ingusa_exhibit-10.htm


                                         Exhibit
10

     

    THIRD
AMENDMENT TO LEASE

     

    THIS
AGREEMENT (hereinafter referred to as the “Amendment”) made the 11th  day
of February 2010 (herein the “Effective Date”), between Lexington Lion Dunwoody,
L.P., a Delaware limited partnership, whose address is 230 Park Avenue, New
York, New York 10169 (hereinafter referred to as “Lessor”); and ING USA Annuity
and Life Insurance Company, a Delaware corporation, with offices at One Orange
Way (C4-N), Windsor, Connecticut 06095 (hereinafter referred to as
“Lessee”).

     

    W
I T N E S S E T H:

     

    WHEREAS,
Lessor’s predecessor-in-interest and Lessee’s predecessor-in-interest entered
into a Lease Agreement dated April 6, 1998, as modified by First Amendment to
Lease dated November 4, 1998 (“First Amendment”) and Second Amendment to Lease
Agreement dated June __, 2000 (“Second Amendment”) (hereinafter, collectively,
referred to as the “Lease”), whereby Lessee is presently in possession of
premises consisting of that certain property containing approximately 15.87
acres, including the building located thereon having an address of 1475 Dunwoody
Road, (the “Building”) on the property commonly known as Lot G of Glenlock
Corporate Campus, West Whiteland Township, Chester County, Pennsylvania which
Building the parties hereto agree for purposes of this Amendment contains
approximately 126,444 square feet of space on three (3) floors (hereinafter
referred to as the “Existing Premises”) as shown on Exhibit I hereto;
and

     

    WHEREAS,
Lessee also desires to extend the Term of the Lease, and Lessor is willing to
extend the Term of the Lease on the terms and provisions set forth in the Lease,
except to the extent provided for herein; and

     

    WHEREAS,
the parties hereto desire to amend the Lease only in the respects and on the
conditions hereinafter stated.

     

    NOW,
THEREFORE, Lessor and Lessee agree as follows:

     

    1. For
purposes of this Amendment, capitalized terms shall have the meanings ascribed
to them in the Lease unless otherwise defined herein.

     

    2. Lessor
and Lessee hereby confirm that the Term of the Lease currently expires on May
31, 2010.

     

    3. The Term
of the Lease is hereby extended an additional five (5) years and five (5) months
so that the Lease shall now terminate at 11:59 p.m. on October 31,
2015.  The period from June 1, 2010 through October 31, 2015 is
hereinafter referred to as the “Extended Term,” and Section 2.1 of the Lease
shall be deemed modified accordingly.  Lessee hereby acknowledges to
Lessor that during the Extended Term, Lessee is leasing the Existing Premises in
its “AS IS”, “WHERE IS” condition.

     

    4. From and
After June 1, 2010 Base Rent for the Existing Premises shall be payable in
advance on the first day of each calendar month, without demand and without
counterclaim, offset or deduction as follows:

     

    
      	
              PERIOD

            	
              ANNUAL
      BASE RENT

            	
              MONTHLY
      BASE RENT

            	
              P.S.F

            
	
              June
      1, 2010 through October 31, 2010

            	
              $0

            	
              $0

            	
              $0

            
	
              November
      1, 2010 through October 31, 2011

            	
              $1,390,844.00

            	
              $115,907.00

            	
              $11.00

            
	
              November
      1, 2011 through October 31, 2012

            	
              $1,454,106.00

            	
              $121,175.50

            	
              $11.50

            
	
              November
      1, 2012 through October 31, 2013

            	
              $1,517,328.00

            	
              $126,444.00

            	
              $12.00

            
	
              November
      1, 2013 through October 31, 2014

            	
              $1,580,550.00

            	
              $131,712.50

            	
              $12.50

            
	
              November
      1, 2014 through October 31, 2015

            	
              $1,643,772.00

            	
              $136,981.00

            	
              $13.00

            


    

    


    Provided
no Event of Default exists at such time, Lessee shall not be obligated to pay
Base Rent for the period from June 1, 2010 through October 31,
2010.  Notwithstanding the foregoing, Lessee shall be obligated to
fulfill all of its other obligations under the Lease during such period
including by way of example, but not limitation, its obligation to pay Operating
Expenses and all other Additional Rent.

     

    5. In
consideration of Lessee entering into this Amendment provided no Event of
Default exists, Lessor hereby agrees to provide Lessee with an allowance in the
amount of Two Million Two Hundred Twelve Thousand Seven Hundred Seventy and
00/100 ($2,212,770) Dollars (hereinafter referred to as the “Allowance”) to be
applied in Lessee’s sole discretion towards the cost of the work to be performed
to the Premises (whether hard or soft costs), including without limitation,
labor, materials, equipment, design costs, moving costs and legal costs,
furniture, or as a credit against Base Rent coming due under the
Lease.  Lessor shall pay the Allowance upon receipt of documents
evidencing Lessee’s costs, and supporting lien waivers from all material
contractors in excess of Ten Thousand and 00/100 ($10,000) Dollars, in a form
reasonably acceptable to Lessor.  Lessee shall have the right at any
time to request that any outstanding Allowance be credited against Base Rent
until such Allowance is paid or used in full.  Lessee shall also have
the right thereafter to apply any outstanding Allowance against subsequent work
undertaken by Lessee.  Furthermore, provided no Event of Default
exists, if Lessee otherwise complies with all the terms set forth above and
Lessor then withholds any portion of the Allowance and such withholding is not
done in connection with a good faith dispute of the payment of the Allowance and
the Lessee gives written notice to the Lessor at least thirty (30) days in
advance, the Lessee may offset the then unpaid portion of the Allowance against
the next due installments of Rent until the Allowance has been recouped in
full.  Provided no Event of Default exists, any Allowance outstanding
upon the termination of this Lease shall be paid to Lessee within thirty (30)
days of such termination; provided that in the event of a termination under
Paragraph 7 of this Amendment, Lessor shall be obligated only to pay the amount
of any outstanding Allowance in excess of the Termination Fee.

     

    6. Section
2.7 of the Lease is hereby deleted and replaced with the following:

     

    Lessee is
hereby granted two (2) options to renew this Lease upon the following terms and
conditions:

     

    (a) At the
time of the exercise of each of the options to renew and at the time of each of
said renewals, no Event of Default shall exist, and the Lessee, shall not have
sublet, except to any subsidiary, parent or affiliate or successor by way of
merger or consolidation or permitted assignee or subtenant for which no Lessor
consent is required, more than fifty percent (50%) of the Existing Premises or
fifty percent (50%) the Remaining Premises in the event of a Partial Surrender,
pursuant to this Lease.

     

    (b) Notice of
the exercise of the first option shall be sent to the Lessor in writing by
January 31, 2015.  Notice of the exercise of the second option shall
be sent to the Lessor in writing by January 31, 2020, TIME HEREBY BEING MADE OF
THE ESSENCE in each case.

     

    (c) The
renewal terms shall be for the term of five (5) years each, the First Renewal
Term, to commence at the expiration of the Extended Term of this Lease and the
Second Renewal Term to commence at the expiration of the First Renewal Term, and
all of the terms and conditions of this Lease, other than the Base Rent, shall
apply during each such Renewal Term.

     

    (d) The
Annual Base Rent to be paid during the First Renewal Term (November 1, 2015
through October 31, 2020) shall be fair rental value per square foot at the
commencement of the First Renewal Term multiplied by the square footage of the
Premises. The Annual Base Rent to be paid during the Second Renewal Term
(November 1, 2020 through October 31, 2025) shall be the fair rental value per
square foot at the commencement of the Second Renewal Term multiplied by the
square footage of the Premises.

     

    In
determining the fair rental value, the Lessor shall notify Lessee of the fair
rental value as established by Lessor.  Should Lessee dispute Lessor’s
determination, then the Lessee shall be free to, at the Lessee’s sole cost and
expense, employ the services of (i) a real estate appraiser familiar with office
buildings located within the Chester County, Pennsylvania area comparable to the
Building, who shall be a member of The Appraisal Institute who is unaffiliated
with Lessor or Lessee, or (ii) a licensed, commercial real estate broker with a
minimum of ten (10) years experience with office buildings located within the
Chester County, Pennsylvania area comparable to the Building who is unaffiliated
with Lessor or Lessee (the “Appraiser”), and who shall render an
appraisal.  If the Lessor and the Lessee’s Appraiser cannot agree on
the fair rental value, or in such case, on an independent Appraiser acceptable
to both, either party may request the American Arbitration Association to
appoint such independent Appraiser who shall be familiar with office buildings
in the area of the Building and in such event the judgment of a majority of the
two Appraisers and Lessor shall be final and binding upon the
parties.  The parties shall share equally in the cost of any such
independent appraiser.  Pending resolution of the issue of fair rental
value, the Lessee shall pay Lessor as of commencement of the First or Second
Renewal Term, as the case may be, the Annual Base Rent as established by Lessor,
subject to retroactive adjustment upon final determination of this
issue.  Notwithstanding anything to the contrary above, once the fair
rental value for the Renewal Term has been determined pursuant to the foregoing,
Lessee shall have fifteen (15) days thereafter to advise Lessor whether Lessee
elects to renew the Lease for the Renewal Term at such fair rental value, or to
rescind its exercise of the option to renew.  In the event that Lessee
rescinds its option to renew, Lessee shall be entitled to remain in the Premises
for the greater of (i) ninety (90) days following the determination of the fair
rental value or (ii) the expiration of the Term or the First Renewal Term, in
effect prior to the exercise of the option to renew.  In the event
Lessee elects to rescind its option to renew, it shall pay to Lessor as
Additional Rent, all of the costs and expenses incurred by Lessor in connection
with determining the fair rental value and if applicable, the negotiations with
Lessee in connection with such renewal process which costs shall include by way
of example, but not limitation, fees and changes paid to any Appraisers and
reasonable attorneys’ fees and costs.  Further, in the event Lessee
elects to rescind its renewal option and relocate to another office building in
the Chester County, Pennsylvania area, Lessee agrees to provide Lessor with the
opportunity to provide a final and best offer so that Lessee will remain at the
Building, and Lessee agrees to use good faith efforts to entertain such
offer.

     

    7. Provided
No Event of Default exists under this Lease, Lessee shall have a one time right
to cancel and terminate this Lease and surrender the entire Existing
Premises.  In the event Lessee elects to cancel and terminate this
Lease and surrender the entire Existing Premises it shall do so effective
December 31, 2012 (hereinafter referred to as the “Surrender Date”), provided,
as a condition of such cancellation and termination Lessee (i) gives written
notice to Lessor of such surrender (the “Surrender Notice”) no later than
December 31, 2011, TIME HEREBY BEING MADE OF THE ESSENCE, (ii) delivers to
Lessor, a payment in the amount of One Million Three Hundred Sixty Thousand Nine
Hundred Seven and 90/100 ($1,360,907.90) Dollars (the “Termination Fee”)
representing reimbursement to Lessor for the unamortized Allowance, (iii)
continues to fulfill in a timely manner through the Surrender Date all of its
obligations under the Lease including the payment of all Base Rent and
Additional Rent and (iv) voluntarily delivers possession of the Existing
Premises to Lessor on the Surrender Date vacant and “broom clean”, and in good
order and repair, free of any liens or encumbrances and in compliance with all
applicable provisions of the Lease. Upon request, Lessee shall execute a
mutually agreeable Surrender and Acceptance Agreement effective as of the
Surrender Date confirming such cancellation.  The Termination Fee
shall be payable no later than ninety (90) days prior to the Surrender Date,
except that if an Event of Default under Section 12.1(i) in the payment of Rent
occurs subsequently, then fifty percent (50%) of the Termination Fee shall be
made within thirty (30) days following such Event of Default and the remaining
fifty (50%) percent of the Termination Fee shall be made no later than sixty
(60) days prior to the Surrender Date.  In the event, the Termination
Fee or any portion thereof, as applicable, is not paid in a timely manner and
such nonpayment continues for at least ten (10) days following a subsequent
notice of nonpayment to Lessee from Lessor, such right of termination shall be
rendered null and void.

     

    In the
event Lessee elects to surrender the entire Existing Premises then effective as
of the Surrender Date, Lessee shall surrender to Lessor all of Lessee’s right,
title and interest in and to the Existing Premises, and thereafter all of
Lessee’s estate under the Lease in and to the Existing Premises shall be
terminated and extinguished as of the Surrender Date.  Upon Lessee
complying with its undertakings as set forth herein, Lessor shall accept as of
the Surrender Date, such surrender of all of Lessee’s right, title and interest
under the Lease in and to the Existing Premises.

     

    Alternatively,
instead of surrendering the entire Existing Premises, Lessee shall have the
right to surrender as of the Surrender Date either (x) Units 2B and 3B
containing approximately forty thousand one hundred seventy-eight (40,178)
square feet or (y) Units 1B, 2B and 3B containing approximately fifty-nine
thousand nine hundred and ninety-nine (59,999) square feet (such event being a
“Partial Surrender,” such selected space being herein the “Partial Surrender
Space” and the Existing Premises less such Partial Surrender Space is herein
referred to as the “Remaining Premises”), all of such Units as delineated on
Exhibit I attached hereto, provided as a condition of such Partial Surrender
Lessee (i) gives a Surrender Notice to Lessor of such surrender and designating
the Partial Surrender Space by December 31, 2011, TIME HEREBY BEING MADE OF THE
ESSENCE, (ii) delivers to Lessor by the Surrender Date a payment in the amount
of the (a) Four Hundred Thirty-Two Thousand Four Hundred Thirty-Three and 00/100
($432,433.00) Dollars, if Lessee has elected to surrender the approximately
40,178 square feet per (x) above or (b) Six Hundred Forty-Five Thousand Seven
Hundred Sixty-Five and 03/100 ($645,765.03) Dollars if Lessee has elected to
surrender the approximately 59,999 square feet per (y) above (such amount being
herein the “Partial Surrender Fee”), (iii) continues to fulfill in a timely
manner through the Surrender Date all of its obligations under the Lease
including the payment of all Base Rent and Additional Rent and (iv) voluntarily
delivers possession of the Partial Surrender Space on the Surrender Date vacant
and “broom clean”, and in good order and repair, free of any liens or
encumbrances and in compliance with all applicable provisions of the
Lease.  The Partial Surrender Fee shall be paid no later than ninety
(90) days prior to the Surrender Date, except that if an Event of Default under
Section 12.1(i) in the payment of Rent occurs subsequently, then fifty percent
(50%) of the Partial Surrender Fee shall be made within thirty (30) days
following such Event of Default and the remaining fifty (50%) percent of the
Partial Surrender Fee shall be made no later than sixty (60) days prior to the
Surrender Date.  In the event, the Partial Surrender Fee or, if
applicable, either installment of the Partial Surrender Fee is not paid in a
timely manner and such nonpayment continues for at ten (10) days following a
subsequent notice of nonpayment to Lessee from Lessor, such right of surrender
shall be rendered null and void.  Should Lessee elect a Partial
Surrender as provided for herein then effective as of the Surrender Date, Lessee
shall surrender to Lessor all of its right, title and interest in and to the
Partial Surrender Space, and thereafter all of Lessee’s estate under the Lease
in and to the Partial Surrender Space shall be terminated and extinguished as of
the Partial Surrender Date.  Upon Lessee complying with its
undertakings set forth herein, Lessor shall accept as of the Partial Surrender
Date, such surrender of all of Lessee’s right, title and interest under the
Lease in and to the Partial Surrender Space.  Upon compliance by
Lessee, the parties declare and agree that as of the Partial Surrender Date, the
Partial Surrender Space shall be released and discharged from the operation of
the Lease and the balance of the Building retained by Lessee, referred to herein
as the “Remaining Premises,” shall thereafter be deemed the
“Premises”.  Lessor, at its sole costs and expense, shall be
responsible for all work that Lessor, at its reasonable discretion following
review and consultation with Lessee, elects to perform to separate the Partial
Surrender Space from the Remaining Premises and/or to create any common areas,
and such costs shall not be includable in Operating Expenses.  Lessor
and Lessee acknowledge and agree that the area of the Units described above are
approximate and will be verified by remeasurement as provided for in Paragraph
11 below.

     

    8. Notwithstanding
any provisions of this Amendment to the contrary, Lessee hereby agrees that
Lessee shall remain liable for the payment of, and Lessor agrees that Lessee
shall be entitled to the refund for, any Base Rent and Additional Rent relating
to the Existing Premises or Partial Surrender Space, as the case may be
including any retroactive adjustments thereto which may be payable by, or owed
to Lessee, pursuant to the terms and provisions of the Lease for the period up
to and including the Surrender Date.

     

    9. In the
event of a Partial Surrender, then from and after the Surrender Date, Lessee
shall pay to Lessor during the balance of the Extended Term, Base Rent for the
Remaining Premises at the same rate per square foot as set forth in Section 4 of
this Amendment.

     

    10. Lessee
hereby acknowledges that in the event of a Partial Surrender, Lessor will be
required to perform certain work to the Building in order for it to be occupied
by multiple tenants, all of which work, including any and all work to comply
with governmental laws, rules, ordinances, codes and regulation due to such
Partial Surrender or otherwise shall be at Lessor’s sole cost and expense, and
not includable in Operating Expenses and shall be in accordance with standards
for first-class office buildings located in the Chester County, Pennsylvania
area to accommodate multi-tenant use of the Building.  Therefore, from
and after Lessor’s receipt of Lessee’s Surrender Notice, Lessor and Lessor’s
representatives upon at least one (1) day’s prior telephonic notice shall have
escorted access to the Existing Premises for purposes of showing the portion
being surrendered to prospective tenants during Lessee’s normal business
hours.  In connection with any such entry, Lessee agrees to cooperate
with Lessor and Lessor’s agents, including but not limited to providing access
to the Existing Premises as needed, during Lessee’s normal business
hours.  Lessor agrees to use its reasonable efforts to minimize any
disruption to Lessee’s business operations, during any such entry into the
Existing Premises.

     

    11. In the
event of a Partial Surrender then from and after the Surrender Date, the Lease
shall be modified as follows:

     

    Section
1.1.1 Lessee
Proportionate Share.  Lessee’s Proportionate Share shall be
modified to reflect the ratio determined by dividing the gross floor area of the
Remaining Premises by the gross floor area of the Building which is believed to
be 126,444 gross square feet.  However, since the Building will be
divided into a multi tenant Building, Lessor shall at its sole cost and expense
cause the Building and the Remaining Premises to be remeasured by a qualified
and licensed architect reasonably approved by Lessee in accordance with the
Standard Method for Measuring Floor Area in Office Buildings, 1996 Standard, as
promulgated by the Building Office and Managers Association for a multi-tenant
building who shall determine the Lessee’s Proportionate Share taking into
account the rentable floor area and loss factor/add-on factor attendant with a
multi-tenant building.  In the event Lessee disputes such measurement
it shall have the right within thirty (30) days following its receipt of the
initial measurement, at its sole cost and expense, to hire an independent
licensed architect to measure the Building and Remaining Premises and report its
findings to Lessor and Lessee.  In the event Lessor shall not agree
with the determination of Lessee’s architect then within thirty (30) days after
Lessor’s receipt of such determination the parties shall select an independent
licensed architect acceptable to both Lessor and Lessee who shall select either
the measurement of the initial architect or Lessee’s architect, and whose
determination will be final and binding upon the parties.  Lessor and
Lessee shall share equally the cost of the third selected
architect.

     

    A new
Section 3.6 (C) shall be added to the Lease as follows:

     

    In the
event of a Partial Surrender, then from and after the Surrender Date, Lessor
shall assume responsibility for the management and cost of the maintenance,
operation, repair, replacement and administration of the Building and common
areas, excluding those items that Lessee is responsible for under the Lease,
which Lessee responsibility is limited to operation of the cafeteria, security
for the Premises and supplemental cooling for Lessee’s data
center.  Lessor shall provide such services in a manner that is
consistent with similar services furnished to comparable buildings in the
Chester County, Pennsylvania area, and to the extent, that Lessee pursuant to
the Second Amendment has been paying vendors/contractors directly for certain
Operating Expenses, Lessor shall, from and after the aforesaid Surrender Date
provide such services for which Lessee shall reimburse Lessor as part of the
Operating Expense Adjustment.  Lessee agrees to cooperate with Lessor
in connection with Lessor’s management of the Building as a multi-tenant
property.  In the event requested by Lessor, in Lessor’s sole
discretion, Lessee shall cooperate with Lessor regarding assignment to Lessor of
any service or maintenance contracts affecting the Building and common areas
(e.g. security access system), provided Lessee is fully released from such
contracts.  However, the foregoing shall not be deemed to create an
obligation on Lessor’s part to assume any such contracts. Lessee agrees that any
service or maintenance contract affecting the Building entered into after the
date of this Amendment that has a term which will expire after the Surrender
Date, shall provide for cancellation upon thirty (30) days prior notice without
payment of premium or penalty.  Lessee acknowledges that from and
after the Surrender Date, the Operating Expenses shall mean all of such expenses
as are defined and set forth in Section 3.6 of the Lease except that the
limitation contained in Section 3.6(A)(iii)(g) is hereby
eliminated.

     

    From and
after the Surrender Date and notwithstanding anything in the Lease or in this
Amendment to the contrary, Section 3.6 shall be modified so that the following
expenses, to the extent not already excluded, shall also be excluded from
Operating Expenses:

     

    (a) Expenses
incurred by Lessor to prepare, renovate, repaint, redecorate or perform any
other work in any space leased to an existing lessee or prospective lessee of
the Building and all of Lessor’s work undertaken pursuant to Section 7 of this
Amendment;

     

    (b) Expenses
incurred by Lessor for repairs or other work occasioned by fire, windstorm, or
other insurable casualty or condemnation excluding any deductible paid by
Lessor;

     

    (c) Expenses
incurred by Lessor to lease space to new Lessees or to retain existing lessees
including leasing commissions, advertising and promotional
expenditures;

     

    (d) Expenses
incurred by Lessor to resolve disputes, enforce or negotiate lease terms with
prospective or existing lessees or in connection with any financing, sale or
syndication of the Property;

     

    (e) Interest,
principal, points and fees, amortization or other costs associated with any debt
and rent payable under any lease to which this Lease is subject and all costs
and expenses associated with any such debt or lease and any ground lease rent,
irrespective of whether this Lease is subject or subordinate
thereto;

     

    (f) Expenses
for the replacement of any item covered under warranty to the extent of any
recovery under that warranty;

     

    (g) Cost to
correct any penalty or fine incurred by Lessor due to Lessor’s violation of any
federal, state, or local law or regulation and any interest or penalties due for
late payment by Lessor of any of the Operating Expenses;

     

    (h) Cost of
repairs necessitated by Lessor’s negligence or willful misconduct, or of
correcting any latent defects or original design defects in the Building
construction, materials, or equipment;

     

    (i) Expenses
for any item or service provided solely to the Remaining Premises, or any other
lessee premises (as distinguished from similar services provided to the Common
Areas, such as security or janitorial services) which Lessee or such other
lessee pays directly to a third party or separately reimburses Lessor and
expenses incurred by Lessor to the extent the same are reimbursable or
reimbursed from any other lessees, occupants of the property, or third
parties;

     

    (j) Expenses
for any item or service not provided to Lessee but exclusively to certain other
lessees in the Building;

     

    (k) Any
property management or administrative fees for the Building in excess of such
fees generally charged by other landlords of comparable first-class office
buildings located in the Chester County, Pennsylvania area;

     

    (l) Salaries
of (i) employees above the grade of general manager and general engineering
manager, and (ii) expenses above the pro rata portion of time spent in
connection with the Building or the Land for employees whose time is not spent
directly and solely in the operation of the Building or the Land;

     

    (m) Lessor’s
general corporate overhead and administrative expenses except if it is solely
for the Building;

     

    (n) Reserves;

     

    (o) Fees paid
to affiliates of Lessor to the extent that such fees exceed the customary amount
charged for the services provided;

     

    (p) The
operating expenses incurred by Lessor relative to: (i) retail stores, hotels and
any specialty service in the Building or on the Land; or (ii) with the exception
of the fees incurred under Section 3.6(A)(iii)(g) as modified herein, any other
businesses in the Building or on the Land which requires Lessor to incur
operating expenses in excess of those which would have been incurred had such
space been occupied for office use;

     

    (q) HVAC
modification and replacement obligations necessary to comply with any Clean Air
Act requirements and any Environmental Protection Agency regulations
requirements, including ASHRAE standards, for the following: maintenance, fresh
air, chlorofluorocarbons and hydrochlorofluorocarbons unless compelled by an
appropriate governmental agency to comply;

     

    (r) Other
items not customarily included as operating expenses for similar first-class
buildings located in the Chester County, Pennsylvania area; and

     

    (s) To the
extent not already excluded in accordance with the Lease or this Amendment, cost
of alterations, capital improvements, equipment replacement and other items
which under generally accepted accounting principles are properly classified as
capital expenditures or which are required in order to comply with governmental
laws, rules, ordinances, codes and regulations.

     

    Furthermore,
and notwithstanding anything to the contrary herein, “Controllable Operating
Expenses” (as hereinafter, defined) on a square foot basis for any Operating
Year shall not increase by more than four percent (4.0%) (the “4.0% Cap”), over
the Controllable Operating Expense amounts as limited by the 4.0% Cap that was
payable by Lessee for the previous Operating Year.  The 4.0% Cap shall
be non- cumulative. “Controllable Operating Expenses,” shall mean all Operating
Expenses except for real estate taxes, insurance, snow removal and
utilities.

     

    Lessee
shall have the right, by written notice to Lessor, to examine, to copy and to
have an audit conducted of all books and records of Lessor pertaining to
Building Operating Expenses for any Computation Year, provided that: (i)
Lessee’s request for such audit is made within one year of Lessee’s receipt of
Lessor’s statement of Operating Expenses which Lessee wishes to audit; (ii) the
audit takes place on mutually agreeable dates during reasonable business hours
at the offices of Lessor’s management company, and only after Lessee has given
Lessor at least thirty (30) days’ prior written notice of the dates and times
Lessee desires to conduct such audit; (iii) such audit shall be conducted by an
auditing firm retained by Lessee that has a minimum of seven (7) years
experience in auditing commercial office properties similar to the Building;
(iv) the auditor is not compensated in any way on a contingent fee basis for the
audit; (v) Lessee and auditor shall sign a confidentiality agreement as
reasonably required by Lessor concerning non-disclosure of any and all
information related to such audit; and (vi) Lessor receives a copy of all
information received by auditor.  If Lessor and Lessee dispute the
results of any such audit, such dispute shall be submitted to arbitration
according to the following procedure: Lessor and Lessee shall each, within
thirty (30) days, select one (1) independent firm of audit professionals who
meet (ii) and (iii) above (the “Audit Professionals”), and such two (2) Audit
Professionals shall together select a third firm of Audit Professionals, which
third firm shall be the Audit Professionals who shall resolve the dispute (the
“Arbitrator”).  If either party fails to select a firm of Audit
Professionals, then the firm of Audit Professionals selected by the party who
did make its selection shall resolve the dispute.  The determination
of the Arbitrator shall be final and binding upon both Lessor and
Lessee.  If the Arbitrator determines that Lessee has made an
underpayment, Lessee shall reimburse Lessor for the amount of the underpayment
within thirty (30) days following such determination.  If the
Arbitrator determines that Lessee has made an overpayment, Lessor shall
reimburse Lessee for the amount of the overpayment within thirty (30) days
following such determination.  If Lessor shall fail to pay the same
within such thirty (30) day period, Lessee shall have the right to deduct the
amount of such items, from any installments of Rent, becoming due under this
Lease.  If the Arbitrator determines that Lessee has underpaid its
obligations, Lessee shall pay Lessor such deficiency within thirty (30) days
following such determination.  The determination of the Arbitrator
shall be final and binding upon both Lessor and Lessee. All expenses of the
audit (including the Arbitrator, if any) shall be borne by Lessee unless the
Arbitrator determines that Lessor overstated the Operating Expenses by more than
five percent (5%) in any Computation Year, in which case, Lessor shall promptly
reimburse Lessee for the cost.

     

    Lessor
shall provide a copy of the annual real estate tax assessment notice to Lessee
within ten (10) business days of Lessee’s written request thereof.

     

    The
rights and obligations of Lessee and Lessor under this Paragraph 3.6 shall
survive the expiration or earlier termination of the Lease, provided that
Operating Expense Payments shall be prorated to reflect any partial final year
of the Term of the Lease.

     

    Lessee
covenants and agrees that in the event of a Partial Surrender and following
after the Surrender Date, it shall (i) continue to be responsible, at its sole
cost and expense, for the maintenance and operation of the cafeteria located
within the Existing Premises for so long as Lessee, in its sole discretion,
decides to continue to operate the cafeteria, Lessor acknowledging that upon
expiration or termination of the Lease with respect to the Premises, including
the cafeteria, Lessee’s obligation shall be limited to surrendering such
Premises in good order and condition, normal wear and tear excepted, (ii)
install sub-meters to measure the electricity consumed by the cafeteria
equipment in the cafeteria and by Lessee’s data center equipment in the data
center.  Lessee shall use commercially reasonable efforts to cause the
public utility company supplying electricity to the Building to bill Lessee
directly for the electricity charged by said sub-meters.  In the event
that the public utility company cannot do so, Lessee shall pay to Lessor the
amounts consumed as determined by said meter calculated at the rate structure
then existing of utility companies supplying electrical energy to the Building
for Lessee’s consumption, as so measured without any markup.  Said
payment shall be due, as Additional Rent with the monthly installments of Base
Rent coming due throughout the Term.  Notwithstanding anything to the
contrary contained herein, if following a Partial Surrender, as a result of
causes within Lessor’s reasonable control, a cessation of an “Essential Service”
occurs and provided that such cessation is not due to any act or neglect of
Lessee or Lessee’s agents, employees, contractors or invitees or any person
claiming by through or under Lessee and if (i) Lessor fails to take commercially
reasonable action under the circumstances to commence restoring the Essential
Service within five (5) business days after Lessee gives written notice to the
Lessor, and (ii) as a result of such cessation, the conduct of Lessee’s normal
operations are materially and adversely affected such that Lessee’s personnel
cannot reasonably perform their normal functions in all or any portion of the
Premises and actually cease performing such functions (the “Impaired Premises”);
then Rent shall abate with respect to the Impaired Premises on the seventh (7th)
consecutive business day after Lessee’s business operations cease until such
failure is substantially remedied in accordance with standards for first-class
office buildings located within the Chester County, Pennsylvania
area.   An “Essential Service,” for purposes for this paragraph
shall mean (i) HVAC service to the Premises, (ii) electrical service to the
Premises, (iii) elevator service, (however as long as one elevator is still in
operation it will not constitute a cessation of an Essential Service), (iv)
water and sewer service, (v) debris removal that prevents reasonable access to
the Premises, (vi) parking in Lot G of Glenlock Corporate Campus of at least 4
parking spaces per 1,000 square feet in the Building provided however, that in
the event available parking falls below the aforedescribed parking ratio and is
the result of temporary repairs not to exceed thirty days to the utilities
beneath such parking area or the staging of materials or equipment in the
parking area in order for Lessor to provide Essential Services to the Building,
then Lessee shall prior to availing itself of its remedies provided for herein
provide Lessor with the opportunity to supply alternate parking in reasonable
close proximity to the Building (for which Lessor, at its sole expense, will
supply shuttle service if necessary, in Lessee’s reasonable discretion, to the
Building from such alternate parking area) and if Lessor does in fact supply
alternate parking so that the minimum ratio is satisfied, such parking condition
shall not constitute a cessation of an Essential Service, (vii) pest control,
(viii) janitorial service,  and (ix) legal compliance, to the extent
Lessee is forbidden to operate the Permitted Use in the Premises.

     

    12. Section
3.6(a)(iii)(f) is amended to provide that management fees payable to the
management agent for the Building shall not exceed the prevailing amount charged
for comparable services furnished to comparable first-class office buildings in
the Chester County, Pennsylvania area.

     

    13. Section
3.72 of the Lease (“Right to Contest Taxes”) is hereby modified to provide that
Lessee shall not have the right to contest real estate taxes assessed against
the Building.  Lessor agrees to use commercially reasonable efforts in
connection with instituting when Lessor in its reasonable opinion deems it
appropriate, the necessary proceedings to contest the real estate taxes assed
against the Building.  Any refund, net of expenses, resulting from
such contest or review shall be proportionately adjusted.

     

    14. Section
7.2.1 of the Lease is hereby deleted and replaced with the
following:

     

    “Lessee,
at Lessee’s expense, agrees to keep in force during the Term of this
Lease:

     

    (a) Lessee’s Liability
Insurance.  Lessee shall procure and maintain at its own cost
an occurrence from commercial general liability policy with such limits as may
be reasonably requested by Lessor from time to time (which as of the date hereof
shall be not less than $1,000,000 per occurrence under a combined single limit
of coverage, $2,000,000 aggregate and $5,000,000 per occurrence and in the
aggregate umbrella insuring Lessor, Lessor’s related parties and Lessee from any
claims, demands or actions for injury to or death of any person or persons and
for damage to property made by, or on behalf of, any person or persons, firm or
corporation, arising from, related to or connected with the
Premises.

     

    Any
general aggregate limit shall apply on a per location basis and shall be in
addition to and not including those stated for the underlying commercial general
liability, business automobile liability and employer’s liability
insurance.  Lessee’s commercial general liability insurance shall name
Lessor, its trustees, officers, directors, agents, and employees, Lessor’s
mortgagees, and Lessor’s representatives, as additional
insureds.  This coverage shall include blanket contractual liability,
broad form property damage liability, premises/operations and products/completed
operations hazards, personal and advertising injury, fire damage legal liability
and medical payments and shall contain an exception to any pollution exclusion
which insures damage or injury arising out of heat, smoke, or fumes from hostile
fire.  Such insurance shall be written on an occurrence basis and
contain a standard separation of insureds provision.

     

    (b) Business
automobile liability insurance covering owned, hired and non owned vehicles with
limits of $1,000,000 combined single limit per occurrence.

     

    (c) Worker’s
compensation and employer’s liability insurance.  The employer’s
liability insurance shall afford limits not less than $1,000,000 per accident,
$1,000,000 per employee for bodily injury by disease, and $1,000,000 policy
limit for bodily injury by disease.  Such insurance shall comply with
Lessee’s obligations to its employees under the laws of the state in which the
Premises are located.

     

    (d) All risk
property insurance including theft, sprinkler leakage and boiler and machinery
coverage on all of Lessee’s trade fixtures, furniture, inventory and other
personal property in the Premises, and on any alterations, additions, or
improvements made by Lessee upon the Premises all for the full replacement cost
thereof.  Lessee shall use the proceeds from such insurance for the
replacement of trade fixtures, furniture, inventory and other personal property
and for the restoration of Lessee’s improvements, alterations, and additions to
the Premises.  Lessor shall be named as loss payee with respect to
alterations, additions, or improvements of the Premises.

     

    (e) Business
income and extra expense insurance with limits not less than one hundred percent
(100%) of all charges payable by Lessee under this Lease for a period of twelve
(12) months.  Lessee shall have the right to self insurance for the
risks covered under this subparagraph (e) on the condition that by executing
this Amendment Lessee acknowledges and agrees that Lessors shall not be
responsible for any loss sustained by Lessee regardless of the cause of such
loss that could be covered under the insurance described in this subparagraph
(e) had Lessee procured such insurance from an independent insurance carrier and
not by reason of self insurance and further provided that the waiver contained
in Section 7.5 of the Lease shall apply regardless of such election to self
insure.

     

    Lessee’s Insurer Rating;
Certification of Insurance.

     

    (a) All
policies required to be carried by Lessee hereunder shall be issued by and
binding upon an insurance company licensed to do business in the state in which
the Building is located with a rating of at least “A - X” or better as set forth
in the most current issue of Best’s Insurance Reports, unless otherwise approved
by Lessor.  Lessee shall not do or permit anything to be done that
would invalidate the insurance policies required herein.  Liability
insurance maintained by Lessee shall be primary coverage without right of
contribution by any similar insurance that may be maintained by
Lessor.  Certificates of insurance, acceptable to Lessor, evidencing
the existence and amount of each insurance policy required hereunder shall be
delivered to Lessor prior to delivery or possession of the Premises and ten (10)
days following each renewal date.  Certificates of insurance shall
include an endorsement for each policy showing that Lessor, its trustees,
officers, directors, agents, and employees, Lessor’s mortgagees, and Lessor’s
representatives are included as additional insureds on liability policies and
that Lessor is loss payee for property insurance.  Further, the
certificates must include an endorsement for each policy where the insurer
agrees not to cancel, non-renew, or materially alter the policy without at least
thirty (30) days’ prior written notice to Lessor.

     

    (b) In the
event that Lessee fails to provide evidence of insurance required to be provided
by Lessee in this Lease, during the Term, within ten (10) days following
Lessor’s request thereof, and thirty (30) days prior to the expiration of any
such coverage, Lessor shall be authorized (but not required) to procure such
coverage in the amount stated with all costs thereof to be chargeable to Lessee
and payable upon written invoice thereof.

     

    (c) The
limits of insurance required by this Lease, or as carried by Lessee, shall not
limit the liability of Lessee or relieve Lessee of any obligation
thereunder.  Any deductible selected by Lessee shall be the sole
responsibility of Lessee.

     

    (d) Lessee
insurance requirements stipulated herein are based upon current industry
standards.  Lessor reserves the right to require additional coverage
or to increase limits as industry standards change.

     

    (e) Should
Lessee engage the services of any contractor to perform work in the Premises,
Lessee shall ensure that such contractor carries commercial general liability
(including completed operations coverage for a period of three (3) years
following completion of the work) business automobile liability, umbrella/excess
liability, worker’s compensation and employers liability coverages in
substantially the same amount as are required of Lessee under this
Lease.  Contractor shall name Lessor, its trustees, officers,
directors, agents and employees, Lessor’s mortgagees and Lessor’s
representatives as additional insureds on the liability policies required
hereunder.

     

    All
policies required to be carried by any contractor shall be issued by and binding
upon an insurance company licensed to do business in the state in which the
Building is located with a rating of at least “A - X” or better as set forth in
the most current issue of Best’s Insurance Reports, unless otherwise approved by
Lessor.  Certificates of insurance, acceptable to Lessor, evidencing
the existence and amount of each insurance policy required hereunder shall be
delivered to Lessor prior to the commencement of any work in the
Premises.  Further, the certificates must include an endorsement for
each policy whereby the insurer agrees not to cancel, non-renew, or materially
alter the policy without at least thirty (30) days’ prior written notice to
Lessor.

     

    The above
requirements shall apply equally to any subcontractor engaged by
contractor.

     

    15. The first
sentence of Section 7.6 is modified to read in its entirety as
follows:  “Lessee hereby agrees to indemnify, protect, defend and hold
harmless Lessor from and against any and all claims, loss of rents, damages,
judgments, penalties, costs (including reasonable attorneys’ fee), and
liabilities excluding consequential damages (collectively, the “Claims”) arising
out of the occupancy of the Premises by Lessee, the conduct of Lessee’s business
therein” or any gross neglect of Lessee or Lessee’s agents, contractors,
employees or invitees.

     

    The
following paragraph is hereby added to Section 7.6 of the Lease:

     

    Lessor,
its agents, servants, employees, invitees, or contractors (each an “Indemnified
Party’ ) shall not be liable to Lessee and Lessee hereby waives all claims
against each Indemnified Party for any injury to or death of any person or
damage to or destruction of property in or about the Premises or the Property by
or from any cause whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls, basement or other
portion of the Premises or the Property, but excluding, however, the gross
negligence or willful misconduct of any Indemnified Party.  Except as
to injury to persons or damage to property the principal cause of which is the
gross negligence or willful misconduct of an Indemnified Party and excluding
consequential damages, Lessee shall indemnify, defend and hold each Indemnified
Party harmless from and against any and all expenses including reasonable
attorneys’ fees, in connection therewith, arising out of any injury to or death
of any person or damage to or destruction of property  resulting from
any act or occurrence in, on or about the Premises, or any part thereof from any
cause whatsoever.

     

    To the
maximum extent permitted by law, Lessee shall indemnify, defend and hold
harmless Lessor (including reasonable attorneys’ fees, investigation costs and
remediation costs but excluding consequential damages) from and against any and
all claims, demands, liabilities, damages, judgments, fines and penalties which
in any manner whatsoever arise out of or are in any manner related to Lessee’s
failure to maintain the Premises in accordance with the applicable provisions of
this Lease, subject however to the waiver provided for in Section 7.5 of the
Lease.

     

    16. Section
10 of the Lease (“Utilities”) is hereby
modified that provided to the extent utilities to the Premises can no longer be
separately metered, Lessee shall reimburse Lessor when billed for Lessee’s
percentage of such charges without any mark up as mutually agreed upon by Lessor
and Lessee.  Lessor may include such charges in Operating Expense as
provided for in Section 3.6.

     

    17. Section
11 of the Lease (“Assignments and
Subletting”) is amended as of the Effective Date by adding the
following:

     

    11.2           In
the event Lessee desires Lessor’s consent to an assignment or subletting of all,
or any part of the Premises other than in connection with any of the Corporate
Events described in Section 11.4 for which no consent is required, Lessee, by
notice in writing, shall offer to vacate the portion of the Premises sought to
be sublet and to surrender the same to Lessor as of the date that Lessee
proposed to vacate the Premises under the terms of the proposed sublease (the
“Cancellation Date”).  Lessor may accept such offer by notice to
Lessee given within twenty (20) days after the receipt of such notice from
Lessee.  If Lessor accepts such offer, Lessee shall surrender to
Lessor, effective as of the Cancellation Date, all Lessee’s right, title and
interest in and to the portion of the Premises sought to be sublet or assigned
unless Lessee retracts its requested assignment/sublet within thirty (30) days
of Lessor’s cancellation notice.  If the entire Premises be so
surrendered by Lessee, this Lease shall be canceled and terminated as of the
Cancellation Date with the same force and effect as if the Cancellation Date
were the date hereinbefore specified for the expiration of the full term of this
Lease.

     

    11.3           In
the event Lessor does not accept such offer of Lessee referred to in Section
11.2 hereof, Lessor covenants not to withhold or delay its consent for a period
of more than ten (10) days after the offer period expires to such proposed
assignment or subletting by Lessee of such space to the proposed assignee or
sublessee, such assignment or subletting may, at the option of Lessee, become
effective at any time after such consent of Lessor, provided, however, that
Lessor shall not in any event be obligated to consent to any such proposed
assignment or subletting unless:

     

    (a) in the
reasonable judgment of Lessor the proposed assignee or sublessee is of a
character and engaged in a business such as are in keeping with the standards of
Lessor in those respects for the Building and its occupancy;

     

    (b) in the
case of those assignments where Lessor’s consent is required under this Lease,
the proposed assignee is of a financial strength and credit worthiness as the
Lessor, in its reasonable discretion, deems sufficient to meet the monetary
obligations of the Lease;

     

    (c) in the
reasonable judgment of Lessor the purposes for which the proposed assignee or
sublessee intends to use the Premises sublet or assigned to it are such as are
in keeping with the standards of Lessor for the Building and its occupancy, it
being understood and agreed that any such written request for consent to a
subletting or assignment shall specify the purpose for which the assignee or
sublessee intends to use the Premises so assigned or sublet and Lessor shall not
be required to consent to the use of the Premises for such specified purposes
should such proposed use be  prohibited by this Lease or should same
be a violation of applicable law;

     

    (d) such
subletting will be of at least an entire Unit (e.g. Unit 1B, 2B or 3B) other
than Floor A1 following a Partial Surrender, which subletting will be in
increments of at least 5,000 square feet, provided however Lessor may condition
its consent, and will not be deemed unreasonable, if it requires Lessee to
restore the Premises to the condition in which it existed (e.g. remove all
demising walls) prior to such subletting;;

     

    (e) Lessee
shall reimburse Lessor for any reasonable expenses (not in excess of $2,000.00)
that may be incurred by Lessor in connection with the said assignment or
sublease, including, without limitation, the costs of making investigations as
to the acceptability of a proposed assignee or sublessee and legal expenses
incurred in connection with the reviewing and granting of any requested consent
to an assignment or subletting;

     

    (f)  (i)  the
proposed subletting shall not be advertised in a written or electronic
publication at a rental rate less than the rental rates at which Lessor is
offering comparable space in the Building for a comparable term;

     

    (ii) Lessee
shall not permit advertising for subletting the Premises or a part thereof until
such advertising has been approved by Lessor, in writing which approval shall
not be unreasonably withheld;

     

    (iii) In the
event Lessee enters into an agreement with a broker to market the Premises or a
part thereof for sublet, Lessee shall notify Lessor, in writing, of the
agreement specifying the material terms that the broker proposes to offer the
space to prospective subtenants;

     

    (g) Lessor
shall not be deemed unreasonable, however, if it refuses to consent to any
proposed sublease or assignment:  (i) in the event the proposed
subtenant or assignee is a (a) tenant of the Building, or is a subsidiary or
affiliate of any such tenant, subtenant or occupant, or (b) a person or entity,
in each case with whom Lessor is then negotiating and Lessor has sufficient
space in the Building to accommodate such entity’s space requirements or (ii)
if, in the reasonable judgment of Landlord, the business of such proposed
subtenant or assignee would (a) not be compatible with the type of occupancy of
the building or (b) violate any exclusive rights granted to any other tenant in
the Building, or (c) overburden the use of the facilities of the
Building.

     

    (h) Lessee
shall pay to Lessor, as and for additional rent, with each monthly installment
of rent due and payable by Lessee to Lessor, in case of a subletting, during the
term of the sublease between Lessee and the sublessee, an amount equal to
seventy-five (75%) of the difference between the rent payable by Lessee to
Lessor with respect to the space covered by the sublease, and the rent received
by Lessee from the sublessee for said space for the same period, and in the case
of an assignment, during the remainder of the term of the Lease, an amount equal
to the difference between the total rent payable by Lessee to Lessor under the
terms of the Lease, and the total amounts payable by the assignee,  in
excess of such total rent (in each case, net of  Lessee’s actual costs
incurred in obtaining such sublessee/assignee, which costs shall be limited to
reasonable counsel fees, brokerage commissions, sublessee/assignee lease
takeover payments, sublessee/assignee moving expenses, advertising and costs
incurred in fitting up of or improvement allowance for the space for such
sublessee/assignee, which fit up costs shall be amortized on a straight line
basis over the shorter of the term of the sublease/assignment and the useful
life of such improvements).

     

    11.4           Corporate
Events.  Notwithstanding anything to contrary in this Lease,
including Section 11 as amended by this Amendment, the parties hereby agree that
(a) any change by Lessee in the form of its legal organization (such as, for
example,  a change from a general to a limited partnership), (b) any
transfer of fifty-one percent (51%) or more of Lessee’s assets, and any other
transfer of interest effecting a change in identity of persons or entities
exercising effective control of lessee, or (c) any transfer of any interest in
this Lease to a subsidiary, parent or an affiliate of Lessee or a successor to
Lessee by way of merger or consolidation, or (d) a bona fide, arms length
transfer of a business operating group or other segment of Lessee’s business
operations provided the transferee will continue the same or substantially the
same business operations it engaged in prior to such transfer and further
provided the combined revenue of the transferred operation and the transferee
together with the assets transferred in conjunction with such transfer will
reasonably enable the transferee to independently fulfill the obligations of the
Lessee under this Lease, will not be deemed an assignment or sublet requiring
Lessor’s prior written consent.  Lessee shall provide Lessor with
written notice of such change in form or transfer within thirty (30) days prior
to same.  The successor entity shall assume all of Lessee’s
obligations under the Lease.

     

    Upon the
occurrence of any of the transfers described in subsections (a) through (d)
above, or any other assignment of the Lease consented to by Lessor then provided
Lessee supplies Lessor with evidence reasonably acceptable to Lessor that the
transferee or successor entity has a tangible net worth as determined in
accordance with generally accepted accounting principles, excluding so-called
“good will” of at least Forty Million Dollars ($40,000,000.00), Lessee shall be
relieved of all further liability and of its obligations under this Lease
arising from and after the date of transfer.  The transfer of any
outstanding capital stock of a corporation whose stock is publicly-traded will
not be deemed a “transfer of interest” under Section 11.

     

    11.5           Each
subletting effectuated pursuant to this Section 11 shall be subject to all the
covenants, agreements, terms, provisions and conditions contained in this
Lease.  Lessee covenants and agrees that, notwithstanding such
assignment or any such subletting to any sublessee and/or acceptance of rent or
additional rent by Lessor from any sublessee other than as set forth to the
contrary in Section 11.4 above, Lessee shall and will remain fully liable for
the payment of the Fixed Rent and additional rent due and to become due
hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this Lease on the part of Lessee to be
performed.  Lessee further covenants and agrees that notwithstanding
any such assignment or subletting, no other and further assignment or subletting
of the Premises shall or will be made except upon compliance with and subject to
the provisions of this Section 11.  Lessee shall promptly furnish to
Lessor an executed copy of any and each permitted sublease.  In
addition, Lessee shall furnish to Lessor an executed copy of an assumption
agreement for any and each permitted assignment whereby the permitted Assignee
shall assume and agree to perform, and be personally bound by and upon all of
the agreements, terms, provisions and conditions set forth in this Lease on the
part of Lessee to be performed, and whereby Assignee shall expressly agree that
the provisions of this Section 11 shall, notwithstanding such assignment or
transfer, continue to be binding upon it with respect to all future assignments
and transfers.

     

    11.6           If
this Lease be assigned or if the Premises be sublet or occupied by anybody other
than Lessee, Lessor may, after default by Lessee, collect rent from the
assignee, sublessee or occupant, and apply the net amount collected to the rent
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of any of Lessee’s covenants contained in this Section
11, or the acceptance of the assignee, sublessee or occupant as Lessee, or a
release of Lessee from the further performance by Lessee of covenants on the
part of Lessee herein contained other than as set forth to the contrary in
Section 11.4 above.

     

    18. In the
event of a Partial Surrender, other than as set forth to the contrary in Section
20 below, Lessee shall have the continuing right, to its existing signage and
branding inside its Premises and the common area immediately adjacent to its
Premises, and subject to Lessor’s prior written approval reasonable replacements
of such signage and branding in the Building Lobby.  When Lessor
leases space to third party lessees, Lessor will install a Building directory in
the common area of the main Building lobby, having a size and location Lessor
and Lessee shall mutually agree upon.  Lessor will thereafter be
entitled to maintain listings on the Building directory of the names of Lessee
and any other firm, association or corporation in occupancy of the Premises or
any part thereof, and the names of an aggregate number of not more than five (5)
officers or employees of the foregoing.

     

    The
listing of any name other than that of Lessee, whether on the doors of the
Premises, on the Building directory, or otherwise, shall not operate to vest any
right or interest in the Lease or in the Premises or be deemed to be the written
consent of Lessor mentioned in this Section 18; it being expressly understood
that any such listing is a privilege extended by Lessor revocable at will by
written notice to Lessee.

     

    19. Section
16 of the Lease is amended as of the Effective Date by adding after clause (iv)
“or (v) via email provided that a hard copy of such email is also sent via any
of the methods permitted by (i) through (iv)” and is also amended as of the
Effective Date to provide that notices to the Lessor shall be as
follows:

     

    Lexington
Lion Dunwoody L.P.

     

    c/o ING
Clarion Partners

     

    230 Park
Avenue, 12th Floor

     

    New York,
NY  10169

     

    ATTN:
Doug Wolski

     

    20. Lessee
acknowledges and agrees that as a result of a Partial Surrender of the Existing
Premises certain modification, alterations and improvements may need to be made
to portions of the Building to accommodate occupancy by multiple tenants and
that certain portions of the Building (e.g. loading dock, elevators in the
A-wing of the Building, certain lavatories in the A-wing of the Building,
directory signs and common lobbies) will become common areas, as more
particularly shown on Exhibit A.  In addition, the security access
system to the Building may be modified by Lessor to accommodate occupancy by
multiple tenants.  In such event, all reasonable costs incurred by
Lessor in connection with maintaining such modified security access system to
the Building will be included in Operating Expenses.  In the event
Lessee desires to provide supplemental security services in the Building and/or
security personnel in the Building’s lobby, it may do so at its sole cost and
expense.  Any such supplemental security service shall be subject to
the prior written consent of Lessor, which approval shall not be unreasonably
withheld or delayed.  Notwithstanding the preceding, Lessee shall have
the right without Lessor consent to install card access readers to the Board
Room  located on the Second Floor of Building A and to the two (2)
training rooms located on the Third Floor of Building A, each as identified on
Exhibit A hereto.  Furthermore, Lessee shall have the right to
designate one or more areas of the Premises for the storage of confidential
information and Lessor agrees (x) that it shall not enter into any such areas
without being escorted by a Lessee representative who Lessee agrees to supply
upon request within a reasonable time (unless in an emergency and in such event
the Lessor may enter at anytime) and (y) in the event it enters into such areas
Lessor shall use commercially reasonable best efforts to preserve the security
of Lessee’s information.  Any supplemental security services provided
by Lessee shall be performed in a manner that does not interfere with the use
and enjoyment of the Building by other Building tenants, or their employees and
invitees.  Furthermore, at such time as Lessor commences construction
in connection with the separation of the Partial Surrender space, Lessee shall
at its sole cost and expense (i) remove the security desk from its current
location and at Lessee’s option, in its sole discretion, install a smaller
security desk to either of the locations designated as Option 1 or Option 2 on
Exhibit J, subject to compliance with all applicable codes and to minor
modifications which Lessor may reasonably request and which are mutually agreed
upon.  Lessee agrees that Lessor shall have the right to approve the
design of the security desk (regardless of whether Lessee selects Option 1 or
Option 2) and the design of the lobby area in the case of Option 2, which
approval in both cases shall not be unreasonably withheld or
delayed.  Regardless of the location of the security desk, Lessee
agrees to pay Base Rent for the occupied area as measured by the architect
described in Paragraph 11 of this Amendment,  (ii) remove its
identification sign from the soffit in the main lobby of the Building and
install either an identification sign to the front of Lessee’s new security desk
if Lessee chooses Option 1or a wall identification sign having a design, size
and location to be mutually agreed upon by Lessor and Lessee if Lessee chooses
Option 2, (iii) remove Lessee specific identification from the existing lobby
media wall, but in all other respects, subject to the mutual agreement of Lessor
and Lessee, the media wall shall remain, and (iv) modify its signs on the
exterior monument signs such that the Lessee shall only be entitled to the
Lessee’s Proportionate Share of the total sign area permitted by applicable law
on such monument signs and in all such cases repair all damage caused by the
actions taken in connection with items (i)(ii) and (iv) and (iii) with respect
to Lessee’s specific identification on the existing lobby media wall only,
unless such repair would not be necessary due to the work to be undertaken by
Lessor as provided for in this Paragraph 20. From and after the Surrender Date,
Lessee agrees that Lessor and Lessor’s representatives shall have access to the
Premises for purposes of creating various common areas shown on Exhibit
A.    Such work shall include, at Lessor’s sole cost and
expense and not includable in Operating Expenses, the undertaking of all
alterations and/or improvements deemed necessary, in Lessor’s sole judgment;
provided all of such alterations and/or improvements shall be in accordance with
standards for first-class office buildings in the Chester County, Pennsylvania
area to accommodate multi-tenant use of the Building.  Furthermore, in
no event shall any such remodeling materially adversely affect Lessee’s use and
enjoyment of the common areas, including, without limitation, the parking areas
and Lessee’s existing equipment or signage that Lessee is not required by this
Amendment to remove (and reasonable maintenance and/or replacements of
same).  In connection with any such alteration and/or improvement work
to be performed to the Premises, Lessee agrees to cooperate with Lessor and
Lessor’s contractors, including but not limited to providing access to the
Premises as needed, and, if necessary, relocating Lessee’s employees and
equipment in connection with Lessor’s work.  Lessor agrees to use its
reasonable efforts to minimize any disruption to Lessee’s business operations,
but such efforts will not be deemed to require Lessor to perform its work during
overtime or non business hours.

     

    21. Brokers.  Lessor
and Lessee each represents to the other that is has not dealt with any real
estate broker with respect to this Amendment and no broker is in any way
entitled to any broker’s fee or other payment from Lessor in connection with
this Amendment.  Lessor and Lessee (each, the “Indemnifying Party”)
shall indemnify and defend the other against any claims by any other broker or
third party claiming through the Indemnifying Party for any commission or
payment of any kind in connection with this Amendment.

     

    22. Counterparts.  This
Amendment may be executed in any number of counterparts and by facsimile or
e-mail (e.g. pdf), each of which when so executed and delivered shall be deemed
to be an original and all of which counterparts taken together shall constitute
but one and the same instrument.  Signature pages may be detached from
the counterparts and attached to a single copy of this Amendment to physically
form one document.  Each person signing below is duly authorized to
execute this Amendment.

     

    23. Reaffirmation of
Obligations.  Lessor and Lessee each hereby acknowledges and
reaffirms all of its obligations under the Lease, as such Lease has been amended
by this Amendment, and agrees that any reference made in any other document to
the Lease shall mean the Lease as amended pursuant to this Amendment. Except as
modified by this Amendment, the Lease and all the covenants, agreements, terms,
provisions and conditions thereof shall remain in full force and effect and are
hereby ratified and affirmed.  The covenants, agreements, terms,
provisions and conditions contained in this Amendment shall bind and enure to
the benefit of the parties hereto and their respective successors and, except as
otherwise provided in the Lease as modified by this Amendment, their respective
assigns.  In the event of any conflict between the terms contained in
this Amendment and the other terms of the Lease, the terms of this Amendment
shall supersede and control the obligations and liabilities of the
parties.

     

    24. Modifications.  This
Amendment may not be modified or terminated except in a writing signed by all
parties.

     

    25. Governing
Law.  This Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of
Pennsylvania.

     

    26. No
Default.  Lessee represents and warrants to Lessor that, to its
knowledge (i) Lessor is not in default of any of its obligations under the
Lease, (ii) no event has occurred which, with the passage of time or the giving
of notice, or both, would constitute a default by Lessor under the
Lease.  Lessor represents and warrants that, to its knowledge (x)
Lessee is not in default of any of its monetary obligations under the Lease and,
to the best of its knowledge, without undertaking any inquiry or investigation
or inspection of the Premises, Lessee is not in default of any of its
non-monetary obligations under the Lease and (y) no event has occurred which,
with the passage of time or the giving of notice, or both, would constitute a
default by Lessee under the Lease.

     

    SIGNATURES
APPEAR ON FOLLOWING PAGE

     

    


    
      
        
          
            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, Lessor and Lessee have caused this Amendment to be duly
executed and delivered as of the date and year above written.

     

    “LESSOR”

     

    LEXINGTON
LION DUNWOODY, L.P.

    
      	
               
      

            	
              By:
      Lexington Lion Dunwood GP LLC,

            


    

    
      	
               
      

            	
              its
      general partner

            


    

    By:  CLPF
– LXP/LV, LP., its sole member

    
      	
               
      

            	
              By:  CLPF
      – LXP/LC GP, LLC,

            


    

    
      	
               
      

            	
              its
      general partner

            


    

    
      	
               
      

            	
              By:
      Clarion Lion Properties Fund Holdings, L.P., its sole
    member

            


    

    By:  CLPF-Holdings,
LLC, its general partner

    
      	
               
      

            	
              By:  Clarion
      Lion Properties Fund Holdings REIT, LLC, its
  sole

            


    

    
      	
               
      

            	
              By:  Clarion
      Lion Properties Fund, LLC,

            


    

    
      	
               
      

            	
              its
      managing member

            


    

    
      	
               
      

            	
              By:  ING
      Clarion Partners, LLC,

            


    

    
      	
               
      

            	
              its
      manager

            


    

     

    By:/s/Margaret
Egan______________________

    Print
Name: Margaret Egan

    Print
Title: Authorized Signatory

     

    “LESSEE”

     

    ING USA ANNUITY AND LIFE INSURANCE
COMPANY, a Delaware corporation

     

    By:/s/ Ronald
Falkner____________________

    Print
Name:  Ronald Falkner

    Print
Title:    Vice President

     
 

    


    
      
        
          
             

            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


    Exhibit
A  Common Areas

     

     

    


    


    
      
        
          
            A-1

            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

     

     

    

    

      
        
          
            A-2

            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      



     

    

     

    
      
        
          
            A-3

            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      



     

    


    Exhibit
I

     

     

     

    


    
      
        
          
            I-1

            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


     

     

    

     

    
 

    
      
        
          
            I-2

            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


     

     

    


    


    
      
        
          
            I-3

            47752/0001-6011329v12

          

           


        

        
           


          
            

          

        

        
           


        

      

    

     

     

    

     

     

     

    
      
        
          
            
              I-4

              47752/0001-6011329v12

            

             


          

          
             


            
              

            

          

          
             


          

        

      

       

      


       

       

    

    
       

      
        
          
            
              
                I-5

                47752/0001-6011329v12

              

               


            

            
               


              
                

              

            

            
               


            

          

        

         

         

        

         

        
 

         

        
          
            
              
                
                  I-6

                  47752/0001-6011329v12

                

                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          



        

      

    

    Exhibit
J

     

     

     

    

    


    
      
        
          
            J-1

            47752/0001-6011329v12