of delay and the period for the performance of
any such act shall be extended for a period equivalent to the period of such
delay.
26. Landlord's Authority. Landlord warrants that it is the ground
lessee of the Project and has the full right and authority to make this Lease.
Landlord represents and warrants that the individual(s) executing this Lease on
behalf of Landlord is duly authorized to execute and deliver this Lease; that
Landlord is a duly organized and validly existing limited liability company
under the laws of the Commonwealth of Virginia, and has the power and authority
to enter into this Lease; and that all action requisite to authorize Landlord to
enter into this Lease has been duly taken.
27. Tenant's Authority. Tenant represents and warrants that the
individual(s) executing this Lease on behalf of Tenant is duly authorized to
execute and deliver this Lease; that Tenant is a duly organized corporation
under the laws of the State of Delaware, in good standing under the laws of
Delaware, and with the power and authority to enter into this Lease; and that
all corporate action requisite to authorize Tenant to enter into this Lease has
been duly taken.
28. Broker's Commission. Both Landlord and Tenant agree that the Broker
was the only broker dealt with by the parties in this transaction. Landlord
agrees to pay the brokerage commission owed to Broker in connection with this
Lease pursuant to the terms of a separate agreement between Landlord and Broker,
a copy of which is attached to this Lease as Exhibit F. Each party agrees to
indemnify and hold the other party harmless from any costs, liabilities, and
commissions arising out of the dealings by the indemnifying party with any
broker in connection with this Lease or the Building or Premises, other than the
commission owed to Broker as noted above. Landlord and Broker will enter into a
separate agreement providing for Broker's compensation.
29. Venue. Tenant consent to and agrees that any legal action commenced
by Landlord in connection with this Lease may be maintained in the courts of the
City of Virginia Beach, Virginia, waives objection to venue in any such court.
30. Surrender; Holdover. Upon the expiration or sooner termination of
the Term of this Lease, Tenant shall promptly surrender the Premises to Landlord
in accordance with the provisions of Section 15(b) and Section 11 and deliver
all keys to the Premises to Landlord. If Tenant shall default in so surrendering
the Premises, Tenant's occupancy subsequent to the end
22
of the Term shall be a tenancy at will (and not a tenancy from month to month or
from year to year) cancelable by Landlord or Tenant immediately upon oral or
written notice and such tenancy shall be subject to all of the provisions of
this Lease, except that Base Rent shall be equal to one hundred fifty percent
(150%) of the Base Rent payable immediately prior to the end of the Term, unless
Landlord agrees in writing to other terms for the holdover tenancy.
31. Notices. Any notice by either party to the other shall be in
writing and shall be deemed to be duly given only if delivered personally or
delivered by recognized overnight courier service, such as Federal Express, or
mailed by registered or certified mail, return receipt requested, in a post-paid
envelope addressed (a) if to Tenant, at Tenant's Notice Address; and (b) if to
Landlord, at Landlord's Notice Address, or to either at such other addresses as
Tenant or Landlord, respectively, may designate in writing. Notice shall be
deemed to have been duly given upon delivery thereof. Notices may also be given
by facsimile transmittal (i.e., telecopy or "fax") during business hours on any
business day and shall be effective upon receipt, provided a copy of such notice
is sent on the same business day as such facsimile transmittal by Federal
Express or other reputable overnight courier service as provided above.
32. Heirs and Assigns. This Lease shall be binding upon and inure to
the benefit of the parties hereto, their respective heirs, executors,
administrators, successors and assigns.
33. Covenant of Quiet Enjoyment. Provided that Tenant is not in default
under this Lease beyond applicable cure periods, Tenant shall, during the term
hereby created, freely, peaceably and quietly occupy and enjoy the full
possession of the Premises without molestation or hindrance by any party.
34. Relationship of Parties. It is expressly understood that Landlord
shall not be construed or held to be partner or associate of Tenant in the
conduct of Tenant's business, it being expressly understood that the
relationship between the parties is that of Landlord and Tenant only.
35. Section Headings. The Section headings throughout this Lease are
for convenience and reference only, and the words contained therein shall in no
way be held to explain, modify or amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
36. Complete Agreement. This Lease contains the entire agreement
between Landlord and Tenant and all previous negotiations leading thereto, and
this Lease may be modified only by an agreement in writing signed by both
parties. The parties agree that the execution of this Lease has not been induced
by either party by any representations, promises or undertakings not expressed
in this Lease.
37. Waiver of Jury Trial. Landlord and Tenant hereby waive trial by
jury in any action, proceeding, or counterclaim brought by either of the parties
hereto against the other that is in way connected with this Lease, the
relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of the
Premises, and/or any claim of injury of damage.
23
38. Jurisdiction. This Lease shall be governed by the laws of the
Commonwealth of Virginia.
39. Counterparts. This Lease may be executed in counterparts, each of
which shall be deemed to be an original, and/or with counterpart signature
pages, all of which shall be treated collectively as representing the single
execution of this Lease.
40. Exhibits. The following Exhibits are attached to this Lease.
A - Site Plan
A-1 - Legal Description
B - Removable Property
C - Landlord's Work
C-1 - Guideline Plans
D - Form of Subordination, Non-Disturbance and Attornment
E - Ground Lease Nondisturbance Agreement
F - Commission Agreement
G - Additional Property
H - Declaration and Deed of Easements (ECR)
41. Early Termination. Tenant will have the one-time option to
terminate this Lease effective as of the end of the tenth (10th) Lease Year by
(i) giving written notice of such termination to Landlord at any time prior to
the commencement of the tenth (10th) Lease Year, and (ii) paying Landlord a
termination fee (the "Termination Fee") in an amount equal to the annual Base
Rent in effect for the tenth (10th) Lease Year. If Tenant exercises its
termination option pursuant to this Section 41, Tenant shall pay such
Termination Fee together with the monthly installment of Base Rent due for the
last month of the tenth (10th) Lease Year.
42. Grant Proceeds. Landlord agrees to cooperate with Tenant in
qualifying for and obtaining disbursements pursuant to the Grants described in
Section 5(d)(i) of this Lease, including providing Tenant with copies of
invoices and other information requested by the City of Virginia Beach or
Commonwealth of Virginia in connection with establishing the satisfaction of
capital investment performance criteria or the qualifying expenditures incurred
under such Grants.
43. Street Closure Area. In the event Landlord acquires on or before
March 31, 2004, the leasehold title by street closure or other means to that
portion of the Premises identified on
24
Exhibit G (the "Additional Property"), Landlord and Tenant shall amend this
Lease to cause the Premises to be reconfigured and the description of the
Premises revised such that the Additional Property shall be added to the
description of the Premises. Landlord covenants to use reasonable commercial
efforts to acquire leasehold title to the Additional Property prior to March 31,
2004, but Landlord's failure to acquire leasehold title to the Additional
Property shall not be the basis for any claim or damages of any type or nature
by Tenant against Landlord. Notwithstanding the foregoing, in the event the
parties mutually agree, the parties shall have the right to modify this Lease to
add the Additional Property as part of the Premises prior to that date.
25
WITNESS the following signatures:
LANDLORD: VTC TWO LLC
a Virginia limited liability company
By: _________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Manager
By: _________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Its: Manager
TENANT: AMERIGROUP CORPORATION,
a Delaware corporation
By _________________________________________
Name: _____________________________
Title: ______________________________
26
EXHIBIT A
SITE PLAN OF PROJECT
A-1
EXHIBIT A-1
LEGAL DESCRIPTION
ALL THOSE certain lots, pieces or parcels of land, situate, lying and being in
the City of Virginia Beach, Virginia, and known, numbered and designated as
"Parcel 2A" and "Parcel 2B" on that certain subdivision plat entitled "Plat of
Vacation, Resubdivision, Right-of-Way and Easement Dedications on `Parcels A and
B Resubdivision of property of Christian Broadcasting Network, Inc.' Map Book
231, Pages 96-98" prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brustlin, Inc., dated September 16,
2003, which will be recorded in the Clerk's Office of the Circuit Court of the
City of Virginia Beach, Virginia.
A-2
EXHIBIT B
REMOVABLE PROPERTY
[To be agreed upon by Landlord and Tenant following delivery of the Commencement
Notice pursuant to Exhibit C.]
B-1
EXHIBIT C
LANDLORD'S WORK
A. Landlord's Work. Landlord agrees to fulfill all of Landlord's construction
obligations (collectively "Landlord's Work") at its sole cost and expense and in
accordance with the Final Plans and Specifications (as defined below), which
work shall include, without limitation, the work contemplated by the guideline
plans and specifications described on Exhibit C-1 to this Lease (the "Guideline
Plans"), as well as the following:
1. The Premises shall be delivered to Tenant by Landlord in a neat and
clean condition, free of all tenants and occupants, and free of all trade
fixtures and the like.
2. The Premises shall be delivered in a structurally sound condition and
with a completely watertight roof and window system; and the plumbing, sprinkler
system, HVAC system and utilities shall be fully installed and in good working
order and fully connected to operational public utility systems that Tenant may
use subject only to Tenant paying applicable fees for consumption charged to all
users. The HVAC system shall be designed to maintain a temperature of 72 degrees
(+/- two degrees) year-round based on an occupancy level of eight (8) occupants
per one thousand (1,000) square feet. Waste disposal and treatment must be
handled by an operational public sanitary sewer system (septic systems or
temporary waste storage facilities are not acceptable).
3. All Common Areas shall be appropriately constructed in accordance with
the Site Plan (including paving and striping of parking areas, erection of light
standards, landscaping, etc.) all to the end that such Common Areas will be
completed and in a first-class condition no later than the "Delivery Date" (as
defined below), subject only to the completion of minor punch list items to be
completed on or before the Commencement Date.
4. The Premises shall be delivered in a so-called "turnkey" condition in
conformance with the Final Plans and Specifications and in a condition ready for
installation and delivery of Tenant's equipment, trade fixtures and signs, so
that Tenant may commence operations in the normal course upon delivery of the
Premises by Landlord to Tenant.
B. Plans and Specifications. Landlord and Tenant agree with respect to plans and
specifications as follows:
1. The plans and specifications, including shop drawings, to be used for
Landlord's Work relating to the Premises and Common Areas shall be subject to
the prior written approval of Tenant.
2. Promptly following Tenant's delivery of the "Commencement Notice"
defined in Paragraph N of this Exhibit C below, Landlord shall submit to Tenant
three (3) sets of complete
C-1
working drawings for Landlord's Work (the "Preliminary Plans and
Specifications") based on the Guideline Plans. Within twenty (20) days after
receipt of the Preliminary Plans and Specifications, Tenant shall notify
Landlord in writing of its approval or disapproval thereof (such approval not to
be unreasonably withheld), in the latter event specifying the reasons therefor.
Within fifteen (15) days after receipt of Tenant's notice, Landlord shall
resubmit the Preliminary Plans and Specifications for Tenant's approval
appropriately modified to accommodate the objections, if any, contained in
Tenant's notice. The Preliminary Plans and Specifications, as modified to
accommodate Tenant's objections, shall be referred to as the "Final Plans and
Specifications". Except at its own risk, Landlord shall not commence any portion
of Landlord's Work relating to the Premises until the Final Plans and
Specifications have been approved by Tenant.
3. Landlord and Tenant agree that any changes to the Final Plans and
Specifications shall require the prior written approval of Tenant. Such written
approval shall be in the form of a change order (a "Change Order") executed by
Landlord and Tenant, and which must be executed on behalf of Tenant by either
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (the "Authorized Representatives").
The Authorized Representatives may be changed only by written notice given by
Tenant pursuant to Section 31 of this Lease. Any Change Order must describe the
change in Landlord's Work, the amount of any net increase or decrease in the
cost of performance of Landlord's Work and the agreed upon length of any "Tenant
Delays" (as defined below) attributable to such change in Landlord's Work. If
Tenant desires to make a change to the Final Plans and Specifications, Tenant
shall so notify Landlord, and Landlord, as promptly as feasible, shall provide
Tenant with the proposed net increase or decrease in the cost of Landlord's Work
(as determined pursuant to the Landlord's contract with the general contractor)
and the proposed length of any Tenant Delays attributable to such change. If
Landlord and Tenant mutually agree upon the net cost adjustment and length of
Tenant Delays, such agreement shall be set forth in a written Change Order, and
Landlord shall proceed with the change in Landlord's Work. Landlord shall not
proceed with such change in the absence of a mutual agreement evidenced by a
written Change Order. Upon occurrence of "Substantial Completion" (as defined
below), Landlord and Tenant will total up the net increases and/or decreases in
the costs of Landlord's Work reflected in all Change Orders. If all Change
Orders result in a net increase in the cost of Landlord's Work, Tenant shall pay
Landlord the amount of such net increase within thirty (30) days after the date
of Substantial Completion. If all Change Orders result in a net decrease in the
cost of Landlord's Work, Tenant shall be entitled to a credit against the Base
Rent initially payable under this Lease equal to the amount of such net
decrease.
C. Permits. All permits required for Landlord's Work shall be obtained by
Landlord. Landlord agrees to cooperate with Tenant with respect to obtaining any
permits for work to be done by Tenant.
D. Construction Standards. All of Landlord's Work shall be done in a good and
workmanlike manner in accordance with all applicable laws, ordinances, codes and
insurance requirements.
C-2
E. Construction Commencement Date. If Landlord has not (i) obtained all
governmental permits and approvals required for Landlord's Work (including,
without limitation, any permits and approvals required for the monument signs of
Tenant described in this Lease) and (ii) commenced the construction of the
Premises prior to the "Construction Commencement Date" (as defined below), then
at any time thereafter, but prior to Landlord having obtained such permits and
approvals and commenced Landlord's Work, Tenant shall have the right, in
addition to all other remedies, to terminate this Lease by giving Landlord
written notice thereof. Landlord agrees to notify Tenant in writing of the
anticipated Construction Commencement Date at least thirty (30) days in advance.
F. Delivery Date. Landlord shall cause "Substantial Completion" to occur on or
before the "Delivery Date" (as defined below). For the purposes of this Lease,
"Substantial Completion" shall be deemed to occur when (i) Landlord's Work has
been completed in accordance with the Final Plans and Specifications subject
only to minor punchlist items of such nature that do not interfere with Tenant's
fixturing and with Tenant's normal use and occupancy of the Premises, and (ii)
Landlord has delivered possession of the Premises to Tenant pursuant to a
temporary certificate of occupancy. Notwithstanding the foregoing or any other
provision of this Lease to the contrary, for purposes of determining the
Commencement Date, in no event will Substantial Completion be deemed to have
occurred prior to the "Earliest Delivery Date" (as defined below). Landlord
agrees to keep Tenant regularly (at least monthly) informed in writing of the
anticipated Delivery Date and Possession Date (as defined below).
G. Possession Date. For the purposes of this Lease, the "Possession Date" shall
occur when all the following conditions are satisfied: (i) the Premises are
ready for exclusive occupancy by Tenant; (ii) a permanent certificate of
occupancy or equivalent document is obtainable but for items to be completed by
Tenant with respect to the installation of its fixtures and the construction of
its leasehold improvements, if any; and (iii) construction of the Premises and
all other aspects of Landlord's Work have been completed in accordance with the
Final Plans and Specifications subject only to minor punch list items of such
nature that do not interfere with Tenant's fixturing and with Tenant's normal
use and occupancy of the Premises.
In the event that a permanent Certificate of Occupancy cannot be issued
prior to the Commencement Date otherwise determined in accordance with this
Lease due to work done or failed to be done by Landlord pursuant to the
provisions of this Exhibit C, or by reason of any condition of the Premises,
then, at Tenant's option, the Commencement Date shall be extended until the
earlier to occur of the following: (i) the date that Tenant shall commence
operations in the Premises; or (ii) the date that a permanent Certificate of
Occupancy is obtained. In the event that Tenant elects to commence operations in
the Premises although a permanent Certificate of Occupancy has not issued, the
Base Rent and other payments otherwise due under this Lease from Tenant shall be
proportionately reduced during any periods in which there is interference with
Tenant's operations by reason of the absence of a permanent Certificate of
Occupancy, such reduction to be based on the extent of such interference. In the
event Tenant elects to commence operations even though a permanent Certificate
of Occupancy has not been obtained or Landlord's Work has not been fully
completed (or is defective), such commencement of
C-3
operations shall not be deemed a waiver of Landlord's obligation fully to
complete Landlord's Work, and Landlord agrees fully to complete the unfinished
work promptly thereafter.
H. Tenant's Access. Tenant shall have the right to come onto the Premises in
order to take measurements and in order to commence its work, while Landlord is
completing Landlord's Work, but such entry by Tenant shall be at Tenant's sole
risk and shall not be deemed a waiver of Landlord's obligation fully to complete
Landlord's Work. Tenant agrees that any of its work conducted as aforesaid shall
not unduly interfere with the completion of Landlord's Work. Landlord and Tenant
agree, to the extent reasonably possible, to coordinate their work in the
Premises in order that the Delivery Date may be met. Landlord will, in addition,
cooperate with Tenant with respect to any permits that Tenant must secure, and
Landlord will remedy any failure to fulfill its obligations resulting in
Tenant's inability to secure its permits.
I. Rent Abatement. If Substantial Completion has not occurred on or prior to the
Delivery Date, Tenant shall be entitled to occupy the Premises on a rent-free
basis (i.e. no Base Rent or other charges being owed) for one day subsequent to
the Commencement Date for each day that Substantial Completion is delayed past
the Delivery Date.
J. Termination Date. If the Possession Date has not occurred on or prior to the
"Termination Date" (as defined below), Tenant shall have the right to terminate
this Lease by giving written notice to Landlord at any time prior to the
occurrence of the Possession Date.
K. Extensions.
1. Extension for Delays. The Construction Commencement Date under
Paragraph E above, the Delivery Date under Paragraph F above, and the
Termination Date under Paragraph J above shall be extended by the length of any
Tenant Delay(s) established pursuant to subparagraph (2) below and by the length
of any Excusable Delay(s) established pursuant to subparagraph (3) below.
2. Tenant Delays. Tenant Delays, as used herein, shall mean delays in
completing Landlord's Work as a result of: (i) Tenant's failure to comply with
any deadline specified in this Exhibit, (ii) Tenant's request for changes to the
Final Plans and Specifications, (iii) any delay in obtaining a building permit
with respect to Landlord's Work caused by the act or omission of Tenant, or (iv)
the performance (or failure thereof) of any work by any person or firm employed
or retained by Tenant. In order to avoid any dispute regarding the occurrence
and duration of any Tenant Delay, the foregoing delays shall only be considered
a "Tenant Delay" for purposes of this Lease if Landlord notifies Tenant in
writing of the occurrence of any Tenant Delay claimed by Landlord within five
(5) business days after the commencement thereof and then subsequently notifies
Tenant in writing of the length of any such Tenant Delay claimed by Landlord
within five (5) business days after the cessation thereof.
3. Excusable Delays. Excusable Delays, as used herein, shall mean acts of
God, strike, labor disputes, material or transportation shortages, extraordinary
adverse weather conditions, boycotts, governmental restrictions (other than
failure to obtain permits and
C-4
approvals), riot, insurrection, war, catastrophe, the act of public enemy, or
any similar reason beyond the reasonable control of Landlord. In order to avoid
any dispute regarding the occurrence and duration of any Excusable Delay, the
foregoing delays shall only be considered an "Excusable Delay" for purposes of
this Lease if Landlord notifies Tenant in writing of the occurrence of any
Excusable Delay claimed by Landlord within ten (10) business days after the
commencement thereof and then subsequently notifies Tenant in writing of the
length of any such Excusable Delay claimed by Landlord within ten (10) business
days after the cessation thereof.
L. Excess Tenant Improvement Costs. In the event the "Construction Costs" (as
defined in Section 5(d) of this Lease) allocable to the tenant improvements (the
"Tenant Improvements") to the interior of the Building not included within the
base building interior shell pursuant to the specifications (the "Outline
Specifications") entitled "Project Outline Specifications - CARECO, Virginia
Beach, Virginia" dated May 8, 2003, and last revised September 12, 2003, exceed
$15 per square foot of rentable area of the Building ($1,590,000.00) (the
"Tenant Improvement Allowance"), Tenant shall reimburse Landlord for the amount
of such excess costs (the "Excess Tenant Improvement Costs") in accordance with
this Paragraph L. Promptly following Tenant's delivery of the Commencement
Notice pursuant to Paragraph M below, Landlord shall provide Tenant with the
general contractor's bid for the actual amount of the Tenant Improvements Costs.
Landlord and Tenant shall work together in good faith to agree upon the actual
amount of the Tenant Improvements Costs and shall also work together in good
faith to agree upon an anticipated draw schedule for payment of the Tenant
Improvements Costs. Each party shall then pay its proportionate share of the
total Tenant Improvements Costs as such costs are incurred over the course of
construction of the Project, with Tenant paying its proportionate share to
Landlord within thirty (30) days after Tenant's receipt of an itemized invoice
therefor (along with appropriate supporting documentation). Tenant's
proportionate share shall be determined by fraction, the numerator of which is
the agreed upon Excess Tenant Improvements Costs, and the denominator of which
is the total Tenant Improvements Costs, and Landlord's proportionate share shall
be determined by fraction, the numerator of which is the Tenant Improvement
Allowance, and the denominator of which is the total Tenant Improvements Costs.
For example, if the Excess Tenant Improvements Costs constitute forty percent
(40%) of the total Tenant Improvements Costs, Tenant shall pay forty percent
(40%) of each draw relating to the Tenant Improvements Costs.
Landlord shall maintain records relating to the Construction Costs of the
Tenant Improvements, and the Excess Tenant Improvement Costs shall be
established, on the same basis as provided with respect to the Rent
Determination Base under Section 5(f) of this Lease. In the event the amounts
paid by Tenant for the monthly draws during the course of construction as
provided above are less than the total Excess Tenant Improvement Costs, Tenant
shall reimburse the balance of the Excess Tenant Improvement Cost to Landlord
within five (5) business days after final determination of the Excess Tenant
Improvement Costs in accordance with the foregoing. In the event Tenant's
contributions have exceeded the Excess Tenant Improvement Costs, Landlord shall
reimburse Tenant such excess within five (5) business days after the final
determination of the Excess Tenant Improvement Costs in accordance with the
foregoing. As
C-5
provided in Section 5(d) of this Lease, the Excess Tenant Improvement Costs
shall not be included in the Rent Determination Base.
M. Commencement Notice; Dates. If Tenant desires to proceed with the development
and leasing of the Premises, Tenant shall give Landlord written notice (the
"Commencement Notice") requesting Landlord to commence development of the
Premises, which Commencement Notice shall specify Tenant's desired Delivery
Date. Unless otherwise agreed by Landlord and Tenant in writing, the various
dates referenced in this Exhibit C shall be determined as follows:
1. The "Construction Commencement Date" shall be five (5) months after the
Commencement Notice.
2. The "Delivery Date" and the "Earliest Delivery Date" shall be fourteen
(14) months after the Commencement Notice.
3. The "Termination Date" shall be four (4) months after the Delivery
Date.
Upon determination of the various dates pursuant to this Paragraph M, and upon
request of either party, Landlord and Tenant agree to enter into a written
addendum to this Lease memorializing the various dates set forth above.
If Tenant has not given Landlord the Commencement Notice on or prior to the
expiration of the "Option Period" (as defined below), this Lease will be null
and void and of no further force or effect. The "Option Period" shall be the
period commencing on the date of this Lease and expiring on the date that is
twelve (12) months following the issuance of the Certificate of Occupancy for
Building One. Tenant shall have the right to extend the Option Period for up to
four (4) one-month periods by giving written notice to Landlord and paying
Landlord a fee (the "Option Fee") of $12,000 for each one-month extension period
prior to the end of the Option Period, as extended. Failure to give notice and
pay such $12,000 monthly fee prior to the expiration of the Option Period, as
extended, shall result in the automatic termination and expiration of the Option
Period without any further action by either party. If Tenant gives the
Commencement Notice and has paid Landlord any Option Fee prior thereto, Tenant
shall have the option (exercisable by written notice to Landlord) to require
Landlord to reimburse Tenant the amount of such Option Fee, in which event the
amount of such Option Fee shall be added to the "Land Rent Component" included
in the Rent Determination Base pursuant to Section 5(d) and Landlord shall pay
such amount to Tenant upon the closing of Landlord's construction loan relating
to the Project.
C-6
EXHIBIT C-1
GUIDELINE PLANS AND SPECIFICATIONS
The "Outline Specifications" described in Paragraph L of Exhibit C to this
Lease.
C-7
EXHIBIT D
Subordination, Non-Disturbance and Attornment Agreement
THIS AGREEMENT, made this ____ day of , 20____, between
____________________________________ ("Mortgagee"); and AMERIGROUP CORPORATION,
a Delaware corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Tenant has entered into a certain Deed of Lease dated July ___,
2003 (the "Lease") with __________________________ ("Landlord"), covering a
certain premises (the "Premises") as more particularly described in the Lease;
WHEREAS, Mortgagee has made or has agreed to make a loan to Landlord, said
loan being secured by a deed of trust covering the Premises (the "Mortgage") of
which the Trustees are the trustees; and
WHEREAS, the parties desire to set forth their agreement as to their
respective rights and priorities as hereinafter set forth.
NOW THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) by each party in hand paid to the other, the receipt of which is
hereby acknowledged, it is hereby agreed as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage
insofar as it affects the real property of which the Premises forms a part, and
to all renewals, modifications, consolidations, replacements and extensions
thereof, to the full extent of the principal sum secured thereby and interest
thereon, provided that the same shall in no way expand or enlarge Tenant's
obligations under and pursuant to the Lease.
2. Upon written notice from Mortgagee, Tenant shall attorn to and
recognize any purchaser at a foreclosure sale under the Mortgage or any
transferee who acquires the Premises by deed in lieu of foreclosure
(collectively "Purchaser") as its landlord for the unexpired balance (and any
extensions, if exercised) of the Term of the Lease, upon the same terms and
conditions set forth in the Lease.
3. Notwithstanding the subordination of the Lease to the Mortgage, and as
long as Tenant is not in default beyond any cure period provided in the Lease,
Tenant's possession of the Premises and Tenant's rights and privileges under the
Lease (including the right to make alterations as provided under the Lease and
the requirements under the Lease to apply insurance proceeds and condemnation
awards to rebuild or restore the Premises), or any extensions or
D-1
renewals thereof which may be effected in accordance with any option thereof in
the Lease, shall not be diminished or interfered with by Mortgagee, either prior
to or after foreclosure of the Mortgage, or by any Purchaser, and Tenant's
occupancy of the Premises shall not be disturbed by Mortgagee or any Purchaser
for any reason whatsoever during the Term of the Lease or any such extensions or
renewals thereof.
4. In the event that it should become necessary to foreclose the Mortgage,
and so long as Tenant is not in default beyond any cure period provided in the
Lease, neither Mortgagee nor Trustee will terminate the Lease through
foreclosure sale or by deed in lieu thereof or join Tenant in summary or
foreclosure proceedings or disturb the quiet enjoyment or peaceable possession
of Tenant under the Lease.
5. In the event that Mortgagee or any Purchaser shall succeed to the
interest of Landlord under the Lease, the Mortgagee or Purchaser shall be bound
to Tenant under all of the terms, covenants and conditions of the Lease, and
Tenant shall thereafter have the same remedies against Mortgagee, or Purchaser
for any breach or noncompliance with any provision in the Lease that Tenant
would have had under the Lease against Landlord if Mortgagee or Purchaser had
not succeeded to the interest of Landlord, provided that Mortgagee or such
Purchaser shall not be:
(a) liable for any act or omission of any prior landlord (including
Landlord), but this limitation shall in no way be deemed or construed to release
Mortgagee or Purchaser from its obligations as successor landlord under the
Lease (including any obligations with respect to pre-existing conditions); or
(b) subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord), except for those offsets or
defenses of which Mortgagee had notice prior to Purchaser's or Mortgagee's
taking title to the Premises; or
(c) bound by any rent or additional rent which Tenant might have
paid for more than the current month to any prior landlord (including Landlord);
or
(d) bound by any modification of the Lease made without Mortgagee's
prior written consent.
6. Nothing herein shall obligate Tenant to pay rent or otherwise attorn to
Mortgagee or to any Purchaser pursuant to Section 2 hereof, until Tenant
receives written notice from Mortgagee.
7. Tenant agrees that it will not, without the prior written consent of
Mortgagee, which consent shall not be unreasonably withheld, delayed or denied,
(a) terminate the Lease except as provided by its terms or permitted by law; (b)
accept a premature surrender of the Lease by Landlord; or (c) make a prepayment
in excess of one month of rent thereunder.
D-2
8. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns.
9. This Agreement may be executed in separate counterparts, all of which
shall constitute a single instrument.
10. Notices to Tenant hereunder shall be sent to AMERIGROUP Corporation,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel, AMERIGROUP
Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and a copy
to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire, ▇▇▇▇▇▇▇ & Savage, P.C., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or to such other person or address
as Tenant shall subsequently designate in writing to Mortgagee. Notices to
Mortgagee hereunder shall be sent to _________________________________________,
Attention: , or to such other person or address as Mortgagee shall subsequently
designate in writing to Tenant. Notices shall be either personally delivered or
sent by certified mail, return receipt requested, and shall be effective upon
receipt by the party to whom addressed.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in their respective names by their duly authorized
representatives, effective as of the day and year first above written.
MORTGAGEE:
--------- -----------------------------------------------------
By:
-----------------------------------------
Name:
-----------------------------
Title:
-----------------------------
TENANT: AMERIGROUP CORPORATION
------
By:
-----------------------------------------
Name:
-----------------------------
Title:
-----------------------------
LANDLORD:
-------- -----------------------------------------------------
By:
-----------------------------------------
D-3
Name:
-----------------------------
Title:
-----------------------------
STATE OF
---------------------------------------------------
CITY/COUNTY OF , to-wit:
---------------------------------------------
The foregoing instrument was acknowledged before me this ____ day of
___________, 20__, by ____________________________________ as
______________________________ of , a __________________ , on behalf of
the____________________ .
------------------------------
Notary Public
My Commission Expires:..
------------------------------------
COMMONWEALTH OF VIRGINIA
CITY OF VIRGINIA BEACH, to-wit:
The foregoing instrument was acknowledged before me this ____ day of
___________, 20__, by as_________________________________ of AMERIGROUP
Corporation, a Delaware corporation, on behalf of the corporation.
------------------------------
Notary Public
My Commission Expires:..
------------------------------------
STATE OF ............
---------------------------------------------------
CITY/COUNTY OF ......... , to-wit:
---------------------------------------------
The foregoing instrument was acknowledged before me this ____ day of
___________, 20__, by as__________________________ of_______________ ,
a_______________ , on behalf of the________________ .
------------------------------
Notary Public
My Commission Expires:..
------------------------------------
EXHIBIT E
NONDISTURBANCE AND ATTORNMENT AGREEMENT
(Building Two)
THIS AGREEMENT is made as of the ____ day of ____________________, 2003,
by and between THE CHRISTIAN BROADCASTING NETWORK, INC., a Virginia corporation
("Owner"), a grantor for purposes of indexing; AMERIGROUP CORPORATION, a
Delaware corporation ("Subtenant"), a grantee for purposes of indexing; and VTC
TWO LLC, a Virginia limited liability company ("Sublandlord"), a grantee for
purposes of indexing.
W I T N E S S E T H :
Pursuant to a certain ground lease (the "Master Lease"), a memorandum of
which is recorded in the Clerk's Office of the Circuit Court of the City of
Virginia Beach, Virginia as Instrument No. ____________, Owner leases certain
property located in the City of Virginia Beach, Virginia to Sublandlord.
By lease dated __________________, 2003 (the "Sublease"), Sublandlord
subleases to Subtenant the property subject to the Master Lease that is more
particularly described on Exhibit "A" attached to this Agreement (the "Subleased
Property").
The terms of the Master Lease provide that upon request of any subtenant,
Owner will enter into a "nondisturbance agreement" with the subtenant of the
property leased under the Master Lease.
NOW, THEREFORE, in consideration of the mutual covenants set forth below
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. If the Master Lease is cancelled or terminated before the expiration
date of the Sublease, or the property leased thereunder is surrendered to Owner,
Owner agrees that so long as Subtenant observes and performs all of the terms,
covenants and conditions of the Sublease on Subtenant's part to be observed and
performed (i) the Sublease shall continue in full force and effect as an
agreement between Owner, as landlord, and Subtenant, as tenant, with the same
force and effect as if Owner, as landlord, and Subtenant, as tenant, had entered
into a lease as of the date of termination of the Master Lease containing the
same terms and conditions as contained in the Sublease, for the remainder of the
term of the Sublease, subject, however, to the limitations on Owner's
obligations and liabilities set forth in ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, (▇▇) Subtenant's
right to use the parking areas, access roads and other common areas and
facilities leased to Subtenant and created pursuant to the "ECR" described in
the Sublease shall not be terminated or
Building Two
This Instrument prepared by
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, the address of which is:
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GPIN #:____________________________
E-1
disturbed by Owner, (iii) Subtenant shall not be evicted by Owner and shall not
be joined as a defendant in any action or proceeding which may be instituted by
Owner by reason of any default under the Master Lease, and (iv) any transfer of
the property leased under the Master Lease or assignment or transfer of Owner's
rights as lessor under the Master Lease will be made subject to Subtenant's
right of possession under the Sublease.
2. In the event of the termination of the Master Lease, Subtenant agrees
to and shall attorn to the Owner for the balance of the term of the Sublease,
and any exercised extension periods, and to recognize Owner as its landlord
under the Sublease, upon the same terms, covenants and conditions as are
provided in the Sublease, including, without limitation and by way of
illustration, payment of all Rent and Additional Rent under the Sublease to
Owner. In such event, Subtenant will thereafter make all rent payments due under
the Sublease directly to Owner or its designee at an address to be designated in
writing by Owner to Subtenant. Sublandlord hereby consents to Subtenant's
payment to Owner of all rent due under the Sublease in the event of the
termination of the Master Lease, and Owner and Subtenant agree that in such
event the Sublease shall remain in full force and effect for the balance of the
term thereof as the lease between Owner and Subtenant. Sublandlord acknowledges
and agrees that in the event the Master Lease is terminated the Sublease will
continue as the lease between Owner and Subtenant and Sublandlord shall have no
further rights in or to the Subleased Property.
3. The terms, covenants and conditions hereof shall inure to the benefit
of and be binding upon the respective parties hereto and their successors and
assigns. Nothing, however, done by Subtenant or Sublandlord or their successors
or assigns shall in any way expose Owner to any expense whatsoever or in any way
increase the obligations or responsibility of Owner and its successors and
assigns beyond those set forth in the Master Lease. Owner and its successors and
assigns shall have no obligations or responsibility with respect to Subtenant
while the Master Lease is in effect.
IN WITNESS WHEREOF, the parties have executed and delivered this document
under seal as of the day and year first above written.
OWNER: THE CHRISTIAN BROADCASTING
NETWORK, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
---------------------------
E-2
SUBTENANT: AMERIGROUP CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
SUBLANDLORD: VTC TWO LLC
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
COMMONWEALTH OF VIRGINIA
CITY OF ___________________________, to-wit:
The foregoing instrument was acknowledged before me this _______ day of
__________________________, 2003 by _______________________________________, as
______________________________________ of The Christian Broadcasting Network,
Inc., a Virginia corporation, on behalf of the corporation.
-----------------------------------
Notary Public
My Commission Expires: ________________________________
COMMONWEALTH OF VIRGINIA
CITY OF _____________________________, to-wit:
The foregoing instrument was acknowledged before me this _______ day of
_______________________, 2003 by _______________________________________, as
______________________________________ of AMERIGROUP Corporation, a Delaware
corporation, on behalf of the corporation.
-----------------------------------
Notary Public
My Commission Expires: ________________________________
E-3
COMMONWEALTH OF VIRGINIA
CITY OF _____________________________, to-wit:
The foregoing instrument was acknowledged before me this _______ day of
_______________________, 2003 by _______________________________________, as
______________________________________ of VTC Two LLC, a Virginia limited
liability company, on behalf of the company.
-----------------------------------
Notary Public
My Commission Expires: ________________________________
E-4
EXHIBIT "A"
Legal Description of Subleased Property
E-5
EXHIBIT F
COMMISSION AGREEMENT
F-1
EXHIBIT G
ADDITIONAL PROPERTY
G-1
EXHIBIT H
DECLARATION AND DEED OF EASEMENTS
THIS DECLARATION AND DEED OF EASEMENTS, COVENANTS AND RESTRICTIONS (this
"Agreement") is dated as of September 15, 2003, is made by THE CHRISTIAN
BROADCASTING NETWORK, INC. a Virginia corporation ("Declarant") (index as both a
grantor and grantee).
RECITALS
A. Declarant is the owner of four (4) parcels of real property located in
the City of Virginia Beach, Virginia, which parcels are more particularly
described in Exhibit A and which Exhibit A is attached to and made a part of
this Declaration. Each nominal reference to a parcel as identified in Exhibit A
shall have the same meaning in this Agreement (i.e. Parcel One in Exhibit A
shall be Parcel One in this Declaration, etc.). Parcel One, Parcel Two-A, Parcel
Two-B and Parcel Three are sometimes referred to in this Declaration as a
"Parcel" and together as "Parcels". The owner of Parcel One, whether the
Declarant or a successor to the Declarant, is subsequently referred to as the
"Parcel One Owner." The owner of Parcel Two-A, whether the Declarant or a
successor to the Declarant, is subsequently referred to as the "Parcel Two-A
Owner." The owner of Parcel Two-B, whether the Declarant or a successor to the
Declarant, is subsequently referred to as the "Parcel Two-B Owner." The owner of
Parcel Three, whether the Declarant or a successor to the Declarant, is
subsequently referred to as the "Parcel Three Owner." An owner of a parcel,
whether the Declarant or a successor to Declarant, is generally referred to as
an "Owner".
B. The Parcels are adjacent to each other and Declarant desires to develop
the Parcels in an integrated manner so as to maximize efficiencies in
development. Declarant has agreed to grant to each Parcel, and the Owner
thereof, their respective tenants, subtenants, licensees, invitees, successors
and assigns, certain ingress and egress, parking, and storm water easements, and
to make certain agreements with each Parcel.
C. Declarant has ground leased Parcel One to VTC One, LLC, a Virginia
limited liability company ("One"), pursuant to Deed of Ground Lease dated as of
September 15, 2003 (the "One Ground Lease"), and has entered into an option to
ground lease Parcel Two-A and Parcel Two-B to VTC Two, LLC, a Virginia limited
liability company ("Two"), pursuant to a Deed of Ground Lease to Two dated
September 15, 2003, (the "Two Ground Lease"). One has entered into a Deed of
Lease dated as of September 15, 2003 (the "One Sublease") with AMERIGROUP
Corporation, a Delaware corporation ("AMERIGROUP"). Two has entered into an
option to lease Parcel Two-A and Parcel Two-B pursuant to a Deed of Lease dated
as of September 15, 2003 (the "Two Sublease") with AMERIGROUP.
H-1
AGREEMENT
THEREFORE, in consideration of agreements contained herein and other
valuable consideration, the receipt and sufficiency of which are acknowledged,
Declarant declares that the Parcels are subject to the following:
1. Development of the Property. As part of the development and
construction of the office buildings to be constructed pursuant to the One
Sublease and the Two Sublease, it will be necessary to provide certain easements
for the benefit of different Parcels. Additionally, to facilitate traffic
patterns and parking, Declarant desires to grant for the benefit of each of the
Parcels ingress and egress easements and parking easements as more particularly
described below. The easements granted pursuant to this Agreement shall not be
merged as a result of Declarant owning all of the Parcels as of the date of this
Agreement or at any time in the future.
2. Easements for Parking and Ingress and Egress.
A. Parking Easements
(i) Declarant grants to each Parcel, a perpetual, non-exclusive
easement (the "Parking Easement") appurtenant to each Parcel, for the use and
benefit of the Owner of such parcel and such Owner's tenants, subtenants,
successors and assigns, and the customers and invitees of each, for the purpose
of parking in parking spaces as shall, from time to time, be developed, altered,
or modified on each Parcel.
(ii) Each Parcel shall be required to meet the minimum off street
parking requirements as established by the applicable zoning ordinances of the
City of Virginia Beach (as varied by any variance granted by the City of
Virginia Beach) solely by parking spaces existing on each Parcel, but without
consideration of any parking rights on the other Owner's Parcel.
(iii) Declarant reserves for the benefit of Declarant and each Owner
of a burdened Parcel, the right to amend, modify, alter or relocate the parking
areas located on each burdened Parcel as determined by the Owner of the burdened
Parcel from time to time, provided, and under the sole condition that,
alternative parking areas shall be constructed so as not to unreasonably
interfere with the traffic pattern and overall parking scheme on the burdened
Parcel. The Owner of the burdened Parcel shall endeavor to deliver written
notice of such alteration or modification as described above to the Owners of
the benefited Parcels not less than thirty (30) days prior to taking any
alterations or modifications.
(iv) The Owner of each burdened Parcel, at such Owner's expense,
shall be obligated to prepare, maintain and replace, as is necessary in order to
assure a first class facility, all parking areas as shall from time to time be
constructed on each burdened Parcel.
(v) In the event the Two Sublease terminates as a result of
AMERIGROUP's failure to give the notice to commence the construction of
improvements ("Building Two")
H-2
pursuant to the Two Sublease, the Parking Easement shall terminate automatically
as to all of the Parcels and any one of Declarant, One or AMERIGROUP may record
in the Clerk's Office of the Circuit Court of the City of Virginia Beach,
Virginia ("Clerk's Office") a document evidencing such termination of the
Parking Easement, without the joinder or agreement of any other party referenced
in this Agreement or any beneficiary of such Parking Easement. In the event
AMERIGROUP proceeds with authorizing the construction of Building Two, but does
not exercise any of the rights which it would have with respect to Parcel Three
as described in that certain Expansion Option Agreement dated September 15,
2003, then Parcel Three shall no longer be burdened or benefited by the Parking
Easement as described in paragraph 2A.(i) above and the Parking Easement as it
applies solely to Parcel Three shall terminate automatically and without further
action by any other party and any one of Declarant, One, Two or AMERIGROUP may
record in the Clerk's Office a document evidencing such termination of the
Parking Easement as it applies to Parcel Three without joinder or agreement of
any other party referenced in this Agreement or any beneficiary of such Parking
Easement.
B. Ingress and Egress Easement
(i) Declarant grants to each Parcel, a perpetual, non-exclusive
easement (the "Ingress/Egress Easement"), appurtenant to each Parcel, for the
use and benefit of the Owner of such parcel and such Owner's tenants,
subtenants, successors and assigns, and the customers and invitees of each, for
the purpose of automobile and pedestrian ingress and egress over and upon the
access ways, sidewalks and walkways, driveways, entrances and exits as shall,
from time to time, be developed, altered, or modified on each Parcel.
(ii) Declarant reserves for the benefit of Declarant and each Owner
of a burdened Parcel, the right to amend modify alter or relocate the access
ways, walkways, driveways, entrances, parking areas and exits located on each
burdened Parcel as determined by the owner of the burdened Parcel from time to
time, provided, and under the sole condition that, alternative access ways,
walkways, driveways, entrances and exits shall be constructed so as not to
unreasonably interfere with the traffic pattern on the burdened Parcel. The
Owner of the burdened Parcel shall endeavor to deliver written notice of such
alteration or modification as described above to the Owners of the benefited
Parcels not less than thirty (30) days prior to taking any alterations or
modifications.
(iii) The Owner of each burdened Parcel, at such Owner's expense,
shall be obligated to prepare, maintain and replace, as is necessary in order to
assure a first class facility, all access ways, sidewalks, walkways, driveways,
entrances and exits as shall from time to time be constructed on each burdened
Parcel.
C. Storm Drainage Easement.
(i) Declarant grants to the Parcel Two-B Owner and such Owner's tenant, a
non-exclusive, perpetual easement, appurtenant to Parcel Two-B, to use portions
of Parcel One (the "Parcel One Drainage Easement") designated as "20' PRIVATE
DRAINAGE EASEMENT
H-3
HEREBY CONVEYED TO PARCEL 2B" as more particularly shown and described on a
subdivision plat (the "Plat") entitled "Plat of Vacation, Resubdivision,
Right-of-Way and Easement Dedications on `Parcels A and B Resubdivision of
Property of The Christian Broadcasting Network, Inc.' Map Book 231, Page 96-98"
which will be recorded in the Clerk's Office of the Circuit Court of the City of
Virginia Beach, Virginia, for the installation, maintenance, repair and
replacement of storm sewer facilities for drainage flow. Parcel Two-B Owner and
its tenant shall have the right to enter onto Parcel One for the purpose of
installing, maintaining, repairing, and replacing such storm sewer facilities
with respect to the Parcel One Drainage Easement. No trees, permanent buildings
or other structures shall be placed or allowed to encroach upon the facilities
constructed by Parcel Two-B Owner within the area in which Parcel One Drainage
Easement is located, and no change of grade shall be performed without prior
written approval of the Parcel Two-B Owner. Such easement area may be used for
landscaping, parking and for other purposes that do not interfere with the
installation, maintenance, repair or replacement of the constructed facilities.
If the Parcel Two-B Owner, in exercising its rights under this easement, makes
any excavation on Parcel One, such excavated areas shall be back filled when the
work is completed and shall be compacted in the same manner as existed
previously. Any pavement or landscaping disturbed by such installation,
maintenance, repair or replacement shall be replaced by, and at the expense of,
the Parcel Two-B Owner. The Parcel Two-B Owner shall be responsible for the
maintenance of the Parcel One Drainage Easement and shall keep, maintain and
repair the Parcel One Drainage Easement in a clean and safe condition so as not
to present hazards or safety concerns.
(ii) Declarant grants to the Parcel One Owner, the Parcel Two-A Owner, the
Parcel Two B Owner, the Parcel Three Owner and such Owners' tenants and
contractors, a non-exclusive, perpetual easement, appurtenant to such Parcels,
to use portions of Parcel One, Parcel Two-A and Parcel Three as are shown as
"Storm Water Facility" on the Plat for the installation, maintenance, repair and
replacement of the "Storm Water Facility" as described in paragraph 5 below. The
Owners and their tenants shall have the right to enter onto such Parcels for the
purpose of installing, maintaining, repairing, and replacing Storm Water
Facility. The Parcel One Owner shall maintain the entire Storm Water Facility
and shall be entitled to reimbursement from each of the Owners as provided in
paragraph 5 below. No trees, permanent buildings or other structures shall be
placed or allowed to encroach upon Storm Water Facility except as permitted by
the "Maintenance Agreement" as defined in paragraph 5 below.
3. Running of Benefits.
All provisions of this Agreement, including the benefits and burdens, run
with the Parcels and are binding upon and inure to the benefit of the heirs,
assigns, licensees, invitees, successors, tenants, employees and personal
representatives of the parties benefited by such easements. This Declaration is
not intended, nor shall it be construed as creating, any rights in or for the
benefit of the general public, or in any person or entity other than those
expressly provided herein, whether as a third party beneficiary or otherwise.
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4. Insurance.
(i) At all times during the term of this Agreement, each party
benefited by an easement granted pursuant to this Agreement shall, at its
expense, maintain commercial liability insurance against claims for personal
injury or death and property damage occasioned by accident occurring in or about
the benefited Parcel or the easement benefiting such parcel, such insurance in
each case to afford protection to the limit of not less than $2,000,000 for
injury or death to any number of persons or property damage and shall name
Declarant and the burdened party as additional insured partys. In addition to
the foregoing, the insured coverage required under this section shall extend to
any liability of the parties arising out of the indemnities provided for in this
Agreement. Each benefited party shall provide copies of such certificates upon
request of Declarant and each burdened party.
(ii) Each party benefited by an easement under this Agreement, will
defend, indemnify and save the other parties to this Agreement, including
Declarant, harmless from and against any and all direct, indirect, consequential
damages, claims, actions, liabilities and expenses (including by way of
illustration and not limitation, reasonable fees for consultants, experts and
attorneys) in connection with loss of life, personal injury or property damage
or any of them, occasioned wholly or in part by any act or omission of such
party, its tenants, agents, contractors or employees seeking to be indemnified
and held harmless or if any of its tenants, agents, contractors or employees is
found to be legally responsible for the injury, loss or damage.
(iii) All insurance provided for in this Agreement shall be effected
under valid and enforceable policies issued by insurers of recognized
responsibility. Any insurance required to be maintained by a party may be taken
out under a blanket insurance policy or policies or a combination of such
blanket policy or policies covering other premises, property or insurers.
5. Stormwater Maintenance Responsibilities and Obligations.
The City of Virginia Beach has required that a stormwater management
retention facility, together with drainage lines, culverts, ditches and other
associated and related facilities be constructed on a portion of Parcel One,
Parcel Two-A and Parcel Three in accordance with a Stormwater Maintenance
Agreement (the "Maintenance Agreement") executed by Declarant dated
_____________ 2003, and intended to be recorded prior to this Agreement (the
"Stormwater Facility"), as the same may be modified or amended from time to
time. Until such time as improvements are constructed on the other Parcels, only
those Parcels upon which improvements are constructed shall be liable for the
payment of the maintenance and repair expenses associated with the Stormwater
Facility. As other improvements are construction on the Parcels, the other
Owners shall participate on a prorata basis. For instance, upon completion of
the improvements on Parcel One, only the Parcel One Owner shall be obligated to
pay the maintenance expenses in connection with the Stormwater Facility. Upon
completion of the improvements on Parcel Two-A and Two-B, the Parcel One Owner
shall pay one-half of the maintenance expenses and the Parcel Two-A owner and
the Parcel Two-B Owner shall pay the other one half (1/2) of such maintenance
expenses. Provided Parcel Two-A and Parcel Two-B
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are used as part of the same facility, when Parcel Three is developed, each of
(i) the Parcel One Owner, (ii) the Parcel Two-A Owner and the Parcel Two-B Owner
and (iii) the Parcel Three Owner shall pay one third (1/3) of such maintenance
expenses. If Parcel Two-A and Two-B are developed as part of separate projects
not subject to the Two Ground Lease, the Parcel Two-A Owner shall pay three
fourths (-3/4) of the maintenance expenses otherwise to be paid with respect to
Parcel Two-A and Parcel Two-B and the Parcel Two-B Owner shall pay one fourth
(-1/4) of the expenses otherwise to be allocated to Parcel Two-A and Parcel
Two-B. Reimbursement to the Parcel One Owner for the expenses described above
shall be made within thirty (30) days of a written invoice from the Parcel One
Owner to the other Owners. Amounts not paid to the Parcel One Owner within such
thirty (30) day period shall accrue interest at the prime rate of Bank of
America, N.A., or its successor plus three percent (3%) until paid. Any legal
fees incurred by a party enforcing its right under this Deed shall be paid to
the party substantially prevailing in such litigation by the party not
substantially prevailing in such litigation.
6. Counterparts. To facilitate execution, this Deed may be executed in as
many counterparts as may be convenient or required. It shall not be necessary
that the signature of, or on behalf, of each party, or that the signature of all
persons required to bind any party, appear on each counterpart. All counterparts
shall collectively constitute a single instrument. It shall not be necessary in
making proof of this instrument to produce or account for more than a single
counterpart containing the respective signature of, or on behalf of, each of the
parties hereto. A signature page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures thereon and
thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
7. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia. The parties
irrevocably consent and submit to the jurisdiction of and venue in the Circuit
Court of the City of Virginia Beach, or the United States District Court for the
Eastern District of Virginia, Norfolk Division in any action or proceeding
arising out of or relating to, disagreement and the parties hereby irrevocably
agree that all such claims with respect to such action or proceeding shall be
heard in one of such courts.
8. Modifications No Agreement shall be effective to add to, change, or
modify, waive or discharge this Agreement in whole or in part, unless such
agreement is in writing and (except as otherwise expressly provided in this
Agreement) is signed by the parties to this Agreement and is recorded in the
Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia.
9. Severability. If any clause or provision of this Agreement is felt to
be illegal, invalid or unenforceable, with the application thereof to any person
or circumstance shall to any extent be illegal, invalid or unenforceable, under
present or future laws effective during the term of this Agreement, in any such
event it is the express intention of the parties that the remainder of this
Agreement with the application of such clause or provision other than to those
which is held to be illegal, invalid or unenforceable, shall not be effected
thereby in each clause or
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provision of this Agreement and the application thereof shall be legal, valid
and enforceable to the fullest extent permitted by law.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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THE CHRISTIAN BROADCASTING
NETWORK, INC.
By:
-------------------------------
Its:
------------------------------
COMMONWEALTH OF VIRGINIA
CITY OF ___________________________, to-wit:
The foregoing instrument was acknowledged before me this _______ day of
__________________________, 2003 by _______________________________________, as
______________________________________ of The Christian Broadcasting Network,
Inc., a Virginia corporation, on behalf of the corporation.
-----------------------
Notary Public
My Commission Expires: ____________________
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