exv10w27



 




Exhibit
10.27


Portions
of this exhibit have been omitted and were filed separately with the
Securities and Exchange Commission pursuant to the Registrant’s
application requesting confidential treatment under Rule 406 of the
Securities Act


DEED OF LEASE




BY AND BETWEEN




PRESIDENTS PARK II LLC




AND




XO COMMUNICATIONS, LLC




PRESIDENTS PARK II

13865 Sunrise Valley Drive

Herndon, Virginia 22071




			
	 	 	 
	Form Approved: November, 2006
	 	Office







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE 1 BASIC LEASE PROVISIONS
	 	 	1	 
	ARTICLE 2 DEFINITIONS
	 	 	3	 
	ARTICLE 3 THE PREMISES
	 	 	5	 
	ARTICLE 4 TERM AND ACCESS
	 	 	7	 
	ARTICLE 5 RENT
	 	 	8	 
	ARTICLE 6 POST MOVE-OUT INSPECTION
	 	 	8	 
	ARTICLE 7 OPERATING EXPENSES
	 	 	9	 
	ARTICLE 8 TAXES
	 	 	13	 
	ARTICLE 9 PARKING
	 	 	14	 
	ARTICLE 10 USE
	 	 	14	 
	ARTICLE 11 ASSIGNMENT AND SUBLETTING
	 	 	15	 
	ARTICLE 12 MAINTENANCE AND REPAIR
	 	 	17	 
	ARTICLE 13 ALTERATIONS
	 	 	18	 
	ARTICLE 14 SIGNS
	 	 	19	 
	ARTICLE 15 TENANTS EQUIPMENT AND PROPERTY, ROOF RIGHTS AND GENERATOR

	 	 	20	 
	ARTICLE 16 RIGHT OF ENTRY
	 	 	25	 
	ARTICLE 17 INSURANCE
	 	 	26	 
	ARTICLE 18 LANDLORD SERVICES AND UTILITIES, ACCESS AND SECURITY
	 	 	27	 
	ARTICLE 19 LIABILITY OF LANDLORD
	 	 	30	 
	ARTICLE 20 RULES AND REGULATIONS
	 	 	31	 
	ARTICLE 21 DAMAGE; CONDEMNATION
	 	 	31	 
	ARTICLE 22 DEFAULT
	 	 	32	 
	ARTICLE 23 MORTGAGES
	 	 	37	 
	ARTICLE 24 SURRENDER; HOLDING OVER
	 	 	38	 
	ARTICLE 25 QUIET ENJOYMENT
	 	 	39	 
	ARTICLE 26 TENANTS COVENANTS REGARDING HAZARDOUS MATERIALS
	 	 	39	 
	ARTICLE 27 MISCELLANEOUS
	 	 	41	 
	ARTICLE 28 RENEWAL OPTIONS
	 	 	44	 
	ARTICLE 29 RIGHT OF FIRST OFFER
	 	 	45	 
	 
	EXHIBIT A-1 Floor Plan of Premises
	 	 	 	 
	EXHIBIT A-2 Work Letter
	 	 	 	 
	EXHIBIT A-3 Description of the Land
	 	 	 	 
	EXHIBIT B Rules and Regulations
	 	 	 	 
	EXHIBIT C-1 Declaration by Landlord and Tenant as to Date of Delivery and
Acceptance of Possession, Lease Commencement Date, Etc.
	 	 	 	 
	EXHIBIT C-2 Declaration by Landlord and Tenant as to Rent Commencement Date
	 	 	 	 
	EXHIBIT D Instructions for Payment of Rent to Landlord
	 	 	 	 
	EXHIBIT E Exercise Facility Consent and Waiver of Liability
	 	 	 	 
	EXHIBIT F Janitorial Specifications
	 	 	 	 
	EXHIBIT G Tenant’s Sign
	 	 	 	 
	EXHIBIT H-1 Form of Partial Lien Waiver
	 	 	 	 
	EXHIBIT H-2 Form of Full Lien Waiver
	 	 	 	 







i









 








DEED OF LEASE




     THIS
DEED OF LEASE (this “Lease”) is made as of the
28th day of February, 2007 (the “Date of
Lease”), by and between PRESIDENTS PARK II LLC, a Delaware limited liability company (“Landlord”),
and XO COMMUNICATIONS, LLC, a Delaware limited liability company.



     Landlord and Tenant, intending legally to be bound, hereby covenant and agree as set forth
below.



ARTICLE 1

BASIC LEASE PROVISIONS




     The following terms, when used herein, shall have the meanings set forth below.



     1.1. Premises. For purposes of this Lease, the net rentable square footage
of the Premises shall be deemed to be one hundred four thousand eight hundred eighty-three rentable
square feet (104,883), comprised of (a) fifty two thousand four hundred fifty two (52,452) rentable
square feet (i.e., the entire rentable area) located on the third (3rd) floor of the Building
(hereafter defined), and (b) fifty two thousand four hundred thirty one (52,431) rentable square
feet (i.e., the entire rentable area) located on the fourth (4th) floor of the Building, as
outlined on Exhibit A-1 attached hereto and made a part hereof. Upon written request from Tenant
received by Landlord within sixty (60) days after the date of full execution of this Lease by
Landlord and Tenant, Landlord shall, at Tenant’s sole cost and expense, arrange to have the
Premises remeasured, by a licensed architect selected by Landlord, in accordance with the
measurement standard set forth in Section 27.22; provided, however, that in the event Landlord’s
remeasurement deviates by three percent (3%) (greater or lesser) of the rentable area set forth in
this Section 1.1, then Landlord shall pay the costs and expenses of such remeasurement. In the
event such remeasurement materially deviates from the rentable area set forth in this Section 1.1,
Landlord and Tenant shall promptly enter into an amendment to this Lease modifying such rentable
area of the Premises and the Base Rent set forth in Section 1.7 and, for the purposes of
determining Tenant’s Proportionate Share pursuant to Sections 1.10 and 1.11.



     1.2. Building. The building known as Presidents Park II (“Building”), which
for purposes of this Lease shall be deemed to contain two hundred one thousand one hundred
forty-eight (201,148) rentable square feet, includes all alterations, additions, improvements,
restorations or replacements now or hereafter made thereto, and has an address of 13865 Sunrise
Valley Drive, Herndon, Virginia 22071.



     1.3. (a) Term. The period from and after the Commencement Date (defined
below) and ending on the Expiration Date (defined below) (approximately ten (10) years).



            (b) Renewal Term. Two consecutive five (5) year periods from and after the expiration
of the immediately preceding term, subject to Article 28.



     1.4. Commencement Date. The first business day after the date on which all
of the following shall have occurred: (a) this Lease shall have been duly executed and delivered
by Landlord and Tenant; and (b) Tenant shall have delivered to Landlord written evidence specifying
that Tenant is then carrying



 









 







all insurance required by this Lease to be carried by Tenant. Landlord shall deliver
possession of the Premises to Tenant on the Commencement Date, in the condition described in
Section 3.3, subject to the causes or factors described in Section 27.16.



     1.5. Rent Commencement Date. December 1, 2007. Notwithstanding the
foregoing, provided that no Event of Default then exists, in the event that Tenant Improvements (as
defined herein) are not completed by December 1, 2007, and such delay in completion of the Tenant
Improvements is caused by Landlord’s negligent or intentional acts or omissions, then the Rent
Commencement Date shall be extended one (1) day for each day that the completion of Tenant’s
Improvements is delayed by reason of Landlord’s negligent or intentional acts or omissions.
Tenant’s occupancy of the Premises (or any portion thereof) prior to the Rent Commencement Date
shall not cause the Base Rent or any Additional Rent to be payable prior to the Rent Commencement
Date.



     1.6. Expiration Date. November 30, 2017.



     1.7.
Base Rent. *** (defined below), *** provided, however, that on the first (1st) day of the
second Lease Year, and on the first day of each Lease Year thereafter, the annual Base Rent shall
be increased to equal *** the Base Rent payable for the immediately
preceding Lease Year.



     1.8.
Security Deposit. ***



     1.9. Base Year. Calendar year 2008.



     1.10. Tenant’s Proportionate Share of Operating Expenses. 52.1% of
Operating Expenses (which percentage is based upon the Premises containing 104,883 net rentable
square feet and the Building containing 201,148 net rentable square feet) (subject to adjustment
pursuant to Section 1.1).



     1.11. Tenant’s Proportionate Share of Real Estate Taxes. 52.1% of Real
Estate Taxes (which percentage is based upon the Premises containing 104,883 net rentable square
feet and the Building containing 201,148 net rentable square feet) (subject to adjustment pursuant
to Section 1.1).



     1.12. Parking Permit Allocation. Four hundred sixty (460) parking permits,
provided at no expense to Tenant, pursuant to Section 9.1.



     1.13. [Reserved.]




     1.14. Permitted Use. General (non-medical and non-governmental) office and
administrative and data center uses, including the installation, maintenance, repair, replacement,
and operation of telecommunications services and equipment for Tenant’s business in the areas
specifically permitted by this Lease. No other uses shall be permitted. The phrase
“non-governmental” as used in this paragraph does not include use by a private contractor providing
services to the Government.



	 	 	 	 	 
	 1.15.

	 	Broker(s).       Landlord’s:
	 	Jones Lang LaSalle Americas, Inc.
	 
	 	 	 	 
	 

	 	 Tenant’s:

	 	Cushman & Wakefield of Virginia, Inc.






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	1.16.

	 	Landlord’s Address.	 	 
	 
	 	 	 	 
	 

	 	 	 	c/o Republic Property Trust
	 

	 	 	 	13861 Sunrise Valley Drive
	 

	 	 	 	Herndon, Virginia 22071
	 

	 	 	 	Attn: Diane Ludden
	 
	 	 	 	 
	 

	 	With a copy to:
	 	c/o Republic Property Trust
	 

	 	 	 	13861 Sunrise Valley Drive
	 

	 	 	 	Herndon, Virginia 22071
	 

	 	 	 	Attn: General Counsel
	 
	 	 	 	 
	 

	 	And to:
	 	DLA Piper
	 

	 	 	 	1200 19th Street, N.W.
	 

	 	 	 	Washington, DC 20036
	 

	 	 	 	Attention: Jeffrey R. Keitelman, Esq.
	 
	 	 	 	 
	1.17.

	 	Tenant’s Address.	 	 
	 
	 	 	 	 
	 

	 	Prior to
Commencement
Date:
	 	XO Communications
	 

	 	 	 	1111 Sunset Hills Road
	 

	 	 	 	Reston, Virginia 20190
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	From and after
Commencement
Date:
	 	XO Communications, LLC
	 

	 	 	 	13865 Sunrise Valley Drive, Suite 400
	 

	 	 	 	Herndon, Virginia 22071
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	At all times with a copy to:
	 	XO Communications
	 

	 	 	 	14811 N. Kierland Blvd., Suite 300
	 

	 	 	 	Scottsdale, Arizona 85254
	 

	 	 	 	Attention: Lease Contract Administrator






ARTICLE 2

DEFINITIONS




     The following terms, when used herein, shall have the meanings set forth below.



     2.1.
Additional Rent. As defined in Section 5.3.



     2.2. Agents. Officers, partners, directors, employees, agents, licensees,
customers, contractors, and invitees.



3









 





     2.3. Alterations. Alterations, decorations, additions or improvements of any
kind or nature to the Premises or the Building, whether structural or non-structural, interior,
exterior or otherwise.



     2.4. Building Hours. 7:00 a.m. to 6:00 p.m., Monday through Friday, and
9:00 a.m. to 1:00 p.m. on Saturday, except for legal holidays observed by the federal government.



     2.5. Calendar Year/Day. A “Calendar Year” shall be a period of twelve (12)
months commencing on each January 1 during the Term, except that the first Calendar Year shall be
that period from and including the Commencement Date through December 31 of that same year, and the
last Calendar Year shall be that period from and including January 1 of the Term through the
earlier of the Expiration Date or the date of Lease termination. A “Day” shall be a calendar day,
unless otherwise expressly specified in this Lease.



     2.6. Common Area. All areas, improvements, facilities and equipment from
time to time designated by Landlord for the common use or benefit of Tenant, other tenants of the
Building or the Project and their Agents, including, without limitation, roadways, entrances and
exits, landscaped areas, open areas, park areas, exterior lighting, service drives, loading areas,
pedestrian walkways, sidewalks, atriums, courtyards, concourses, stairs, ramps, washrooms,
maintenance and utility rooms and closets, exterior utility lines, hallways, lobbies, elevators and
their housing rooms, common window areas, common walls, common ceilings, common trash areas and
Parking Facilities.



     2.7. Event of Default. As defined in Article 22.



     2.8. Herein, hereafter, hereunder and hereof. Under this Lease, including,
without limitation, all Exhibits and any Riders.



     2.9. Including, includes, including, but not limited to, and/or includes,
without limitation. The term “including” and like terms used herein to identify particular
items as being related to (or examples of) a descriptive term, phrase or provision shall, unless
where expressly indicated to the contrary, be viewed as non-exclusive, and the identification of
particular items, or use of such examples, shall not limit any other item or example which fits
within the particular descriptive term, phrase or provision.



     2.10. Interest Rate. Per annum interest rate listed as the base rate on
corporate loans at large U.S. money center commercial banks as published from time to time under
“Money Rates” in the Wall Street Journal plus three percent (3%) but in no event greater than the
maximum rate permitted by law. In the event the Wall Street Journal ceases to publish such rates,
Landlord shall choose at Landlord’s sole discretion a similar nationally known and recognized
publication that publishes such rates.



     2.11. Land. The piece or parcel of land described in Exhibit A-3 and all
rights, easements and appurtenances thereunto belonging or pertaining, or such portion thereof as
shall be allocated by Landlord to the Building.



     2.12. Landlord’s Work. The alterations to the Premises to be performed by
Landlord pursuant to Section 3.3.



     2.13. Lease Year. Each consecutive twelve (12) month period elapsing after
(i) the Rent Commencement Date if the Rent Commencement Date occurs on the first day of a month, or
(ii) the first day of the month following the Rent Commencement Date if the Rent Commencement Date
does not occur on the first day of a month.



4









 





     2.14. Mortgage. Any mortgage, deed of trust, security interest, or title
retention interest affecting the Building or the Land.



     2.15. Mortgagee. The holder of any note or obligation secured by a mortgage,
deed of trust, security interest or title retention interest affecting the Building or the Land,
including, without limitation, lessors under ground leases, sale-leasebacks and lease-leasebacks.



     2.16. Operating Expenses. As defined in Section 7.2.



     2.17. Parking Facilities. All parking areas now or hereafter made available
by Landlord for use by tenants, including, without limitation, open-air parking, parking decks and
parking areas under or within the Building, whether reserved, exclusive, non-exclusive or
otherwise.



     2.18. Project. The complex of buildings known as Presidents Park of which
the Building is a part.



     2.19. Real Estate Taxes. As defined in Article 8.



     2.20. Rent. Base Rent and Additional Rent.



     2.21. Rules and Regulations. The rules and regulations set forth in Exhibit
B attached hereto and made a part hereof, as the same may be amended or supplemented from time to
time.



     2.22. [Reserved].



     2.23. Substantial Part. More than fifty percent (50%) of the rentable square
feet of the Premises or the Building, as the case may be.



     2.24. Tenant Improvements. As described and referred to in Exhibit
A-2.



ARTICLE 3

THE PREMISES




     3.1. Lease of Premises. In consideration of the agreements contained herein,
Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from Landlord,
for the Term and upon the terms and conditions hereinafter provided. As an appurtenance to the
Premises, Tenant shall have the non-exclusive right, together with other tenants of the Building
and the Project and their Agents, to use the Common Area. Landlord shall retain absolute dominion
and control over the Common Area and shall operate and maintain the Common Area in a class A
manner; provided, however, such exclusive right shall not operate to prohibit Tenant from its use
of the Premises for the Permitted Use. Landlord expressly reserves the right permanently to change,
model or eliminate, or temporarily to close, any portion of the Common Area, provided such right
does not (a) adversely affect Tenant’s business in more than a de minimis manner, (b) does not
increase Operating Expenses in more than a de minimis manner, and (c) does not otherwise affect any
of the services or conditions Landlord is obligated to provide hereunder in more than a de minimis
manner. The Premises are leased subject to, and Tenant agrees not to violate, all present and
future covenants, conditions and restrictions of record which affect the Project and Land.
Landlord shall use commercially reasonable efforts not to enforce any covenant, condition, or
restriction of record in a manner which unreasonably discriminates among similarly situated
tenants.



5









 





     3.2. Landlord’s Reservations. In addition to the other rights of Landlord
under this Lease, and subject to the terms of this Lease, Landlord reserves the right (i) to change
the street address and/or name of the Building, (ii) to install, erect, use, maintain and repair
mains, pipes, conduits and other such facilities to serve the Building’s tenants in and through the
Premises, subject to the reasonable approval of Tenant, (iii) to grant to anyone the exclusive
right to conduct any particular business or undertaking in the Building, (iv) to control the use of
the roof and exterior ways of the Building for any purpose, and (v) to modify the size and
configuration of the Common Area, including the construction of temporary or permanent structures
or improvements therein. Landlord, if it elects to exercise all or any of the foregoing rights,
shall use commercially reasonable efforts to exercise such rights in a manner that (a) minimizes
disruption to Tenant’s business or use or occupancy of the Premises, or (b) does not adversely
affect Tenant’s rights under this Lease in more than a de minimis manner.



     3.3. Condition of the Premises. Landlord represents and warrants that, as
of the Date of Lease: (i) the then-existing condition of the Premises includes the following
elements and items; (ii) all items are functioning and performing to relevant operational and
technical specifications; and (iii) all then-current third party warranties are valid and in effect
(and Landlord covenants that it shall not take any action or omit to take any action that has the
effect of invalidating any such then-current third party warranties):



     (a) Structure: steel frame, 100 pounds per square foot maximum load capacity;



     (b) Exterior: rose-gray precast over steel frame with insulated blue tinted windows and
curtainwall;



     (c) Column Spacing: 42 feet x 30 feet;



     (d) Roof: ballasted EDPM, with an existing 10-year warranty;



     (e) Finished Ceiling Height: 10 feet;



     (f) HVAC: central plant in rooftop penthouse with centrifugal chillers, a cooling tower and
two (2) air handlers on each floor serving all VAV zones. Trunk ducts and all VAV boxes (exterior
and interior at 1/1,000 rentable square feet) are in place with base building, operational and
addressable by the direct digital control system. Building HVAC design criteria are:




(A) Heating: to maintain indoor air at 70 +/- 3 degrees Fahrenheit Dry Bulb
temperature, 50 percent relative humidity, when outside air temperature is 10 degrees
Fahrenheit Dry Bulb;




(B) Cooling: to maintain indoor air at 75 +/- 3 degrees Fahrenheit Dry Bulb
temperature, 50 percent relative humidity, when outside air temperature is 95 degrees
Fahrenheit Dry Bulb and 78 degrees Fahrenheit Wet Bulb;



     (g) Mechanical system: permits two (2) zones of operation per floor. Medium and low pressure
ductwork installed from each floor’s air handling unit to the VA;



     (h) Fresh air provided to each floor through vertical chases at the rate of 20 cubic feet per
minute per person consistent with current ASHRAE Guidelines for indoor air quality;



     (i) Electrical System: 6 watts per square foot on floor, 9 watts per square foot in risers
available for tenant power. Single electrical service entrance with single pad mounted transformer



6









 







outside of Building. Electrical riser for Tenant power distribution provided at each floor
for 120/208 power services;



     (j) Life Safety: Fire standpipe and base building fire alarm system per building code.
Upturned sprinkler heads are provided in accordance with NFPA 13 at a spacing of one head per 225
square feet;



     (k) Wet Columns: Two (2) wet columns per floor for use by Tenant;



     (l) Window Coverings: One-inch (1”) slat venetian blinds and windowsill;



     (m) Energy Management: Automated base building energy management system remotely monitored;



     (n) Elevators: four (4) hydraulic passenger elevators, 175 feet per minute, with 3,500 pound
capacity;



     (o) Rest Rooms: two (2) sets of women’s and men’s rooms on each floor;



     (p) ADA Compliance: Meets all current requirements sufficient to obtain a core and shell
completion certificate;



     (q) Connectivity/Telephone: Verizon provides fiber service via trunklines located adjacent to
the Project. Vertical risers to accommodate
T-1 lines or connection to the Internet are provided
to each floor of the Building. Telephone cabling is in the Building from the street to a main
telephone closet for the Building, and is located on the first (1st) floor of the Building;



     (r) All core walls finished and ready for paint;



     (s) Columns fireproofed and ready for drywall;



     (t) Walls under windows finished and ready for paint;



     (u) Concrete decks in Premises ready for proper installation of flooring;



     (v) Fresh air capacity available to address currently planned conference rooms within the
Premises with additional fresh air; and



     (w) Building standard stairwells, mechanical, electric and telecommunications rooms are
finished and compliant with building code.



ARTICLE 4

TERM AND ACCESS




     4.1. Term. The Term shall commence on the Commencement Date and expire at
midnight on the Expiration Date. If requested by Landlord, Tenant shall within fifteen (15) days
of such request sign a declaration acknowledging (i) the Commencement Date and the Expiration Date
in the form attached hereto and made a part hereof as Exhibit C-1, and (ii) the Rent
Commencement Date in the form attached hereto and made a part hereof as Exhibit C-2.
Subject to Landlord’s obligation to deliver the Premises in



7









 




accordance with conditions stated in Section 3.3, and subject to Latent Defects (as defined
below), on the Commencement Date Tenant accepts the Premises in its “AS IS” condition.




     4.2. Access. Tenant shall have access to the Building, the Premises and
parking areas twenty-four (24) hours per day, seven (7) days per week (including holidays) (except
in the event of an emergency). Landlord shall provide a card key (or similar type of) access
system to provide access to the Building at times other than Building Hours.



ARTICLE 5

RENT




     5.1. Base Rent. Tenant shall pay to Landlord the Base Rent as specified in
Section 1.7.



     5.2. Payment of Base Rent. Commencing on the Rent Commencement Date, Base
Rent for each Lease Year shall be payable in monthly installments, in advance, without setoff,
demand, notice, deduction, offset or counterclaim (other than as expressly set forth in Section
22.8), on or before the first day of each and every calendar month during the Term. The first
payment of Base Rent shall be due and payable on the Rent Commencement Date. Tenant’s occupancy of
the Premises (or any portion thereof) prior to the Rent Commencement Date shall not cause the Base
Rent or any Additional Rent to be payable prior to the Rent Commencement Date. If the Rent
Commencement Date is a day other than the first (1st) day of a calendar month, the monthly
installment of Base Rent for such month shall be prorated for the actual number of days in the
month occurring on and after the Rent Commencement Date. Tenant shall pay the Base Rent and all
Additional Rent, by check or wire transfer of immediately available federal funds to Landlord’s
account in accordance with the instructions attached hereto as Exhibit D, or to such other
address or account or in such other manner as Landlord from time to time specifies by written
notice to Tenant. Any payment made by Tenant to Landlord on account of Base Rent may be credited
by Landlord to the payment of any late charges then due and payable and to any Base Rent or
Additional Rent then past due before being credited to Base Rent currently due. Tenant shall not
be liable for any Base Rent, Additional Rent, fees or other charges not collected by the rightful
owner of the Building, following change in Building ownership, if Tenant is not informed in writing
of such change (such notice to include suitable documentation evidencing the change in ownership).
Tenant’s occupancy of the Premises (or any portion thereof) prior to the Rent Commencement Date
shall not cause the Base Rent or any Additional Rent to be payable prior to the Rent Commencement
Date. Notwithstanding the foregoing, however, Tenant shall attorn to such transferee and execute,
acknowledge and deliver any document submitted to Tenant confirming such attornment, provided such
transferee assumes in writing the obligations of Landlord hereunder which accrue from and after the
date of transfer.



     5.3. Additional Rent. Sums payable by Tenant under this Lease, other than
Base Rent, shall be deemed Additional Rent, and, unless otherwise set forth herein, shall be
payable in the same manner as set forth above for Base Rent.



ARTICLE 6

POST MOVE-OUT INSPECTION




     6.1. [Reserved].



8









 





     6.2. Post Move-Out Inspection. Landlord and Tenant shall conduct a “Post
Move-Out Inspection” within fifteen (15) days after the Expiration Date or earlier termination of
this Lease, but in any event prior to reentry by Landlord for purposes of preparing the Premises
for relet. Failure on Tenant’s part to attend the Post Move-Out Inspection, after five (5) days
prior written notice to Tenant of the exact date thereof within said fifteen (15) day period, shall
be deemed acceptance by Tenant of Landlord’s assessment of the condition of the Premises.



ARTICLE 7

OPERATING EXPENSES




     7.1. Tenant’s Proportionate Shares of Operating Expenses. Commencing on the
later of January 1, 2009, or the first (1st) anniversary of the Rent Commencement Date,
Tenant shall pay to Landlord for each Calendar Year throughout the Term, as Additional Rent,
Tenant’s Proportionate Share of the amount by which the Operating Expenses during such Calendar
Year exceed the Operating Expenses during the Base Year. For purposes of determining Operating
Expenses, all Operating Expenses shall be “grossed up” as set forth in Section 7.7. In the event
that the Rent Commencement Date or the Expiration Date is other than the first day of a Calendar
Year then Tenant’s Proportionate Share of Operating Expenses shall be adjusted to reflect the
actual period of occupancy during the Calendar Year.



     7.2. Operating Expenses Defined. As used herein, the term “Operating
Expenses” shall mean all expenses and costs which Landlord incurs to maintain, manage and operate
the Building, subject to Section 7.3. To the extent the Building is part of, or continues to be
maintained in conjunction with the Project, Landlord shall have the right (but not the obligation)
to provide certain services contemplated herein to the Building in conjunction with one or more
buildings in the Project, in which event an appropriate portion of the expenses associated
therewith (based on the relative net rentable square footage of all buildings with respect to which
such items or services are provided on a common basis) shall be allocated by Landlord to the
Building as Operating Expenses hereunder. By way of example, and not of limitation, snow removal
costs for the Project shall be allocated on an appropriate basis between all tenantable buildings
in the Project which receive the benefit of such snow removal services under a single snow removal
contract. In no event will the foregoing gross-up and allocation provisions be construed or
implemented in order to allow Landlord to recover from the tenants of the Building or Project (as
the case may be) more than the amounts expended by Landlord for the items in question, and such
provisions shall be interpreted equitably to ensure that the costs and services which make up the
Operating Expenses of the Project are properly allocated among the parties benefiting therefrom.
Operating Expenses shall include, without limitation, all expenses, charges and fees incurred by or
on behalf of Landlord in connection with the management, operation, ownership, maintenance,
servicing, insuring and repair of the Building, including, without limitation, the following: (1)
electricity, gas, water, HVAC, sewer and other utility costs, charges and fees (including, without
limitation, any tap fees and connection and switching fees) of every type and nature; (2) premiums,
deductibles (to the extent reasonable and customary) and other charges for insurance; (3)
management fees based on arms-length transactions for similar class buildings in the Herndon,
Virginia area (which shall be deemed to be a fee equal to not more than three percent (3%) of the
gross revenues of the Building less amounts that would have been received had there been no rental
abatements or other concessions) and personnel costs of the Building (including all fringe
benefits, workers’ compensation insurance premiums and payroll taxes), but expressly limited to
that portion of the Building occupied and used by, and expressly limited to those personnel of, the
Landlord engaged in the management and operation of the Building; (4) costs of service, access
control and maintenance contracts relating to the Building as a whole; (5) maintenance, repair and
replacement



9









 







expenses and supplies; (6) depreciation/amortization for capital expenditures made by Landlord
to reduce operating expenses if Landlord reasonably estimates that the annual reduction in
operating expenses shall exceed such depreciation or to comply with legal or insurance requirements
(including, without limitation, the Americans with Disabilities Act and environmental laws) that
are created or imposed after the date hereof, and which shall be charged to Operating Expenses in
annual installments over the useful life of the items for which such costs are incurred (in the
case of items required to comply with legal or insurance requirements) or over the period Landlord
reasonably estimates that it will take for the savings in operating expenses achieved by such items
to equal their costs (in the case of items intended to reduce operating expenses or their rate of
increase), and in either case, together with interest, each Calendar Year such costs are charged to
Operating Expenses, on the unamortized balance at an interest rate of one percent (1%) in excess of
the Prime Rate in effect on January 1 of each calendar year; (7) charges for janitorial and
cleaning services and supplies furnished to the Building; (8) any business, professional or
occupational license tax payable by Landlord with respect to the Building and any association fees;
(9) reasonable reserves for replacements, repairs and contingencies; (10) sales, use and personal
property taxes payable in connection with tangible personal property and services purchased for and
used in connection with the Building; (11) reasonable third party accounting and audit fees
relating to the determination of Operating Expenses (and tenants’ proportionate shares thereof) and
the preparation of statements required by tenant leases; (12) expenses incurred in connection with
concierge services provided to the Building (if any); (13) the fair market rental value of any
management office (of reasonable and customary size) and health/fitness facilities in the Building
(to the extent not offset by separate membership or usage fees imposed by Landlord); (14) special
assessments, fees, penalties and other charges and costs for transit, transit encouragement traffic
reduction programs, or any similar purpose; (15) all costs of operating, maintaining, repairing and
replacing equipment in any portion of the Fitness Facility (as defined in Section 18.6), roof deck,
function room or other amenity of the Building; and (16) any other expense reasonably incurred in
good faith by Landlord in arm’s-length transactions in maintaining, repairing or operating the
Building.



     7.3. Exclusions from Operating Expenses. Operating Expenses shall not
include the following: (i) Real Estate Taxes; (ii) principal or interest payments on any
Mortgages; (iii) leasing commissions or legal fees with respect to the negotiation of any tenant
lease; (iv) the costs of special services and utilities separately charged to particular tenants of
the Building; (v) ground lease payments; (vi) advertising and promotional expenses directly
relating to leasing; (vii) costs for which Landlord can be or will be reimbursed by insurance
proceeds, tenants of the Building (other than such tenants’ regular contributions to Operating
Expenses) or any other source; (viii) legal fees incurred for collecting rents; (ix) costs directly
and solely related to the maintenance and operation of the entity that constitutes the Landlord,
such as accounting fees incurred for the purpose of reporting Landlord’s financial condition; (x)
costs of repairs, replacements or other work occasioned by fire, windstorm or other casualty, or
the exercise by governmental authorities of the right of eminent domain (except a commercially
reasonable deductible); (xi) leasing commissions, attorney’s fees, costs, disbursements and other
expenses incurred by Landlord or its agents in connection with negotiations for leases with
tenants, other occupants or prospective tenants or other occupants of the Building, and similar
costs incurred in connection with disputes with and/or enforcement of any leases with tenants,
other occupants, or prospective tenants or other occupants of the Building; (xii) “Tenant or tenant
allowances,” “Tenant or tenant concessions,” and other costs and expenses (including permit,
license and inspection fees) incurred in connection with completing, fixturing, furnishing,
renovating or otherwise improving, decorating or redecorating leased premises for tenants or other
occupants of the Building, or vacant, leasable space in the Building, including space
planning/interior architecture fees and/or engineering for same; (xiii) costs or expenses
(including fines, penalties, legal fees and premium deductibles) incurred due to the negligence or
violation (as compared to compliance costs, which are included in Operating Expenses as provided
above) by Landlord, its agents, any tenant (other than Tenant) or other occupant of the Building of
any



10









 







terms and conditions of this Lease or of the leases of other tenants in the Building, and/or
of any valid applicable laws that would not have been incurred but for such violation by Landlord,
its agent, tenant, or other occupant, it being intended that each party shall be responsible for
the costs resulting from its violation of such leases and laws; provided that reasonable attorneys
fees to enforce rules and regulations for the Building shall be included in Operating Expenses;
(xiv) penalties for any late payment by Landlord, including, without limitation, taxes and
equipment leases; (xv) compensation paid to clerks, attendants or other persons in commercial
concessions (such as a snack bar, restaurant or newsstand, but not including Building amenities
such as a fitness center or parking facilities); (xvi) Landlord’s contributions to charitable
organizations; (xvii) costs of correcting defects, including any allowances for same, in the
construction of the Building; (xviii) costs in connection with services (including electricity),
items or other benefits of a material type which are not available to or provided to Tenant without
specific charge therefor, but which are provided to another tenant or occupant of the Building,
whether or not such other tenant or occupant is specifically charged therefor by Landlord; (xix)
costs or expenses for sculpture, paintings or other works of art, including costs incurred with
respect to the purchase, ownership, leasing, showing, promotion, securing, repair and/or
maintenance of same, other than normal building decorations customary in buildings comparable to
the Building; (xx) costs arising from the presence of Hazardous Materials in, about or below the
Land or the Building (including any Hazardous Materials brought to, deposited on or disposed of at
the Building by Landlord or Landlord’s Agents) (but excluding those Hazardous Materials utilized in
connection with the operation, maintenance and repair of the Building in the ordinary course and
those brought, deposited or disposed of by Tenant or Tenant’s Agents with respect to its use or
occupancy of space in the Building); (xxi) the cost of any capital improvement or other capital
expenditure, except as permitted under Section 7.2(6) above; (xxii) costs of providing electricity
and other services (including excess HVAC) sold or provided to tenants in the Building (including
Tenant) and for which Landlord is entitled to be reimbursed by such tenants as a separate
additional charge or rental; (xxiii) costs necessitated by or resulting from the negligence or
willful misconduct of Landlord or Landlord’s agents, employees or contractors; (xxiv) salaries,
expenses, fringe benefits and other compensation paid or provided to employees of Landlord who are
not assigned to the operation, management, maintenance or repair of the Building, provided that
Operating Expenses shall include Landlord’s reasonable allocation of compensation paid to employees
who are assigned part-time to the operation, maintenance, or repair of the Building but in no event
shall Operating Expenses include wages, salaries, fringe benefits or other compensation for
executive or other personnel above the grade of chief engineer or property/building manager; (xxv)
amounts paid to related corporations, entities or persons which are in excess of the usual and
customary fair market value of the goods or services involved paid by similar landlords for similar
first class office buildings in the Herndon, Virginia area; (xxvi) costs or payments associated
with Landlord’s obtaining air rights or other development rights; (xxvii) any expenses for repairs
or maintenance which are reimbursable through warranties or services contracts; (xxviii) Landlord’s
personal and corporate income, franchise, excess profits and similar taxes on Landlord’s business;
(xxix) costs associated with any retail spaces in the Building; (xxx) increased insurance premiums
caused by the uses of the Building made by any other tenant or the negligence or willful misconduct
of any other tenant; (xxxi) any cost or charge for Landlord’s income taxes, excess profits taxes,
or franchise taxes; and (xxxii) the costs of overtime or expenses to Landlord in curing any defects
or performing work expressly provided in the Lease to be borne at Landlord’s expense. In addition,
in the calculation of any costs or expenses under this Article 7, it is expressly understood that
no cost or expense shall be charged more than once.



     7.4. Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each Calendar Year, a statement of Landlord’s estimate of the Operating Expenses
payable by Tenant during such Calendar Year, not to exceed the Cap on increases provided in Section
7.8. In addition to the Base Rent, Tenant shall pay to Landlord on or before the first day of each
month during such Calendar Year an amount equal to one-twelfth (1/12) the estimated Operating
Expenses payable by Tenant for such



11









 







Calendar Year as set forth in Landlord’s statement. If Landlord fails to give Tenant notice of
its estimated payments due under this Section for any Calendar Year, then Tenant shall continue
making monthly estimated payments in accordance with the estimate for the previous Calendar Year
until a new estimate is provided. If Landlord determines that, because of unexpected increases in
Operating Expenses or other reasons, Landlord’s estimate of the Operating Expense was too low, then
Landlord shall have the right to give a new statement (up to the Cap) of the estimated Operating
Expenses due from Tenant for such Calendar Year or the balance thereof and to bill Tenant for any
deficiency which may have accrued during such Calendar Year, and Tenant shall thereafter pay
monthly estimated payments based on such new statement.



     7.5. Actual Operating Expenses. Not more than one hundred twenty (120) days
after the end of each Calendar Year, Landlord shall submit a statement to Tenant showing the actual
Operating Expenses for such Calendar Year (but not any other or prior Calendar Year) and Tenant’s
Proportionate Share of the amount by which such Operating Expenses exceed the Operating Expenses
during the Base Year. If for the Calendar Year addressed in such statement, Tenant’s estimated
monthly payments exceed Tenant’s Proportionate Share of the amount by which the actual Operating
Expenses for that Calendar Year exceed the Operating Expenses during the Base Year, then Landlord
shall give Tenant a credit in the amount of the overpayment toward Tenant’s next monthly payments
of Rent. If for the Calendar Year addressed in the statement, Tenant’s estimated monthly payments
are less than Tenant’s Proportionate Share of the amount by which the accrued Operating Expenses
for such Calendar Year exceed the Operating Expenses during the Base Year, then Tenant shall pay
the total amount of such deficiency to Landlord, not to exceed the Cap on increases provided in
Section 7.8, within thirty (30) days after receipt of the statement from Landlord. Landlord’s and
Tenant’s obligations with respect to any overpayment or underpayment of Operating Expenses shall
survive the expiration or termination of this Lease.



     7.6. Tenant’s Right to Audit. In the event Tenant shall dispute the amount
set forth in Landlord’s statement of actual Operating Expenses, Tenant shall have the right to
cause Landlord’s books and records with respect to the Calendar Year to which such statement
relates to be audited by an independent auditor that is nationally or regionally recognized as
being reputable in the field, which auditor shall be hired by Tenant on a non-contingent fee basis.
Such audit (i) shall occur upon not less than five (5) days prior written notice to Landlord, at
Landlord’s place of business or the actual location of Landlord’s books and records if different
from Landlord’s place of business, during Landlord’s normal
business hours, and ***. In addition, if such audit shows that amounts paid by Tenant to
Landlord on account of such charges exceeded by three percent (3%) or more the amounts to which
Landlord was entitled hereunder, then, upon at least five (5) days prior written notice to Landlord
(which notice shall be given within sixty (60) days following completion of Tenant’s audit), Tenant
may also examine in such manner Landlord’s books and records for the previous three (3) Calendar
Years immediately preceding the year for which the applicable audit was conducted, with respect
solely to items for which such discrepancy was found. The amounts payable under this Article by
Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be appropriately adjusted on
the basis of such audit; provided, however, if Landlord disagrees with the results of any audit
conducted by Tenant or its auditor under this Section 7.6, then Landlord and Tenant’s auditor shall
together select a neutral auditor of similar qualifications to conduct a review of such books and
records (the fees of such neutral auditor shall be shared equally by the parties) and the
determination reached by such neutral auditor shall be final and conclusive. If any final audit
discloses a liability by Landlord to Tenant in excess of three percent (3%) of the payments
previously made by Tenant for such Calendar Year, the cost of such audit shall be borne by Landlord
and shall not be considered as an Operating Expense for purposes of this Lease; otherwise, the cost
of such audit shall be borne by Tenant. Notwithstanding the



12









 







foregoing, in no event shall Landlord’s cost (such cost not to include any Landlord liability
to Tenant disclosed by the audit) for such audit exceed ***.



     7.7. Further Adjustment. In the event (a) any future charges or costs for
transit, transit encouragement traffic reductions or any similar purpose become included by
Landlord as an Operating Expense, or (b) Landlord shall furnish any utility or service which is
included in the definition of Operating Expenses to less than one hundred percent (100%) of the
rentable area of the Building because (i) the average occupancy level of the Building for the Base
Year and/or any subsequent Calendar Year was not one hundred percent (100%) or more of full
occupancy, (ii) any such utility or service is not required by or provided to one or more of the
tenants or occupants of the Building, and such tenant(s) is(are) not required to contribute
its(their) proportionate share thereof, or (iii) any tenant or occupant is itself obtaining or
providing any such utility or services directly, then the Operating Expenses for the Base Year
shall be adjusted to include (x) the initial assessment with respect to such transit, transit
encouragement traffic reductions or similar charges or costs, and (y) each such Calendar Year
(including the Base Year) shall be adjusted to include all additional costs, expenses and
disbursements that Landlord reasonably determines would have been incurred had the Building been
one hundred percent (100%) occupied during the year in question and such utilities and services
provided to all tenants. The intent of this Section 7.7 is to ensure that the reimbursement of all
Operating Expenses is fair and equitably allocated among the tenants receiving such utilities and
services. In the calculation of Operating Expenses hereunder, no expense shall be charged more
than once and in no event shall Landlord recover more than 100% of the Operating Expenses actually
incurred by Landlord.



     7.8. Cap on Controllable Operating Expenses. For purposes of determining
Tenant’s Proportionate Share of increases in Operating Expenses, the amount by which Controllable
Operating Expenses (defined below) (in the aggregate and not on a line-by-line basis) increase
during each Calendar Year commencing with Calendar Year 2009 shall not exceed the product of the
Controllable Operating Expenses for the immediately preceding
Calendar Year multiplied by *** (the “Cap”). For purposes of this Section 7.8 only, “Controllable
Operating Expenses” shall be all Operating Expenses less all taxes, utility charges, insurance
costs, costs of snow removal, costs incurred to comply with laws and any other charges incurred by
reason of the causes or factors described in Section 27.16 (it being the intent that only
controllable expenses be capped as set forth herein). Tenant’s Proportionate Share of increases in
Operating Expenses shall be calculated after the determination of increases in Controllable
Operating Expenses has been made pursuant to this Section 7.8.



ARTICLE 8

TAXES




Commencing on the later of January 1, 2009, or the first (1st) anniversary of the Rent
Commencement Date, Tenant shall pay to Landlord throughout the Term, as Additional Rent, Tenant’s
Proportionate Share of the amount by which the Real Estate Taxes during each Calendar Year exceed
the Real Estate Taxes during the Base Year. In the event that the Commencement Date or the
Expiration Date are other than the first day of a Calendar Year, the Tenant’s Proportionate Share
of Real Estate Taxes shall be adjusted to reflect the actual period of occupancy during the
Calendar Year. “Real Estate Taxes” shall mean all taxes and assessments, including but not limited
to, general or special, ordinary or extraordinary, foreseen or unforeseen, assessed, levied or
imposed by any governmental authority upon the Building and



13









 




the Land and upon the fixtures, machinery, equipment or systems in, upon or used in connection with
any of the foregoing, and the rental, revenue or receipts derived therefrom (expressly excluding
the federal, state or local income taxes of Landlord, as described below), under the current or any
future taxation or assessment system or modification of, supplement to, or substitute for such
system. Real Estate Taxes also shall include special assessments which are in the nature of or in
substitution for real estate taxes, including, without limitation, road improvement assessments,
special use area assessments and school district assessments. If at any time the method of taxation
prevailing at the Date of Lease shall be altered so that in lieu of, as a substitute for or in
addition to the whole or any part of the taxes now levied or assessed, there shall be levied or
assessed a tax of whatever nature, then the same shall be included as Real Estate Taxes hereunder.
Real Estate Taxes shall not include any tax upon Landlord’s net income or profits, business,
professional, occupational and license taxes (BPOL), federal, state or local income taxes,
franchise, gift, transfer, excise, capital stock, estate, succession or inheritance taxes.
Further, for the purposes of this Article, provided there is a reasonable basis for objecting, Real
Estate Taxes shall include the reasonable expenses (including, without limitation, attorneys’ fees)
incurred by Landlord in challenging or obtaining or attempting to obtain a reduction of such Real
Estate Taxes, regardless of the outcome of such challenge. Notwithstanding the foregoing, Landlord
shall have no obligation to challenge Real Estate Taxes. If as a result of any such challenge, a
tax refund is made to Landlord, then the amount of such refund less the expenses of the challenge
shall be deducted from Real Estate Taxes due in the Lease Year such refund is received. Landlord
shall charge Tenant for its Proportionate Share of Real Estate Taxes in accordance with the
procedures established under Sections 7.4 and 7.5 for payment of Operating Expenses.




ARTICLE 9

PARKING




     9.1. Parking Permits. During the Term, as the same may be extended, Tenant
shall have the right, without charge, to use the Parking Permit Allocation for its employees and
Agents. Tenant’s Parking Permit Allocation shall be for unreserved and non-exclusive parking
available in the Parking Facilities; provided, however, that from and after the Lease Commencement
Date fifteen (15) of the permits allocated to Tenant within its Parking Permit Allocation shall be
designated by Landlord for reserved spaces within the Parking Facilities. Tenant shall not
overburden the Parking Facilities, and any usage in excess of the Parking Permit Allocation may, at
Landlord’s election, be deemed to overburden the Parking Facilities.



     9.2. Changes to Parking Facilities. Landlord shall have the right, from time
to time, without Tenant’s consent, to change, alter, add to, temporarily close or otherwise affect
the Parking Facilities in such manner as Landlord, in its reasonable discretion, deems appropriate,
provided that, Landlord shall provide alternative Parking Facilities for use by Tenant and Tenant’s
employees, Agents, business guests and invitees, and Landlord shall use commercially reasonable
efforts to minimize disruption to Tenant’s business and to Tenant’s occupancy and use of the
Premises and the Building.



ARTICLE 10

USE




Tenant shall occupy the Premises solely for the Permitted Use. The Premises shall not be used for
any other purpose without the prior written consent of Landlord. Tenant shall comply, at Tenant’s
expense, with (i) all present and future laws, ordinances, regulations and orders of the United
States of America,



14









 




the Commonwealth of Virginia and any other public or quasi-public federal, state or local authority
having jurisdiction over the Premises, and (ii) any reasonable requests of Mortgagee or any
insurance company providing coverage with respect to the Premises. Tenant shall not use or occupy
the Premises in any manner that is unlawful or dangerous or that shall constitute waste,
unreasonable annoyance or a nuisance to Landlord or the other tenants of the Project.




ARTICLE 11

ASSIGNMENT AND SUBLETTING




     11.1. Consent. Tenant shall not assign, transfer, mortgage or otherwise
encumber this Lease or sublet or rent (or permit a third party to occupy or use) the Premises, or
any part thereof, nor shall any assignment or transfer of this Lease or the right of occupancy
hereunder be effected by operation of law or otherwise, without the prior written consent of
Landlord which shall not be unreasonably withheld, conditioned or delayed. Without limitation, it
shall not be unreasonable for Landlord to deny its consent to any proposed assignment or sublease
if, at the time Landlord receives Tenant’s Proposal Notice (defined below), (i) an Event of Default
is then continuing under this Lease, (ii) the assignee or sublessee is not consistent in kind and
character with tenants in other similar office buildings in the Reston/Herndon market, or (iii) the
financial condition of any assignee is not reasonably acceptable to Landlord in accordance with
Landlord’s standards for prospective tenants and for other tenants in the Building at the time.
Tenant must request Landlord’s consent to such assignment or sublease in writing at least thirty
(30) days prior to the commencement date of the proposed sublease or assignment, which written
request (a “Proposal Notice”) must include (a) the name and address of the proposed assignee or
subtenant, (b) the nature and character of the business of the proposed assignee or subtenant, (c)
financial information (including financial statements) of the proposed assignee or subtenant, (d) a
copy of the proposed sublease or assignment agreement, and (e) the area proposed to be assigned or
sublet (the “Proposed Sublet Space”). Tenant shall also provide any additional information Landlord
reasonably requests regarding such proposed assignment or subletting. For purposes of the foregoing
prohibitions, a transfer at any one time or from time to time of fifty percent (50%) or more of an
interest in Tenant (whether stock, partnership interest or other form of ownership or control) by
any person(s) or entity(ties) having an interest in ownership or control of Tenant at the Date of
Lease shall be deemed to be an assignment of this Lease (unless the relevant entity, or the entity
that owns one hundred percent (100%) of such entity, is a publicly traded corporation listed on a
national securities exchange, in which case no transfer of interests in such entity shall be deemed
an assignment of this Lease). If Landlord consents to a proposed assignment or subletting, the
initial Tenant and any Guarantor (if any) shall remain liable under this Lease and the initial
Tenant shall pay to Landlord fifty percent (50%) of any amount payable under any sublease (but not
an assignment) in excess of rent payable under this Lease, less reasonable out-of-pocket expenses
(including tenant improvement allowances, moving allowances and brokerage, architectural and legal
fees, but excluding any costs attributable to vacancy periods, “downtime”, or free rent concessions
and any other marketing or professional fees) which Tenant reasonably incurred in connection with
the procurement of such sublease, whether such excess be in the form of an increased monthly or
annual Base Rent, lump sum payment, payment for the sale, transfer or lease of Tenant’s leasehold
improvements or any other form of payment having the effect of a “disguised” rental payment (and if
the subleased or assigned space does not constitute the entire Premises, the existence of such
excess shall be determined on a pro rata basis) or other consideration directly or indirectly
received by Tenant from any subtenant or assignee which exceeds the Rent payable under this Lease
(but not including any amounts attributable to the value of the entire business taken as a whole in
the case of a sale of Tenant’s business), which amount shall be paid by Tenant to Landlord as
Additional Rent upon such terms as shall be specified by Landlord and in no event later than ten
(10) days after any receipt thereof by Tenant. Tenant shall be entitled to



15









 




retain all profits that may arise out of an assignment of this Lease. Upon reasonable prior
notice (except in the case of emergency), Landlord shall have the right to inspect and audit
Tenant’s books and records relating to any sublease or assignment; provided that Landlord agrees to
keep all information received by Landlord in connection with such inspection and audit confidential
and not disclose any information without written permission of Tenant or court order. Any
assignment, encumbrance, or sublease without Landlord’s written consent shall be voidable by
Landlord and, at Landlord’s election, constitute an Event of Default hereunder. Notwithstanding
the foregoing, the consent of Landlord shall not be required for any assignment of this Lease or
the subletting of all or any part of the Premises to any of the following (each, a “Permitted
Transferee”): (i) a corporation or other business entity (herein sometimes referred to as a
“successor corporation”) into or with which Tenant shall be merged or consolidated, or to which
substantially all of the assets of Tenant may be transferred or sold, provided that such successor
corporation shall have a net worth and liquidity factor at least equal to the net worth and
liquidity factor of Tenant as of the date hereof or otherwise reasonably acceptable to Landlord
taking into account the fact that the original Tenant under this Lease is not being released, and
provided that the successor corporation shall assume in writing all of the obligations and
liabilities of Tenant under this Lease and the proposed use of the Premises is in compliance with
the Permitted Use; or (ii) a corporation or other business entity (herein sometimes referred to as
a “related corporation”) which shall control, be controlled by or be under common control with
Tenant, provided that such related corporation shall assume in writing all of the obligations and
liabilities of Tenant under this Lease (without relieving Tenant therefrom) and the proposed use of
the Premises is in compliance with the Permitted Use. In the event of any such assignment or
subletting, Tenant shall remain fully liable as a primary obligor for the payment of all rent and
other charges required hereunder and for the performance of all obligations to be performed by
Tenant hereunder. For purposes of clause (ii) above, “control” shall be deemed to be ownership of
more than fifty percent (50%) of the stock or other voting interest of the controlled corporation
or other business entity. Notwithstanding the foregoing, if Tenant structures one or more
assignment or sublease transactions to an entity that meets the definition of a Permitted
Transferee as specified above for the purpose of circumventing the restrictions on subleases and
assignments provided elsewhere in this Article 11, then such subtenant(s) or assignee(s) shall
conclusively be deemed not to be a Permitted Transferee and shall be subject to all such
restrictions. No assignment, transfer, encumbrance or subletting (whether or not the consent of
Landlord is required therefor) nor the collection or acceptance by Landlord of rent from any
assignee, subtenant or occupant shall be construed as a waiver or release of the initial Tenant or
any Guarantor (if any) from the terms and conditions of this Lease or relieve Tenant or any
subtenant, assignee or other party from obtaining the consent in writing of Landlord to any further
assignment, transfer, encumbrance or subletting. Upon the occurrence of a financial Event of
Default, Tenant hereby assigns to Landlord the rent and other sums due from any subtenant, assignee
or other occupant of the Premises and hereby authorizes and directs each such subtenant, assignee
or other occupant to pay such rent or other sums directly to Landlord.




     11.2. Surrender. Notwithstanding the foregoing, in the event of a proposed
assignment or subletting for which Landlord’s consent is required pursuant to Section 11.1, if the
(a) proposed term with respect to a prospective sublease or assignment is for a period of time
longer than seventy-five percent (75%) of the then-remaining Term, or (b) in the case of a
prospective sublease, the portion of the Premises to be sublet exceeds (or when aggregated with
other space then-being sublet by Tenant will exceed) fifty percent (50%) of the Premises, then
Landlord shall have the right, at its option, by giving written notice to Tenant within twenty (20)
business days after Landlord’s receipt of Tenant’s Proposal Notice, to terminate this Lease in the
event of an assignment as to all of the Premises and, in the event of a sublease, as to the
Proposed Sublet Space of the Premises, and to require that all or part, as the case may be, of the
Premises be surrendered to Landlord for the balance of the Term.



16









 





ARTICLE 12

MAINTENANCE AND REPAIR




     12.1. Landlord’s Obligation. Landlord shall keep and maintain in good repair
and working order in accordance with standards for a Class A office building, the Building
(including, but not limited to, the basic structural components of the Building, such as the roof,
all exterior walls, all load bearing walls, and exterior windows), the Common Area and the
equipment within and serving the Premises and the Building (excluding Tenant’s leasehold
improvements in the Premises) that are required for the normal maintenance and operation of the
Premises and the Building. Except as otherwise stated in this Lease, the cost of such maintenance
and repairs to the Building, Project and said equipment shall be included in the Operating Expenses
and paid by Tenant as provided in Article 7 herein. Tenant shall immediately give Landlord written
notice of any defect or need for repairs. After such notice, Landlord shall have a reasonable
opportunity to repair or cure such defect. Landlord’s liability with respect to any defects,
repairs, or maintenance for which Landlord is responsible under any of the provisions of this Lease
shall be limited to the cost of such repairs or maintenance or the curing of such defect. Except
to the extent any such defect is caused by the negligence or willful misconduct of Tenant, Landlord
shall repair, at Landlord’s sole cost and expense, any latent defect in any portion of the Building
structure or systems (i.e., not been initially constructed or altered in connection with the Tenant
Improvements) which the Building’s architect or engineer certifies, in its reasonable professional
judgment, is a latent defect (“Latent Defects”). Landlord will provide janitorial service after
5:30 p.m. on Monday through Friday (or, at Landlord’s option, Sunday through Thursday) only
(excluding legal holidays observed by the federal government) substantially in accordance with
Exhibit F.



     12.2. Tenant’s Obligation. Subject to Article 21 of this Lease, Tenant
shall, at its own expense, maintain all of Tenant’s leasehold improvements in the Premises and
personal property (excluding any Landlord-owned personal property) within the Premises in good
condition, promptly making all necessary repairs and replacements. Tenant shall repair at its
expense any and all damage caused by Tenant or Tenant’s Agents to the Building, the Common Area, or
the Premises, including equipment within and serving the Building, ordinary wear and tear excepted.
Notwithstanding the foregoing, Tenant shall bear the cost of, but shall not itself perform without
Landlord’s prior consent, any such repairs which would affect the Building’s structure or
mechanical or electrical systems or which would be visible from the exterior of the Building or
from any interior Common Area of the Building. Where Landlord performs such repairs, Tenant shall
promptly pay to Landlord upon demand for the actual costs incurred in connection therewith plus
interest thereon at the Interest Rate from the demand date until paid. Except as set forth in
Sections 15.3, 15.4, and 15.6, and as necessary to repair the Sign, without the prior written
consent of the Landlord, Tenant shall not have access to the roof of the Building for any purpose
whatsoever.



     12.3. Landlord’s Right to Maintain or Repair. If, within five (5) days
following notice to Tenant, Tenant fails to commence to repair or replace any damage to the
Building (including the Premises) which is Tenant’s obligation to perform, and diligently pursue
timely completion of such repair and replacement, Landlord may, at its option, cause all required
maintenance, repairs or replacements to be made. Tenant shall promptly pay Landlord all reasonable
costs incurred in connection therewith plus interest thereon at the Interest Rate from the due date
until paid.



17









 





ARTICLE 13

ALTERATIONS




     13.1. Alterations. Except for Alterations (i) that are non-structural, (ii)
that are not visible from the exterior of the Building, (iii) that do not affect any building
systems, and (iv) that involve an aggregate cost which is less than $100,000 (such Alterations are
hereinafter referred to as the “Minor Alterations”), Tenant shall not make or permit any
Alterations without the prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. The term “Alterations” shall not include the Tenant
Improvements. Landlord may impose any reasonable conditions to its consent to Tenant’s requested
Alterations, including, without limitation, (i) delivery to Landlord of written and unconditional
waivers of mechanic’s and material’s liens as to the Premises, the Building and the Land for all
work, labor and services to be performed and materials to be furnished, signed by all contractors,
subcontractors, materialmen and laborers participating in the Alterations within a reasonable
period following completion of the relevant portion of the Alterations, (ii) prior reasonable
approval of the plans and specifications and Tenant’s contractor(s) with respect to the
Alterations, and (iii) supervision by Landlord’s representative of the Alterations (at no
additional cost to Tenant). The Alterations shall conform to the requirements of Landlord’s and
Tenant’s insurers and of the Federal, state and local governments having jurisdiction over the
Premises, shall be performed in accordance with the terms and provisions of this Lease in a good
and workmanlike manner, in accordance with the plans and specifications so approved. If the
Alterations are not performed as herein required, Landlord shall have the right, at Landlord’s
option, to halt any further Alterations, or to require Tenant to perform the Alterations as herein
required or to require Tenant to return the Premises to its condition before such Alterations.
Notwithstanding the foregoing, if any mechanic’s or materialmen’s lien is filed against the
Premises, the Building or the Land for work done or claimed to have been done for, or materials
claimed to have been furnished to or for the benefit of, Tenant, such lien shall be discharged of
record by Tenant within ten (10) days after such filing by the payment thereof or the filing of any
bond required by law. If Tenant shall fail to discharge any such lien, Landlord may (but shall not
be obligated to), following written notice to Tenant, discharge the same, the cost of which shall
be paid by Tenant upon demand by Landlord. Such discharge by Landlord shall not be deemed to waive
or release the default of Tenant in not discharging the same. Neither Landlord’s consent to the
Alterations nor anything contained in this Lease shall be deemed to be the agreement or consent of
Landlord to subject Landlord’s interest in the Premises, the Building or the Land to any mechanic’s
or materialmen’s liens which may be filed in respect of the Alterations. For any Alteration
requiring Landlord’s consent, Tenant shall submit plans, specifications and working drawings to
Landlord for Landlord’s approval. Landlord shall review and comment on all initial plans and
drawings within twenty (20) business days after receipt of same. If Landlord provides comments to
a plan, drawing or cost estimation which shall necessitate changes thereto, then Tenant shall
revise same and resubmit the changed plan, drawing or cost estimation to Landlord for review.
Landlord shall review or comment on all revised plans and drawings within ten (10) business days
after receipt of same (it being understood that Landlord shall be entitled to comment solely on the
revised portions of such plan or drawing unless the revisions affect any other portion of the plan
or drawing). If Landlord fails to provide comments within the applicable time frame set forth
above, then Landlord shall be deemed to have approved the applicable item without comment, but such
deemed approval shall not exonerate Tenant from complying with all applicable laws and the
provisions of the Lease. In the event any approved plan or specification conflicts with a specific
provision of this Lease, this Lease shall be deemed to be amended in keeping with the provision of
such approved plan or specification; provided, however, in no event shall any approved plan or
specification amend, alter, or revise the obligations of Tenant arising under Articles 10, 12, 15,
and 26, and Sections 17.1 and 18.8. Notwithstanding the foregoing, the applicable time frame for
Landlord’s review and comment: (i) shall not begin unless and until the applicable plan or drawing
or the transmittal letter accompanying such plan or drawing contains the following legend: “MUST
BE APPROVED BY LANDLORD WITHIN THE



18









 




TIME FRAME SET FORTH IN THE LEASE” on the front page thereof; and (ii) shall be extended for a
reasonable period (not to exceed an additional seven (7) business days) if and to the extent any
plan or drawing involves a Building structural component or system and requires a third-party
consultant to review.




     13.2. Removal of Alterations. Except as otherwise expressly set forth in
this Section or in any approved plans or in any Landlord written consent, all Alterations to the
Premises or the Building made by either party shall immediately become the property of Landlord and
shall remain upon and be surrendered with the Premises as a part thereof at the expiration or
earlier termination of the Term; provided, however, that (a) Tenant shall have the right to remove,
at its expense, prior to the expiration or earlier termination of the Term, all movable furniture,
furnishings, equipment and trade fixtures installed in or brought into the Premises by Tenant, and
(b) Tenant shall have the right to remove, but shall not be required to remove, at its expense, all
Alterations and other items (including any telecommunications equipment and wiring) in the Premises
or the Building; provided, however, that at the expiration or earlier termination of the Term,
Tenant shall remove, at Tenant’s sole cost and expense, any Antennae Equipment, the Generator, and
the HVAC Equipment (as such terms are defined below), any cables and equipment related to any of
the foregoing, and any other equipment of any kind or nature installed by or on behalf of Tenant on
the roof of the Building. Tenant, at its expense, shall repair any damage to the Premises or the
Building caused by the removal of any Alteration by Tenant. If Tenant fails to remove any
Alterations required to be removed by Tenant, then Landlord may (but shall not be obligated to)
remove the same and the cost of such removal and repair of any damage caused by the same, together
with any and all damages which Landlord may suffer and sustain by reason of the failure of Tenant
to remove the same, shall be charged to Tenant and paid upon demand.



     13.3. Landlord Alterations. Except as expressly stated in this Lease,
Landlord shall have no obligation to make any Alterations in or to the Premises, the Building, the
Common Area, or the Land. Landlord hereby reserves the right, from time to time, to make
Alterations to the Building, change the Building dimensions, erect additional stories thereon and
attach other buildings and structures thereto, and to erect such scaffolding and other aids to
construction as Landlord deems appropriate. If Landlord elects to exercise any of the foregoing
rights, Landlord shall use commercially reasonable efforts to (a) minimize the disruption to the
Tenant’s business or use or occupancy of the Premises arising from such Alterations, changes,
construction or erection, and (b) do so in a way that does not (i) interfere with Tenant’s rights
under this Lease in more than a de minimis manner, (ii) adversely affect Tenant’s business in more
than a de minimis manner, (iii) increase Operating Expenses in more than a de minimis manner, and
(iv) otherwise materially adversely affect any of the services or conditions Landlord is obligated
to provide to Tenant hereunder.



ARTICLE 14

SIGNS




     14.1. Except as set forth in Section 14.2 below, no sign, advertisement or notice
shall be inscribed, painted, affixed, placed or otherwise displayed by Tenant on any part of the
Land or the outside or the inside (including, without limitation, the windows) of the Building or
the Premises without Landlord’s consent (which consent may be granted, withheld or conditioned, in
Landlord’s sole discretion). Any permitted signs shall be installed and maintained by Landlord at
Tenant’s sole expense. All signage shall be in compliance with all applicable laws and ordinances,
and all covenants, conditions and restrictions applicable to the Project. If any prohibited sign,
advertisement or notice is nevertheless exhibited by Tenant, Landlord shall have the right to
remove the same, and Tenant shall pay any and all



19









 




expenses incurred by Landlord in such removal, together with interest thereon at the Interest
Rate, upon demand. Landlord shall have the right to prohibit any sign, advertisement, notice, or
statement to the public by Tenant, which, in Landlord’s opinion, tends to impair the reputation of
the Building or its desirability as a first class office building. Landlord shall, at Landlord’s
expense, provide Tenant with building standard suite entry signage and one directory listing for
Tenant’s name on the lobby directory board. In the event that Tenant installs any sign on the
exterior of the Building, prior to the expiration or termination of the Term of this Lease, Tenant
shall, at Tenant’s expense, remove such sign and repair any damage to the Building caused by such
removal.




     14.2. Notwithstanding anything in this Article 14 to the contrary, but subject to
the terms of this paragraph, Tenant shall have the right, at its sole cost and expense, using the
contractor selected by Tenant and approved by Landlord in its commercially reasonable discretion,
to affix a backlit sign to the exterior of the Building (the “Sign”) displaying Tenant’s name;
provided, however, that (a) the installation and operation of such Sign shall be subject to Tenant
obtaining all necessary government, quasi-governmental, lender, community and other permits,
approvals and consent (and Tenant shall bear all risk of not obtaining same); (b) the size,
materials, color, design, weight, lettering, logo, location, and other aspects of such Sign shall
be acceptable to Landlord in its reasonable discretion; (c) such Sign and its installation shall be
in accordance with all legal requirements; (d) all costs related to such Sign and its installation
(including the cost of obtaining all necessary permits and approvals) shall be paid by Tenant; and
(e) a portion of the Tenant’s Allowance may be applied to the costs of the Sign. Landlord hereby
consents to the Sign depicted on Exhibit G, as to the initial signage installation by Tenant under
this Lease; future changes to the Sign depicted on Exhibit G shall be subject to the provisions of
this Section 14.2. Throughout the Term, such Sign shall be maintained in a first-class condition
and repair at Tenant’s sole expense. At the expiration or earlier termination of the Term, or at
such time, if any, that (i) one (1) full floor or more of the rentable area of the Premises (in the
aggregate) has been terminated pursuant to Section 11.2, then Landlord, at Tenant’s expense, shall
have the right to immediately remove the Sign on the Building and to restore the area on which the
Sign was installed to its condition immediately prior to the installation thereof. Tenant’s rights
as set forth in this paragraph are personal to initial Tenant and may not be exercised by or for
the benefit of any transferee, sublessee or assignee of Tenant.



ARTICLE 15

TENANTS EQUIPMENT AND PROPERTY, ROOF RIGHTS AND GENERATOR




     15.1. Moving Tenant’s Property. Any and all damage or injury to the Premises
or the Building caused by moving the property of Tenant into or out of the Premises, or due to the
same being on the Premises, shall be repaired by Landlord, at the expense of Tenant, normal wear
and tear excepted. Tenant shall promptly remove from the Common Area any of Tenant’s furniture,
equipment or other property therein deposited.



     15.2. Installing and Operating Tenant’s Equipment. Without first obtaining
the written consent of Landlord in accordance with Section 13 hereof, Tenant shall not install or
operate in the Premises (i) any electrically operated equipment or other machinery, other than
standard office equipment that does not require wiring, cooling or other service in excess of
Building standards, (ii) any equipment of any kind or nature whatsoever which will require any
changes, replacements or additions to, or changes in the use of, any water, heating, plumbing, air
conditioning or electrical system of the Premises or the Building, or (iii) any equipment which
causes the floor load to exceed the load limits set by Landlord for the Building (which Building
load limits are eighty (80) pounds per square foot live load and twenty (20) pounds per square foot
dead load). Landlord’s consent to such installation or operation may be



20









 







conditioned upon the payment by Tenant of additional compensation for any excess consumption
of utilities and any additional power, wiring, cooling or other service (as determined in the
reasonable discretion of Landlord) that may result from such equipment. Machines and equipment
which cause noise or vibration that may be transmitted to the structure of the Building or to any
space therein so as to be objectionable to Landlord or any other Building tenant shall be installed
and maintained by Tenant, at its expense, on vibration eliminators or other devices sufficient, to
eliminate such noise and vibration.



     15.3. Rooftop Antennae Equipment.



     (i) Subject to the satisfaction of all applicable provisions of this Lease and the conditions
in this Section, and provided that (a) Tenant complies with all applicable zoning and other
applicable rules and regulations, (b) all installation of roof-mounted Antennae Equipment shall be
performed by a Firestone Factory Authorized contractor, and (c) such installation, in each
instance, has been approved, in writing, by a structural engineer mutually acceptable to Landlord
and Tenant, Tenant shall have the license and with all necessary rights thereto, at Tenant’s own
cost and expense (but at no additional rental, use or other fee) and subject to the terms of this
Lease, to install, operate, maintain, repair, replace and upgrade hubsite antennae, GPS antennae,
lightning rods, microwave satellite dishes, and other telecommunications-related equipment for the
purposes of sending and/or receiving signals (collectively, the “Antennae Equipment”). The
Antennae Equipment may occupy noncontiguous areas on the roof as reasonably necessary to
accommodate Tenant’s technical requirements for the Antennae Equipment, such areas to be approved
in advance by Landlord in writing, which approval shall not be unreasonably withheld, conditioned,
or delayed. Tenant shall be solely responsible for obtaining all necessary permits and licenses
required to install and operate the Antennae Equipment. Tenant shall provide copies of all such
permits and licenses to Landlord.



     (ii) The sizes, locations, designs and manners of installation of the Antennae Equipment and
all related wiring shall be approved by Landlord, such approval not to be unreasonably withheld,
delayed or conditioned, taking into account Tenant’s technical operating requirements. Except as
roof access is permitted in accordance with Section 18.4, Tenant shall, following written approval
of Landlord, have reasonable access to the roof for installation and maintenance of the Antennae
Equipment and shall have the right to install all reasonable wiring related thereto, provided that
all such access, installation and maintenance shall be under the supervision of Landlord’s
designated representative (except for Landlord supervision which must occur after Building Hours,
at no cost to Tenant). Tenant shall not be permitted to penetrate the roof membrane in connection
with the installation or maintenance of the Antennae Equipment or make any installation that (a)
would adversely affect (or in a manner that would adversely affect) any Building systems or the
structure of the Building, unless Landlord expressly approves such installation in writing, (b)
would invalidate any warranty with respect to the roof or structure of the Building, or (c) would
violate any applicable federal, state or local law, rule or regulation. Landlord shall not
interfere with the operations of the Antennae Equipment, including the use thereof, nor allow,
cause or permit other occupants of the Building to interfere with the Antennae Equipment, including
the use thereof. Tenant shall maintain such insurance (in addition to that required by Article 17
of this Lease) as is appropriate with respect to the installation, operation and maintenance of the
Antennae Equipment.



     (iii) Tenant represents and warrants that the installation, operation and maintenance of the
Antennae Equipment will not (a) cause any damage to the structural portions of the Building, or (b)
interfere with or disrupt the use or operation of any other equipment (including antennae) on the
roof of the Building. Tenant shall be responsible for repairing any damages or removing any such
interference or disruption caused by the Antennae Equipment or the installation, operation or
maintenance thereof.



21









 





     (iv) Tenant’s installation, operation and maintenance of the Antennae Equipment shall be in
accordance with all federal, state and local laws and regulations. At all times during the Term,
Tenant shall maintain the Antennae Equipment in clean, good and safe condition, in a manner that
avoids interference with or disruption to Landlord and other tenants of the Building.



     (v) Tenant reserves the right to discontinue (on a temporary, intermittent or permanent basis)
its use of the Antennae Equipment at any time prior to the termination of this Lease or any renewal
or extension thereof for any reason whatsoever. At the expiration or earlier termination of this
Lease, or in the event removal is required by any federal, state or local regulatory authority,
Tenant shall remove such Antennae Equipment, at Tenant’s sole cost and expense, from the Building
and surrender the areas occupied by same in good condition, ordinary wear and tear and unavoidable
damage by the elements excepted. If Tenant fails to so remove the Antennae Equipment in accordance
with the foregoing, Landlord shall have the right to remove and dispose of such Antennae Equipment,
at Tenant’s sole cost and expense, and Landlord shall have no liability therefor.



     (vi) Any language in this Lease other than Section 19.1 notwithstanding, Landlord shall not be
liable for, and Tenant shall indemnify, defend and hold Landlord harmless from and against, any and
all liability, damages (including but not limited to personal injury, death, or property damages),
costs, expenses, and attorneys’ fees incurred by Landlord arising from the Antennae Equipment,
including those arising from the installation, use, maintenance and removal thereof, except to the
extent caused by the negligence or willful misconduct of Landlord.



     (vii) The Antennae Equipment may be used by Tenant only in the conduct of Tenant’s customary
business, and not for resale of any public telecommunications or other service. The license
granted under this Section 15.3 is transferable to a full or partial subtenant or assignee
permitted pursuant to the provisions of Article 11; provided, however, that no assignee or
subtenant shall have any rights pursuant to this Section, combined with any rights maintained by
Tenant in the case of a partial sublease, greater than those rights originally conferred upon
Tenant.



     15.4. Generator.



     (i) Subject to the satisfaction of all applicable provisions of this Lease and the conditions
in this Section, and provided that Tenant complies with all applicable zoning and other applicable
rules and regulations, Tenant shall have the license and with all necessary rights thereto, at
Tenant’s own cost and expense (but at no additional rental, use or other fee) and subject to the
terms of this Lease, to install, operate, maintain, repair, replace and upgrade a UPS generator and
corresponding fuel tank (collectively, the “Generator”) in an area on the ground at the Building’s
exterior adjacent to the Premises, such area to be approved in advance by Landlord in writing,
which approval shall not be unreasonably withheld, conditioned, or delayed. Tenant shall be solely
responsible for obtaining all necessary permits and licenses required to install and operate the
Generator. Tenant shall provide copies of all such permits and licenses to Landlord.



     (ii) The size, location, design and manner of installation of the Generator and all related
wiring shall be approved by Landlord, such approval not to be unreasonably withheld, delayed or
conditioned, taking into account Tenant’s technical operating requirements. Tenant shall have the
right at all times to access, install and maintain the Generator and shall have the right to
install all reasonable wiring related thereto. At all times, Tenant must cause the Generator to be
properly screened and enclosed (including all necessary containment fields) and properly vented as
approved in advance by Landlord in writing, which approval shall not be unreasonably withheld,
conditioned, or delayed. Tenant shall not be permitted to make any installation that (a) would
adversely affect (or in a manner that would



22









 







adversely affect) any building systems or the structure of the Building, unless Landlord
expressly approves such installation in writing, (b) would invalidate any warranty with respect to
the structure of the Building, or (c) would violate any applicable federal, state or local law,
rule or regulation. Landlord shall not interfere with the operations of the Generator, including
the use thereof, nor allow, cause, or permit other occupants of the Building to interfere with the
Generator, including the use thereof. Tenant shall maintain such insurance (in addition to that
required by Article 17 of this Lease) as is appropriate with respect to the installation, operation
and maintenance of the Generator.



     (iii) Tenant represents and warrants that the installation, operation and maintenance of the
Generator will not (a) cause any damage to the structural portions of the Building, or (b)
interfere with or disrupt the use or operation of any other equipment of the Building or of any
other tenant. Tenant shall be responsible for repairing any damages or removing any such
interference or disruption caused by the Generator or the installation, operation or maintenance
thereof.



     (iv) Tenant’s installation, operation and maintenance of the Generator shall be in accordance
with all federal, state and local laws and regulations. At all times during the Term, Tenant shall
maintain the Generator in clean, good and safe condition, in a manner that avoids interference with
or disruption to Landlord and other tenants of the Building.



     (v) Tenant reserves the right to discontinue (on a temporary, intermittent or permanent basis)
its use of the Generator at any time prior to the termination of this Lease or any renewal or
extension thereof for any reason whatsoever. At the expiration or earlier termination of this
Lease, or in the event removal is required by any federal, state or local regulatory authority,
Tenant shall remove the Generator, at Tenant’s sole cost and expense, and surrender the area
occupied by same in good condition, ordinary wear and tear and unavoidable damage by the elements
excepted. If Tenant fails to so remove the Generator in accordance with the foregoing, Landlord
shall have the right to remove and dispose of the Generator, at Tenant’s sole cost and expense, and
Landlord shall have no liability therefor.



     (vi) Any language in this Lease other than Section 19.1 notwithstanding, Landlord shall not be
liable for, and Tenant shall indemnify, defend and hold Landlord harmless from and against, any and
all liability, damages (including but not limited to personal injury, death, or property damages),
costs, expenses, and attorneys’ fees incurred by Landlord arising from the Generator, including
those arising from the installation, use, maintenance and removal thereof, except to the extent
caused by the negligence or willful misconduct of Landlord.



     (vii) The Generator may be used by Tenant only to operate its telecommunications, computer,
lights and HVAC equipment within the Premises in the event of a power failure. The license granted
under this Section 15.4 is transferable to a full or partial subtenant or assignee permitted
pursuant to the provisions of Article 11; provided, however, that no assignee or subtenant shall
have any rights pursuant to this Section, combined with any rights maintained by Tenant in the case
of a partial sublease, greater than those rights originally conferred upon Tenant.



     15.5. Fiber Access and Riser Rights.



     (i) Tenant shall have the non-exclusive right to (1) use the Building’s existing risers,
pathways, shafts, raceways, conduits, innerducts, plenums, electrical closets, telephone rooms,
ducts, and pipes on or serving the Building, as approved in advance by Landlord in writing, which
approval shall not be unreasonably withheld, conditioned, or delayed; (2) use the existing risers,
pathways, shafts, raceways, conduits, innerducts, plenums, electrical closets, telephone rooms,
ducts, and pipes connecting or serving the Project (including, but not limited to, between
Presidents Park I and Presidents Park II), as approved



23









 







in advance by Landlord in writing, which approval shall not be unreasonably withheld,
conditioned, or delayed; and (3) access at the street level of the Building for dual redundant runs
of fiber optic cable serving the Premises, as approved in advance by Landlord in writing, which
approval shall not be unreasonably withheld, conditioned, or delayed, for the purposes of using the
Premises for the Permitted Use, including the provision of telecommunication services to itself and
to other tenants and occupants of the Building and the Project.



     (ii) Tenant shall have the non-exclusive right to market the provision and solicit the sale of
and to provide, telecommunication services, to the tenants and occupants of the Building and the
Project. Landlord represents and warrants that the agreements between Landlord and the occupants
of the Building and the Project do not contain any language which would limit, prevent, or restrict
such occupants receiving services from Tenant directly from the Premises or which require Tenant or
such occupants to incur additional payment obligations to Landlord for the provision of such
services costs, and Landlord shall not include any language in any future agreements with the
occupants of the Building and the Project which would have any such effect. Landlord acknowledges
and agrees that Landlord shall not enforce any such language with respect to the provision of any
services by Tenant during the term of this Lease.



     15.6. HVAC Equipment.



     (i) Subject to the satisfaction of all applicable provisions of this Lease and the conditions
in this Section, and provided that (a) Tenant complies with all applicable zoning and other
applicable rules and regulations, (b) all installation of roof-mounted HVAC Equipment shall be
performed by a Firestone Factory Authorized contractor, and (c) such installation, in each
instance, has been approved, in writing, by a structural engineer mutually acceptable to Landlord
and Tenant, Tenant shall have the license and with all necessary rights thereto, at Tenant’s own
cost and expense (but at no additional rental, use or other fee) and subject to the terms of this
Lease, to install, operate, maintain, repair, replace, and upgrade one (1) or more HVAC units and
ancillary equipment, including, but not limited to, heat rejection condenser or dry cooler units
(collectively, the “HVAC Equipment”). The HVAC Equipment may occupy noncontiguous areas on the
roof as reasonably necessary to accommodate Tenant’s technical requirements for the HVAC Equipment,
such areas to be approved in advance by Landlord in writing, which approval shall not be
unreasonably withheld, conditioned, or delayed. Tenant shall be solely responsible for obtaining
all necessary permits and licenses required to install and operate the HVAC Equipment. Tenant
shall provide copies of all such permits and licenses to Landlord.



     (ii) The sizes, locations, designs and manners of installation of the HVAC Equipment and all
related connections, ducting and wiring shall be approved by Landlord, such approval not to be
unreasonably withheld, delayed or conditioned, taking into account Tenant’s technical operating
requirements. Except as roof access is permitted in accordance with Section 18.4, Tenant shall,
following written approval of Landlord, have reasonable access to the roof for installation and
maintenance of the HVAC Equipment (and at all times during Business Hours) and shall have the right
to install all reasonable connections, ducting and wiring related thereto, provided that all such
access, installation and maintenance shall be under the supervision of Landlord’s designated
representative (except for Landlord supervision which must occur after Building Hours, at no
additional cost to Tenant). Tenant shall not be permitted to penetrate the roof membrane in
connection with the installation or maintenance of the HVAC Equipment or make any installation that
(a) would adversely affect (or in a manner that would adversely affect) any building systems or the
structure of the building, unless Landlord expressly approves such installation in writing, (b)
would invalidate any warranty with respect to the roof or structure of the Building, or (c) would
violate any applicable federal, state or local law, rule or regulation. Landlord shall not
interfere with the operations of the HVAC Equipment, including the use thereof, nor allow, cause or



24









 







permit other occupants of the Building to interfere with the HVAC Equipment, including the use
thereof. Tenant shall maintain such insurance (in addition to that required by Article 17 of this
Lease) as is appropriate with respect to the installation, operation and maintenance of the HVAC
Equipment.



     (iii) Tenant represents and warrants that the installation, operation and maintenance of the
HVAC Equipment will not (a) cause any damage to the structural portions of the Building, or (b)
interfere with or disrupt the use or operation of any other equipment (including antennae) on the
roof of the Building. Tenant shall be responsible for repairing any damages or removing any such
interference or disruption caused by the HVAC Equipment or the installation, operation or
maintenance thereof.



     (iv) Tenant’s installation, operation and maintenance of the HVAC Equipment shall be in
accordance with all federal, state and local laws and regulations. At all times during the Term,
Tenant shall maintain the HVAC Equipment in clean, good and safe condition, in a manner that avoids
interference with or disruption to Landlord and other tenants of the Building.



     (v) Tenant reserves the right to discontinue (on a temporary, intermittent or permanent basis)
its use of the HVAC Equipment at any time prior to the termination of this Lease or any renewal or
extension thereof for any reason whatsoever. At the expiration or earlier termination of this
Lease, or in the event removal is required by any federal, state or local regulatory authority,
Tenant shall remove such HVAC Equipment, at Tenant’s sole cost and expense, from the Building and
surrender the areas occupied by same in good condition, ordinary wear and tear and unavoidable
damage by the elements excepted. If Tenant fails to so remove the HVAC Equipment in accordance
with the foregoing, Landlord shall have the right to remove and dispose of such HVAC Equipment, at
Tenant’s sole cost and expense, and Landlord shall have no liability therefor.



     (vi) Any language in this Lease other than Section 19.1 notwithstanding, Landlord shall not be
liable for, and Tenant shall indemnify, defend and hold Landlord harmless from and against, any and
all liability, damages (including but not limited to personal injury, death, or property damages),
costs, expenses, and attorneys’ fees incurred by Landlord arising from the HVAC Equipment,
including those arising from the installation, use, maintenance and removal thereof, except to the
extent caused by the negligence or willful misconduct of Landlord.



     (vii) The HVAC Equipment may be used by Tenant only in the conduct of Tenant’s customary
business. The license granted under this Section 15.6 is transferable to a full or partial
subtenant or assignee permitted pursuant to the provisions of Article 11; provided, however, that
no assignee or subtenant shall have any rights pursuant to this Section, combined with any rights
maintained by Tenant in the case of a partial sublease, greater than those rights originally
conferred upon Tenant.



ARTICLE 16

RIGHT OF ENTRY




     Tenant shall permit Landlord or its Agents, upon twenty-four (24) hour prior written notice and
accompanied by a representative of Tenant (in each case, except in the event of an emergency), to
enter the Premises, without charge therefor to Landlord and without diminution of Rent, (i) to
examine, inspect and protect the Premises and the Building, (ii) to make such alterations and
repairs or perform such maintenance which in the reasonable judgment of Landlord may be deemed
necessary or desirable, (iii) to exhibit the same to prospective purchasers of the Building or to
present or future Mortgagees, or (iv) to exhibit the same to prospective tenants during the last
twelve (12) months of the Term. Notwithstanding the foregoing or any other provision of this Lease
to the contrary, under no circumstances (except in an



25









 




emergency) will Landlord or any of its representatives or anyone entering the Premises pursuant to
any rights granted to Landlord hereunder, be granted access to, or be permitted to enter any areas
designated “technical” by Tenant, without being accompanied by a representative of Tenant (who
Tenant shall make available immediately upon request), provided that Landlord shall not be
obligated to provide any janitorial services to any such designated areas (and Tenant shall make
its own arrangements for janitorial services in respect of such space) unless Tenant cooperates
with Landlord in providing reasonable access to such areas and pays all additional costs incurred
in connection therewith (including, without limitation, any overtime or additional charges for work
not performed at the customary times or in the customary manner). Tenant shall designate any such
“technical” areas within the Premises by written notice to Landlord, which notice shall include a
copy of the floor plan clearly designating such areas, and Tenant shall clearly mark such areas as
“Secured Access Areas” by signs posted within the Premises.




ARTICLE 17

INSURANCE




     17.1. Insurance Rating. Tenant shall not conduct or permit any activity, or
place any equipment or material, in or about the Premises, the Building, or the Common Area, which
will increase the rate of fire or other insurance on the Building or insurance benefiting any other
tenant of the Building; and if any increase in the rate of insurance is stated by any insurance
company or by the applicable insurance rating bureau to be due to any activity, equipment or
material of Tenant in or about the Premises, the Building or the Common Area, such statement shall
be conclusive evidence that the increase in such rate is due to the same and, as a result thereof,
Tenant shall pay such increase to Landlord upon demand.



     17.2. Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain throughout the Term a commercial general liability policy insuring against
claims, demands or actions for bodily injury, death, personal injury, and loss or damage to
property arising out of or in connection with: (i) occurrences within or in connection with the
Premises; (ii) Tenant’s operations in, maintenance and use of the Premises, Building and Common
Area, and (iii) Tenant’s liability for such claims assumed under this Lease. Such insurance shall
have such combined single limit as reasonably required by Landlord from time to time, but in no
event less than Two Million Dollars ($2,000,000.00) per occurrence, on an occurrence basis, and
shall be primary over any insurance carried by Landlord with respect to occurrences within the
Premises. Endorsements or coverage shall be obtained for cross-liability and contractual
liability.



     17.3. Insurance for Personal Property. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a property insurance policy (written on an “All
Risk” basis) insuring all of Tenant’s personal property, including but not limited to equipment,
furniture, fixtures, furnishings and leasehold improvements which are the responsibility of Tenant,
for not less than the full replacement cost of said property.



     17.4. Requirements of Insurance Coverage. All such insurance required to be
carried by Tenant herein shall be with an insurance company licensed to do business in the
Commonwealth of Virginia and rated not lower than A-XII in the A.M. Best Rating Guide. Such
insurance (i) shall contain an endorsement that such policy shall remain in full force and effect
notwithstanding that the insured has released its right of action against any party before the
occurrence of a loss; (ii) as to the liability insurance described in Section 17.2, shall name
Landlord and, at Landlord’s request, any Mortgagee (if any), as additional insured parties; and
(iii) shall provide that the policy shall not be canceled, failed to be renewed or materially
amended without at least thirty (30) days’ prior written notice to landlord and, at



26









 







Landlord’s request, any Mortgagee (if any). On or before the Commencement Date and,
thereafter, not less than thirty (30) days before the expiration date of the insurance policy,
Tenant shall deliver to Landlord and, at Landlord’s request, to any Mortgagee (if any), a
certificate of insurance, provided it is by its terms permitted to be relied upon by Landlord as
evidence that the insurance referred therein is in full force and effect in the limits and with the
deductible amounts stated.



     17.5. Waiver of Subrogation. Notwithstanding any other provision of this
Lease to the contrary, each party hereby releases the other party hereto from liability for any
loss or damage to any building, structure or tangible personal property, or any resulting loss of
income, or losses under worker’s compensation laws and benefits, notwithstanding that such loss,
damage or liability may arise out of the negligent or intentionally tortuous act or omission of the
other party or its Agents, if such loss or damage is covered by insurance benefiting the party
suffering such loss or damage or was required to be covered by insurance pursuant to this Lease and
would have been covered had the party taken out such required insurance. Each party hereto shall
have a waiver of subrogation clause (providing that such waiver of right of recovery against the
other party shall not impair the effectiveness of such policy or the insured’s ability to recover)
included in its said policies.



     17.6. [Reserved].



     17.7. Landlord’s Insurance. Landlord shall procure and maintain, at its own
cost and expense (subject to Section 7.1), and throughout the Term, insurance on the Building,
including the Premises, against fire and the risks covered by extended coverage on a replacement
cost basis or containing a replacement cost endorsement. Landlord shall maintain a commercial
general liability insurance policy, including contractual liability coverage (or with a contractual
liability endorsement) on an occurrence basis in amounts not less than Five Million Dollars
($5,000,000) combined single limit per occurrence with respect to bodily injury or death and
property damage. Landlord shall also maintain rental value insurance for a loss period of at least
one (1) year in an amount equal to the aggregate of all rent and additional rent payable by all
tenants in the Building. Such insurance (i) shall contain an endorsement that such policy shall
remain in full force and effect notwithstanding that the insured has released its right of action
against any party before the occurrence of a loss; (ii) as to the Liability Insurance, shall name
Tenant, as an additional insured party; and (iii) shall provide that the policy shall not be
canceled, failed to be renewed or materially amended without at least thirty (30) days’ prior
written notice to Tenant. On or before the Commencement Date and, thereafter, not less than thirty
(30) days before the expiration date of the insurance policy, Landlord shall deliver to Tenant a
certificate of insurance, provided it is by its terms permitted to be relied upon by Tenant as
evidence that the insurance referred therein is in full force and effect in the limits and with the
deductible amounts stated.



ARTICLE 18

LANDLORD SERVICES AND UTILITIES, ACCESS AND SECURITY




     18.1. Ordinary Services to the Premises. Landlord shall furnish to the
Premises throughout the Term (i) heating and air conditioning appropriate for the Permitted Use
during Building Hours (it being understood that supplemental heating and air conditioning required
to serve special use areas contained in the Premises shall be handled in accordance with Section
18.3), (ii) janitorial service five (5) days per week, (iii) regular trash removal from the
Premises, (iv) hot and cold water from points of supply, (v) restrooms as required by applicable
code, (vi) elevator service, provided that Landlord shall have the right to remove such elevators
from service as may be for moving, freight or for servicing or maintaining the elevators or the
Building, and (vii) electricity. The cost of all services provided by Landlord hereunder



27









 




shall be included within Operating Expenses, unless charged directly (and not as a part of
Operating Expenses) to Tenant or another tenant of the Building. Landlord agrees to furnish
landscaping and grounds maintenance and snow clearing for the areas used in common by the tenants
of the Building or the Project. The foregoing services shall be furnished by Landlord and
reimbursed by Tenant as part of Operating Expenses; provided, however that, except as expressly
stated in Section 22.8 with respect to essential services, Landlord shall be under no
responsibility or liability for failure or interruption in such services caused by breakage,
accident, strikes, repairs or for any other cause or causes beyond the control of Landlord, nor in
any event for any indirect or consequential damages; and failure or omission on the part of
Landlord to furnish such service shall not be construed as an eviction of Tenant, nor work an
abatement of Rent, nor render Landlord liable in damages, nor release Tenant from prompt
fulfillment of any of the covenants under this Lease; provided, however, that if such failure or
inability is the result of Landlord’s negligent or willful misconduct, and if Landlord is not
proceeding diligently to correct such failure or inability, and if all or substantially all of the
Premises is rendered unusable by Tenant for a continuous period of ten (10) consecutive days after
Tenant gives Landlord written notice thereof, and if Tenant does not in fact use the Premises
during such period, then, so long as no Event of Default exists, Tenant shall be entitled to an
abatement of the Base Rent payable hereunder for the period beginning on the day after such ten
(10) day period ends and continuing until the earlier of the date Tenant resumes use or occupancy
of the Premises or the date use of the Premises is restored to Tenant.




     18.2. After-Hours Services. If Tenant requires or requests that the services
to be furnished by Landlord (except Building standard electricity and elevator service) be provided
during periods in addition to the period is set forth in Section 18.1, then Tenant shall use its
best efforts to notify Landlord (or Landlord’s building manager) requesting such services no later
than 2:00 pm of the day (excluding Saturdays, Sundays and holidays) that such services are
required, and Tenant shall pay upon demand Landlord’s additional expenses resulting therefrom. The
cost shall be Thirty Dollars ($30.00) per hour per half (1/2) floor for after-hours service (which
charge includes electricity and HVAC usage charges), subject to periodic escalations to the extent
of actual utility cost increases throughout the Term.



     18.3. Other Provisions Regarding Utilities. All telephone service and
utility service other than those described in Section 18.1, above, to the extent furnished to the
Premises, shall be paid for by Tenant. Landlord shall deliver reasonable evidence of such usage to
Tenant and Landlord reserves the right to charge Tenant directly for the incremental cost of such
electrical consumption, either through the use of engineering surveys or submeters or other
electrical measurement devices installed by Landlord.



     18.4. Access. Landlord shall provide perimeter electronic access control,
including, but not limited to major points of ingress and egress to the Building, as well as the
passenger elevators. Tenant shall be granted four hundred sixty (460) initial access cards, at no
expense to Tenant. All such access cards shall be issued by Landlord to the specific individuals
that are designated by Tenant. A maximum of five (5) access cards shall be programmed to enable
the designated technical personnel of Tenant to access the roof of the Building (without
accompaniment by Landlord’s designated representative) for the purposes of performing its rights,
duties, and obligations accruing under Article 15. Tenant shall not permit anyone, except for
Tenant’s agents, permitted subtenants and assigns, to enter into the Building at times other than
Building Hours. All persons not in the possession of an access card and entering or exiting the
Building at times other than Building Hours shall, at Landlord’s discretion, be required to sign in
and out.



     18.5. Additional Tenant-Provided Security. Tenant shall have the right, at
Tenant’s sole cost and expense to install, operate, maintain, and repair, within the Premises only,
pass-card door lock systems and other electronic security systems and combination or cipher locks
to interior doors; provided, however, that (i) the same are installed, operated, maintained, and
repaired in accordance with all




28









 




applicable provisions of this Lease, (ii) all such equipment is located within or at the suite
entry door to the Premises; and (iii) any such equipment shall not interfere with any Building
security system, nor provide security or access control to the Building or to other space within
the Building. Notwithstanding anything set forth in this Lease to the contrary (including, without
limitation, Sections 18.1 and 18.2 hereof), Landlord shall not be obligated to provide any services
or utilities to any secured access area or any areas deemed unserviceable or inaccessible as a
result of Tenant’s installation of security equipment, unless Tenant cooperates with Landlord in
providing reasonable access to such areas and pays all additional costs incurred in connection
therewith (including, without limitation, any overtime or additional charges for work not performed
at the customary times or in the customary manner).




     18.6. Fitness Facility. Landlord shall, at no additional cost to Tenant or
its employees (other than recovery of Operating Expenses as set forth herein), maintain an
unstaffed fitness facility within the Building (the “Fitness Center”), and provide certain rights
to use an outside basketball court and tennis court (the “Court Facilities”) constructed on the
Land and/or land adjacent to the Building. The Fitness Center and the Court Facilities are
sometimes hereinafter collectively referred to as the “Fitness Facility”. Tenant and Tenant’s
employees shall have the non-exclusive right to utilize the Fitness Facility during the Fitness
Facility’s hours of operation. Use of the Fitness Facility will be limited to tenants (including
any permitted assignees and subtenants) of the Building and their employees (and, with respect to
the Court Facilities only, the tenants of the two (2) adjacent buildings (i.e., Presidents
Park I and Presidents Park III) and their employees), on a non-exclusive basis. Tenant and its
employees shall use the Fitness Facility at its own risk and will provide any certifications of
waiver of liability as Landlord may request from time to time. Without limiting the generality of
the foregoing, each user of the Fitness Facility shall be required to execute and deliver a waiver
of liability in the form attached hereto as Exhibit E (or in another similar form provided
by and acceptable to Landlord). Notwithstanding anything in this Lease to the contrary, Landlord
shall have the right at any time, in its sole and absolute discretion to: (a) cease the operation
of all or any portion of the Fitness Facility and thereafter use the Fitness Facility space and
equipment for any purpose that Landlord determines; (b) staff the Fitness Facility (or not) and
contract or terminate any party hired in connection therewith; (c) modify the size, type, capacity
or configuration of the Fitness Facility (it being understood, however, that the Fitness Center
shall provide substantially the same services that were provided prior to such reconfiguration);
(d) relocate any of the Fitness Facility (including, without limitation, relocating the Fitness
Center from the Building to one of the two (2) adjacent buildings); or (e) perform any other
reasonable act with respect to the Fitness Facility. In the event that Landlord makes any
modification with respect to the Fitness Facility pursuant to the immediately preceding sentence,
then costs of such modification shall be included within Operating Expenses if and to the extent
permitted thereby. Use of the Fitness Facility shall, in addition to the foregoing provisions, be
in accordance with all applicable provisions of this Lease (including, without limitation, the
insurance and indemnity provisions) and subject to such reasonable rules and regulations as
Landlord may promulgate with respect thereto from time to time. To the extent the Fitness Facility
is operated by a third party, Landlord shall use commercially reasonable efforts to replace the
operator should operations cease.



     18.7. Equipment Area. Tenant shall install as part of the Tenant’s
Improvements, and at Tenant’s sole expense, a submeter to measure the electricity supplied to the
area within the Premises that supports Tenant’s local and wide area network equipment (the
“Equipment Area”). Tenant shall, at Landlord’s option, either pay to the appropriate utility or
reimburse Landlord for the entire cost of such electricity used by the Equipment Area as determined
by such submeter at the price per kilowatt hour charged by the utility.



     18.8. ADA Compliance. Landlord at its expense (subject to reimbursement
pursuant to Article VII to the extent permitted thereby) shall comply with Title III of the
Americans with Disabilities



29









 







Act (the “ADA”) to the extent same applies directly to the common areas of the Building and
Building as a whole; provided, however, that to the extent any non-compliance is a result of the
particular use or occupancy of the Premises, then such compliance shall be at Tenant’s cost.
Tenant at its sole cost and expense shall be solely responsible for taking any and all measures
which are required to comply with the ADA concerning the Premises (including suite entry doors and
related items) and the business conducted therein. Notwithstanding anything in this Article to the
contrary, if Landlord causes improvements to be made to the common areas of the Building to comply
with the ADA, and such improvements are solely necessary by reason of Tenant’s particular use of
the Premises, then Tenant shall reimburse Landlord for all costs and expenses incurred by Landlord
in connection with the performance of such improvements. If Tenant is unable to obtain a building
permit or occupancy permit because any restrooms or other Common Areas do not meet current ADA and
other legal requirements, then Landlord, at Landlord’s sole cost and expense, shall immediately
correct any deficiencies and reimburse Tenant for any delays and other costs incurred as a result
of such modifications or delays.



ARTICLE 19

LIABILITY OF LANDLORD




     19.1. Limited Liability. Except where due to Landlord or its Agents’
negligence or willful misconduct, and except as otherwise expressly provided in this Lease,
Landlord and its Agents shall not be liable to Tenant or its Agents for, and Tenant, for itself and
its Agents, does hereby release Landlord and its Agents from liability for, any damage,
compensation or claim arising from (i) the necessity of repairing any portion of the Premises or
the Building or the Common Area or any structural defects thereto, (ii) any interruption in the use
of the Premises or the Common Area for any reason including any interruption or suspension of
utility service, (iii) fire or other casualty or personal or property injury, death, damage or loss
resulting from the use or operation (by Landlord, Tenant, or any other person whomsoever) of the
Premises or the Building or the Common Area, (iv) the termination of this Lease, (v) any robbery,
assault, theft or other criminal act, or (vi) any leakage in the Premises or the Building from
water, rain, snow or other cause whatsoever. No such occurrence shall give rise to diminution or
abatement of Rent (except as expressly set forth in Section 18.1) or constructive eviction.
Notwithstanding the foregoing, any goods, automobiles, property or personal effects stored or
placed by Tenant or its Agents in or about the Premises, the Building or the Common Area shall be
at the sole risk of Tenant; Tenant hereby expressly waives its right to recover against Landlord
and its Agents therefor. Landlord waives all claims against Tenant for damage to any property or
injury to, or death of, any person in, upon or about the Project, the Building, the Common Area or
the Premises arising at any time and from any cause other than by reason of the negligence or
willful misconduct of Tenant and Tenant’s Agents. Landlord and Tenant acknowledge their respective
obligation to insure against such losses and damages, and the allocation of risk, all as set forth
in Article 17. NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE TO THE CONTRARY, NEITHER PARTY
SHALL BE LIABLE PURSUANT TO ANY PROVISION OF THIS LEASE TO THE OTHER PARTY OR ANY THIRD PARTY
AFFILIATED WITH THAT OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR
EXEMPLARY DAMAGES OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR THE
PERFORMANCE OR BREACH HEREOF.



     19.2. Tenant’s Indemnity. Subject to the provisions of Section 17.5 hereof,
Tenant shall indemnify, defend, protect and hold Landlord and its Agents harmless from and against
any and all damage, claim, liabilities, judgments, demands, causes of action, claims, losses,
damages, costs and expenses (including, without limitation, reasonable attorneys’ or other
professionals’ fees) of every kind



30









 







and nature (including, without limitation, those arising from any injury or damage to any
person, property or business) incurred by or claimed against Landlord or its Agents, directly or
indirectly, as a result of, arising from or in connection with (i) Tenant’s or its Agent’s use and
occupancy of the Premises, the Building or the Common Area, (ii) Tenant’s breach of any provision
of this Lease; or (iii) any act, omission or negligence of Tenant or its Agents; provided, however,
that this indemnity shall not apply to any loss, damage, liability or expense resulting from
injuries or death to third parties caused by the negligence or willful misconduct of Landlord or
its Agents.



     19.3. Landlord’s Indemnity. Subject to the provisions of Section 17.5
hereof, Landlord shall indemnify, defend, protect and hold Tenant and its Agents harmless from and
against any and all damage, claim, liabilities, judgments, demands, causes of action, claims,
losses, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees or
other professionals’ fees) of every kind and nature (including, without limitation, those arising
from any injury or damage to any person, property or business) incurred by or claimed against
Tenant or its Agents, directly or indirectly, as a result of, arising from or in connection with
(i) the operation and management of the Project by Landlord or Landlord’s management agent; (ii)
the gross negligence or willful misconduct of Landlord or its Agents; and (iii) any breach or
default by Landlord under this Lease; provided that this indemnity shall not apply to any loss,
damage, liability or expense resulting from injuries or death to third parties caused by the
negligence or willful misconduct of Tenant or its Agents.



ARTICLE 20

RULES AND REGULATIONS




     Tenant and its Agents shall at all times abide by and observe the Rules and Regulations and
any amendments thereto that may be promulgated from time to time by Landlord for the operation and
maintenance of the Building and the Common Area and the Rules and Regulations shall be deemed to be
covenants of the Lease to be performed and/or observed by Tenant. If there is any inconsistency
between this Lease and the Rules and Regulations, this Lease shall govern. In the event any
approved plan or specification conflicts with a specific Rule and Regulation, such Rule and
Regulation shall be deemed to be amended in keeping with the provision of such approved plan or
specification; provided, however, in no event shall any approved plan or specification amend,
alter, or revise the obligations of Tenant arising under Articles 10, 12, 15, and 26, and Sections
17.1 and 18.8 of this Lease. Landlord reserves the right to amend and modify the Rules and
Regulations, as it deems necessary, provided that any such amendment or modification is reasonable
and non-discriminatory (as to content and enforcement) and does not (a) interfere with or adversely
affect Tenant’s business or Tenant’s occupancy of the Premises in more than a de minimis manner,
(b) increase Tenant’s share of Operating Expenses in more than a de minimis manner, or (c) decrease
the level or quality of services provided by Landlord in more than a de minimis manner. Landlord
shall use commercially reasonable efforts not to enforce any rule or regulation in a manner which
unreasonably discriminates among similarly situated tenants.



ARTICLE 21

DAMAGE; CONDEMNATION




     21.1. Damage to the Premises. If the Premises shall be damaged by fire or
other cause, and Landlord elects, as set forth herein, to repair, then Landlord shall diligently
and as soon as practicable after such damage occurs (taking into account the time necessary to
effect a satisfactory settlement with any insurance company involved) repair such damage to
completion at the expense of Landlord.



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Notwithstanding the foregoing, if the Premises or the Building is damaged by fire or other
cause to such an extent that, in Landlord’s sole judgment, the damage cannot be substantially
repaired within one hundred eighty (180) days after the date of such damage, which determination
Landlord shall communicate to Tenant within sixty (60) days of the date of such damage, then
Landlord or Tenant, within thirty (30) days from the date of such determination, may terminate this
Lease by notice to the other. If either Landlord or Tenant terminates this Lease, the Rent shall
be apportioned and paid to the later of the date of such event of damage or the date Tenant vacates
the Premises. If neither Landlord nor Tenant so elects to terminate this Lease, then Landlord
shall proceed to repair and restore the Premises and the Building (exclusive of Tenant’s personal
property, including, but not limited to equipment, furniture, fixtures, furnishings and leasehold
improvements which are the responsibility of Tenant) to the condition the Premises and the Building
were in immediately prior to such damage. If the damage required to be repaired by Landlord is not
repaired within three hundred sixty-five (365) days from the date of such damage, Tenant, within
thirty (30) days from the expiration of such three hundred sixty-five (365) day period, may
terminate this Lease by notice to Landlord. During the period that Tenant is deprived of the use
of the damaged portion of the Premises, and provided such damage is not the consequence of the
fault or negligence of Tenant or its Agents, Base Rent and Tenant’s Proportionate Share shall be
reduced by the ratio that the rentable square footage of the Premises damaged bears to the total
rentable square footage of the Premises before such damage. Notwithstanding anything herein to the
contrary, Landlord shall not be required to rebuild, replace or repair any non-standard tenant
improvements, tenant extras or Alterations or any personal property of Tenant.




     21.2. Condemnation. If the whole or a Substantial Part of the Premises (or
so much of the Premises that in Tenant’s reasonable judgment makes it impracticable to operate the
Premises) or the Building shall be taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose (including, without limitation, sale under
threat of such a taking), then the Term shall cease and terminate as of the date when title vests
in such governmental or quasi-governmental authority, and Rent shall be prorated to the date when
title vests in such governmental or quasi-governmental authority. If less than a Substantial Part
of the Premises (or so much of the Premises that in Tenant’s reasonable judgment makes it
impracticable to operate the Premises) is taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose (including, without
limitation, sale under threat of such a taking), Base Rent and Tenant’s Proportionate Share shall
be reduced by the ratio that the portion so taken bears to the rentable square footage of the
Premises before such taking, effective as of the date when title vests in such governmental or
quasi-governmental authority, and this Lease shall otherwise continue in full force and effect.
Tenant shall have no claim against Landlord (or otherwise) as a result of such taking, and Tenant
may make its own claim against the condemning authority for any portion of the amount that may be
awarded as compensation or damages as a result of such taking. Additionally, Tenant may, to the
extent allowed by law, claim an award for moving expenses and for the taking of any of Tenant’s
property which does not, under the terms of this Lease, become the property of Landlord at the
termination hereof, as long as such claim is separate and distinct from any claim of Landlord.



ARTICLE 22

DEFAULT




     22.1. Events of Default. Each of the following shall constitute an “Event of
Default”: (i) Tenant fails to pay Rent within five (5) days after notice from Landlord; provided
that no such notice shall be required if at least two such notices shall have been given during the
same Lease Year; (ii) Tenant fails to observe or perform any other term, condition or covenant
herein binding upon or



32









 




obligating Tenant within twenty (20) days after notice from Landlord, provided that if such
failure cannot reasonably be cured within twenty (20) days, Tenant shall have such reasonable time
as is reasonably necessary to effect such cure so long as Tenant commences such cure promptly after
receipt of Landlord’s notice and Tenant is diligently effecting such cure; (iii) Tenant abandons
the Premises (i.e., vacates substantially all of Tenant’s possessions with no evident intent to
return); (iv) Tenant or any Guarantor makes or consents to a general assignment for the benefit of
creditors or a common law composition of creditors, or a receiver of the Premises or all or
substantially all of Tenant’s or Guarantor’s assets is appointed; or (v) Tenant or Guarantor (if
any) files a voluntary petition in any bankruptcy or insolvency proceeding, or an involuntary
petition in any bankruptcy or insolvency proceeding is filed against Tenant or Guarantor and is not
discharged by Tenant or Guarantor within sixty (60) days.




     22.2. Landlord’s Remedies. Upon the occurrence of an Event of Default,
Landlord, at its option, without further notice or demand to Tenant, may to the fullest extent
permitted by law, and in addition to all other rights and remedies provided in this Lease, at law
or in equity:



     (i) Terminate this Lease and Tenant’s right of possession of the Premises, and recover all
damages to which Landlord is entitled under law, specifically including, but without limitation,
all of Landlord’s expenses of reletting (including, without limitation, rental concessions to new
tenants, repairs, Alterations, legal fees and brokerage commissions attributable to the unexpired
term). In addition, if Landlord elects to terminate this Lease, every obligation of Landlord
hereunder shall cease as of the date of such termination, but the same shall not affect the
liability of Tenant for payment of Rent and performance of all other terms and conditions of this
Lease to the date of termination, plus any damages and/or other sums recoverable by Landlord under
this Article 22 or otherwise at law or in equity.



     ***



     (iii) Terminate this Lease and Tenant’s right of possession of the Premises, and recover from
Tenant, at Landlord’s sole and exclusive option, either (A) the net present value of the Rent due
from the date of termination until the Expiration Date, discounted at the lesser of the Interest
Rate as of the date of termination or seven percent (7%) per annum, or (B) “Indemnity Payments”
which shall mean an amount equal to the Base Rent and Additional Rent and other payments provided
for in this Lease which would have become due and owing hereunder from time to time during the
unexpired Term after the effective



33









 







date of the termination, but for such termination, less the Base Rent and Additional Rent and
other payments, if any, actually collected by Landlord and allocable to the Premises. If Landlord
elects to pursue Indemnity Payments in lieu of the amount recoverable under clause (A) of this
subparagraph (iii), above, Tenant shall, on demand, make Indemnity Payments monthly, and Landlord
may sue for all Indemnity Payments at any time after they accrue, either monthly, or at less
frequent intervals. Tenant further agrees that Landlord may bring suit for Indemnity Payments at or
after the end of the Term as originally contemplated under this Lease, and Tenant agrees that, in
such event, Landlord’s cause of action to recover the Indemnity Payments shall be deemed to have
accrued on the last day of the Term as originally contemplated.



     (iv) If Landlord re-enters and repossesses the Premises, Landlord may remove all persons and
effects there from, by summary proceeding, ejectment or other legal action. Landlord shall have no
liability by reason of any such re-entry, repossession or removal.



     (v) Landlord may recover from Tenant, to the extent permitted under the laws of the
Commonwealth of Virginia, the value and/or cost of all concessions made to or for the benefit of
Tenant under this Lease.



     (vi) Subject to Section 19.1, Landlord may recover from Tenant, to the extent not already
recovered pursuant to the preceding subparagraphs of this Section 22.2, any other amount (not
recoverable from a replacement tenant) which is necessary to compensate Landlord for economic
damages sustained by Landlord and caused by Tenant’s failure to perform Tenant’s obligations under
this Lease, including, without limitation, any costs or expenses incurred by Landlord: (i) in
retaking possession of the Premises; (ii) in maintaining, repairing, preserving, restoring,
replacing, cleaning, altering or rehabilitating the Premises or a portion thereof, including
expenses incurred in performing such acts in connection with any reletting to a new tenant or
tenants; (iii) for leasing commissions incurred in connection with any reletting to a new tenant or
tenants; and/or (iv) for any other costs incurred by Landlord in reletting the Premises.



     22.3. Rights Upon Possession. If Landlord takes possession pursuant to this
Article, with or without this Lease, Landlord may, at its option, enter into the Premises, remove
Tenant’s Alterations, signs, personal property, equipment and other evidences of tenancy, and store
them at Tenant’s risk and expense or dispose of them as Landlord may see fit, and take and hold
possession of the Premises; provided, however, that if Landlord elects to take possession only
without terminating this Lease, such entry and possession shall not terminate this Lease or release
Tenant or any Guarantor, in whole or in part, from the obligation to pay the Rent reserved
hereunder for the full Term or from any other obligation under this Lease or any guaranty thereof.
Landlord shall use reasonable efforts to relet the Premises and mitigate its damages.



     22.4. No Waiver. If Landlord shall institute proceedings against Tenant and
a compromise or settlement thereof shall be made, the same shall not constitute a waiver of any
other covenant, condition or agreement herein contained, nor of any of Landlord’s rights hereunder.
No waiver by Landlord of any breach shall operate as a waiver of such covenant, condition or
agreement, or operate as a waiver of such covenant, condition or agreement itself, or of any
subsequent breach thereof. No payment of Rent by Tenant or acceptance of Rent by Landlord shall
operate as a waiver of any breach or default by Tenant under this Lease. No payment by Tenant or
receipt by Landlord of a lesser than the monthly installment of Rent herein stipulated shall be
deemed to be other than a payment on account of the earliest unpaid Rent, nor shall any endorsement
or statement on any check or communication accompanying a check for the payment of Rent be deemed
an 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



34









 







remedy provided in this Lease. No re-entry by Landlord, and no acceptance by Landlord of keys
from Tenant, shall be considered an acceptance of a surrender of the Lease.



     22.5. Right of Landlord to Cure Tenant’s Default. If an Event of Default
shall occur, then Landlord may (but shall not be obligated to) make such payment or do such act to
cure the Event of Default, and charge the amount of the expense thereof, together with interest
thereon at the Interest Rate, to Tenant. Such payment shall be due and payable upon demand;
however, the making of such payment or the taking of such action by Landlord shall not be deemed to
cure the Event of Default or to stop Landlord from the pursuit of any remedy to which Landlord
would otherwise be entitled. Any such payment made by Landlord on Tenant’s behalf shall bear
interest until paid at the Interest Rate.



     22.6. Late Payment. If Tenant fails to pay any Rent within five (5) days
after such Rent becomes due and payable, Tenant shall pay to Landlord a late charge of five percent
(5%) of the amount of such overdue Rent. In addition, any such late Rent payment shall bear
interest from the date such Rent became due and payable to the date of payment thereof by Tenant at
the Interest Rate. Such late charge and interest shall be due and payable within two (2) days after
written demand from Landlord. If Landlord fails to pay any amount rightfully due Tenant hereunder
within five (5) days after such payment becomes due and payable, Landlord shall pay to Tenant a
late charge of five percent (5%) of the amount of such overdue payment. In addition, any such late
payment shall bear interest from the date such payment became due and payable to the date of
payment thereof by Landlord at the Interest Rate. Such late charge and interest shall be due and
payable within two (2) days after written demand from Tenant.



     22.7. Landlord Default. If Landlord shall fail to keep or perform any of its
obligations under this Lease, then Tenant shall have the right, in its sole discretion, to pursue
any legal remedies available to it as set forth in this Lease and/or under applicable law.



     22.8.
Tenant’s Right on Certain Landlord Defaults. ***




35









 







***


36









 







***



ARTICLE 23

MORTGAGES




     23.1. Subordination. This Lease is subject and subordinate to all ground or
underlying leases and to any first Mortgage(s) which may now or hereafter affect such lease or the
Land and to all renewals, modifications, consolidations, replacements, and extensions thereof.
This subordination shall be self-operative; however, in confirmation thereof, Tenant shall execute
promptly any instrument that Landlord or any first Mortgagee may reasonably request confirming such
subordination, provided that such subordination shall not obligate Tenant to additional or
different terms other than as provided in this Lease, and provided that any such instrument
contains “non-disturbance” language reasonably satisfactory to Tenant. Notwithstanding the
foregoing, before any foreclosure sale under a Mortgage, the Mortgagee shall have the right to
subordinate the Mortgage to this Lease, and, in the event of a foreclosure, this Lease shall then
continue in full force and effect and Tenant shall attorn to and recognize as its landlord the
purchaser of Landlord’s interest under this Lease. Tenant shall, upon the request of a Mortgagee or
purchaser at foreclosure, execute, acknowledge and deliver any instrument that as for its purpose
and effect the subordination (as provided above) of the lien of any Mortgage to this Lease or



37









 




Tenant’s attornment to such purchaser. No Mortgagee or purchaser at foreclosure shall be
bound by (i) any payment of Base Rent or Additional Rent made for more than one (1) month in
advance or any amendment or modification of this Lease made without the consent of such Mortgagee.




     23.2. Mortgagee Protection. Tenant agrees to give any Mortgagee by certified
mail, return receipt requested, a copy of any notice of default served upon Landlord, provided that
before such notice Tenant has been notified in writing of the address of such Mortgagee. Tenant
further agrees that if Landlord shall have failed to cure such default within the time provided for
in this Lease, then, except as to any matter dealt with pursuant to Section 22.8 above (in which
event such Mortgagee shall have the same right to cure the default under the same time limitations
as Landlord, all as set forth in Section 22.8, such opportunity to run concurrently with and not
subsequent to Landlord’s opportunity to cure such default), Mortgagee shall have an additional
thirty (30) days within which to cure such default; provided, however, that if such default cannot
be reasonably cured within that time, then such Mortgagee shall have such additional time as may be
necessary to cure such default so long as Mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including, without limitation, the commencement of
foreclosure proceedings, if necessary), in which event this Lease shall not be terminated or Rent
abated while such remedies are being so diligently pursued.



     23.3. [Reserved].



     23.4. Subordination, Non-Disturbance and Attornment Agreement. Landlord
shall obtain a Subordination, Non-Disturbance and Attornment Agreement from any current or future
Mortgagee on such Mortgagee’s customary form, such form to contain terms and conditions reasonably
satisfactory to each of Landlord, Tenant, and such Mortgagee.



ARTICLE 24

SURRENDER; HOLDING OVER




     24.1. Surrender of the Premises. Tenant shall peaceably surrender the
Premises to Landlord on the Expiration Date or earlier termination of this Lease, in broom-clean
condition and in as good condition as when Tenant took possession, including, without limitation,
the repair of any damage to the Premises caused by the removal of any of Tenant’s personal property
or trade fixtures from the Premises, except for reasonable wear and tear and loss by fire or other
casualty not caused by Tenant or its Agents. Subject to Section 13.2, Tenant shall have no
obligation to restore the Premises to its original condition upon the expiration of this Lease.
Any of Tenant’s personal property left on or in the Premises, the Building, or the Common Area
after the Expiration Date or earlier termination of this Lease shall be deemed to be abandoned,
and, at Landlord’s option, title shall pass to Landlord under this Lease.



     24.2. Holding Over. In the event that Tenant shall not immediately
surrender the Premises to Landlord on the Expiration Date or earlier termination of this Lease,
Tenant shall be deemed to be a month to month tenant upon all of the terms and provisions of this
Lease, except the monthly Base Rent shall be the following percentages of the monthly Base Rent in
effect during the last month of the Term: one hundred twenty-five percent (125%) for the first
month of such tenancy and one hundred fifty percent (150%) for each month thereafter.
Notwithstanding the foregoing, if Tenant shall hold over after the Expiration Date or earlier
termination of this Lease, and Landlord shall desire to regain possession of the Premises, then
Landlord may forthwith re-enter and take possession of the Premises. Tenant shall indemnify
Landlord against all liabilities and damages sustained by Landlord by reason of such retention of
possession. Notwithstanding the foregoing, in the event the parties are engaged in bona fide



38









 







negotiations for an extension or renewal of this Lease (as evidenced from the written
proposals being exchanged), the increased holdover rent provisions shall not become effective until
the first (1st) day of the fourth (4th) month following the Expiration Date.



ARTICLE 25

QUIET ENJOYMENT




     Landlord covenants that as long as there is no Event of Default, Tenant shall during the Term
peaceably and quietly occupy and enjoy possession of the Premises without molestation or hindrance
by Landlord or any party claiming through or under Landlord, subject to the provisions of this
Lease.



ARTICLE 26

TENANTS COVENANTS REGARDING HAZARDOUS MATERIALS




     26.1. Definition. As used in this Lease, the term “Hazardous Material” means
any flammable items, explosives, radioactive materials, hazardous or toxic substances, material or
waste or related materials, including any substances defined as or included in the definition of
“hazardous substances,” “hazardous wastes,” “infectious wastes,” “hazardous materials” or “toxic
substances” now or subsequently regulated under any federal, state or local laws, regulations or
ordinances including, without limitation, oil, petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other chemical products,
asbestos, PCBs and similar compounds, and including any different products and materials which are
subsequently found to have adverse effects on the environment or the health and safety of persons.



     26.2. General Prohibition. Tenant shall not cause or permit any Hazardous
Material to be generated, produced, brought upon, used, stored, treated, discharged, released,
spilled or disposed of on, in, under or about the Premises, the Building or the Land by Tenant or
its Agents, affiliates, sublessees or assignees without the prior written consent of Landlord.
Landlord shall be entitled to take into account such factors or facts as Landlord may in its good
faith business judgment determine to be relevant in determining whether to grant, condition or
withhold consent to Tenant’s proposed activity with respect to Hazardous Material, and expressly
subject to Article 19, Tenant shall indemnify, defend and hold Landlord harmless from any and all
actions (including, without limitation, remedial or enforcement actions of any kind, administrative
or judicial proceedings, and orders or judgments arising out of or resulting there from), costs,
claims, damages (including, without limitation, punitive damages), expenses (including, without
limitation, attorneys’, consultants’ and experts’ fees, court costs and amounts paid in settlement
of any claims or actions), fines, forfeitures or other civil, administrative or criminal penalties,
injunctive or other relief (whether or not based upon personal or bodily injury, property damage,
contamination of, or adverse effects upon, the environment, water tables or natural resources),
liabilities or losses arising from a breach of this prohibition by Tenant, its Agents, affiliates,
sublessees or assignees. In no event, however, shall Landlord be required to consent to the
installation or use of any storage tanks in, on, or under the Premises, the Building, or the Land.
If Landlord consents to the generation, production, use, storage, treatment or disposal of
Hazardous Materials in or about the Premises by Tenant, its Agents, affiliates, sublessees or
assignees, then, in addition to any other requirements or conditions that Landlord may impose in
connection with such consent, (1) Tenant promptly shall deliver to Landlord copies of all permits,
approvals, filings, and reports reflecting the legal and proper generation, production, use,
storage, treatment or disposal of all Hazardous Materials generated, used, stored, treated or
removed from the Premises, the Building and the Land and, upon



39









 







Landlord’s request, copies of all hazardous waste manifests relating thereto, and (2) upon
expiration or earlier termination of this Lease, Tenant shall cause all Hazardous Materials arising
out of or related to the use or occupancy of the Premises by Tenant or its Agents, affiliates,
sublessees or assignees to be removed from the Premises, the Building and the Land and transported
for use, storage or disposal in accordance with all applicable laws, regulations and ordinances and
Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord of the same.



     Notwithstanding the foregoing, Tenant and its assignees, subtenants and licensees shall be
permitted to store reasonable amounts of Hazardous Materials that are typically used in business
operations similar in type and nature to the business operations of Tenant such as ordinary
cleaners, solvents, lubricants, printer and duplication supplies and similar materials, together
with generators, fuel and batteries and all supplies in respect thereof (collectively, the
“Permitted Materials”) provided such Permitted Materials are properly used, stored, handled and
disposed of in a manner and location meeting all Environmental Laws. Any such use, storage and
disposal shall be subject to all of the terms of this Section (except for the terms prohibiting the
same), and Tenant shall be responsible for obtaining any required permits and paying any fees and
providing any testing required by any governmental authority with respect to the Permitted
Materials. If Landlord in its reasonable opinion determines that said Permitted Materials are
being improperly stored, used, handled or disposed of, then Tenant shall immediately take such
corrective action as may be reasonably required by Landlord. Should Tenant fail to commence such
corrective action within two (2) business days and complete such corrective action within ten (10)
business days (or (i) such longer period as may be necessary in the exercise by Tenant of best
efforts to complete such corrective action without delay, or (ii) such shorter period as may be
appropriate in the event of an emergency), Landlord shall have the right (but not the obligation)
to perform such work on Tenant’s behalf and at Tenant’s sole expense, and Tenant shall promptly
reimburse Landlord for any and all costs associated with said work.



     26.3. Notice. In the event that Hazardous Materials are discovered upon, in,
or under the Premises, the Building or the Land and any governmental agency or entity having
jurisdiction over the Premises, the Building or the Land requires the removal of such Hazardous
Materials, Tenant shall be responsible for removing such of those Hazardous Materials placed upon
the Premises, Building or Land by Tenant or its Agents, affiliates, sublessees or assignees but not
those of its predecessors. Notwithstanding the foregoing, Tenant shall not take any remedial action
in or about the Premises, the Building or the Land, nor enter into any settlement agreement,
consent decree or other compromise with respect to any claims relating to any Hazardous Material in
any way connected with the Premises, the Building or the Land without first notifying Landlord of
Tenant’s intention to do so and affording Landlord the opportunity to appear, intervene or
otherwise appropriately assert and protect Landlord’s interest with respect thereto. Tenant
immediately shall notify Landlord in writing of: (i) any spill, release, discharge or disposal of
any Hazardous Material in, on or under the Premises, the Building, the Land or any portion thereof,
(ii) any enforcement, cleanup, removal or other governmental or regulatory action instituted,
contemplated or threatened (if Tenant has notice thereof) pursuant to any Hazardous Materials Laws;
(iii) any claim made or threatened by any person against Tenant, the Premises, the Building or the
Land relating to damage, contribution, cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous Materials; and (iv) any reports made to any environmental
agency or entity arising out of or in connection with any Hazardous Materials in, on, under or
about or removed from the Premises, the Building or the Land, including any complaints, notices,
warnings, reports or asserted violations in connection therewith. Tenant also shall supply to
Landlord as promptly as possible, and in any event within five (5) business days after Tenant first
receives or sends the same, copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to the Premises, the Building, the Land or Tenant’s use or
occupancy thereof.



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     26.4. Landlord Hazardous Materials Obligation. Landlord shall indemnify and
hold harmless Tenant of and from any and all costs and expenses incurred or suffered by Tenant, or
asserted by a third party against Tenant, directly or indirectly due to the presence or removal of,
or failure to remove, Hazardous Materials generated, accumulated, stored or released by anyone
other than Tenant in or about the Building.



     26.5. Survival. The respective rights and obligations of Landlord and Tenant
under this Article 26 shall survive the expiration or earlier termination of this Lease without
limitation.



ARTICLE 27

MISCELLANEOUS




     27.1. No Representation by Landlord. Tenant acknowledges that neither
Landlord or its Agents nor any broker has made any representation or promise with respect to the
Premises, the Building, the Land or the Common Area, except as herein expressly set forth, and no
rights, privileges, easements or licenses are acquired by Tenant except as herein expressly set
forth. Tenant, by taking possession of the Premises shall accept the Premises and the Building “AS
IS,” subject to Landlord delivering the Premises in the condition required by Section 3.3 and
Latent Defects.



     27.2. No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and Tenant, or to create
any other relationship between Landlord and Tenant other than that of landlord and tenant.



     27.3. Brokers. Other than Brokers, who Landlord shall pay a commission in
connection with procuring this Lease pursuant to a separate written agreement, Landlord and Tenant
each represents and warrants to the other that it has not employed any broker, agent, or finder
relating to this Lease. Landlord shall indemnify and hold Tenant harmless, and Tenant shall
indemnify and hold Landlord harmless, from and against any claim for brokerage or other commission
arising from or out of any breach of the indemnitor’s representation and warranty.



     27.4. Estoppel Certificate. Tenant shall, without charge, at any time and
from time to time, within fifteen (15) days after request therefor by Landlord, Mortgagee, any bona
fide purchaser of the Land or the Building, execute, acknowledge and deliver to such requesting
party a written estoppel certificate certifying, as of the date of such estoppel certificate, the
following: (i) that this Lease is unmodified and in full force and effect (or if modified, that the
Lease is in full force and effect as modified and setting forth such modifications); (ii) that the
Term has commenced (and setting forth the Commencement Date and Expiration Date); (iii) that Tenant
is presently occupying the Premises; (iv) the amounts of Base Rent and Additional Rent currently
due and payable by Tenant; (v) that any Alterations required by the Lease to have been made by
Landlord have been made to the satisfaction of Tenant; (vi) that there are no existing set-offs,
charges, liens, claims or defenses against the enforcement of any right hereunder, including
without limitation, Base Rent or Additional Rent (or, if alleged, specifying the same in detail);
(vii) that no Base Rent (except the first installment thereof) has been paid more than thirty (30)
days in advance of its due date; (viii) that Tenant has no knowledge of any then uncured default by
Landlord of its obligations under this Lease (or, if Tenant has such knowledge, specifying the same
in detail); (ix) that Tenant is not in default (or if Tenant has such knowledge, specifying the
same in detail); (x) that the address to which notices to Tenant should be sent is as set forth in
the Lease (or, if not, specifying the correct address); and (xi) any other reasonable
certifications reasonably requested by Landlord. In addition, unless Tenant (or the entity that
owns one hundred percent (100%) of Tenant) is a



41









 







public company and its financial statements are publicly available, within ten (10) days after
request by Landlord, Tenant shall deliver to Landlord audited financial statements of Tenant for
its most recently ended fiscal year and interim unaudited financial statements for its most
recently ended quarter, such non-public financial statements shall be held in confidence by
Landlord, any Mortgagee, or any bona fide purchaser of the Land or the Building.



     27.5. Waiver of Jury Trial. Landlord and Tenant each hereby waive trial by
jury in any action, proceeding or counterclaim brought by Landlord or Tenant with respect to any
matter whatsoever arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant hereunder or Tenant’s use or occupancy of the Premises. In the event Landlord
commences any proceedings for nonpayment of Rent, Tenant shall not interpose any counterclaims.
This shall not, however, be construed as a waiver of Tenant’s right to assert such claims in any
separate action brought by Tenant.



     27.6. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed duly given if delivered in person, the next business day if delivered
by a nationally recognized overnight delivery service, or upon the earlier of receipt, if mailed by
certified or registered mail, or three (3) days after certified or registered mailing, return
receipt requested, postage prepaid, addressed and sent, if to Landlord to Landlord’s Address
specified in Section 1.16 or if to Tenant to Tenant’s Address specified in Section 1.17 and to such
other addresses as the parties may specify by written notice given pursuant to this Section.
Landlord and Tenant may from time to time by written notice to the other designate another or
additional address for receipt of future notices.



     27.7. Invalidity of Particular Provisions. If any provisions of this Lease
or the application thereof to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such provision to persons or
circumstances other than those to which it is invalid or unenforceable, shall not be affected
thereby, and each provision of this Lease shall be valid and be enforced to the full extent
permitted by law.



     27.8. Gender and Number. All terms and words used in this Lease, regardless
of the number or gender in which they are used, shall be deemed to include any other number or
gender as the context may require.



     27.9. Benefit and Burden. Except as otherwise expressly provided, the
provisions of this Lease shall be binding upon, and shall inure to the benefit of, the parties
hereto and each of their respective representatives, heirs, successors and assigns. Landlord may
freely and fully assign its interest hereunder.



     27.10. Entire Agreement. This Lease (which includes the Exhibits and Rider
attached hereto) contains and embodies the entire agreement of the parties hereto, and no
representations, inducements, or agreement, oral or otherwise, between the parties not contained in
this Lease shall be of any force or effect. This Lease (other than the Rules and Regulations, which
may be changed from time to time as provided herein) may not be modified, changed or terminated in
whole or in part in any manner other than by an agreement in writing duly signed by Landlord and
Tenant.



     27.11. Authority. The person executing this Lease on behalf of Tenant hereby
represents and warrants that Tenant is a duly formed and validly existing corporation, in good
standing, qualified to do business in the Commonwealth of Virginia; that the Tenant has full power
and authority to enter into this Lease and that he or she is authorized to execute this Lease on
behalf of the Tenant; that all action required to authorize Tenant and such person to enter into
this Lease has been duly taken; that Tenant is not, and the entities or individuals constituting
Tenant or which may own or control Tenant or which may



42









 







be owned or controlled by Tenant are not, among the individuals or entities identified on any
list compiled by the U.S. Government for the purpose of identifying suspected terrorists, and
Tenant is not engaging in the transaction on behalf of any such individual or entity; and that
Tenant is not in violation of any anti-money laundering law. The person executing this Lease on
behalf of Landlord hereby represents and warrants that Landlord is a duly formed and validly
existing corporation, in good standing, qualified to do business in the Commonwealth of Virginia;
that the Landlord has full power and authority to enter into this Lease and that he or she is
authorized to execute this Lease on behalf of the Landlord; that all action required to authorize
Landlord and such person to enter into this Lease has been duly taken; that Landlord is not, and
the entities or individuals constituting Landlord or which may own or control Landlord or which may
be owned or controlled by Landlord are not, among the individuals or entities identified on any
list compiled by the U.S. Government for the purpose of identifying suspected terrorists, and
Landlord is not engaging in the transaction on behalf of any such individual or entity; and that
Landlord is not in violation of any anti-money laundering law.



     27.12. Attorneys’ Fees. If, as a result of any default of Landlord or Tenant
in its performance of any of the provisions of this Lease, the other party uses the services of an
attorney in order to secure compliance with such provisions or recover damages therefor, or to
terminate this Lease or evict Tenant, the non-prevailing party shall reimburse the prevailing party
upon demand for any and all attorneys’ fees and expenses so incurred by the prevailing party.



     27.13. Interpretation. This Lease is governed by the laws of the
Commonwealth of Virginia.



     27.14. No Personal Liability: Sale. Neither Landlord nor its Agents, whether
disclosed or undisclosed, shall have any personal liability under any provision of this Lease. In
the event of a judgment in favor of Tenant which remains unpaid, Tenant’s right of redress,
execution and levy shall be limited to the equity of Landlord in the Building as described in
Article 1 hereof, which shall be deemed to include proceeds actually received by Landlord from any
sale of the Building (net of all expenses of sale), insurance or condemnation proceeds (subject to
the rights of any Mortgagees), and rental income from the Building (net of all expenses) to the
extent all of the foregoing are held in an account for Landlord and have not been applied or
distributed by Landlord in the ordinary course of business (i.e., not as a fraud against
creditors). In the event that the original Landlord hereunder, or any successor owner of the
Building, shall sell or convey all of that party’s right, title and interest in and to the
Building, all liabilities and obligations on the part of the party so selling or conveying under
this Lease occurring thereafter shall terminate as of the day of such sale, and thereupon all such
liabilities and obligations shall be binding on the new owner. Tenant agrees to attorn to such new
owner following receipt of written notice of the existence of such new owner and Tenant shall not
be liable for any payments of any amounts due from Tenant hereunder actually paid by Tenant to any
prior landlord prior to receipt of such written notice.



     27.15. Time of the Essence. Time is of the essence as to both Landlord’s and
Tenant’s obligations contained in this Lease.



     27.16. Force Majeure. Except as hereafter provided, neither Landlord nor
Tenant shall be considered to be in default of an obligation under this Lease nor liable for loss
or damage for failure to perform an obligation (nor shall the other party be released from any of
its obligations under this Lease if the non-performing party is delayed in performing an
obligation), where the performance of such obligation by the non-performing party is delayed as a
result of event of “Force Majeure” which shall mean any acts of God, strikes, lockouts, labor
difficulties, materials shortages, moratoria, explosions, sabotage, accidents, riots, civil
commotions, acts of war, results of any warfare or warlike conditions in



43









 







this or any foreign country, fire or casualty, unusually inclement weather, unusual
governmental delays, legal requirements, energy shortages or other causes beyond the reasonable
control of the non-performing party, provided that in no event shall (i) financial inability be
considered an event of Force Majeure, and (ii) in no event shall Force Majeure excuse the timely
performance by the parties’ respective monetary obligations under this Lease.



     27.17. Headings. Captions and headings are for convenience of reference
only.



     27.18. Memorandum of Lease. Tenant shall, at the request of Landlord,
execute and deliver a memorandum of lease in recordable form. Tenant shall not record such a
memorandum or this Lease without Landlord’s consent. In the event Tenant requests recordation of a
memorandum of this Lease, Tenant shall be obligated to pay all costs, fees and taxes, if any,
associated with such recordation.



     27.19. Effectiveness. The furnishing of the form of this Lease shall not
constitute an offer and this Lease shall become effective upon and only upon its execution by and
delivery to each party hereto.



     27.20. [Reserved].



     27.21. Deed of Lease. For purposes of Section 55 2, Code of Virginia (1950),
as amended, this Lease is and shall be deemed to be a deed of lease. For purposes of Section 55
218.1, Code of Virginia (1950), as amended, Landlord’s resident agent is CT Corporation System,
4701 Cox Road, Suite 301, Glen Allen, Virginia 23060-6802.



     27.22. BOMA Standards. The rentable area in the Building and in the
Premises has been determined by the Building’s architect and as of the date hereof is in accordance
with a modified version of the 1996 BOMA (ANSI 265.1-1996) calculation methodology.



ARTICLE 28

RENEWAL OPTIONS




     Landlord hereby grants to Tenant the conditional right, exercisable at Tenant’s option, to
renew the term of this Lease for two (2) successive terms of five (5) years each (each, a “Renewal
Term”). If exercised, and if the conditions applicable thereto have been satisfied, the first such
Renewal Term (the “First Renewal Term”) shall commence immediately following the end of the initial
Term provided in Section 1.3 of this Lease, and the second Renewal Term (the “Second Renewal Term”)
shall commence immediately following the end of the First Renewal Term. The rights of renewal
herein granted to Tenant shall be subject to, and shall be exercised in accordance with, the
following terms and conditions:



          (i) Tenant shall exercise its right of renewal with respect to a Renewal Term by giving
Landlord written notice of such election not earlier than eighteen (18) months nor later than
twelve (12) months prior to the expiration of the then current term of this Lease. Within thirty
(30) days following Landlord’s receipt of such notice, Landlord shall provide Tenant with
Landlord’s determination of the market annual base rent, escalation factor and additional rent
which shall be payable during each year of such Renewal Term. The parties shall have thirty (30)
days after delivery of such determination to Tenant in which to agree on such annual base rent,
escalation factor and additional rent. The parties shall attempt to agree upon an annual base rent
payable during the Renewal Term which would equal one hundred percent (100%) of the applicable
market rent. Among the factors to be considered by the parties during such negotiations shall be
the general office rental market in the Reston/Herndon area of Fairfax

44









 








County, Virginia (the “Market Area”), the rental rates then being quoted by Landlord to
comparable tenants for comparable space in the Building, and the rents being charged similar
tenants for similar office space in multi-tenanted, multi-story, first-class office buildings in
the Market Area. If during such thirty (30) day period the parties agree on such annual base rent,
escalation factor and additional rent payable, then they shall promptly execute an amendment to
this Lease stating the rent so agreed upon. If during such thirty (30) day period the parties are
unable, for any reason whatsoever, to agree on such annual base rent, escalation factor and
additional rent payable, then within ten (10) days thereafter the parties shall each appoint a real
estate broker who shall be licensed in the Commonwealth of Virginia and who specializes in the
field of commercial office space leasing in the Market Area, has at least ten (10) years of
experience and is recognized within the field as being reputable and ethical (each, a “Reputable
Broker”). Such two individuals shall each determine within ten (10) days after their appointment
such annual base rent, escalation factor and additional rent. If such individuals do not agree on
such items, then the two individuals shall, within five (5) days, render separate written reports
of their determinations and together appoint a third similarly qualified individual (the
“Arbitrator”). The Arbitrator shall within ten (10) days after his or her appointment select
either Landlord’s broker’s determination or Tenant’s broker’s determination of the annual base
rent, escalation factor and additional rent (this being the Arbitrator’s sole function) as being
closest to the Arbitrator’s determination and shall notify the parties of such selection. The
Arbitrator’s decision shall be final and conclusive, and binding on Landlord and Tenant. Landlord
and Tenant shall each bear the cost of its broker and shall share equally the cost of the
Arbitrator. Upon determination of the annual base rent, escalation factor and additional rent
payable pursuant to this Section, the parties shall promptly execute an amendment to this Lease
stating the rent so determined.




          (ii) If any renewal notice is not given timely by Tenant, then Tenant’s right of renewal with
respect to the applicable Renewal Term shall lapse and be of no further force or effect.




          (iii) If a monetary or material non-monetary Event of Default under this Lease exists on the
date Tenant sends a renewal notice or any time thereafter until a Renewal Term is to commence,
then, at Landlord’s election, such Renewal Term shall not commence and the term of this Lease shall
expire at the expiration of the then current term of this Lease.




          (iv) If Tenant’s right of renewal with respect to the First Renewal Term lapses for any
reason, then Tenant’s right of renewal with respect to the Second Renewal Term shall similarly
lapse and be of no further force or effect.




          (v) If on the date Tenant sends a renewal notice or any time thereafter until the applicable
Renewal Term is to commence, seventy-five (75%) or more of the square feet of rentable area of the
Premises is then being subleased or assigned, or if this Lease has been terminated with respect to
any such portion, then Tenant’s rights pursuant to this Article shall lapse and be of no further
force or effect.




ARTICLE 29

RIGHT OF FIRST OFFER




     If any space in the Building (“ROFO Space”) becomes available during the period commencing on
the Rent Commencement Date and continuing through that date which is two (2) years before the
then-current scheduled expiration of the Term, then Tenant shall have a continuing first right to
lease each such applicable ROFO Space on the following terms and conditions:



45









 





          (i) At such time as Landlord elects, Landlord shall notify Tenant in writing of the
availability of any ROFO Space, including the date upon which such ROFO Space is expected to be
available, and Landlord’s determination of the fair market rental rates, concessions, and other
terms and conditions upon which such space is to be offered to the general public (the “Landlord
Availability Notice”). Tenant shall have fifteen (15) business days after receiving the Landlord
Availability Notice to notify Landlord in writing that Tenant desires to negotiate with Landlord
for a lease of such ROFO Space. If Tenant fails to timely notify Landlord in writing (“Tenant’s
Election Notice”) that Tenant desires to negotiate with Landlord for a lease of such ROFO Space,
then Tenant’s rights pursuant to this Section with respect to such ROFO Space shall lapse and be of
no further force or effect, unless and until such space shall be leased to a third party and,
thereafter, becomes available. For a period of fifteen (15) business days after Landlord’s timely
receipt of Tenant’s Election Notice, Tenant shall have the right to negotiate with Landlord
regarding the base rent, escalation factor and additional rent for such ROFO Space. If during such
fifteen (15) business day period the parties agree on such base rent, escalation factor and
additional rent, then they shall promptly execute an amendment to this Lease stating the base rent,
escalation factor and additional rent agreed upon. If during such fifteen (15) business day period
the parties are unable, for any reason whatsoever, to agree on the base rent, escalation factor and
additional rent for such space, such rent shall be determined as follows. Within ten (10) days the
parties shall each appoint a Reputable Broker. Such two individuals shall each determine within
ten (10) days after their appointment the annual base rent, escalation factor and additional rent.
If such individuals do not agree on such items, then the two individuals shall, within five (5)
days, render separate written reports of their determinations and together appoint a third
Reputable Broker as an Arbitrator. The Arbitrator shall within ten (10) days after his or her
appointment select either Landlord’s broker’s determination or Tenant’s broker’s determination of
the annual base rent, escalation factor and additional rent (this being the Arbitrator’s sole
function) as being closest to the Arbitrator’s determination and shall notify the parties of such
selection. The Arbitrator’s decision shall be final and conclusive, and binding on Landlord and
Tenant. Landlord and Tenant shall each bear the cost of its broker and shall share equally the
cost of the Arbitrator. Upon determination of the annual base rent, escalation factor and
additional rent payable pursuant to this Section, the parties shall promptly execute an amendment
to this Lease stating the rent so determined.




          (ii) Tenant shall have no rights under this Article 29 unless and until the applicable ROFO
Space has been leased by Landlord to an initial tenant or tenants other than Tenant. Tenant’s
rights under this Article 29 are subject and subordinate to (1) expansion and option rights of
other tenants in the Building in existence as of the date of this Lease, and (2) Landlord’s right
to renew expiring leases pursuant to rights contained in such expiring leases or pursuant to the
mutual agreement of Landlord and tenants under such leases. In addition to the foregoing, and
notwithstanding anything in the Lease to the contrary, delivery of possession of the ROFO Space to
Tenant and commencement of Tenant’s leasing thereof is and shall be subject to Landlord’s obtaining
possession from any prior tenant or occupant who holds over beyond the applicable lease expiration
date, and Tenant shall have no claim against Landlord (for damages or otherwise) and Landlord shall
have no obligation or liability for, on account of or with respect to any holdover in all or any
portion of the ROFO Space. Tenant shall accept possession of such ROFO Space and commence paying
rent therefor on the date of such delivery by Landlord. If Landlord does not deliver such ROFO
Space within one hundred twenty (120) days after the date specified in the Landlord Availability
Notice, Tenant is not obligated to accept possession of such ROFO Space or be obligated, in any
manner, with respect to such ROFO Space.




          (iii) If a monetary or material non-monetary Event of Default under this Lease exists on the
date of the Landlord Availability Notice or at any time thereafter until the date the ROFO Space is
occupied by Tenant, then, at Landlord’s option, Tenant’s rights pursuant to this Article as to the
ROFO Space set forth in that certain Landlord Availability Notice shall lapse and be of no further
force or effect.




46









 








          (iv) Tenant’s rights of expansion under this Article 29 may be exercised only by the original
Tenant, and may not be exercised by or for the benefit of any transferee, sublessee or assignee of
Tenant; provided, however, that the right may be exercised by any Permitted Transferee.




          (v) If at any time any portion of the square feet of rentable area of the Premises has been
subleased or assigned, other than to a Permitted Transferee, or if this Lease has been terminated
with respect to any such portion, then Tenant’s rights pursuant to this Article shall lapse and be
of no further force or effect.




          (vi) Tenant has the right under this Article 29 to lease the entire ROFO Space identified in
Landlord’s Availability Notice only. Tenant has no right to lease less nor more than the entire
ROFO Space so identified.



[signature page follows]




47









 







IN WITNESS WHEREOF, Landlord and Tenant have executed this
Deed of Lease as of the 28th day of
February, 2007.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	PRESIDENTS PARK II LLC	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ M. Green 	 	[SEAL]	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	M. Green  	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	EVP & CFO  	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	TENANT:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	XO COMMUNICATIONS, LLC	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Deborah Landesman 	 	[SEAL]	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Deborah Landesman 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	VP of National Real Estate 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





48









 





EXHIBIT A-1

Floor Plan of Premises

See attached.




A-1-1









 





EXHIBIT A-2




Work Letter



This Exhibit is attached to and made a part of that certain Lease Agreement dated as of
January ___, 2007 (the “Lease”), by and between PRESIDENTS PARK II LLC, a Delaware limited
liability company (“Landlord”), and XO COMMUNICATIONS, LLC, a Delaware limited liability company
(“Tenant”). Terms used but not defined in this Exhibit shall have the meaning ascribed to them in
the Lease. If there is any inconsistency between the Lease and this Work Letter, the Lease shall
govern.




     1. Authorized Representatives. (a) Tenant designates Deborah Landesman and James
Perry (or either of them) (“Tenant’s Authorized Representative”) as the person authorized to
initial all plans, drawings, change orders and approvals pursuant to this Exhibit. Landlord shall
not be obligated to respond to or act upon any such item until such item has been initialed by
Tenant’s Authorized Representative. Landlord hereby approves the Project Solutions Group, Inc. as
the project manager for the purpose of performing the Tenant Improvements. (b) Landlord designates
Michael Jones, Mark Keller, and Gary Siegel (or any of them) (“Landlord’s Authorized
Representative”) as the persons authorized to initial all plans, drawings, change orders and
approvals pursuant to this Exhibit. Tenant shall not be obligated to respond to or act upon any
such item until such item has been initialed by Landlord’s Authorized Representative.



     2. Landlord’s Drawings. Landlord has provided, or shall, within five (5) days after
full execution of the Lease, provide to Tenant, a CAD drawing of the existing conditions and the
base Building.



     3. Initial Improvements. Except as set forth in Section 3.3 of the Lease, and to
which standard Landlord shall deliver the Premises to Tenant, Landlord shall not have any
obligation with respect to the finishing of the Premises for Tenant’s use and occupancy. All of
the work to be performed in initially finishing and completing the Premises (collectively, “Tenant
Improvements”) shall be performed by Tenant pursuant to this Exhibit A-2 and Article 13
(and all other applicable provisions including, without limitation, insurance, damage and
indemnification provisions) of the Lease; provided, however, that all such work involving (a) tie
in of the Premises to the Building fire protection system shall be performed by a contactor
reasonably approved by Landlord, and (b) the roof of the Building shall be performed by a Firestone
Factory Authorized contractor. In the event the Tenant Improvements require or involve the removal
or destruction of any reusable items (including, without limitation, glass partitions) from the
Premises, Tenant shall cause such reusable items to be removed from the Premises without damage and
shall permit Landlord to remove such items for storage and future use by Landlord. Tenant
acknowledges that the Tenant Improvements are being accomplished for its own account.



     4. Costs.



     (a) Tenant shall pay all expenses in connection with the Tenant Improvements, subject to the
application of the Improvements Allowance. As part of such expense, Tenant shall reimburse
Landlord for all costs incurred by Landlord in causing any plans and specifications reviewed by
Landlord’s outside architects and engineers, in respect of any matter that cannot be reviewed by
Landlord’s in-house architectural or engineering staff (which in-house review shall be performed at
no cost to Tenant). Alternatively, Tenant may enter into a separate agreement (reasonably
acceptable to Tenant) between Tenant and such outside architect or engineer with respect to such
services. Any such costs shall be paid for by Tenant within thirty (30) days after Tenant’s
receipt of a bill therefor, or, at Tenant’s election, in its sole discretion, paid for out of the
Improvements Allowance in accordance with the provisions of Section



A-2-I-1









 




4(b). To the extent not covered by the Improvements Allowance, any amounts payable by Tenant to
Landlord pursuant to this Section 4(a) (i.e., when Tenant has not entered into a separate agreement
as described above) shall be considered additional rent subject to the provisions of the Lease.




     (b) Landlord shall provide Tenant an allowance (the “Improvements Allowance”) equal to the
product of ***, multiplied by the number of square feet of rentable area in
the Premises. The Improvements Allowance is provided solely in order to help Tenant finance the
hard costs (plus any architectural and engineering design fees, construction management and permit
fees) associated with the construction of the Tenant Improvements (collectively, the “Allowable
Costs”). The Improvements Allowance shall be disbursed in accordance with the following process:



          (i) After Tenant has incurred any one or more Allowable Costs (but no more frequently than
monthly), Tenant shall deliver to Landlord the following (collectively, the “Allowance Request”):




               (A) a written request on the applicable AIA form therefor for partial payment of the Allowable
Costs from the Improvements Allowance, signed by Tenant’s General Contractor and Tenant’s
Authorized Representative, including a statement that Tenant has incurred Allowable Costs (for
which Tenant has not been paid or reimbursed from the Improvements Allowance) and that the work for
which payment is being requested pursuant to such Allowance Request has been performed by a
contractor approved by Landlord. If a complete Allowance Request has been performed in accordance
with the provisions of the Lease and this Work Letter;



               (B) a schedule of Allowable Costs for which payment is being requested;



               (C) copies of detailed and proper invoices comprising the individual items making up the
schedule of Allowable Costs for the Allowable Costs for which payment is being requested;



               (D) signed partial lien waivers (on Landlord’s form therefor, a copy of which is attached
hereto as Exhibit H-1) from Tenant’s General Contractor whose invoices are detailed in the schedule
set forth in (B) above; and



               (E) signed final unconditional lien waiver (on Landlord’s form therefor, a copy of which is
attached hereto as Exhibit H-2) from Tenant’s General Contractor for final Allowance Request.



          (ii) If a complete Allowance Request (complying with the foregoing requirements) is received
by Landlord from Tenant, Landlord shall pay to Tenant’s General Contractor or the subject vendors
the amount(s) properly covered by the Allowance Request within thirty (30) days after receipt of
the Allowance Request (and satisfaction of the foregoing conditions).




          (iii) Landlord shall not be required to reimburse Tenant for any invoice or Allowance Request
received after December 31, 2008.




     (c) If Tenant fails to utilize the entire Improvement Allowance for the performance of the
Tenant Improvements, then Tenant shall not be entitled to any credit, cash or otherwise therefor;
provided, however, that if the entire Improvements Allowance is not applied toward or reserved for
the cost of the Tenant Improvements, then, so long as no monetary or material non-monetary Event of
Default exists under the Lease, at Tenant’s request, Tenant shall receive a credit of such unused
portion of



A-2-I-2









 







the
Improvements Allowance up to an amount equal to the product of ***, multiplied by (B) the number of square feet of rentable area in the Premises (the “Unused
Allowance”). Provided Tenant submits copies of detailed and proper invoices comprising the
individual items pursuant to which the Unused Allowance will be applied, Landlord shall pay
Tenant’s General Contractor or the subject vendors the amount(s) properly payable from the Unused
Allowance (up to the Unused Allowance) for its reasonable, out-of-pocket moving expenses
(including, but not limited to, cabling, related consultant fees, permits and permanently attached
furniture and building signage) incurred by Tenant in moving into the Premises.



     5. Schedule.



     (a) If Tenant elects to request that any plans and drawings be prepared by Landlord’s outside
architect or engineer (as described in Section 4(a) above)), such plans and drawings are to be
prepared on Tenant’s behalf and Tenant shall be solely responsible for the timely completion of all
plans and drawings and for their compliance with all Laws. The deadlines specified in this
Paragraph 5 shall apply whether plans and drawings are prepared by Landlord’s outside architect or
engineer or an architect or engineer selected by Tenant. All deadlines must be met in order to
allow Landlord sufficient time to review plans and drawings and discuss with Tenant any changes
thereto which Landlord believes to be necessary or desirable.



     (b) Tenant shall submit to Landlord a final space plan and all specifications, details,
finishes (including, without limitation, paint and carpet selections), elevations and sections, all
as approved by Tenant and Landlord, on or before June 1, 2007.



     (c) Tenant shall submit to Landlord final architectural, mechanical and engineering working
drawings approved by Tenant and Landlord on or before September 1, 2007.



     6. Approval. All plans and drawings (and changes thereto) are subject to the plan
approval process set forth in the Lease, including, but not limited to, those provisions set forth
in Article 13 (notwithstanding the fact the Tenant Improvements are not Alterations under the
Lease) and Article 15. Landlord’s approval shall not constitute either (a) approval of any delay
caused by Tenant or a waiver of any right or remedy that may arise as a result of such delay, or
(b) Landlord’s representation that such approved plans, drawings or changes comply with all Laws.
Except for deficiencies arising due to inaccurate data provided by Landlord as to the base building
structure and systems upon which Tenant relied in preparing the Final Construction Drawings, any
deficiency in design or construction, although same had prior approval of Landlord, shall be solely
the responsibility of Tenant. All materials and equipment furnished by Tenant shall be new or
like-new and all work shall be done in a first-class workmanlike manner.



     7. General Requirements.



     (a) Tenant construction shall proceed only on the basis of approved drawings. Substantial
changes that occur during actual construction that differ from the approved drawings will require
alterations at Tenant’s expense to restore compliance with approved drawings (and any approved
changes thereto).



     (b) Upon Landlord’s approval of the Final Construction Drawings, Tenant shall submit the
following:




     1. Names of general contractor (including main office name, address, phone and fax,
and, as soon as it becomes available, project manager name, direct phone, fax, cell phone
and



A-2-I-3









 






email address, superintendent and field supervisor name, direct phone, job phone, cell
phone, fax and email address) and all subcontractors (with full contact information for
office and field supervision as listed above for general contractor) (all of which shall be
subject to Landlord’s reasonable approval);




     2. Proof of contractor’s bond in the name of Tenant’s General Contractor;




     3. Proof of Tenant insurance coverage (to include insurance coverage required for
Tenant’s General Contractor, and any subcontractors and vendors retained for the purpose of
performing the Tenant Improvements);




     4. Proposed completion schedule from Tenant’s General Contractor;




     5. Prior to commencement of the Tenant Improvements, copy of building permit(s);




     7. Written acknowledgment by Tenant and Tenant’s General Contractor that the Rules and
Procedures for Contractors attached as Schedule II to this Exhibit A-2 shall be adhered to
during the performance of the Tenant Improvements.



     8. Compliance with Applicable Law. The Tenant Improvements shall conform to the
requirements of Landlord’s and Tenant’s insurers and of the Federal, state and local governments
having jurisdiction over the Premises, shall be performed in accordance with the terms and
provisions of the Lease in a good and workmanlike manner, in accordance with the approved plans and
specifications. If the Tenant Improvements are not performed as herein required, Landlord shall
have the right, at Landlord’s option, to halt any further performance of the Tenant Improvements,
or to require Tenant to perform the Tenant Improvements as herein required or to require Tenant to
return the Premises to its condition before such Tenant Improvements.



     9. Mechanic’s and Materialmen’s Liens. If any mechanic’s or materialmen’s lien is
filed against the Premises, the Building or the Land for work done or claimed to have been done
for, or materials claimed to have been furnished to or for the benefit of, Tenant, such lien shall
be discharged of record by Tenant within ten (10) days after such filing by the payment thereof or
the filing of any bond required by law. If Tenant shall fail to discharge any such lien, Landlord
may (but shall not be obligated to) following written notice to Tenant, discharge the same, the
cost of which shall be paid by Tenant upon demand by Landlord. Such discharge by Landlord shall
not be deemed to waive or release the default of Tenant in not discharging the same. Neither
Landlord’s consent to the Tenant Improvements nor anything contained in this Work Letter or the
Lease shall be deemed to be the agreement or consent of Landlord to subject Landlord’s interest in
the Premises, the Building or the Land to any mechanic’s or materialmen’s liens which may be filed
in respect of the performance of the Tenant Improvements.



     10. [Reserved].



     11. Completion of the Tenant Improvements.



          (a) At such time as the Tenant Improvements shall be completed, Tenant, at its sole cost
and expense and without cost to Landlord shall:




               (i) Furnish evidence satisfactory to Landlord that all of the Tenant Improvements have
been completed and paid for in full (and such work has been accepted by Landlord), that any and all
liens therefor that have been or might be filed have been discharged of record (by



A-2-I-4









 




payment, bond, order of a court of competent jurisdiction or otherwise) or waived, and that no
security interests relating thereto are outstanding;




               (ii) Reimburse Landlord for the cost of any of the Tenant Improvements performed for Tenant by
Landlord at Tenant’s request, to the extent not covered by the Improvements Allowance;



               (iii) Furnish to Landlord copies of all certifications and approvals with respect to the
Tenant Improvements that may be required from any governmental authority and any board of fire
underwriters or similar body for the use and occupancy of the Premises;



               (iv) Furnish Landlord with one (1) set of reproducible “as built” drawings (on CADD file) and
two (2) sets of “blue-line” “as built” drawings of the Premises;



               (v) Furnish to Landlord the insurance required to be provided by Tenant pursuant to Article 17
of the Lease;



               (vi) Furnish an affidavit from Tenant’s architect certifying that all work performed in the
Premises is in accordance with the working drawings and specifications approved by Landlord; and



               (vii) Furnish all guaranties and/or warranties in accordance with this Exhibit.



     (b) Within ninety (90) days after the Tenant Improvements are completed by Tenant, at its sole
cost and expense and without cost to Landlord, shall furnish to Landlord an HVAC air balancing
report (reasonably satisfactory to Landlord).



     12. Work Standards. All of the Tenant Improvements shall be done and installed in
compliance with all applicable laws and in accordance with the provisions of the Lease, including,
but not limited to, the provisions of Article 13 (notwithstanding the fact the Tenant Improvements
are not Alterations under the Lease) and Article 15.



     13. Permits. As expeditiously as possible, Tenant shall file all applications, plans
and specifications, pay all fees and obtain all permits, certificates and other approvals required
by the jurisdiction in which the Building is located and any other authorities having jurisdiction
in connection with the commencement and completion of the Tenant Improvements, and diligently and
in good faith pursue same so that all permits and approvals are issued as soon as practicable. If
minor modifications are at any time required by government authorities to any such plans or
specifications, then Tenant shall make such modifications. At no cost to Landlord, Landlord shall
cooperate with Tenant in obtaining all such permits and other items. Tenant shall obtain a
Non-Residential Use and Occupancy Permit and all other approvals required for Tenant to use and
occupy the Premises and to open for business to the public. Copies of all building
permits/occupancy permits are to be forwarded to Landlord.



     14. Contractor Insurance. Tenant’s contractors and subcontractors shall be required
to provide, in addition to the insurance required of Tenant pursuant to Article 17 of the Lease,
the following types of insurance:



     (a) Builder’s Risk Insurance. At all times during the period between the commencement
of construction of the Tenant Improvements and the date (the “Opening Date”) on which Tenant opens
the Premises for business with the public with a valid certificate of occupancy (or use and
occupancy permit,



A-2-I-5









 







as applicable) in place, Tenant shall maintain, or cause to be maintained, casualty insurance
in Builder’s Risk Form covering Landlord, Landlord’s architects, Landlord’s contractor or
subcontractor (if any), Tenant and Tenant’s contractors, as their interest may appear, against loss
or damage by fire, vandalism, and malicious mischief and other such risks as are customarily
covered by the so-called “broad form extended coverage endorsement” upon all of the Tenant
Improvements in place and all materials stored at the site of the Tenant Improvements, and all
materials, equipment, supplies and temporary structures of all kinds incident to the Tenant
Improvements and builder’s machinery, tools and equipment, all while forming a part of, or on the
Premises, or when adjacent thereto, while on drives, sidewalks, streets or alleys, all on a
completed value basis for the full insurable value at all times. Said Builder’s Risk Insurance
shall contain an express waiver of any right of subrogation by the insurer against Landlord, its
agents, employees and contractors.



     (b) Worker’s Compensation. At all times during the period of construction of the
Tenant Improvements, Tenant’s contractors and subcontractors shall maintain in effect statutory
worker’s compensation as required by the jurisdiction in which the Building is located.



     15. Contractor Liability. Tenant’s contractors or subcontractors or their respective
employees, in the prosecution of the Tenant Improvements, and with respect to such work, agree to
indemnify and save free and harmless Landlord from and against all losses and/or expenses,
including reasonable legal fees and expenses which they may suffer or pay as the result of claims
or lawsuits due to, because of, or arising out of any and all such injuries or death and/or damage,
whether real or alleged; and Tenant and Tenant’s contractors and/or subcontractors or their
respective insurance companies shall assume and defend at their own expense all such claims or
lawsuits. Tenant agrees to insure this assumed liability in its policy of Broad Form Commercial
General Liability insurance and the certificate of insurance or copy of the policy that Tenant will
present to Landlord shall so indicate such contractual coverage.



     16. Coordination. Tenant shall schedule and coordinate with Landlord the construction
of the Tenant Improvements (and the means and times of access to and from the Premises by Tenant
and Tenant’s contractors, subcontractors, deliverymen and agents) so as not to unreasonably
interfere with the normal operations of the Building or the operations of or construction for other
tenants in the Building. Landlord and Tenant shall cooperate to ensure timely and efficient
completion of the Tenant Improvements.



     17. Roof. Roof penetrations by Tenant and roof installation of equipment and/or
structures by Tenant, shall be subject to Article 15 and Section 18.4.



     18. Loads. No item shall be mounted on or hung from the interior or exterior of the
Building by Tenant without Landlord’s prior written approval, not to be unreasonably withheld,
delayed, or conditioned. If Tenant desires to mount or hang anything, Tenant shall notify Landlord
of the loads involved and shall pay all costs involved.



     19. [Reserved].



     20. Contractor Responsibilities. It shall be Tenant’s responsibility to cause each of
Tenant’s contractors and subcontractors to:



     (a) Maintain continuous protection of any premises adjacent to the Premises in such a manner
(including the use of lights, guardrails, barricades and dust-proof partitions where required) as
to



A-2-I-6









 







prevent any damage to landlord’s work or said adjacent premises by reason of the performance
of the Tenant Improvements.



     (b) Secure (i) all parts of the roof during performance of the Tenant Improvements on the
roof, and (ii) the Land during performance of the Tenant Improvements required to be performed in
connection with the installation of the Generator by Tenant; in each case, against accidents which
may arise due to the fact the Tenant Improvements are being performed. Tenant’s barricade or other
protective device shall be attractive in appearance, shall obstruct the subject Tenant Improvements
from view, and shall be of materials reasonably approved by Landlord.



     (c) Comply strictly with the Rules and Regulations and Procedures set forth in Schedule II to
this Exhibit A-2, and Tenant agrees to be responsible for any violations thereof.



     (d) Remove and dispose of, at Tenant’s sole cost and expense, at least daily and more
frequently if necessary, all debris and rubbish caused by or resulting from the Tenant
Improvements, and upon completion, to remove all temporary structures, surplus materials, debris
and rubbish of whatever kind remaining on any part of the Building or in proximity thereto which
was brought in or created in the performance of the Tenant Improvements (including stocking
refuse). If at any time Tenant’s contractors and subcontractors shall neglect, refuse or fail to
remove any debris, rubbish, surplus materials, or temporary structures, Landlord at its sole option
may remove the same at Tenant’s expense without prior notice.



     (e) Use only the Premises for the performance of the Tenant Improvements and the Permitted
Use.



     (f) Guarantee that the work done by it will be free from any defects in workmanship and
materials for a period of not less than one (1) year from the date of completion thereof. Tenant
shall also require that any such contractors and subcontractors shall be responsible for the
replacement or repair without charge for any and all work done or furnished by or through such
contractors or subcontractors which becomes defective within one (1) year after completion.
Replacement or repair of such work shall include, without charge, all expenses and damages in
connection with such removal, replacement, or repair of all or any part of such work, or any part
of the Building which may have been damaged or disturbed thereby. All warranties or guarantees as
to materials or workmanship or with respect to the Tenant Improvements shall be contained in the
contract or subcontract, which shall provide that said guarantees or warranties shall inure to the
benefit of both Landlord and Tenant and be directly enforceable by either of them. Tenant
covenants to give to Landlord any assignment or other assurance necessary to effect such right of
direct enforcement.



     21. Utilities. In connection with utility service to the Premises, all applications,
deposits, installation charges and arrangement for the same (except those provided by Landlord)
shall be the sole responsibility of Tenant. From and after the Lease Commencement Date, all
utility charges shall be paid pursuant to the terms of the Lease.



	 	 	 	 	 	 	 
	 

	 	Initials of:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Landlord:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Tenant:	 	 	 	 
	 

	 	 	 	 	 	 





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EXHIBIT A-2




SCHEDULE I




[RESERVED]





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EXHIBIT A-2




SCHEDULE II




RULES AND PROCEDURES FOR CONTRACTORS




FOR




TENANT BUILDOUT AND/OR RENOVATION



PART I – Proper Conduct of Construction Employees and Sub-Contractors



All Construction workers should conduct themselves in a manner appropriate to business surroundings
to including the following:





	•	 	Refrain from using vulgar language or shouting so as not to disturb working tenants.






	•	 	Use of alcohol or drugs on the job site is not allowed. Any violators shall be immediately dismissed from the building.






	•	 	No radios/music will be played that can be heard in the common areas of the building.






	•	 	No smoking is permitted in the building.






	•	 	All food trash will be disposed of daily.






	•	 	Breaks for eating will be within the work area, not in any common areas of the building.






	•	 	Entry to the building for construction personnel and deliveries shall be through the rear loading area of the building.






	•	 	Construction personnel will not be allowed to use the building phones.





PART II – General Building Regulations



Construction supervisors shall ensure that the following regulations are followed:





	•	 	Construction materials may not be left in any portion of a common area that is utilized by tenants of the building,
including hallways and lobby areas.






	•	 	Construction materials may not be placed in such a manner that egress to a fire doors or to stairwells are obstructed.






	•	 	Contractors will remove their trash and debris daily. The contractor must provide construction dumpster(s). Building
trash containers are not to be used for construction debris. Failure to properly clean up debris will result in a
cleaning charge to the contractor. (Minimum charge is $50.00).






	•	 	Dumpsters shall be placed in the Landlord designated area.






	•	 	During construction, contractor shall raise blinds and protect them with plastic so as not to damage them.




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	•	 	Masonite boards will be placed on all carpeted areas of the building and the freight elevator, when used during trash
removal and delivery of supplies.






	•	 	Common areas of the building affected by construction will be vacuumed at the end of the workday.






	•	 	Prior to demolition, if carpet is to remain in the suite, it should be protected by heavy plastic cover or removed,
stored and re-laid. Failure to protect carpet or lobby floors will result in a cleaning charge.






	•	 	All doors from the common lobbies and corridors to the construction suite are to be kept closed at all times.






	•	 	The building is secured after normal business hours. Arrangements for after-hours entry must be made in advance of
need.






	•	 	All work must be performed in compliance with OSHA safety standards






	•	 	Before any drilling, core boring or other structural work is performed, the contractors will verify the locations of
the building’s utility lines or other obstructions so as not to damage them. Contractors are urged to take all
possible precautions to protect utility lines. X-ray prior to any core drilling may be required.






	•	 	No utilities or services to tenants are to be cut off or interrupted without first having requested in writing, and
secured, in writing, the permission of the Landlord’s representative.






	•	 	Landlord shall be notified of all exterior work 24 hours prior to commencement.






	•	 	Wherever it is deemed necessary to temporarily issue a key to the contractor, the contractor shall be responsible for
controlling possession and use of the same until returned to the issuing party.





PART III – Elevator Use and Cleaning





	 	•	 	All construction materials and tools are to be hauled on the designated freight elevator
only; any violations of this regulation may result in immediate removal of the contractor
from the project.
	 
	 	•	 	Elevator handrails may not be used as chairs or supply holders.
	 
	 	•	 	Use of freight elevator is not restricted during Building Hours. Use of freight
elevator after Building Hours must be accompanied by the Building Engineer, whom Landlord
shall make available to Tenant upon reasonable advance notice given by Tenant to Landlord.
The designated freight elevator is the only elevator to be used for moving materials and
shall be properly protected with temporary Masonite floor protection. Protective wall
coverings will be provided by Landlord for use by the contractor. The contractor shall be
responsible for the installation and removal of elevator pads on a daily basis. Contractor
is responsible for any damage to the elevator cab that may occur.
	 
	 	•	 	Contractor must implement a dust and debris policy to prevent dust from being tracked or
conveyed to any portion of the building.




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	 	•	 	Arrangement must be made with the Building Engineer to place the elevator on independent
service for the hauling of materials. Elevator doors should never be propped open by any
method other than use of the elevator lock-off key.
	 
	 	•	 	The contractor will remove all protective materials at the end of the contractor’s workday.
	 
	 	•	 	Damage must be reported to the management office immediately
	 
	 	•	 	Any damage to the elevator, mechanical or aesthetic affirmatively shown to be caused by
Tenant will be billed to Tenant.





PART IV – Deliveries





	•	 	The loading dock located at the rear of the property is for deliveries only.






	•	 	Deliveries must be coordinated with the Building Engineer or the Management Office during Building Hours.






	•	 	Deliveries scheduled at times other than regular business hours will require the presence of the Building Engineer.





PART V – Parking





	•	 	Landlord’s representative shall designate a general construction parking area. Violators will be towed.





PART VI – Restrooms





	•	 	The Building Engineer will designate a restroom for contractor use.






	•	 	Restrooms on occupied floors, other than the designated restroom, are not to be used.






	•	 	Restrooms may not be used to clean tools, paintbrushes, etc. A slop sink is located in the janitor’s closet on each
floor. Contractors will clean up after themselves daily if slop sinks are used.





PART VII – Work Involving Excessive Noise





	•	 	All work involving excessive noise such as drilling, noisy demolition or any work which may disturb
other tenants in the building will be permitted during non-business hours only, before 8:00 am or
after 6:00 pm, Monday through Friday, or before 8:00 am or after 1:00 pm Saturdays. Manager should
be notified of all work involving excessive noise at least 24 hours in advance.





PART VIII – Mechanical, Electrical and Plumbing Safety





	•	 	All work to be performed on mechanical, electrical or plumbing systems must be scheduled with the
Building Engineer or the Management Office.






	•	 	Lock-out/Tag-out must be used for all electrical work.





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	•	 	If any mechanical, electrical, or plumbing system is already off prior to the commencement of work,
Tenant shall coordinate with the Building Engineer and determine why the system is off prior to
commencing work.






	•	 	The Building Engineer must be present if a Building system-wide condenser water system needs to be
drained.






	•	 	All work involving Building system-wide condenser or domestic water risers, the shutdown of
electrical panels or any other disruptive activity must be scheduled after regular business hours,
and will require the presence of the Building Engineer.






	•	 	During construction, any exposed HVAC unit should be kept free of all construction materials, food
and drinks. Nothing should be placed on top of or in front of any units. Contractor will not
operate any HVAC equipment without approval of the Building Engineer. Contractor will be
responsible for cost of maintaining the HVAC filter throughout performance of the Tenant
Improvements and replacing the HVAC filter(s) upon completion of the Tenant Improvements.





PART IX – Fire Annunciation System





	•	 	All fire alarm and sprinkler work must be coordinated with the engineer’s office at least 24 hours
in advance.






	•	 	Contractor shall take all necessary precautions to prevent accidental alarm of the fire system
devices. Before any such device is temporarily incapacitated, Landlord’s representative shall be
advised and contractor will be responsible for any necessary notification of the Fire Department.
ANY CONTRACTOR WHO ACCIDENTALLY SETS OFF A BUILDING FIRE ALARM WILL BE ASSESSED $500.00 PER
INCIDENT.






	•	 	Any modifications to the building fire alarm system must be coordinated with the Building Engineer,
the Management Office, and the Building Fire Alarm Contractor.





PART X – Use of Materials that Emit Volatile Organic Compounds (VOCS)





	•	 	Any work involving the use of materials, which emit VOCS, must be scheduled in advance with the Building Engineer and
the Management office.






	•	 	Electrostatic painting, Polymix painting, staining, varnishing, or the use of oil base paints must be scheduled for
evening hours after 8:00 p.m. and completed prior to 1:00 a.m. or on weekends beginning at 2:00 p.m. on Saturday and
ending prior to 1:00 a.m. Monday morning in occupied buildings.




Materials likely to emit VOCS are:



Adhesives

Paints, varnishes, lacquers

Wood preservatives, stains or other wood finishing products

Waterproofing products

Caulking

Glazing compounds

Joint fillers

Duct sealants




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Carpet seam sealants





	•	 	These materials shall be applied according to the manufacturers specifications.






	•	 	When using products that may emit VOCS the General Contractor is responsible for the following:




Performing the work during non business hours

Properly scheduling the work

Properly ventilating the affected area during and after application

Proper disposal of the materials and materials associated with clean-up





	•	 	A copy of the construction schedule is to be provided to the management office prior to the commencement of work.






	•	 	A copy of the approved Building Permit and inspection approvals will be provided to the Landlord prior to the
commencement of work, and as construction progresses.






	•	 	Contractor will provide a written list of phone and emergency contact numbers.






	•	 	Prior to the commencement of work, contractor will provide Material Safety Data Sheets (MSDS) for all materials to be
used during the course of construction.






	•	 	An approved Certificate of Insurance will be provided to the Landlord prior to the commencement of work.






	•	 	Contractor will be responsible for any damage to the common areas caused by construction.






	•	 	Contractor is responsible for labeling all electrical panels affected by the work.





Signage – Contractor or subcontractor signage may not be displayed in the building common areas or
any of the window glass.



Posting of rules and regulations – A copy of these rules and regulations, acknowledged and accepted
by the General Contractor, must be posted on the job site in a manner allowing easy access by
all workers. It is the General Contractor’s responsibility to instruct all workers, including
subcontractors, to familiarize themselves with these rules.



Safety – Contractors shall be extremely cognizant of all life safety issues and shall provide a
list of emergency contacts in the event that a representative of the contractor’s organization
must be contacted after hours. In addition to this contact list, contractors shall provide
fire extinguishers at a ratio of one (1) for each 10,000 square feet of construction area (or
as otherwise required by applicable law) and such fire extinguishers shall be mounted in a
visible area marked properly. Contractors shall comply with all OSHA regulations as well as
all federal, state and district codes relating to workers safety. The contractor shall review
the job site and the job organization for total compliance to these rules and regulations on a
weekly basis and provide a report to the owner that such review has been performed and any
infractions that were observed during this review. After construction, the contractor will
provide Material Safety Data Sheets for all materials used on-site by the contractor.



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Acknowledged By:




                                        




Date:                     





A-2-II-6









 








EXHIBIT B

RULES AND REGULATIONS




RULES AND REGULATIONS




PRESIDENTS PARK



This Exhibit is attached to and made a part of that certain Lease Agreement dated as of February
___, 2007 (the “Lease”), by and between PRESIDENTS PARK II LLC, a Delaware limited liability company
(“Landlord”), and XO COMMUNICATIONS, LLC (“Tenant”). In the event of any conflict or inconsistency
between the terms and conditions of these rules and regulations, as now or hereafter in effect, and
the terms and provisions of the Lease, the terms and provisions of the Lease shall prevail. In the
event of any conflict or inconsistency between the terms and provisions of these rules and
regulations, as now or hereafter in effect, and plans approved, in writing, by Landlord in respect
of the Lease, the plans so-approved shall prevail.



The following rules and regulations have been formulated for the safety and well-being of all
tenants of the Building. Strict adherence to these rules and regulations is necessary to guarantee
that every tenant will enjoy a safe and undisturbed occupancy of its premises. Any violation of
these rules and regulations by Tenant shall constitute a default by Tenant under the Lease.



The following rules shall be applicable to all tenants of the Building:




     1. Tenant shall not obstruct or encumber or use for any purpose other than ingress and egress
to and from the Premises any sidewalk, entrance, passage, court, elevator, vestibule, stairway,
corridor, hall or other part of the Building not exclusively occupied by Tenant. No bottles,
parcels or other articles shall be placed, kept or displayed on window ledges, in windows or in
corridors, stairways or other public parts of the Building. Tenant shall not place any showcase,
mat or other article outside the Premises. Tenant shall keep all portions of the Premises which
are visible from public parts of the Building’s in a tasteful, neat and orderly condition
characteristic of first-class professional offices, so as not to be offensive to other tenants of
the Building. No desks, bookcases, file cabinets and other furniture shall be placed against
exterior windows.



     2. Landlord shall have the right to control and operate the public portions of the Building
and the facilities furnished for common use of the tenants, in such manner as Landlord deems best
for the benefit of the tenants generally. Tenant shall not permit the visit to the Premises of
persons in such numbers or under such conditions as to interfere with the use and enjoyment of the
entrances, corridors, elevators and other public portions or facilities of the Building by other
tenants. Tenant shall coordinate in advance with Landlord’s property management department all
construction and oversized deliveries to the Building so that arrangements can be made to minimize
such interference (and this provision shall not apply to any regular office delivery). Tenant
shall not permit its employees and invitees to congregate in the elevator lobbies or corridors of
the Building. Canvassing, soliciting and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent the same. Public corridor doors, when not in use, shall be kept closed.
Nothing, including mats and trash, shall be placed, swept or thrown into the corridors, halls,
elevator shafts, stairways or other public or common areas.



     3. Tenant shall not attach, hang or use in connection with any window or door of the Premises
any drape, blind, shade or screen, without Landlord’s prior written consent. All awnings, drapes
projections, curtains, blinds, shades, screens and other fixtures shall be of a quality, type,
design and



B-1









 







color, and shall be attached in a manner, approved in writing by Landlord. Any
Tenant-supplied window treatments shall be installed behind Landlord’s standard window treatments
so that Landlord’s standard window treatments will be what is visible to persons outside the
Building. Drapes (whether installed by Landlord or Tenant) which are visible from the exterior of
the Building shall be cleaned by Tenant at least once a year, without notice from Landlord, at
Tenant’s own expense.



     4. Tenant shall not use the water fountains, water and wash closets, and plumbing and other
fixtures for any purpose other than those for which they were constructed, and Tenant shall not
place any debris, rubbish, rag or other substance therein (including, without limitation, coffee
grounds).



     5. Tenant shall not construct, maintain, use or operate any electrical device, wiring or
apparatus in connection with a loudspeaker system (other than an ordinary telephone and paging
system) or other sound system, in connection with any excessively bright, changing, flashing,
flickering or moving light or lighting device, or in connection with any similar device or system
outside of its Premises or within such Premises so that the same can be heard or seen from outside
the Premises. No flashing, neon or search lights shall be used which can be seen outside the
Premises. Only warm white lamps may be used in any fixture that may be visible from outside the
Building or Premises. Tenant shall not maintain, use or operate within the Premises any space
heater.



     6. Tenant shall not bring any bicycle, vehicle, animal, bird or pet of any kind into the
Building, except seeing-eye or hearing-ear dogs for handicapped persons visiting the Premises.
Except while loading and unloading vehicles, there shall be no parking of vehicles or other
obstructions placed in the loading dock area. Tenant has the right to establish and maintain a
bicycle storage area near the Parking Facility for use by its employees, however, subject to the
prior approval of Landlord, which approval shall not be unreasonably withheld, conditioned, or
delayed.



     7. Except as specifically provided to the contrary in the Lease, Tenant shall not cook or
permit any cooking on the Premises, except for toaster, toaster ovens, microwave cooking and use of
coffee machines by Tenant’s employees for their own consumption. Tenant shall not cause or permit
any unusual or objectionable odor to be produced upon or emanate from the Premises.



     8. Tenant shall not make any unseemly or disturbing noise or disturb or interfere with
occupants of the Building, whether by the use of any musical instrument, radio, talking machine or
in any other way.



     9. Tenant shall not place on any floor a load exceeding the floor load per square foot set
forth in the Lease. Landlord shall have the right to reasonably approve the weight, position and
manner of installation of safes and other heavy equipment and fixtures. Landlord shall have the
right to repair at Tenant’s expense any damage to the Premises or the Building caused by Tenant’s
moving property into or out of the Premises or due to the same being in or upon the Premises or to
require Tenant to do the same. Tenant shall not receive into the Building or carry in the
elevators any safes, freight, furniture, equipment or bulky item except as approved by Landlord,
and any such furniture, equipment and bulky item shall be delivered only through the designated
delivery entrance of the Building and the designated freight elevator at designated times. Tenant
shall remove promptly from any sidewalk adjacent to the Building any furniture, furnishing,
equipment or other material there delivered or deposited for Tenant. Landlord reserves the right
to inspect all freight to be brought into the Building, except for government classified and
confidential client materials, and to exclude from the Building all freight which violates any of
these rules or the Lease.



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     10. Tenant shall not place additional locks or bolts of any kind on any of the doors or
windows, and shall not make any change in any existing lock or locking mechanism therein, without
Landlord’s prior written approval. At all times Tenant shall provide Landlord with a “master” key
for all locks on all doors and windows. Tenant shall keep doors leading to a corridor or main hall
closed at all times except as such doors may be used for ingress or egress and shall lock such
doors during all times the Premises are unattended. Tenant shall, upon the termination of its
tenancy: (a) restore to Landlord all keys and security cards to stores, offices, storage rooms,
toilet rooms, the Building and the Premises which were either furnished to, or otherwise procured
by, Tenant, and in the event of the loss of any keys so furnished, Tenant shall pay the replacement
cost thereof; and (b) inform Landlord of the combination of any lock, safe and vault in the
Premises. At Landlord’s request, Landlord’s then customary charge per key shall be paid for all
keys in excess of two (2) of each type. Tenant’s key system shall be consistent with that for the
rest of the Building.



     11. Except as shown in the Final Construction Drawings, Tenant shall not install or operate in
the Premises any electrically operated equipment or machinery (other than standard servers,
desk-top office equipment, including, without limitation, desk-top computers and copiers,
typewriters, facsimile machines, printers or other similar equipment used in connection with
standard office operations) without obtaining the prior written consent of Landlord. Landlord may
condition such consent upon Tenant’s payment of additional rent in compensation for the excess
consumption of electricity or other utilities and for the cost of any additional wiring or
apparatus that may be occasioned by the operation of such equipment or machinery. Landlord shall
have the right at any time and from time to time to designate the electric service providers for
the Building. Tenant shall cooperate with Landlord and such service providers and shall allow, as
reasonably necessary, access to the Building’s electric lines, feeders, risers, wiring and any
other Building machinery. Tenant shall not install any equipment of any type or nature that will
or may necessitate any changes, replacements or additions to, or changes in the use of, the water
system, heating system, plumbing system, air-conditioning system or electrical system of the
Premises or the Building, without obtaining Landlord’s prior written consent, which consent may be
granted or withheld in Landlord’s sole and absolute discretion. If any machine or equipment of
Tenant causes noise or vibration that may be transmitted to such a degree as to be objectionable to
Landlord or any tenant in the Building, then Landlord shall have the right to install at Tenant’s
expense vibration eliminators or other devices sufficient to reduce such noise and vibration to a
level satisfactory to Landlord or to require Tenant to do the same.



     12. All telephone and telecommunications services desired by Tenant shall be ordered by and
utilized at the sole expense of Tenant. Unless Landlord otherwise requests or consents in writing,
all of Tenant’s telecommunications equipment shall be and remain solely in the Premises and the
telephone closet(s) designated by Landlord. Landlord shall have no responsibility for the
maintenance of Tenant’s telecommunications equipment (including wiring) nor for any wiring or other
infrastructure to which Tenant’s telecommunications equipment may be connected. Subject to the
provisions of the Lease, Tenant shall not utilize any wireless communications equipment (other than
usual and customary cellular telephones), including antennae and satellite receiver dishes, at the
Premises or the Building, without Landlord’s prior written consent.



     13. No telephone, telecommunications or other similar provider whose equipment is not then
servicing the Building shall be permitted to install its lines or other equipment within or about
the Building without first securing the prior written approval of Landlord, which approval shall
not be unreasonably withheld, conditioned or delayed. Landlord’s approval shall not be deemed any
kind of warranty or representation by Landlord, including, without limitation, any warranty or
representation as to the suitability, competence, or financial strength of the provider. Without
limitation of the foregoing standards, as specific conditions of any consent: (i) Landlord shall
incur no expense whatsoever with



B-3









 







respect to any aspect of the provider’s provision of its services (including, without
limitation, the costs of installation, materials and services); (ii) prior to commencement of any
work in or about the Building by the provider, the provider shall supply Landlord with such written
indemnities, insurance, financial statements, and such other items as Landlord reasonably
determines and Landlord shall have reasonably determined that there is sufficient space in the
Building for the placement of the necessary equipment and materials; (iii) the provider agrees to
abide by such rules and regulations, building and other codes, job site rules and such other
requirements as are reasonably determined by Landlord to be necessary; (iv) the provider shall
agree to use existing building conduits and pipes or use building contractors (or other contractors
approved by Landlord); (v) the provider shall pay Landlord such compensation as is reasonably
determined by Landlord to compensate it for space used in the building for the storage and
maintenance of the provider’s equipment, the fair market value of a provider’s access to the
Building, and the costs which may reasonably be expected to be incurred by Landlord; (vi) the
provider shall agree to deliver to Landlord detailed “as built” plans immediately after the
installation of the provider’s equipment is complete; and (vii) all of the foregoing matters shall
be documented in a written agreement between Landlord and the provider on Landlord’s standard form
and otherwise reasonably satisfactory to Landlord.



     14. Landlord reserves the right to exclude from the Building at all times any person who does
not properly identify himself to the Building management or attendant on duty. Landlord shall have
the right to exclude any undesirable or disorderly persons from the Building at any time. Landlord
may require all persons admitted to or leaving the Building to show satisfactory identification and
to sign a register. Landlord has the right to evacuate the Building in the event of emergency or
catastrophe or for the purpose of holding a reasonable number of fire drills.



     15. Tenant shall not permit or encourage any loitering in or about the Premises and shall not
use or permit the use of the Premises for lodging, dwelling or sleeping.



     16. Tenant, before closing and leaving the Premises at the end of each business day, shall see
that all lights and standard office equipment (but not any non-standard technical equipment) are
turned off, including, without limitation, coffee machines.



     17. Tenant shall not request Landlord’s employees to perform any work or do anything outside
of such employees’ regular duties without Landlord’s prior written consent. Tenant’s special
requirements will be attended to only upon application to Landlord, and any such special
requirements shall be billed to Tenant in accordance with the schedule of charges maintained by
Landlord from time to time or as is agreed upon in writing in advance by Landlord and Tenant.
Tenant shall not employ any of Landlord’s employees for any purpose whatsoever without Landlord’s
prior written consent. Tenant shall notify Landlord or the Building manager of any person employed
by it to do janitorial work within the Premises, except for full-time employees of Tenant, prior to
such person’s commencing work, and such person shall, while in the Building and outside of the
Premises, comply with all instructions issued by Landlord or its representatives.



     18. There shall not be used in any space, or in the public halls of the Building, either by
any tenant or by jobbers or others in the delivery or receipt of merchandise, any hand trucks,
except those equipped with rubber tires and side guards. Tenant shall be responsible for any loss
or damage resulting from any deliveries made by or for Tenant.



     19. Tenant shall not install or permit the installation of any wiring for any purpose on the
exterior of the Premises. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires or stringing of wires will be
allowed without written consent of Landlord, as set forth in the Lease. The location of
telephones, call boxes and other



B-4









 







office equipment affixed to the Premises shall be subject to the approval of Landlord, as set
forth in the Lease. All such work shall be effected pursuant to permits issued by all applicable
governmental authorities having jurisdiction. Tenant shall not do anything, or permit anything to
be done, in or about the Building, or bring or keep anything therein, that will in any way increase
the possibility of fire or other casualty or obstruct or interfere with the rights of, or otherwise
injure or annoy, other tenants, or do anything in conflict with the valid pertinent laws, rules, or
regulations of any governmental authority.



     20. Tenant acknowledges that it is Landlord’s intention that the Building be operated in a
manner which is consistent with the highest standards of cleanliness, decency and morals in the
community which it serves. Toward that end, Tenant shall not sell, distribute, display or offer
for sale any item which, in Landlord’s judgment, is inconsistent with the quality of operation of
the Building or may tend to impose or detract from the moral character or image of the Building.
Tenant shall not use the Premises for any immoral or illegal purpose. Tenant shall cooperate with
Building employees in keeping the Premises neat and clean.



     21. Unless otherwise expressly provided in the Lease, Tenant shall not use, occupy or permit
any portion of the Premises to be used or occupied for the storage, manufacture, or sale of liquor.



     22. Tenant shall purchase or contract for waxing, rug shampooing, venetian blind washing,
interior glass washing, furniture polishing, janitorial work, removal of any garbage from any
dining or eating facility or for towel service in the Premises, only from contractors, companies or
persons reasonably approved by Landlord.



     23. Tenant shall not remove, alter or replace the ceiling light diffusers, ceiling tiles or
air diffusers in any portion of the Premises without the prior
written consent of Landlord.



     24. Tenant shall not purchase water, ice, coffee, soft drinks, towels, or other merchandise or
services from any company or person whose repeated violation of Building regulations has caused, in
Landlord’s reasonable opinion, a hazard or nuisance to the Building and/or its occupants.



     25. Tenant shall not pay any employee on the Premises except those actually employed therein;
nor shall Tenant use the Premises as headquarters for large scale employment of workers for other
locations.



     26. Landlord shall have the right, upon written notice to Tenant, to require Tenant to refrain
from or discontinue any on-Premises advertising by Tenant which, in Landlord’s opinion, tends to
impair the reputation of the Building or its desirability for offices.



     27. Tenant shall not in any manner deface any part of the Premises or the Building. Other
than ordinary office decorations, no stringing of wires, boring or cutting shall be permitted
except with Landlord’s prior written consent. Any floor covering installed by Tenant shall have an
under layer of felt rubber, or similar sounddeadening substance, which shall not be affixed to the
floor by cement or any other non-soluble adhesive materials.



     28. Should Tenant’s use and occupancy of the Premises require the installation of supplemental
cooling, Tenant has the right to install, on the roof and elsewhere, HVAC units of the type that
require heat rejection units (i.e., condensers or dry coolers) on the roof and the capability to
install the appropriate related piping from these heat rejection units to the technical equipment
spaces so that such units can be cooled twenty-four (24) hours per day without interruption.
Tenant agrees to be responsible for fees associated with placing equipment on the roof of the
Building, subject to Section 15.6.



B-5









 





     29. Tenant shall handle its newspapers, “office paper,” garbage, trash and other waste
products in the manner required by applicable law (as the same may be amended from time to time)
whether required of Landlord or otherwise and shall conform with any recycling plan instituted by
Landlord. Landlord shall have no obligation to accept any waste that is not prepared for
collection in accordance with any such requirements. If Tenant is unable to comply with Landlord’s
standard procedures regarding the internal collection, sorting, separation and recycling of waste,
then, upon reasonable advance notice to Landlord, Landlord shall use reasonable efforts to arrange
for alternative procedures for Tenant, provided Tenant shall pay Landlord all additional costs
incurred by Landlord with respect thereto.



     30. Tenant shall not bring or keep, or permit to be brought or kept, in the Building any
weapon or flammable, combustible or explosive fluid, chemical or substance, except as otherwise
expressly permitted in the Lease.



     31. Tenant shall comply with all workplace smoking Laws. There shall be no smoking in
bathrooms, elevator lobbies, elevators, terraces, loading docks, plaza areas, and other common
areas.



     32. All wiring and cabling installed by Tenant shall be marked and coded, in a manner
reasonably acceptable to Landlord, to identify such facilities as belonging to Tenant and the point
of commencement and termination of such facilities. All such cabling and wiring shall, at
Landlord’s request, be removed by Tenant upon the expiration or termination of the Lease if
required by the terms of the Lease or if applicable governmental agencies require removal of such
facilities upon the termination of their use or abandonment.



     33. Landlord may, upon request of Tenant, waive Tenant’s compliance with any of the rules,
provided that (a) no waiver shall be effective unless signed by Landlord, (b) no waiver shall
relieve Tenant from the obligation to comply with such rule in the future unless otherwise agreed
in writing by Landlord, (c) no waiver granted to any tenant shall relieve any other tenant from the
obligation of complying with these rules and regulations, and (d) no waiver shall relieve Tenant
from any liability for any loss or damage resulting from Tenant’s failure to comply with any rule.
Landlord reserves the right to rescind any of these rules and make such other and further rules as
in the judgment of Landlord shall from time to time be needed for the safety, protection, care, and
cleanliness of the Building, the operation thereof, the preservation of good order therein, and the
protection and comfort of its tenants, their agents, employees, and invitees, which rules when made
and notice thereof given to a tenant shall be binding upon it in like manner as if originally
herein prescribed.




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EXHIBIT C-1

DECLARATION BY LANDLORD AND TENANT

AS TO DATE OF DELIVERY AND ACCEPTANCE OF

POSSESSION, LEASE COMMENCEMENT DATE, ETC.



THIS DECLARATION is hereby attached to and made a part of the Deed of Lease dated February ___,
2007 (the “Lease”) between PRESIDENTS PARK II LLC (“Landlord”) and XO COMMUNICATIONS, LLC
(“Tenant”). All terms used in this Declaration have the same meaning as they have in the Lease.




     (i) Landlord and Tenant do thereby declare that possession of the Premises was accepted by
Tenant on                                         , subject to the terms and conditions of the Lease;



     (ii) As of the date hereof, the Lease is in full force and effect;



     (iii) The Lease Commencement Date is hereby established to be                                         ; and



     (iv) The Lease Expiration Date is hereby established to be November 30, 2017 unless the Lease
is sooner terminated pursuant to any provision hereof.



	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	PRESIDENTS PARK II LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 	 	[SEAL]
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	TENANT:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	XO COMMUNICATIONS, LLC
	 	 
	 
	 

	 	By:
	 	 	 	 	 	[SEAL]
	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Its:	 	 	 	 	 	 
	 	 	 	 	 	 	 





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EXHIBIT C-2

DECLARATION BY LANDLORD AND TENANT

AS TO RENT COMMENCEMENT DATE



THIS DECLARATION is hereby attached to and made a part of the Deed of Lease dated February ___,
2007 (the “Lease”) between PRESIDENTS PARK II LLC (“Landlord”) and XO COMMUNICATIONS, LLC
(“Tenant”). All terms used in this Declaration have the same meaning as they have in the Lease.




     The Rent Commencement Date is hereby established to be                                          .



	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	PRESIDENTS PARK II LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 	 	[SEAL]
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	TENANT:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	XO COMMUNICATIONS, LLC
	 	 
	 
	 

	 	By:
	 	 	 	 	 	[SEAL]
	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Its:	 	 	 	 	 	 
	 	 	 	 	 	 	 





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EXHIBIT D

INSTRUCTIONS FOR PAYMENT OF RENT TO LANDLORD




Mail payments should be sent to:




RPT Presidents Park II LLC

Post Office Box 791390

Baltimore, Maryland 21279-1390




FedEx payments should be sent to:




RPT Presidents Park II LLC

1000 Steward Avenue

Glen Burnie, Maryland 21061

Attention: 791390




Wire Transfer:




RPT Presidents Park II LLC

Sun Trust Bank

Account No. 1000004907340



**Please be advised that all rent payments and/or any other miscellaneous charges are due on
the 1st of each month unless otherwise stated in writing.





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EXHIBIT E

EXERCISE FACILITY CONSENT AND WAIVER OF LIABILITY



In order to use the fitness facilities and equipment located at 13865 Sunrise Valley Drive,
Herndon, Virginia 22071 (the “Building”) (including, without limitation, the outside basketball
court and outside tennis court constructed on the Land and/or the land adjacent to the Building
pursuant to agreements between Landlord and the owners of the land adjacent to the Building), I
hereby certify, covenant, and agree as follows:




     1. I am in good physical condition and able to use the facilities and equipment and to
participate in any and all exercise and fitness activities available or to be available. I have a
reasonable basis for this opinion due to examination and/or consultation with my physician. I
fully recognize that I am responsible for knowledge of my own state of health at all times.



     2. I will do all exercise and participate in all activities at my own pace and at my own risk.
I will use good judgment while exercising, will not overexert, and will follow any instructions
concerning exercise procedures. If I have any questions regarding my workout, I will consult a
trained professional.



     3. I acknowledge that the fitness facility is unstaffed. I understand and acknowledge that
neither the owner of the Building (“Owner), nor the property management company (“Manager”), nor
any of their agents, advisors or employees, represents that its employees, personnel or agents have
expertise in diagnosing, examining or treating medical conditions of any kind of in determining the
effect of any specific exercise on such medical condition.



     4. I understand that in participating in one or more exercises or fitness activities at the
facility, or in use of the equipment or the facility in any way, there is a possibility of
accidental or other physical injury or loss of my personal property. I agree to assume that risk
of any such accident or injury or loss of property. I hereby release and discharge Owner and
Manager, their respective officers, agents, employees, personnel, partners, directors,
shareholders, affiliates and other representatives, and their successors and assigns (collectively,
the “Released Parties”), from any and all liability, harm and damage, and waive any and all claims
whatsoever, for any injury, accident or loss in connection with my use of or entry into the
facility. In addition, I hereby agree to defend, indemnify and hold harmless the Released Parties
from any and all costs, claims, liability, harm, damage or expenses resulting from my use of or
entry into the facility or the equipment.



     5. I acknowledge that I have received and read a copy of the current Rules and Regulations
governing the use of the fitness center (a copy of which is attached hereto). I agree that I will
fully comply with all rules and regulations as they are amended from time to time.



	 	 	 	 	 
	 	 	 
	Employer Name

	 	 	 	Employee Name (Please Print)
	 
	 	 	 	 
	 	 	 
	Suite Number

	 	 	 	Signature
	 
	 	 	 	 
	 	 	 
	Telephone

	 	 	 	Date
	 
	 	 	 	 
	Access Key Number:
	 	 	 	 
	 

	 	 

	 	 






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FITNESS FACILITY RULES AND REGULATIONS



The following Rules and Regulations are intended to make the Fitness Facility (“Facility”) at
13865 Sunrise Valley Drive, Herndon, Virginia 22071, as safe, enjoyable and pleasant as possible
for all users of the Facility (“Users”). These Rules are applicable to all Users and may be
changed from time to time by PRESIDENTS PARK II LLC, a Delaware limited liability company
(“Landlord”), or its managing agent (“Building Manager”), in order to provide for the safe, orderly
and enjoyable use of the Facility’s facilities and equipment.




     1. Use. Users shall use the Fitness Facility and related equipment solely for weight
and cardiovascular training on the equipment provided and shall use the Court Facilities solely for
playing basketball and tennis, as applicable. Users shall not misuse or use the facilities and
related equipment in any manner which will damage the same. Users shall not install, nor tamper
with or remove, any equipment in the Facility. No person may use the Facility unless he or she has
signed a Waiver of Liability. This Facility is open to tenants only. Guests are not authorized to
use the Facility and users shall not grant access to the Facility, nor permit the Facility to be
used, by any unauthorized persons. Any User that provides an unauthorized person with access to
the Facility will be prohibited from using the Facility. Each User acknowledges that he or she
shall exercise caution when using the Facility, that the Facility is unstaffed, and that no
security is provided by Landlord. Any suspicious activity should be reported to the Building
Manager.



     2. Hours of Operation. The Facility is open twenty-four hours per day, seven days per
week, except for legal holidays. However, in order to accommodate thorough cleaning of the
Facility, access to certain areas of the Facility may be limited during cleaning hours, which are
currently from 6 p.m. to 9 p.m., Monday through Friday. The Facility will not be open for use on
legal public holidays. The Facility may be closed, and its hours of operation modified from
time-to-time, at Landlord’s sole discretion. Tenants will be notified at least 24 hours in advance
of any closing, unless such closing is due to emergency.



     3. Clothing. The minimum attire at the facility shall be gym shorts, tee shirts,
socks and tennis shoes. Any conventional exercise attire is permissible, including leotards and
tights, warm-up suits, etc. Sneakers, tennis shoes, or similar footwear must be worn at all times.
Users of the Facility must wear clean and appropriate attire when in transit to and from the
Facility, which may include, but not be limited to, warm-up suits and sweatsuits.



     4. Conduct. Any conduct which unreasonably interferes with the use or enjoyment of
Facility or the equipment by others, or disrupts or interferes with the normal, safe, orderly and
efficient operation of the Facility or the equipment, is strictly prohibited. Radios, tape
recorders or other similar personal audio equipment may not be used without headphones. No Tenant
shall make, or permit to be made, any disturbing noises or disturb or interfere with the occupants
of the Building or neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, tape recorder, loud speaker or other sound system. After
a User completes its use of a piece of equipment within the Facility, such User shall wipe that
piece of equipment with disinfectant solution provided by the Building Manager. Those in violation
of these rules will be subject to immediate expulsion.



     5. Smoking. Smoking of any kind or any other consumption of tobacco products is
strictly prohibited in the Facility.



E-2









 





     6. Solicitations and Petitions. Solicitation for the sale of any product or service,
or for charitable contributions, and petitions of any kind, are strictly prohibited.



     7. Identification. Upon request by Landlord’s employee or personnel, users must
present their key for identification purposes. Neither Landlord or the Building Manager assumes
responsibility for lost or stolen keys.



     8. Food and Beverages Prohibited. No food or beverages (other than water or sports
drinks in containers with lids) shall be brought to the Facility. All food and other beverages are
strictly prohibited.



     9. Notices, Complaints or Suggestions. Users must immediately notify Landlord or
Building Manager in the event that they discover any unsafe or hazardous defect or condition
relating to the Facility or the equipment, or any more than de minimis breakage, fire, or disorder
at the Facility. Complaints or suggestions as to the operation, maintenance, services, or
equipment at the Facility should be directed to Building Manager.



     10. Other Facilities. Landlord or Building Manager may prohibit the use of or close
the Facility if misused in any way. Landlord and Building Manager take no responsibility for
personal possessions left in the Facility. Locks or lockers are permissible, but all articles and
locks must be removed when the user leaves the Facility. Landlord and Building Manager reserve the
right to remove and dispose of any locks and personal possessions remaining in the Facility when it
closes each day. Landlord and Building Manager make no representation or warranty that the use of
any locker will protect User’s personal property from damage, loss or theft.



     11. Violation of Rules. Repeated failure or refusal to comply with these Rules and
Regulations may result in the loss of privileges.



     12. Maintenance. No member shall leave any litter, trash, debris, or articles of
clothing at the Facility. The entry door(s) to the Facility shall be kept closed and locked at all
times.



     13. No Representations. User hereby acknowledges that the installation of equipment,
devices and/or facilities in or serving the Facility shall in no way be deemed a representation or
warranty by Operator regarding the efficacy or safety of the same, nor as an agreement or
undertaking by, or obligation of, Operator to protect, indemnify or hold User harmless from any
harm of any type or to ensure User’s safety. It is expressly understood and agreed that use of the
Facility by User shall be at User’s sole risk.



     14. Card Keys. User hereby agrees to keep any card key and/or locker key provided to
User in User’s possession and control at all times until required or requested to surrender the
same, and in no event shall User lend or otherwise transfer its card key or locker key to any other
person. In the event User shall lose or misplace its card key or locker key, or in the event
User’s card key or locker key shall be stolen, User shall immediately notify Landlord and Operator
in writing. User further agrees that, in the event either (i) User’s employment with Tenant is
terminated for any reason, or (ii) Tenant shall be in default under its lease with Landlord,
Operator may immediately de-activate User’s key card and User shall immediately surrender its card
key and locker key to Operator. User hereby acknowledges that the card key and locker key are and
shall remain the property of Operator, and User agrees to return the same to Operator upon the
expiration (or sooner termination) of Tenant’s lease or any earlier date on which Operator is
entitled to de-activate said card key. Inoperative (but not de-activated) cards keys will be
replaced at no charge, but lost and de-activated card keys will be replaced (or reactivated, as the
case may



E-3









 







be) at a cost established by the Operator from time to time. Lost locker keys shall be
replaced, and the appropriate locker re-keyed, at a cost established by the Operator from time to
time.



     15. Consent. As a condition to the use of the Facility, all Users must sign a Consent
and Waiver on Landlord’s current form.




E-4









 








EXHIBIT F




JANITORIAL SPECIFICATIONS




A. Daily 



Daily (Monday through Friday, inclusive, Saturdays, Sundays and legal holidays excepted):





	 	1.	 	Entrance/Lobby Areas






	 	•	 	Outside entrances and landings will be swept, weather permitting.
	 
	 	•	 	Glass entrance doors and side panels will be wiped clean inside and outside
with window washing solution. Door hardware will be wiped clean of
fingerprints and smudges.
	 
	 	•	 	Entrance door thresholds and kick plates will be polished.
	 
	 	•	 	Carpet will be thoroughly vacuumed. Carpets will be kept free of tar, gum,
etc. Walk off mats will be free of dirt and/or hard surface floors will be
damp mopped with clear water and a clean mop.
	 
	 	•	 	Interior glass will be kept free of dust and smudges.
	 
	 	•	 	Lobby planters or urns will be dusted.
	 
	 	•	 	Cigarette urns will be emptied and wiped clean. Sand levels will be maintained.
	 
	 	•	 	Any trash containers, sand urns emptied and cleaned. Trash removed to
designated area, sand replaced as necessary.
	 
	 	•	 	Areas around entrance will be policed for debris.
	 
	 	•	 	Vertical surfaces will be dusted.






	 	2.	 	Kitchens/Snack Areas/Cafeteria






	 	•	 	Floors will be swept and wet mopped.
	 
	 	•	 	Carpeted areas will be vacuumed.
	 
	 	•	 	Counter tops and ledges up to 6 ft. will be wiped clean.
	 
	 	•	 	Trash containers will be emptied and liners changed as needed.
	 
	 	•	 	Empty and clean all air pots and coffee brewing containers and return to
their brewing stations.






	 	3.	 	Office Spaces






	 	•	 	Wastebaskets shall be emptied removing all paper and other materials from
sides and bottom. Wastebaskets shall be periodically wiped clean with damp
cloth. Plastic liners will be used and changed as required. Only trash in
receptacles or near receptacles marked “trash” will be removed.
	 
	 	•	 	Office furniture, baseboards will be dusted. Desks and surfaces where
exposed will be dusted. Metal desks and glass desk-tops will be cleaned with a
damp cloth. Cleaners will not disturb working papers on desks and table tops.
	 
	 	•	 	Windowsills, frames, coat racks, bookshelves, files, tables, lamps and vents
will be dusted using a treated cloth. Telephones will be wiped clean including
dials and crevices. After chairs have been dusted, they will be returned to
original position and not pushed under desks thus avoiding scratching arms of
chairs and desks.




F-1









 






	 	•	 	Carpets in office spaces will be vacuumed paying close attention to corners.
Hard to reach spots will be vacuumed using accessory tools. Caution will be
given to traffic lanes. Carpets will be inspected for spots and stains and
spot cleaned.
	 
	 	•	 	Door handles will be wiped clean of fingerprints when cleaning personnel
exit tenant spaces.
	 
	 	•	 	Buff tile floor as needed to maintain shine.






	 	4.	 	Restrooms






	 	•	 	Restrooms, showers and lockers spaces will be maintained in a neat and clean
condition at all times.
	 
	 	•	 	Tile floors of restrooms will be swept clean and damp mopped with
disinfectant solution. Floors around urinals, toilets, and under soap
dispensers will be given special attention.
	 
	 	•	 	Toilets, sinks and urinals will be washed with a disinfectant solution.
Toilet seats will be washed on both sides and at base. No rust or
encrustations shall be left on inner rim of toilets. Toilet brushes will be
used paying close attention to flush holes and passage traps.
	 
	 	•	 	Counter tops will be wiped clean. No watermarks will remain.
	 
	 	•	 	Mirrors, dispensers and other fixtures will be wiped clean. Stainless steel
accessories will be wiped clean with stainless steel cleaner.
	 
	 	•	 	Trash receptacles will be emptied and trash removed to designated areas.
Plastic liners will be used and changed as required.
	 
	 	•	 	Supplies such as toilet tissue, hand towels and hand soap will be monitored
daily to ensure that supplies do not run low during regular working hours. The
contractor will supply supplies for restrooms.
	 
	 	•	 	Restroom floors will be cleaned using a cleaner-disinfectant chemical to
combat bacteria and maintain an overall level of cleanliness.






	 	5.	 	Fitness Center/Locker Rooms






	 	•	 	Carpeted areas will be thoroughly vacuumed.
	 
	 	•	 	Dust all exercise equipment, hanging fixtures, and fire extinguishers.
	 
	 	•	 	Baseboards will be dusted.
	 
	 	•	 	Areas around door handles and doorframes will be wiped clean.
	 
	 	•	 	Windowsills will be dusted.
	 
	 	•	 	Trash containers will be emptied and liners replaced.
	 
	 	•	 	Locker room floors shall be thoroughly vacuumed and damp mopped with a
germicidal solution.
	 
	 	•	 	Mirrors shall be wiped clean.
	 
	 	•	 	Furnishings shall be dusted.
	 
	 	•	 	Showers and exercise equipment shall be cleaned with disinfectant solution.






	 	6.	 	Stairways/Landings






	 	•	 	Carpeted stairways will be vacuumed using accessory tools for hard to reach
spots. Baseboards will be dusted.
	 
	 	•	 	Hard floor stairways will be swept twice weekly and mopped not less than
twice per month.
	 
	 	•	 	Handrails will be wiped clean.




F-2









 






	 	•	 	Landings will be vacuumed including baseboards






	 	7.	 	Hallways/Corridors






	 	•	 	All common corridors will be vacuumed.
	 
	 	•	 	Air vents and baseboards will be dusted.
	 
	 	•	 	Hanging wall fixtures such as fire extinguishers will be dusted.
	 
	 	•	 	All surfaces below 6 ft will be wiped clean of dust and dirt.
	 
	 	•	 	Vertical surfaces including wood paneling in executive areas will be dusted
with a treated cloth.






	 	8.	 	Drinking Fountains






	 	•	 	Drinking fountains shall be maintained clean and free of stains and all
metal parts shall be shined. Any leaks will be reported to the Building
Engineer.






	 	9.	 	Elevators






	 	•	 	Stainless steel elevator doors will be wiped clean with stainless steel cleaner.
	 
	 	•	 	Ceilings will be dusted.
	 
	 	•	 	Elevator phone cabinets and phones will be wiped clean.
	 
	 	•	 	Elevator tracks shall be kept free of debris.






	 	10.	 	Loading Areas






	 	•	 	Loading areas shall be cleaned and free of trash, debris and foreign matter.
	 
	 	•	 	Vinyl flooring will be swept/mopped nightly.






	 	11.	 	Parking Lot/Garage






	 	•	 	Parking lot and garage area will be policed for debris.
	 
	 	•	 	Glass doors and windows will be kept clean of smudges.






	 	12.	 	Dumpsters






	 	•	 	Areas around dumpster shall be policed for debris.





B. Weekly





	 	1.	 	Restrooms tile, ceramic floors will be thoroughly cleaned with a mild cleaner
with disinfectant to eliminate bacteria and rinsed.
	 
	 	2.	 	Carpeted areas will be thoroughly vacuumed using accessory tools including
baseboards and edge vacuum all carpeted areas.
	 
	 	3.	 	All resilient/vinyl flooring will be spray buffed using a commercial polishing
machine.
	 
	 	4.	 	High dusting of all areas above 60" from floor.
	 
	 	5.	 	Cleaners will be on the alert for cobwebs.
	 
	 	6.	 	Walls, glass, partitions and doors will be wiped clean.
	 
	 	7.	 	Elevator tracks will be cleaned and polished.




F-3









 






	 	8.	 	Upholstered office furniture and lobby furniture will be vacuumed.





C. Monthly





	 	1.	 	Air vents will be dusted and vacuumed when necessary.
	 
	 	2.	 	Restroom floors will be machined-scrubbed with a neutral cleaner disinfectant.
Excess dirt will be picked up with a wet vacuum. Floors will be rinsed with clean
water to avoid streaks.
	 
	 	3.	 	Elevator cab carpets will be shampooed/steam cleaned every two weeks, if
present.
	 
	 	4.	 	Elevator cab hard surface floors will be swept and mopped nightly, if present.





D. Quarterly





	 	1.	 	Wall surfaces in main lobby and upper lobbies will be kept clean according to
manufacturer’s cleaning specifications.
	 
	 	2.	 	Loading areas shall be cleaned of all debris.
	 
	 	3.	 	Clean hanging light fixtures.





E. Semi-Annually





	 	1.	 	Blinds will be thoroughly wiped clean in place.
	 
	 	2.	 	Strip and wax tile floors and re-coat using a high-gloss slip resistant floor
finish to restore shine.





F-4









 





EXHIBIT G




THE SIGN









G-1









 










G-2









 





EXHIBIT H-1




Partial Lien Waiver Form




[See, attached.]




H-1









 





EXHIBIT H-2




Full Lien Waiver Form




[See, attached.]





H-2