exv10w13



 





Exhibit 10.13




DEED OF LEASE




By and Between




ACP/2300 CORPORATE PARK DRIVE, LLC

(“Landlord”)




and




K12 INC.

(“Tenant”)




* * * *
* *




South Pointe II

2300 Corporate Park Drive

Herndon, Virginia 20171




HOLLAND & KNIGHT LLP

2099 Pennsylvania Avenue, N.W.

Suite 100

Washington, D.C. 20006

(202) 955-3000

(202) 955-5564 (Fax)





 









 








TABLE OF CONTENTS




	 	 	 	Page	 
	1. BASIC LEASE TERMS
	 	 	1	 
	2. PREMISES
	 	 	2	 
	3. TERM AND COMMENCEMENT OF TERM
	 	 	2	 
	4. RENT
	 	 	3	 
	5. SECURITY DEPOSIT
	 	 	6	 
	6. USE
	 	 	8	 
	7. ASSIGNMENT AND SUBLETTING
	 	 	9	 
	8. IMPROVEMENTS AND FIXTURES
	 	 	11	 
	9. UTILITIES AND SERVICES
	 	 	12	 
	10. RIGHTS OF LANDLORD
	 	 	14	 
	11. LIABILITY
	 	 	15	 
	12. INSURANCE
	 	 	16	 
	13. FIRE OR CASUALTY
	 	 	16	 
	14. EMINENT DOMAIN
	 	 	17	 
	15. SUBORDINATION AND ESTOPPEL CERTIFICATES
	 	 	17	 
	16. DEFAULT AND REMEDIES
	 	 	18	 
	17. BANKRUPTCY
	 	 	20	 
	18. PAYMENT OF TENANT’S
OBLIGATIONS BY LANDLORD AND UNPAID
RENT
	 	 	21	 
	19. VOLUNTARY SURRENDER
	 	 	21	 
	20. ABANDONMENT OF PERSONAL PROPERTY
	 	 	21	 
	21. HOLD-OVER
	 	 	21	 
	22. OPTION TO EXTEND TERM
	 	 	21	 
	23. RIGHT OF FIRST OFFER
	 	 	23	 
	24. USA PATRIOT ACT AND
ANTI-TERRORISM LAWS
	 	 	24	 
	25. QUIET ENJOYMENT
	 	 	24	 
	26. PARKING
	 	 	24	 
	27. NOTICES
	 	 	24	 
	28. BROKERS
	 	 	24	 
	29. ENVIRONMENTAL CONCERNS
	 	 	25	 
	30. LANDLORD’S LIEN
	 	 	25	 
	31. RULES AND REGULATIONS
	 	 	25	 
	32. ROOFTOP COMMUNICATIONS
EQUIPMENT
	 	 	25	 
	33. EXTERIOR SIGNAGE
	 	 	27	 
	34. MUST-TAKE SPACE
	 	 	28	 
	35. SUPPLEMENTAL HVAC SYSTEM
	 	 	28	 
	36. MISCELLANEOUS PROVISIONS
	 	 	30	 







i









 








DEED OF LEASE




     THIS
DEED OF LEASE (this “Lease”) is made as of the
7th day
of December,
2005 (the
“Effective Date”), by and between ACP/2300 CORPORATE PARK DRIVE, LLC, a Delaware limited liability
company (“Landlord”), and K12 INC., a Delaware corporation (“Tenant”), who agree as follows:




	1.	 	BASIC LEASE TERMS.





     The following terms shall have the following meanings in this Lease:



	 	 	 	 	 	 	 
	 

	 	a.
	 	Premises:
	 	Approximately 35,740 rentable square feet of space (subject to
increase pursuant to the terms of Section 34 of the Lease) comprising
and a portion of the first (1st) floor, and the entire
second (2nd) floor, of the Building (described in Section
1.b., below), as outlined on the floor plan attached hereto as
Exhibit A.
	 
	 	 	 	 	 	 
	 

	 	b.
	 	Building:
	 	2300 Corporate Park Drive, Herndon, Virginia (the “Building”),
containing approximately 158,897 rentable square feet of office
space, measured in accordance with a modified Building Owners and
Managers Association “Standard Method for Measuring Floor Area”
(ANSI/BOMA Z65.1-1996).
	 
	 	 	 	 	 	 
	 

	 	c.
	 	Commencement Date:
	 	Defined in Section 3.a, below
	 
	 	 	 	 	 	 
	 

	 	 	 	Rent Commencement Date:
	 	May 1, 2006
	 
	 	 	 	 	 	 
	 

	 	d.
	 	Lease Expiration Date:
	 	The last day of the seventh (7th) Lease Year
	 
	 	 	 	 	 	 
	 

	 	e.
	 	Initial Annual Base Rent*:
	 	$27.50 per rentable square foot 
$982,850.04 per annum 

$81,904.17 per month
	 
	 	 	 	 	 	 
	[*subject to escalation as provided for in this Lease]

	 
	 	 	 	 	 	 
	 

	 	f.
	 	Base Year:
	 	Calendar Year 2006
	 
	 	 	 	 	 	 
	 

	 	g.
	 	Tenant’s Pro Rata Share	 	22.49%*
	 

	 	 	 	(Operating Expenses):
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Tenant’s Pro Rata Share	 	22.49%*
	 

	 	 	 	(Real Estate Taxes):
	 	






[*subject to adjustments provided for in this Lease, including the
adjustment resulting from the inclusion in the Premises of the “Must Take Space”
pursuant to Section 34 of this Lease]



	 	 	 	 	 	 	 
	 

	 	h.
	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	To Landlord:
	 	ACP/2300 Corporate Park Drive, LLC 

444 Brickell Avenue 


Suite 900


Miami, Florida 33131

 Attention: Chief Operating
Officer
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	           and
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	ACP/2300 Corporate Park Drive, LLC
 c/o ACP Mid-Atlantic
LLC, as Agent

 2350 Corporate Park Drive

 Suite 110


Herndon, Virginia 20171

 Attention: Asset Manager
	 
	 	 	 	 	 	 
	 

	 	 	 	With a copy to:
	 	Holland & Knight LLP

 2099 Pennsylvania Avenue, N.W. 


Suite 100


Washington, D.C. 20006 

Attention: David S. Kahn,
Esquire
	 
	 	 	 	 	 	 
	 

	 	 	 	To Tenant:
	 	At the Premises






1









 






	 	 	 	 	 	 	 
	 

	 	 	 	With a copy to:
	 	Kelley Drye & Warren LLP

 8000 Towers
Crescent Drive 

Suite 1200 

Vienna, Virginia
22182 

Attention: Joseph B. Hoffman,
Esquire



	 
	 	 	 	 	 	 
	 

	 	i.
	 	Landlord’s Address for
Payment of Rent:
	 	ACP/Woodland Park, LLC 

P.O. Box
01-9741 

Miami, Florida 33101-9741

Landlord’s Tax Identification Number: 20-0194026
	 
	 	 	 	 	 	 
	 

	 	j.
	 	Extension Option:
	 	Two (2) five (5) year options
	 
	 	 	 	 	 	 
	 

	 	k.
	 	Security Deposit:
	 	$2,136,535.98 (Letter of Credit)






2. PREMISES.




     a. Premises. In consideration of Tenant’s agreement to pay Annual Base Rent
(hereinafter defined) and Additional Rent (hereinafter defined) and subject to the covenants and
conditions hereinafter set forth, Landlord hereby leases to Tenant, and Tenant hereby hires and
leases from Landlord, upon the terms and conditions set forth herein, those certain premises
described in Section 1.a. hereof and located in the Building (the “Premises”). The Premises are
located in the Building described in Section 1.b. hereof. The lease of the Premises to Tenant
includes the non-exclusive right, together with other tenants of the Building and members of the
public, to use the common public areas of the Building and the land on which the Building is
situated (the “Land”), but includes no other rights not specifically set forth. The parties hereto
acknowledge that the Building constitutes one of three (3) office buildings owned by Landlord or
Landlord’s affiliates in the office project known as “Woodland Park,” the other buildings having a
street address of 2250 Corporate Park Drive and 2350 Corporate Park Drive, Herndon, Virginia
(collectively, along with the Building, the “Buildings”). For all purposes hereunder, the
Buildings, the land on which the Buildings are located (the “Project Land”) and all common areas,
roadways and public areas therein or thereon are collectively referred to herein as the “Project.”



     b. Improvements. Landlord shall deliver the Premises to Tenant in its “as-is” condition
without (A) any obligation on Landlord’s part to undertake or, except for the Improvement Allowance
(as defined in the Work Agreement (hereinafter defined)) to be provided by Landlord pursuant to the
Work Agreement, pay for, any improvements or alterations therein; or (B) except as otherwise
expressly set forth herein, any representations or warranties regarding the condition thereof.
Tenant shall, at Tenant’s sole cost and expense, subject to the application of the Improvement
Allowance, construct in the Premises the Tenant Improvements (as defined in the Work Agreement)
described in the Work Agreement attached hereto as Exhibit B (the “Work Agreement”), in
substantial accordance with the terms and conditions of the Work Agreement. In the event that
Landlord and Tenant have not finally agreed upon the scope and details of the Tenant Improvements
as of the Effective Date, Tenant’s submissions to Landlord of plans and specifications detailing
such work shall be subject to Landlord’s written approval in accordance with the Work Agreement.
The Tenant Improvements shall be subject to Landlord’s prior written approval, shall comply with
all applicable building codes, laws and regulations (including, without limitation, the Americans
with Disabilities Act, as amended (the “ADA”)), shall not require any changes to or modifications
of any of the mechanical, electrical, plumbing or other systems of the Building, and shall
otherwise be constructed in strict accordance with the terms of the
Work Agreement. The cost of
all design, architectural and engineering work, demolition costs, construction costs, construction
supervision, contractors’ overhead and profit, licenses and permits, and all other costs and
expenses incurred in connection with the Tenant Improvements shall be at Tenant’s sole cost and
expense, subject to the application of the Improvement Allowance pursuant to the terms and
conditions of the Work Agreement. Landlord shall disburse the Improvement Allowance as provided
in the Work Agreement. All costs incurred with respect to the Tenant Improvements in excess of the
Improvement Allowance shall be paid by Tenant as provided in the Work Agreement. Any portion of the
Improvement Allowance not expended by Tenant in undertaking the Tenant Improvements within nine (9)
months after the Effective Date shall be retained by Landlord.



3. TERM AND COMMENCEMENT OF TERM.



     a. Term. This Lease shall be in full force and effect from the Effective Date. The term of
this Lease (the “Term”) shall commence on the date on which Landlord delivers possession of the
Premises to Tenant (the “Commencement Date”) and shall expire on the last day of the seventh
(7th) Lease Year (hereinafter defined) (the “Lease Expiration Date”), unless otherwise
extended or terminated in accordance with the terms hereof. Landlord shall deliver possession of
the Premises to Tenant within five (5) business days of the Effective Date. As used herein, the
term “Lease Year” means (i) each twelve (12)-month period commencing on the Rent Commencement Date
(hereinafter defined), and (ii) each successive period of twelve (12) calendar months thereafter
during the Term. As used herein, the term “Rent Commencement Date” means May 1, 2006. Reference is
made to the form of Declaration of Commencement Date (the “Declaration”) attached hereto as
Exhibit C. Promptly after the Rent Commencement Date, Landlord shall complete the
Declaration and deliver the completed Declaration to Tenant. Within ten (10) business days after
Tenant receives the completed Declaration from Landlord, Tenant shall execute and return the
Declaration to Landlord to confirm the Commencement Date, the Rent Commencement Date, the Term and
the actual number of rentable square feet in the Premises. Failure to execute the Declaration shall
not affect the commencement or expiration of the Term. As used



2









 







herein, the term “business day” shall mean all days other than Saturdays, Sundays and
Holidays (hereinafter defined).



     b. Delays. No delay by Tenant in completing the Tenant Improvements shall delay or otherwise
affect the Rent Commencement Date or Tenant’s obligation to pay Rent from and after such date.


4. RENT. Beginning on the Rent Commencement Date, Tenant covenants and agrees to pay as Rent for
the Premises the following amounts set forth in this Section 4 and as otherwise provided in this
Lease. “Additional Rent” shall mean such costs, expenses, charges and other payments to be made by
(or on behalf of) Tenant to Landlord (or to a third party if required under this Lease), whether
or not the same be designated as such. “Rent” or “rent” shall mean all Annual Base Rent and
Additional Rent due hereunder.




     a. Annual Base Rent.



          (i) During each Lease Year, Tenant shall pay annual base rent in the amounts set forth
immediately below (the “Annual Base Rent”), which amounts shall be payable in equal monthly
installments (the “Monthly Base Rent”) as set forth immediately below:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Annual Base Rent	 	 	 	 
	Lease	 	per Rentable	 	Annual	 	Monthly
	 Year	 	Square Foot	 	Base Rent	 	Base Rent
	1
	 	$	27.50	 	 	$	982,850.04	 	 	$	81,904.17	 
	2
	 	$	28.19	 	 	$	1,007,510.64	 	 	$	83,959.22	 
	3
	 	$	28.89	 	 	$	1,032,528.60	 	 	$	86,044.05	 
	4
	 	$	29.61	 	 	$	1,058,261.40	 	 	$	88,188.45	 
	5
	 	$	30.35	 	 	$	1,084,709.04	 	 	$	90,392.42	 
	6
	 	$	31.11	 	 	$	1,111,871.40	 	 	$	92,655.95	 
	7
	 	$	31.89	 	 	$	1,139,748.60	 	 	$	94,979.05	 






          (ii) In addition to the payment of Annual Base Rent, Tenant shall be responsible for
the payment of Tenant’s Pass-Through Costs (hereinafter defined) pursuant to Section 4.b. hereof.




          (iii) All installments of Monthly Base Rent shall be payable in advance, with the first
monthly installment due and payable upon execution of this Lease.




     b. Tenant’s Pass-Through Costs.



          (i) As used in this Lease:




               (1) “Operating Expenses” shall mean any and all expenses, costs and disbursements (but not
specific costs billed to and paid by specific tenants) of every kind and nature incurred by
Landlord in connection with the ownership, management, operation, maintenance, servicing and repair
of the Building and appurtenances thereto, including, without limitation, the common areas thereof,
and the Land, including, but not limited to, employees’ wages, salaries, welfare and pension
benefits and other fringe benefits; payroll taxes; telephone service; painting of common areas of
the Building; exterminating service; detection and security services; concierge services; sewer
rents and charges; premiums for fire and casualty, liability, rent, workmen’s compensation,
sprinkler, water damage and other insurance; repairs and maintenance; building supplies; uniforms
and dry cleaning; snow removal; the cost of obtaining and providing electricity, water and other
public utilities to all areas of the Building; trash removal; janitorial and cleaning supplies; and
janitorial and cleaning services; window cleaning; service contracts for the maintenance of
elevators, boilers, HVAC and other mechanical, plumbing and electrical equipment; fees for all
licenses and permits required for the ownership and operation of the Building; business license
fees and taxes; the rental value of the management office maintained in the Building, if any; all
costs of operating and maintaining equipment in the health and fitness facility located in the
Building; sales, use and personal property taxes payable in connection with tangible personal
property and services purchased for the management, operation, maintenance, repair, cleaning,
safety and administration of the Buildings; legal fees; accounting fees relating to the
determination of Operating Expenses and the tenants’ share thereof and the preparation of
statements required by tenant’s leases; management fees, whether or not paid to any person having
an interest in or under common ownership with Landlord; purchase and installation of indoor plants
in the common areas; and landscaping maintenance and the purchase and replacement of landscaping
services, plants and shrubbery. If Landlord makes an expenditure for a capital improvement to the
Building (or any portion thereof) by installing energy conservation or labor-saving devices to
reduce Operating Expenses, or to comply with any law, ordinance or regulation pertaining to the
Building (each, a “Permitted Capital Expenditure”), and if, under generally accepted accounting
principles, such expenditure is not a current expense, then the cost thereof shall be amortized
over a period equal to the useful life of such improvement, determined in accordance with generally
accepted accounting principles, and the amortized costs allocated to each calendar year during the
Term, together with an imputed interest amount calculated on the unamortized portion thereof using
an interest rate of twelve percent (12%) per annum,



3









 







shall be treated as an Operating Expense. In the event that any costs with respect to the
operation and management of more than one of the Buildings are allocated among the Building and
any other building owned by Landlord, the costs so allocated to the Building shall be included in
the calculation of Operating Expenses. Notwithstanding anything to the contrary contained in this
Section 4.b(i)(1), Operating Expenses shall not include (i) costs of capital improvements or
capital expenditures determined under generally accepted accounting principles, except for
Permitted Capital Expenditures; (ii) interest, principal, late charges, prepayment penalties or
premiums on any debt owed by Landlord (including any mortgage debt) and depreciation; (iii)
expenses resulting from the negligence or willful misconduct of Landlord, its agents or employees,
but only if such expenses would not have been incurred but for such negligence or willful
misconduct; (iv) legal fees, space planners’ fees, real estate brokers’ leasing commissions and
advertising expenses incurred in connection with the leasing of space in the Building; (v) costs
for which Landlord is reimbursed by insurance (by Landlord’s carrier, Tenant’s carrier or by any
third party’s insurance carrier) or pursuant to any warranty; (vi) any bad debt loss, rent loss,
or reserves for replacements; (vii) costs associated with the operation of the limited liability
company which constitutes Landlord, as opposed to costs associated with the operation of the
Building; (viii) costs of selling, syndicating, financing, mortgaging or hypothecating any of
Landlord’s interest in the Building; (ix) litigation costs relating to suits filed by or against
Landlord and/or the Building (expressly excluding tax assessment appeals); (x) fines and
penalties; (xi) amounts paid as ground rent by Landlord; (xii) the portion of any costs paid to
affiliates of Landlord for services at the Building to the extent that such costs exceed the cost
of such services if rendered by unaffiliated third parties on an arms-length basis; (xiii) rentals
and other related expenses incurred in leasing air conditioning systems, elevators or other
equipment ordinarily considered to be of a capital nature if purchased (excluding equipment not
affixed to the Building which is used in providing janitorial or similar services); (xiv) the cost
of all items and services with respect to which Landlord receives reimbursement (excluding
reimbursement by way of Tenant’s Pass-Through Costs paid by Tenant or other tenants); (xv) costs
incurred by Landlord due to the violation by Landlord of the terms and conditions of any space
lease in the Building, provided that such costs would not have been incurred by Landlord but for
such violation; (xvi) attorneys’ fees, costs and expenses incurred by Landlord in connection with
disputes with tenants or prospective tenants of the Building; (xvii) costs incurred in connection
with the sale, financing, refinancing, mortgaging or sale of the Building, including brokerage
commissions, attorneys’ and accountants’ fees, closing costs, title insurance premiums, transfer
taxes and interest charges; (xviii) costs of correcting any violations of law applicable to the
Building, which violations existed on the Effective Date; (xix) Landlord’s political or charitable
contributions; (xx) Real Estate Taxes; (xxi) costs incurred in connection with work or services or
other benefits that are not offered to Tenant but that are provided to another tenant or occupant
of the Building without additional cost; (xxii) federal income taxes assessed against Landlord;
(xxiii) costs of remediating Hazardous Materials (hereinafter defined) in the Building to the
extent such Hazardous Materials (A) were present in the Building on the Commencement Date in
violation of any Environmental Laws (hereinafter defined) or (B) were introduced to the Building
by Landlord, or its agents or employees; or (xxiv) the costs of constructing any health and
fitness facility located in the Building and the cost of purchasing, installing or replacing any
equipment in such health and fitness facility. Landlord shall not duplicate any component of
Operating Expenses under the terms of this Lease.



               (2) “Real Estate Taxes” shall mean all taxes, assessments and charges levied upon or with
respect to the Land (or any portion thereof), the Building, and any improvements adjacent thereto
(computed as payable in installments as permitted by law regardless of whether so paid), including,
without limitation, vault rents, if any, franchise taxes, any tax, fee or excise on rents, on the
square footage of the Premises including the Fairfax County Business License Tax, on the act of
entering into this Lease, on the occupancy of Tenant, on account of the rent hereunder or the
business of renting space now or hereafter levied or assessed against Landlord by the United States
of America or the state, county, city or town in which the Building are located, or any political
subdivision, public corporation, district or other political or public entity; and shall also
include any other tax to the extent that such tax is imposed in lieu of or in addition to such Real
Estate Taxes. Reasonable legal fees, costs and disbursements incurred by Landlord in connection
with any proceedings for appeal or reduction of any Real Estate Taxes shall also be considered Real
Estate Taxes for the year in question. In the event that Real Estate Taxes for the Land and the
Building are not separately assessed, Landlord shall allocate to the Land and the Building the
portion of the total Real Estate Tax assessment that fairly represents the relative values of all
properties that have been assessed together.



               (3) “Tenant’s
Pro Rata Share (Operating Expenses),” as of the date hereof, shall be as provided in Section 1.g., representing the ratio that the rentable area of the Premises bears to
the total rentable area of office space in the Building. If either the rentable area of the
Premises or the total rentable area of the Building, shall be increased or decreased, as reasonably
determined by Landlord, Tenant’s Pro Rata Share (Operating Expenses) shall be adjusted accordingly.



               (4) “Tenant’s Pro Rata Share (Real Estate Taxes),” as of the date hereof, shall be as provided
in Section 1.g., representing the ratio that the rentable area of the Premises bears to the total
rentable area of the Building. If either the rentable area of the, Premises or the total rentable
area of the Building, shall be increased or decreased, as reasonably determined by Landlord,
Tenant’s Pro Rata Share (Real Estate Taxes) shall be adjusted accordingly.



               (5) “Base Year” means calendar year 2006.



          (ii) If, in any calendar year during the Term, the total amount of Operating Expenses for the
Buildings exceed the amount of Operating Expenses in the Base Year, then Tenant shall pay to
Landlord, as Additional Rent, commencing on January 1, 2007, an amount which is the product of (1)
the amount of such increase in Operating Expenses, multiplied by (2) Tenant’s Pro Rata Share
(Operating




4









 




Expenses). Tenant’s Pro Rata Share (Operating Expenses) of increases in Operating Expenses for any
partial calendar year during the Term shall be determined by multiplying the amount of Tenant’s
Pro Rata Share (Operating Expenses) of increases in Operating Expenses for the full calendar year
by a fraction, the numerator of which is the number of days during such calendar year falling
within the Term and the denominator of which is three hundred sixty-five (365). If in any calendar
year during the Term, the amount of Real Estate Taxes exceeds the amount of Real Estate Taxes for
the Base Year, then Tenant shall pay, as Additional Rent, commencing on January 1, 2007, an amount
which is the product of (x) the amount of such increase in Real Estate Taxes, multiplied by (y)
Tenant’s Pro Rata Share (Real Estate Taxes). Tenant’s Pro Rata Share (Real Estate Taxes) of
increases in Real Estate Taxes for any partial calendar year during the Term shall be determined
by multiplying the amount of Tenant’s Pro Rata Share (Real Estate Taxes) of increases in Real
Estate Taxes for the full calendar year by a fraction, the numerator of which is the number of
days during such calendar year falling within the Term and the denominator of which is three
hundred sixty-five (365).




          (iii) If at any time during the Base Year, or during any subsequent calendar year
(“Subsequent Year”), less than ninety-five percent (95%) of the total rentable square feet of
office space in the Building is occupied by tenants, the amount of Operating Expenses for the Base
Year, or for any such Subsequent Year, as the case may be, shall be deemed to be the amount of
Operating Expenses as reasonably estimated by Landlord that would have been incurred if the
percentage of occupancy of the Building during the Base Year or any such Subsequent Year was
ninety-five percent (95%). If at any time during any calendar year, any part of the Building is
leased to a tenant (hereinafter referred to as a “Special Tenant”) who, in accordance with the
terms of its lease, provides its own utilities, cleaning or janitorial services or other services
or is not otherwise required to pay a share of Operating Expenses in accordance with the
methodology set forth in this Section 4.b., and Landlord does not incur the cost of such services,
Operating Expenses for such calendar year shall be increased by the additional costs for cleaning
and janitorial services and such other applicable expenses as reasonably estimated by Landlord
that would have been incurred by Landlord if Landlord had furnished and paid for cleaning and
janitorial services and such other services for the space occupied by the Special Tenant, or if
Landlord had included such costs in “operating expenses” as defined in the Special Tenant’s lease.




          (iv) During the month of December, 2006 (or as soon thereafter as is reasonably practicable),
and thereafter during the month of December of each Lease Year (or as soon thereafter as is
reasonably practicable), Landlord shall use reasonable efforts to furnish to Tenant a statement of
Landlord’s estimate of Tenant’s Pass-Through Costs for the next calendar year. “Tenant’s
Pass-Through Costs” shall be an amount equal to the sum of (1) Tenant’s Pro Rata Share (Operating
Expenses) multiplied by the difference between Operating Expenses incurred during any calendar
year during the Term, and Operating Expenses incurred in the Base Year; plus (2) Tenant’s Pro Rata
Share (Real Estate Taxes) multiplied by the difference between Real Estate Taxes for any calendar
year during the Term and Real Estate Taxes incurred during the Base Year. Such statement shall
show the amount of Tenant’s Pass-Through Costs, if any, payable by Tenant for such calendar year
pursuant to this Section 4.b. on the basis of Landlord’s estimate. Commencing on January 1, 2007,
and continuing on each monthly rent payment date thereafter until further adjustment pursuant to
this Section 4.b.(iv), Tenant shall pay to Landlord one-twelfth (1/12) of the amount of said
estimated Tenant’s Pass-Through Costs. Within one hundred and twenty (120) days after the
expiration of each calendar year during the Term, Landlord shall furnish to Tenant a statement
(the “Expense Statement”) showing the actual Operating Expenses and Real Estate Taxes for such
calendar year. The Expense Statement shall be conclusive and binding on Tenant, unless objected to
in writing by Tenant within sixty (60) days following Tenant’s receipt thereof. In case of an
underpayment, Tenant shall, within thirty (30) days after the receipt of such statement, pay to
Landlord an amount equal to such underpayment. In case of an overpayment, Landlord shall credit
the next monthly rental payment by Tenant with an amount equal to such overpayment. Additionally,
if this Lease shall have expired, Landlord shall apply such excess against any sums due from
Tenant to Landlord and shall refund any remainder to Tenant within sixty (60) days after the
expiration of the calendar year in which the Term ends.




          (v) Tenant shall be entitled to the following audit right with respect to a Expense Statement
delivered by Landlord. Such audit right shall be exercisable by Tenant’s providing Landlord with
written notice of Tenant’s exercise of such audit right within sixty (60) days of Tenant’s receipt
of such Expense Statement, time being of the essence. Tenant’s notice shall contain a statement of
Tenant’s reasonable objections to such Expense Statement. If, within forty-five (45) days after
Landlord’s receipt of Tenant’s written notice, Landlord and Tenant are unable to resolve Tenant’s
objections, then not later than fifteen (15) days after the expiration of such forty-five (45)-day
period Tenant shall deliver to Landlord written notice (the “Audit Notice”) that it wishes to
employ on an hourly rate (and not a contingency fee) basis an independent certified public
accounting firm reasonably acceptable to Landlord to inspect and audit Landlord’s books and records
at the Building relating to the objections raised in Tenant’s notice. If Tenant elects to employ
such accounting firm as set forth above, then Tenant shall deliver to Landlord a confidentiality
and nondisclosure agreement satisfactory to Landlord executed by Tenant and such accounting firm,
and provide Landlord not less than fifteen (15) days’ notice of the date on which the accounting
firm desires to examine Landlord’s books and records at the Building during regular business hours;
provided, however, that such date shall be between thirty (30) and ninety (90) days after Tenant
delivers to Landlord the Audit Notice. Such audit shall be limited to a determination of whether
Landlord calculated the Expense Statement in accordance with the terms and conditions of this
Lease. Except as otherwise expressly set forth below, all costs and expenses of any such audit
shall be paid by Tenant. Notwithstanding anything contained herein to the contrary, Tenant shall be
entitled to exercise its right to audit pursuant to this Section 4.b(v) only in strict accordance
with the foregoing procedures and each such audit shall relate only to the calendar year covered by
the Expense Statement most recently delivered by Landlord. As a condition precedent to exercising
its audit rights, Tenant shall




5









 




pay to Landlord all monies which Landlord claims are owing by Tenant, as shown on the Expense
Statement. Except for an Affiliate (hereinafter defined) of Tenant to which Tenant has assigned
its interest in this Lease, the audit rights pursuant to this Section 4b(v) shall not transfer or
apply to any subtenant or any other person or entity other than K12 Inc. If on account of any
demonstrated errors in the Expense Statement under audit, Tenant is entitled to a refund of the
amount paid by Tenant for Tenant’s Pass-Through Costs for the calendar year under audit because
such Expense Statement overstated the amounts to which Landlord was entitled hereunder, Landlord
shall credit the next monthly rental payment by Tenant with an amount equal to such refund. If the
Expense Statement under audit overstated the amounts to which Landlord was entitled to hereunder
by more than four percent (4%), then Landlord shall promptly reimburse Tenant for its reasonable
costs and expenses incurred in such audit in an amount not to exceed Two Thousand Five Hundred
Dollars ($2,500.00). In the event the audit reveals an underpayment by Tenant for Tenant’s
Pass-Through Costs, Tenant shall pay to Landlord an amount equal to such underpayment within
thirty (30) days.




          (vi) All monies received from Tenant as Tenant’s Pass-Through Costs shall be received by
Landlord to pay Operating Expenses and Real Estate Taxes of the Building and the Land.
Notwithstanding the foregoing, Landlord shall have the right to commingle Tenant’s Pass-Through
Costs with other funds collected by Landlord.




          (vii) Tenant’s obligation to pay Tenant’s Pass-Through Costs pursuant to the provisions of
this Section 4.c. shall survive the expiration or other termination of this Lease with respect to
any period during the Term hereof and with respect to any holdover period of occupancy following
the expiration of the Term.




          (viii) Notwithstanding anything contained in this Section 4.b. to the contrary, Landlord
reserves the right, at any time in the future, to aggregate some or all of the Operating Expenses
and/or Real Estate Taxes with the expenses and/or taxes, respectively, incurred in connection with
the operation of all the Buildings in the Project, in which event Tenant’s Pro Rata Share
(Operating Expenses) and/or Tenant’s Pro Rate Share (Real Estate Taxes), as applicable, shall be
adjusted accordingly by Landlord.




     c. Payment of Rent. All Rent shall be paid in lawful money of the United States of America
without deduction, diminution, set-off, counterclaim or prior notice or demand, at the office of
Landlord as provided in Section 1.i. hereof or at such other place as Landlord may hereafter
designate in writing, on the first day of every calendar month during the Term. All such payments
shall be made by good checks payable to Landlord or such other person, firm or corporation as
Landlord may hereafter designate in writing. No payment by Tenant or receipt and acceptance by
Landlord of a lesser amount than the Monthly Base Rent or Additional Rent shall be deemed to be
other than partial payment of the full amount then due and payable; nor shall any endorsement or
statement on any check or any letter accompanying any check, payment of Rent or other payment, be
deemed an accord and satisfaction; and Landlord may accept, but is not obligated to accept, such
partial, payment without prejudice to the Landlord’s right to recover the balance due and payable
or to pursue any other remedy provided in this Lease or by law. If Landlord shall at any time or
times accept Rent after it becomes due and payable, such acceptance shall not excuse a subsequent
delay or constitute a waiver of Landlord’s rights hereunder. Any Rent owed by Tenant to Landlord,
including, without limitation, Annual Base Rent, Additional Rent, Tenant’s Pass-Through Costs and
Late Charges, which is not paid within five (5) days after the date such payment is due shall bear
interest from the due date at a rate equal to the prime rate on corporate loans quoted in the Wall
Street Journal (the “Prime Rate”) plus two percent (2%). In addition, if any amount of Rent
required to be paid by Tenant to Landlord under the terms of this Lease is not paid within five (5)
days after the date such payment is due, then in addition to paying the amount of Rent then due,
Tenant shall pay to Landlord a late charge (the “Late Charge”) equal to four percent (4%) of the
amount of Rent then required to be paid; provided, however, that Landlord agrees to waive the first
(1st) such Late Charge in any Lease Year during the Term, provided that Tenant pays the
Rent then due within three (3) days after Tenant’s receipt of written notice from Landlord.
Payment of such Late Charge will not excuse the untimely payment of Rent. In the event Tenant
makes any payment of Rent by check and said check is returned by the bank unpaid, Tenant shall pay
to Landlord the sum of Seventy-Five Dollars ($75.00) to cover the costs and expenses of processing
the returned check, in addition to the Rent payment and any other charges provided for herein. Any
interest, Late Charge and other amounts charged hereunder shall constitute Additional Rent.



     d. Separate Metering and Rent Reduction. Landlord may elect to discontinue the distribution
or furnishing of electricity and/or water to the Premises if such services are available and may
feasibly be furnished directly to Tenant by the utility company supplying same. In the event of any
such election by Landlord: (i) Landlord agrees to give reasonable advance notice of such
discontinuance to Tenant; (ii) Landlord agrees to permit Tenant to receive electricity and/or water
directly from the utilities supplying such service to the Building and to permit the existing
feeders, risers, wiring, pipes and other facilities serving the Premises to be used by Tenant for
such purpose to the extent they are suitable and safely capable of carrying Tenant’s requirements;
(iii) Landlord agrees to pay such charges and costs, if any, as such public utility may impose in
connection with the installation of Tenant’s meters; (iv) Landlord shall install, at Landlord’s
expense, any additional equipment reasonably required by the utility company which may be necessary
to furnish such service to Tenant; and (v) the amount of Additional Rent payable in respect to the
Operating Expenses shall be decreased appropriately to reflect such discontinuance. This Lease
shall remain in full force and effect and such discontinuance shall not constitute an actual or
constructive eviction, in whole or in part, or relieve Tenant from any of its obligations under
this Lease.




5. SECURITY DEPOSIT.




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     a. Landlord acknowledges receipt from Tenant of the Letter of Credit (hereinafter defined) in
the amount set forth in Section 5.b, below to be held by Landlord during the Term as collateral
security (the “Security Deposit”) (and not prepaid rent), for the payment of Annual Base Rent and
Additional Rent and for the faithful performance by Tenant of all other covenants, conditions and
agreements of this Lease. Landlord shall not be obligated to hold the Letter of Credit or any
proceeds thereof in a separate account. The Security Deposit shall not earn interest. If any sum
payable by Tenant to Landlord shall be overdue and unpaid, or if Landlord makes any payments on
behalf of Tenant, or if Tenant fails to perform any of the terms of this Lease, then Landlord, at
its option and without prejudice to any other remedy which Landlord may have, may apply all or part
of the Security Deposit to compensate Landlord for the payment of Annual Base Rent or Additional
Rent, or any loss or damage sustained by Landlord. Tenant shall restore the Security Deposit to the
original sum deposited upon demand. Provided that Tenant shall have made all payments and performed
all covenants and agreements of this Lease, Landlord shall return the Security Deposit to Tenant
(except to the extent of any portion of the Security Deposit which has been applied by Landlord and
not restored by Tenant) within ninety (90) days after the expiration of this Lease or the vacation
of the Premises by Tenant.



     b. Contemporaneously with Tenant’s execution and delivery to Landlord of this Lease, Tenant
has delivered to Landlord an unconditional and irrevocable letter of credit issued by a federally-insured banking institution reasonably acceptable to Landlord in the face amount of Two Million One
Hundred Thirty-Six Thousand Five Hundred Thirty-Five and 98/100 Dollars ($2,136,535.98) (the
“Letter of Credit”), as a Security Deposit to be held by Landlord until disposed of in accordance
with the provisions of this Section 5. The Letter of Credit shall be in the form attached hereto
as Exhibit E, and shall be issued for a term ending ninety (90) days after the Lease
Expiration Date (or, if applicable, the last day of any applicable Extension Period (hereinafter
defined)). If the Letter of Credit (or any replacement thereof) is issued for an effective period
of time ending less than ninety (90) days after the expiration of the Term of this Lease (or any
renewal thereof), Tenant shall from time to time, and not later than sixty (60) days prior to the
expiration of the Letter of Credit, replace each such expiring Letter of Credit with a new Letter
of Credit in the same amount and upon the same terms. The Letter of Credit (and any replacement
thereof) may be drawn upon by Landlord under the terms and conditions as provided in this Section
5. Failure of Tenant to renew the Letter of Credit at least sixty (60) days prior to its expiration
shall constitute an Event of Default (hereinafter defined) under this Lease and shall entitle
Landlord, in addition to the other remedies contained in this Lease, to draw upon the Letter of
Credit.



     c. Landlord (or the beneficiary under the Letter of Credit, if such beneficiary is not
Landlord) shall have the right to draw upon the Letter of Credit in any of the following
circumstances (in addition to any other right to draw on the Letter of Credit that is set forth in
this Section 5): (i) if the credit rating of the issuer of the Letter of Credit is downgraded from
the credit rating of such issuer at the time of the issuance of the Letter of Credit, the issuer of
the Letter of Credit shall enter into any supervisory agreement with any governmental authority, or
the issuer of the Letter of Credit shall fail to meet any capital requirements imposed by
applicable law, and Tenant fails to deliver to Landlord (or the beneficiary under the Letter of
Credit, if such beneficiary is not Landlord) a replacement Letter of Credit complying with the
terms of this Lease within thirty (30) days of request from
Landlord, (ii) if Tenant fails to
provide Landlord with any renewal or replacement Letter of Credit complying with the terms of this
Lease at least sixty (60) days prior to expiration of the then-current Letter of Credit where the
issuer of such Letter of Credit has advised Landlord of its intention not to renew the Letter of
Credit, (iii) if Tenant fails to provide Landlord with any renewal or replacement Letter of Credit
complying with the terms of this Lease at least sixty (60) days prior to the final expiration date
(i.e., the date that, by the terms of the Letter of Credit, the Letter of Credit expires and is
either not subject to any automatic renewal or extension or the conditions to such automatic
renewal or extension have not then been satisfied) of the then-current Letter of Credit if such
Letter of Credit expires prior to the date that is ninety (90) days after the end of the Term, or
(iv) any voluntary or involuntary proceedings are filed by or against Tenant under any bankruptcy,
insolvency or similar laws. In the event the Letter of Credit is drawn upon due solely to the
circumstances described in the foregoing clauses (i), (ii), (iii) or (iv), the amount drawn shall
be held by Landlord as a cash Security Deposit in accordance with the terms of this Section 5, and
shall be otherwise retained, expended or disbursed by Landlord for any amounts or sums due under
this Lease to which the proceeds of the Letter of Credit could have been applied pursuant to this
Lease, and Tenant shall be liable to Landlord for restoration, by way of a Letter of Credit
complying with the terms of this Lease or, at Landlord’s sole option, cash, of any amount so
expended to the same extent as set forth in this Section 5.



     d. In the event of the sale or transfer of Landlord’s interest in the Building, Landlord shall
transfer the Letter of Credit to the purchaser or assignee, in which event Tenant shall look only
to the new landlord for the return of the Letter of Credit, and Landlord shall thereupon be
released from all liability to Tenant for the return of the Security Deposit. Tenant hereby agrees
not to look to the mortgagee, as mortgagee, mortgagee in possession, or successor in title to the
property, for accountability for any security deposit required by the Landlord hereunder, unless
said sums have actually been received by said mortgagee as security for Tenant’s performance of
this Lease. In the event of any permitted assignment of Tenant’s interest in this Lease, the
Letter of Credit may, at Landlord’s sole option, be held by Landlord as a deposit made by the
assignee, and Landlord shall have no further liability to Tenant with respect to the return of the
Letter of Credit.



     e. Notwithstanding anything to the contrary contained in this Section 5, and provided that, as
of the applicable Reduction Date (hereinafter defined): (a) Tenant is not in default of its
obligations under the Lease, and (b) Landlord determines in its sole discretion that (i) Tenant’s
Net Worth (hereinafter defined) equals or exceeds Twenty-Five Million Dollars ($25,000,000.00),
(ii) Tenant’s Net Worth has increased during the immediately-preceding twelve (12) month period,
(iii) Tenant’s ratio of current assets (minus good will and other intangibles) to current
liabilities ‘(i.e., current assets divided by current



7









 







liabilities) is no less than 1.0, and (iv) Tenant’s ratio of total debt to total equity (i.e.,
total debt divided by total equity) as of the Reduction Date is not greater than 1.5, then the
then-current face amount of the Letter of Credit shall be reduced by twenty—five percent (25%) as
of the first day of each of the fourth (4th), fifth (5th) and sixth
(6th) Lease Years (each, a “Reduction Date”). In no event shall the face amount of the
Letter of Credit be reduced below Five Hundred Thirty-Four Thousand One Hundred Thirty-Four
Dollars ($534,134.00) pursuant to the terms of this Section 5.e). No such reduction in the face
amount of the Letter of Credit shall be undertaken by the Tenant or the issuer of the Letter of
Credit unless and until Landlord notifies such issuer in writing that Tenant has satisfied the
conditions precedent to such reduction (“Landlord’s Reduction Notification”). The foregoing
reductions shall be effected by Tenant replacing the Letter of Credit then being held by Landlord
with a new Letter of Credit (complying with the terms of this Lease) in the amount then required
to be maintained with Landlord pursuant to the foregoing provisions (or amending the then existing
Letter of Credit to the amount then required to be maintained with Landlord pursuant to the
foregoing provisions). At least thirty (30) days prior to the then-applicable Reduction Date,
Tenant shall submit audited financial statements to Landlord containing financial information
which Landlord confirms is sufficient to enable Landlord to determine whether Tenant has satisfied
the conditions precedent set forth in subparagraph (b), above (the “Security Deposit Reduction
Financial Statements”). The Security Deposit Reduction Financial Statements provided must be as of
a date not more than six (6) months prior to the applicable Reduction Date. As used herein, the
term “Net Worth” shall mean an amount equal to Tenant’s assets (excluding good will and other
intangibles) as of the applicable Reduction Date minus Tenant’s liabilities as of the applicable
Reduction Date. Provided Tenant has timely submitted the applicable Security Deposit Reduction
Financial Statements to Landlord in accordance with the terms of this
Section 5.e, Landlord shall use reasonable efforts to deliver the Landlord’s Reduction Notification to the issuer of the
Letter of Credit within sixty (60) days after the applicable reduction date.



6. USE.




     a. Tenant covenants with the Landlord not to use the Premises for any purpose other than
general office use for the conduct of the Tenant’s business. Tenant shall not use the Premises or
allow the Premises to be used (i) for any other purpose without the prior written consent of the
Landlord; or (ii) in any manner or for any purpose which violates any applicable Legal Requirements
(hereinafter defined). Except as otherwise set forth immediately below or in Section 9.f, below,
Tenant, at Tenant’s expense, shall comply with all laws, codes, rules, orders, ordinances,
directions, regulation, and requirements of federal, state, county, and municipal authorities, now
in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant
with respect to the condition, maintenance, use, occupation, operation or alteration of the
Premises, or the conduct of Tenant’s business therein, including, without limitation, the ADA and
all applicable zoning, recycling and environmental laws and regulations. Tenant hereby agrees to
indemnify and hold harmless Landlord and its agents, officers, directors and employees from and
against any cost, damage, claim, liability and expense (including attorneys’ fees) arising out of
claims or suits brought by third parties (including governmental authorities) against Landlord, its
agents, officers, directors and employees alleging or relating to the failure of the Premises to
comply with the terms of the ADA or any other law or regulation applicable to the Premises and/or
its occupancy by Tenant. Notwithstanding the foregoing, the indemnity set forth in the
immediately preceding sentence shall not apply to claims or suits arising out of the failure by the
Sole Occupant Bathrooms (hereinafter defined) to comply with the terms of the ADA. As used herein,
the term “Sole Occupant Bathrooms” means the bathrooms located in those portions of the Premises
which are located on floors of the Building on which Tenant occupies one hundred percent (100%) of
the rentable square footage of space on such floor. Tenant shall not use or permit the Premises or
any part thereof to be used in any manner that constitutes waste, nuisance or unreasonable
disturbances to other tenants of the Building or for any disorderly, unlawful or hazardous purpose
and will not store or maintain therein any hazardous, toxic or highly combustible items other than
usual and customary office supplies intended for Tenant’s use and in such event, only in such
amounts as permitted by applicable law. Tenant covenants not to change Tenant’s use of the Premises
without the prior written approval of Landlord.



     b. Tenant shall not put the Premises to any use, the effect of which use is reasonably likely
to cause cancellation of any insurance covering the Premises or the Building, or an increase in the
premium rates for such insurance. In the event that Tenant performs or commits any act, the effect
of which is to raise the premium rates for such insurance, Tenant shall pay Landlord the amount of
the additional premium, as Additional Rent payable by Tenant upon demand therefor by Landlord.
The Premises shall not be used for any illegal purpose or in violation of any regulation of any
governmental body or the regulations or directives of Landlord’s insurance carriers, or in any
manner which interferes with the quiet enjoyment of any other tenant of the Building. Tenant will
not install or operate in the Premises any electrical or other equipment, other than such equipment
as is commonly used in modern offices (specifically excluding mainframe computers), without first
obtaining the prior written consent of Landlord, who may condition such consent upon the payment by
Tenant of Additional Rent in compensation for excess consumption of water, electricity and/or other
utilities, excess wiring and other similar requirements, and any changes, replacements or additions
to any base building system, as may be occasioned by the operation of said equipment or machinery.



     c. Tenant agrees to maintain the Premises, and the Tenant Improvements and other Alterations
(hereinafter defined) therein, in good order, repair and condition during the Term at Tenant’s sole
cost and expense, and Tenant will, at the expiration or other termination of the Term, surrender
and deliver the same and all keys, locks and other fixtures connected therewith (excepting only
Tenant’s personal property) in good order, repair and condition, as the same shall be at the
Commencement Date, except as repaired, rebuilt, restored, altered or added to pursuant to this
Lease, and except for ordinary wear and tear. Landlord shall have no obligation to Tenant to make
any repairs in or to the Premises, the



8









 







Tenant Improvements or any Alterations, except as otherwise expressly set forth herein. Any and
all damage or injury to the Premises (including, but not limited to, the Tenant Improvements), the
Building or the Land caused by Tenant, or by any employee, agent, contractor, assignee, subtenant,
invitee or customer of Tenant shall be promptly reported to Landlord and repaired by Tenant at
Tenant’s sole cost; provided, however, that Landlord shall have the option of repairing any such
damage, in which case Tenant shall reimburse Landlord for all actual costs incurred by Landlord in
respect thereof as Additional Rent within twenty (20) days after Tenant receives Landlord’s notice
of such costs.



     d. Tenant shall not place a load upon the floor of the Premises exceeding the designated
floor load capacity of the Building (e.g. 100 pounds per square foot: 80 pounds per square foot,
live load, and 20 pounds per square foot, dead load) without Landlord’s prior written consent.
Business machines, mechanical equipment and materials belonging to Tenant which cause vibration,
noise, cold, heat or fumes that may be transmitted to the Building or to any other leased space
therein to such a degree as to be objectionable to Landlord or to any other tenant in the
Building shall be placed, maintained, isolated, stored and/or vented by Tenant at its sole expense
so as to absorb and prevent such vibration, noise, cold, heat or fumes.



7. ASSIGNMENT AND SUBLETTING.




     a. Tenant shall not, without the prior written consent of Landlord in each instance: (i)
assign or otherwise transfer this Lease or any of Tenant’s rights hereunder, (ii) sublet the
Premises or any part thereof, or permit the use of the Premises or any part thereof by any persons
other than Tenant or its employees, agent and invitees, or (iii) permit the assignment or other
transfer of this Lease or any of Tenant’s rights hereunder by operation of law. Landlord’s consent
to a proposed assignment or sublease shall not be unreasonably withheld, conditioned or delayed,
provided Landlord reasonably determines that the proposed assignee or subtenant (A) is of a type
and quality consistent with the first-class nature of the Building, (B) has the financial capacity
and creditworthiness to undertake and perform the obligations of this Lease or the sublease, (C) is
not a party by whom any suit or action could be defended on the ground of sovereign immunity or
diplomatic immunity and (D) will not impose any additional material burden upon Landlord in the
operation of the Building (to an extent greater than the burden to which Landlord would have been
had Tenant continued to use such part of the Premises). In addition, the following conditions must
be satisfied at the time Tenant requests Landlord’s consent to an assignment or sublease:



               (1) no Event of Default (hereinafter defined) exists and no event has occurred which, with
notice and/or the passage of time, would constitute an Event of Default if not cured within the
time, including any applicable grace period, specified herein;



               (2) Landlord receives at least thirty (30) days prior written notice of Tenant’s intention to
assign this Lease or sublet any portion of the Premises (“Tenant’s Transfer Notice”);



               (3) the proposed use of the Premises will not violate any agreement affecting the Premises or
the Building (provided, that if such proposed use will violate any such agreement, Landlord shall
notify Tenant thereof after Landlord’s receipt of Tenant’s Transfer Notice);



               (4) Tenant submits to Landlord, within five (5) days after Landlord’s request therefor,
whatever information Landlord reasonably requires in order to permit Landlord to approve of or
disapprove of the proposed subletting or assignment, including without limitation the name,
business experience, financial history, net worth and business references of the proposed assignee
or subtenant (and each of its principals), an in-depth description of the transaction, and the
consideration delivered to Tenant for the assignment or sublease; and



               (5) Tenant has paid to Landlord an administrative fee in the amount of Seven Hundred
Fifty Dollars ($750.00) which shall be retained by Landlord whether or not such consent is granted.



     b. All proposed subleases and assignments shall be on a form of sublease or assignment,
whichever is applicable, reasonably acceptable to Landlord; and shall contain, inter alia, the
following provisions: (i) any such assignment or sublease shall include an assumption by the
assignee or subtenant, from and after the effective date of such assignment or sublease, of the
performance and observance of the covenants and conditions to be performed and observed on the part
of Tenant as contained in this Lease, and (ii) any such sublease or assignment shall specify that
this Lease or sublease shall not be further assigned nor the Premises further sublet (except in
strict accordance with the terms and conditions of this Lease) and shall specify that the term of
such sublease shall not extend beyond one (1) day prior to the expiration of this Lease. The
consent by Landlord to any assignment, transfer or subletting to any person or entity shall not be
construed as a waiver or release of Tenant from any provision of this Lease, unless expressly
agreed to in writing by Landlord (it being understood that Tenant shall remain primarily liable as
a principal and not as a guarantor or surety), nor shall the collection or acceptance of rent from
any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant from
any such provision. No consent by Landlord to any such assignment, transfer or subletting in any
one instance shall constitute a waiver of the necessity for such consent in a subsequent instance.



     c. In the event that Tenant assigns this Lease or sublets all or any portion of the Premises,
Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the difference between (i)
all sums



9









 







paid to Tenant or its agent by or on behalf of such assignee or subtenant under the assignment or
sublease after deducting Tenant’s reasonable, actual expenses of obtaining such assignment or
subleasing, including, but not limited to, brokerage commissions, tenant improvement or other
allowances or concessions granted and actually paid out by Tenant, advertising and marketing
costs incurred, and legal fees (with all such expenses amortized on a straight-line basis over the
term of the proposed sublease or over the term of the assignment), and (ii) the Annual Base Rent
and Additional Rent paid by Tenant under this Lease and attributable to the portion of the
Premises assigned or sublet.



     d. For purposes of this Section 7, a transfer, conveyance, grant or pledge, directly or
indirectly, in one or more transactions, of an interest in Tenant (whether stock, partnership
interest or other form of ownership or control, or the issuance of new interests) by which an
aggregate of more than fifty percent (50%) of the beneficial interest in Tenant shall be vested in
a party or parties who are not holders of such interest(s) as of the date hereof) shall be deemed
an assignment of this Lease; provided, however, that this limitation shall not apply to any
corporation, all of the outstanding voting stock of which is listed on a national securities
exchange as defined in the Securities Exchange Act of 1934. The merger or consolidation of Tenant
into or with any other entity, the sale of all or substantially all of Tenant’s assets, or the
dissolution of Tenant shall each be deemed to be an assignment within the meaning of this Section.



     e. Any assignment or subletting not in conformance with the terms of this Lease shall be void
ab initio and shall, subject to the provisions of Section 16, constitute a default under the Lease.



     f. Except in connection with an assignment of this Lease or a subletting of all or any portion
of the Premises to an Affiliate of Tenant, upon receipt of Tenant’s Transfer Notice, Landlord may,
at its option, in lieu of approving or rejecting the proposed assignment or subletting, exercise
all or any of the following rights by written notice to Tenant of Landlord’s intent to do so within
fifteen (15) business days of Landlord’s receipt of Tenant’s Transfer Notice:



          (i) with respect to a proposed assignment of this Lease, the right to terminate this Lease on
the effective date of proposed assignment as though it were the Lease Expiration Date;




          (ii) with respect to a proposed sublease of the entire Premises for a sublease term ending
during the last Lease Year of the Term, the right to terminate this Lease on the effective date of
the sublease as though it were the Lease Expiration Date; or




          (iii) with respect to a proposed sublease of less than the entire Premises for a sublease
term ending during the last six (6) months of the Term, the right to terminate this Lease as to
the portion of the Premises affected by such sublease on the effective date of the sublease, as
though it were the Lease Expiration Date, in which case Tenant shall execute and deliver to
Landlord an appropriate modification of this Lease, in form satisfactory to Landlord in all
respects within ten (10) days of Landlord’s notice of partial termination, which modification of
this Lease shall provide that the number of rentable square feet of the Premises shall be
decreased by, and the Monthly Base Rent and Additional Rent payable by Tenant hereunder shall be
adjusted in proportion to, the number of rentable square feet of the Premises affected by such
termination, as determined by Landlord.




     g. If Landlord exercises any of its options under Section 7.f., above, Landlord may then lease
(or sublease) the Premises or any portion thereof to Tenant’s proposed assignee or subtenant, as
the case may be, without any liability whatsoever to Tenant.



     h. Except as otherwise expressly set forth in Sections 22 and 23, below, upon any
assignment of this Lease or sublease of all or a portion of the Premises (except to an Affiliate
of Tenant), any and all option rights, rights of first refusal, rights of first negotiation, and
expansion rights shall terminate, it being understood that any and all such rights are personal to
Tenant (and not to any assignee or subtenant) and are not appurtenant to the Premises or this
Lease. Further, except as otherwise expressly set forth in Sections 22 and 23, below, Tenant shall
not have the right to exercise any such rights unless Tenant (and not any assignee or subtenant of
Tenant) shall be in occupancy of all of the Premises at the time of the exercise of any such
right. In addition to the administrative fee described in
Section 7.a.(7), above, Tenant shall
reimburse Landlord for its reasonable attorneys’ fees (which fees shall in no event exceed Two
Thousand Dollars ($2,000.00)) and other third party expenses incurred in reviewing any requested
consent whether or not such consent is granted. Tenant shall not collaterally assign, mortgage,
pledge, hypothecate or otherwise encumber this Lease or any of Tenant’s rights hereunder without
the prior written consent of Landlord, which consent Landlord may withhold in its sole discretion.



     i. Notwithstanding any consent by Landlord to an assignment or subletting, Tenant shall remain
primarily liable for the performance of all covenants and obligations contained in this Lease. Each
approved assignee or subtenant shall also automatically become liable for the obligations of Tenant
hereunder. Landlord shall be permitted to enforce the provisions of this Lease directly against
Tenant and/or against any assignee or sublessee without proceeding in any way against any other
person. Collection or acceptance of Annual Base Rent or Additional Rent from any such assignee,
subtenant or occupant shall not constitute a waiver or release of Tenant from the terms of any
covenant or obligation contained in this Lease, hor shall such collection or acceptance in any way
be construed to relieve Tenant from obtaining the prior written consent of Landlord to such
assignment or subletting or any subsequent assignment or subletting.



10









 





     j. Notwithstanding anything contained herein to the contrary, the consent requirement
set forth in Section 7a, above, shall not be applicable to any assignment of this Lease or
subletting of the Premises to an Affiliate (hereinafter defined) of Tenant; provided, however,
that in each instance, Tenant shall give Landlord at least fifteen (15) days prior written notice
of any proposed sublease or assignment to an Affiliate, which notice shall contain information and
documentation reasonably acceptable to Landlord evidencing to Landlord’s reasonable satisfaction
that the proposed assignee or subtenant is an Affiliate, and a copy of the proposed assignment or
sublease document. As used herein, the term “Affiliate” shall refer to a person or entity that
controls (hereinafter defined), is controlled by, or is under common control with Tenant.
“Control” as used herein shall mean the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of the entity in question, whether through
ownership of voting securities or by contract.



8. IMPROVEMENTS AND FIXTURES.




     a. Tenant shall neither make nor allow any alterations, decorations, replacements,
changes, additions or improvements (collectively referred to as “Alterations”) to the Premises or
any part thereof that will or may affect the mechanical, electrical, plumbing, HVAC or other
systems or the exterior or structure of the Building, without the prior written consent of
Landlord, which may be withheld by Landlord in its sole discretion. Tenant shall not make or allow
any other kind of Alterations to the Premises or any part thereof without the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. All of such
Alterations, structural or otherwise, must conform to (i) the Construction Rules and Regulations
(as defined in the Work Agreement); and (ii) such other rules and regulations as are established
from time to time by Landlord. All Alterations must be performed in a good and workmanlike manner,
must comply with all applicable building codes, laws and regulations (including, without
limitation, the Americans With Disabilities Act, as amended), shall not require any changes to or
modifications of any of the mechanical, electrical, plumbing, HVAC or other systems or the exterior
or structure of the Building, and shall otherwise be constructed in strict accordance with the
terms and conditions of this Section 8. Notwithstanding anything to the contrary contained herein,
Tenant shall have the right to make Cosmetic Alterations (hereinafter defined) in or to the
Premises without Landlord’s prior consent, but upon at least ten (10) days prior written notice to
Landlord. As used herein, the term “Cosmetic Alterations” shall mean nonstructural Alterations in
or to the Premises (e.g., paint, wallpaper or carpet) which are consistent with the design
standards of the Tenant Improvements, which do not require a building permit to undertake, which
cost in the aggregate less than Thirty Thousand Dollars ($30,000.00) to undertake, and which do not
affect the structure or any of the systems of the Building. Tenant shall certify to Landlord in
writing at least ten (10) days prior to undertaking any Cosmetic Alterations that the proposed
Alterations are Cosmetic Alterations and describing the same in detail. If Landlord determines, in
its reasonable discretion, that the proposed Alterations are not Cosmetic Alterations, Tenant shall
request Landlord’s consent for such Alterations in accordance with this Section 8. If any
Alterations made by or on behalf of Tenant requires Landlord to make any alterations or
improvements to any part of the Building in order to comply with applicable law (including without
limitation the Americans With Disabilities Act, as amended), Tenant shall pay all costs and
expenses incurred by Landlord in connection with such alterations or improvements. Prior to
undertaking any Alterations in the Premises, Tenant shall furnish to Landlord duplicate original
policies or certificates thereof of worker’s compensation insurance (covering all persons to be
employed by Tenant, and Tenant’s contractors and subcontractors in connection with such
Alteration), builder’s all- risk insurance, and comprehensive public liability insurance (including
property damage coverage) in such form, with such companies, for such periods and in such amounts
as Landlord may reasonably require, naming Landlord and its agents, and any mortgagee as additional
insureds.



     b. It is understood and agreed by Landlord and Tenant that any Alterations undertaken in the
Premises shall be constructed at Tenant’s sole expense. The costs of Alterations shall include,
without limitation, the cost of all architectural work, engineering studies, materials, supplies,
plans, permits and insurance. If requested by Landlord, Tenant shall provide to Landlord
reasonably satisfactory evidence of Tenant’s ability to pay for such Alterations (including, but
not limited to, a payment or performance bond). No consent by Landlord to any Alterations shall
be deemed to be an agreement or consent by Landlord to subject Landlord’s interest in
the Premises, the Building or the Land to any mechanic’s or materialman’s liens which may be filed
in respect to such Alterations made by or on behalf of Tenant. If Landlord’s prior consent to any
Alteration is required pursuant to the terms of this Section 8, and Landlord gives its consent as
specified in Section 8.a., above, Landlord may impose as a condition to such consent such
requirements as Landlord may deem reasonably necessary or desirable, in its sole discretion
exercised in good faith, including, without limitation, the right to approve the plans and
specifications for any work, supervision of the work by Landlord or its agents or by Landlord’s
architect or contractor and, if Landlord or Landlord’s contractors undertake the construction of
such Alteration, the payment to Landlord or its agents, architect or contractor of a reasonable
construction supervision fee in connection therewith (provided, however, that Tenant shall not be
obligated to pay Landlord, its agents, architects or contractors, such fee in connection with
Tenant’s undertaking any Cosmetic Alterations), the right to require security for the full payment
of any work and the right to impose requirements as to the manner in which or the time or times at
which work may be performed. Landlord shall also have the right to approve the contractor or
contractors who shall perform any Alterations, repairs in, to or about the Premises, such approval
not to be unreasonably withheld, conditioned or delayed, and to post notices of non-responsibility
and similar notices, as appropriate. Tenant shall reimburse Landlord for all of Landlord’s
reasonable costs and expenses incurred in reviewing and approving Tenant’s plans and specifications
for such Alterations within thirty (30) days after receipt of an invoice therefor. In addition,
unless otherwise specifically agreed to in writing by and between Landlord and Tenant, immediately
after completion of any Alterations, Tenant shall assign to Landlord any and all warranties
applicable to such Alterations and shall provide Landlord with as-built plans of the Premises
depicting such Alterations.



11









 





     c. Tenant shall keep the Premises free from any liens arising out of any work performed
on, or materials furnished to, the Premises, or arising from any other obligation incurred by
Tenant. If any mechanic’s or materialmen’s lien is filed against the Premises, the Building
and/or the Land for work claimed to have been done for or materials claimed to have been furnished
to Tenant, such lien shall be discharged by Tenant within thirty (30) days thereafter, at Tenant’s
sole cost and expense, by the payment thereof or by filing any bond required by law. If Tenant
shall fail to timely discharge any such mechanic’s or materialman’s lien, Landlord may, at its
option, discharge the same and treat the cost thereof as Additional Rent payable with the
installment of rent next becoming due; it being expressly covenanted and agreed that such discharge
by Landlord shall not be deemed to waive or release the default of Tenant in not discharging the
same. Tenant shall indemnify and hold harmless Landlord, the Premises and the Building from and
against any and all expenses, liens, claims, actions or damages to person or property in connection
with any such lien or the performance of such work or the furnishing of such materials. Tenant
shall be obligated to, and Landlord reserves the right to, post and maintain on the Premises at any
time such notices as shall in the reasonable judgment of Landlord be necessary to protect Landlord
against liability for all such liens or actions.



     d. Unless otherwise specifically agreed to in writing by and between Landlord and Tenant, any
Alterations of any kind to the Premises or any part thereof, except Tenant’s furniture and moveable
trade fixtures, shall at once become part of the realty and belong to Landlord and shall be
surrendered with the Premises, as a part thereof, at the end of the Term hereof; provided, however,
that Landlord may, by written notice to Tenant at least thirty (30) days prior to the end of the
Term, require Tenant to remove any Alterations (including all telecommunications cabling in the
Premises or running between the Premises and any other portion of the Building) and to repair any
damage to the Premises caused by such removal, all at Tenant’s sole expense. Any article of
personal property, including business and trade fixtures, not attached to or built into the
Premises, which were installed or placed in the Premises by Tenant at its sole expense, shall be
and remain the property of Tenant and may be removed by Tenant at any time during the Term provided
that Tenant repairs any damage to the Premises or the Building caused by such removal.



9. UTILITIES AND SERVICES.




     a. Landlord shall furnish the following utilities and services to the Premises: electric
current (for lighting and operation of normal desk-type office machines); hot and cold water;
lavatory supplies; heat and air-conditioning during the appropriate seasons of the year as
reasonably required; elevator service; and trash removal/cleaning and char service (after 6:00 p.m.
on Monday through Friday, excluding Holidays). Heating and air conditioning shall be provided to
the Premises only during the following days and hours (“Normal Business Hours”): (i) Monday through
Friday 8:00 a.m. to 6:00 p.m., and (ii) Saturday 9:00 a.m. to 1:00 p.m., excluding Holidays. As
used herein, the term “Holidays” shall mean New Year’s Day, Martin Luther King’s Birthday,
President’s Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving Day and
Christmas Day. At times other than the Normal Business Hours and days aforesaid, central air
conditioning and heating shall be provided to Tenant upon at least twenty-four (24) hours prior
notice from Tenant, and upon payment by Tenant of the hourly charge established by Landlord from
time to time for each hour (or a portion thereof) of after-hours usage. The current hourly charge
for each hour (or any portion thereof) of after-hours usage of central air conditioning and heating
is Forty-Five Dollars ($45.00) per hour (or any portion thereof), which charge reasonably
approximates the cost to Landlord of providing such after-hours service as of the Effective Date.
Landlord shall use reasonable efforts to ensure that at least one (1) passenger elevator is
operating in the Building twenty-four (24) hours per day, seven (7) days per week. All Building
standard light bulbs and tubes in the Premises shall be replaced by Landlord and the cost thereof
shall be included in Operating Expenses. In addition, Landlord may impose a reasonable additional
charge for any additional or unusual services required to be provided by Landlord to Tenant because
of the carelessness of Tenant, the nature of Tenant’s business or the removal of any refuse and
rubbish from the Premises except for discarded material placed in wastepaper baskets and left for
emptying as an incident to Tenant’s normal cleaning of the Premises. In the event that Landlord
must temporarily suspend or curtail services because of accident and repair, Landlord shall have no
liability to Tenant for such suspension or curtailment or due to any restrictions on use arising
therefrom or relating thereto, and Landlord shall proceed diligently to restore such service. No
interruption or malfunction of any such services shall constitute an actual or constructive
eviction or disturbance of Tenant’s use and possession of the Premises, the Building or the parking
garage or parking areas in or around the Building or constitute a breach by Landlord of any of its
obligations hereunder or render Landlord liable for damages or entitle Tenant to be relieved from
any of Tenant’s obligations hereunder (including the obligation to pay rent) or grant Tenant any
right of setoff or claim against Landlord or constitute a constructive or other eviction of Tenant.
Notwithstanding the foregoing, in the event that the interruption or cessation of any essential
service(s) or utilities required to be provided by Landlord hereunder: (i) results from
Landlord’s negligence or willful misconduct; (ii) is not caused by Tenant, its agents, employees,
contractors or invitees; (iii) renders the Premises untenantable for Tenant’s business use therein;
and (iv) exists for more than ten (10) consecutive business days, then, provided Tenant in fact
ceases to use the Premises during the entirety of such period of cessation or interruption,
commencing on the eleventh (11th) business day after such interruption, Monthly Base Rent hereunder
shall be abated until such services or utilities are restored. The foregoing abatement of Monthly
Base Rent shall be Tenant’s sole and exclusive remedy resulting from such interruption or
cessation. In the event of any such interruption, Landlord shall use reasonable diligence to
restore such services.



     b. Except in any Electricity Meter Areas (hereinafter defined) in which submeters have been
installed, Tenant will not, without the prior written consent of Landlord, use any apparatus or
device in the Premises, including without limitation electric data processing machines, punch card
machines and



12









 







machines using current in excess of 110 volts (or in excess of .60 kilowatt hours per square foot
of usable area in the Premises per month, as determined by Landlord) which will in any way
increase the amount of the electricity or water which would otherwise be furnished or supplied for
the intended use of the Premises under this Section 9; and Tenant will not connect to electric
current any apparatus or device for the purpose of using electric current or water, except through
existing electrical outlets in the Premises or water pipes. If Tenant shall require water or
electricity in excess of that which would otherwise be furnished or supplied for the intended use
of the Premises, Tenant shall first secure the written consent of Landlord for the use thereof,
which consent Landlord may not unreasonably withhold, but which
consent may be conditioned by
Landlord as set forth in this Section 9.b. Landlord may condition its consent on, among other
things, the installation by Tenant at its sole cost of additional electric transformers and
electric panels designated by Landlord (the “Additional Electrical Equipment”). Tenant shall be
responsible for maintaining throughout the Term at Tenant’s sole cost all such Additional
Electrical Equipment installed by Tenant (or, at Landlord’s sole option, by Landlord, at Tenant’s
sole cost and expense). Furthermore, Landlord may condition its consent upon the requirement that
a water meter or electric current meter be installed in the Premises, so as to measure the amount
of water and electric current consumed for any such excess use. The parties acknowledge that the
following areas within the Premises shall constitute “Electricity Meter Areas”: (i) all laboratory
space (“Lab Space”) or space in which is located Tenant’s local area network (“LAN Space”); (ii)
all portions of the Premises in which are located equipment which is or will be tied into the
Supplemental HVAC System (hereinafter defined) or the Supplemental Electrical System (hereinafter
defined); and (iii) all portions of the Premises in which the equipment therein is causing Excess
Electricity Consumption (hereinafter defined). As used herein, the term “Supplemental Electrical
System” means the 3000 amp electrical utility service (including but not limited to all feeder and
distribution cables, busses and buss ducts, switchboards, transfer switches, disconnects, panel
boards, circuit breakers, fuses, transformers, battery chargers, uninterruptible power supply
(UPS) units, power distribution units (PDU), and generator sets) installed in the Building and on
the roof of the Building. Tenant shall pay for all electricity consumed in the Electricity Meter
Areas. Tenant shall be responsible for paying its proportionate share (which proportionate share
shall be based on Tenant’s share of the distributed electrical capacity of the Supplemental
Electrical System) all costs incurred by Landlord in repairing and maintaining the Supplemental
Electrical System. The cost of all meters and submeters installed in the Premises, and the cost of
installation, maintenance and repair thereof, the cost of any such utility use as shown by said
meter, the cost of any new or additional utility installations, including, without limitation,
wiring and plumbing, resulting from such utility use, and the cost of any additional expenses by
Landlord incurred in keeping count of such utility use shall be paid by Tenant promptly upon
demand by Landlord or, if Tenant is billed separately therefor, promptly upon receipt of a bill
for same. Whenever heat generating machines or equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord reserves the right to
install supplementary air conditioning units in the Premises and the cost thereof, including the
cost of installation, operation and maintenance thereof, shall be paid by Tenant to Landlord upon
demand by Landlord.



     c. Tenant shall have the right to install and operate in the Premises personal computers and
other electrically-operated office equipment normally used in modern offices. Subject to the
provisions of Section 9.b, above, Tenant shall not install equipment of any kind or nature
whatsoever nor engage in any practice or use which will or may necessitate any changes,
replacements or additions to, or in the use of, the water system, heating system, plumbing system,
air conditioning system, electrical system, floor load capacities, or other mechanical or
structural system of the Premises or the Building without first obtaining the prior written consent
of Landlord, which consent may be conditioned upon, but not limited to, Tenant first securing at
its expense additional capacity for any said service in the Building; provided, however, Tenant
shall be responsible for paying for any excess utility consumption arising from any such change,
replacement, use or addition, such payments to be based on Landlord’s reasonable estimate or, at
Landlord’s option, a submeter or similar device to measure such usage (said device to be installed
at Tenant’s expense). Additionally, in the event that Landlord determines that Tenant’s
electrical consumption exceeds standard office use (“Excess Electricity Consumption”), tenant shall
pay the amount of such excess electrical consumption, as reasonably determined by Landlord, within
thirty (30) days after demand therefor. Machines, equipment and materials belonging to Tenant
which cause vibration, noise, cold, heat, fumes or odors that may be transmitted outside of the
Premises to such a degree as to be objectionable to Landlord in Landlord’s sole opinion or to any
other tenant in the Building shall be treated by Tenant at its sole expense so as to eliminate such
objectionable condition, and shall not be allowed to operate until such time as the objectionable
condition is remedied to Landlord’s satisfaction.



     d. Tenant shall comply, at its sole cost and expense, with all orders, requirements and
conditions now or hereafter imposed by any ordinances, laws, orders and/or regulations (hereinafter
collectively called “regulations”) of any governmental body having jurisdiction over the Premises
or the Building, whether required of Landlord or otherwise, regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash (hereinafter collectively
called “waste products”) including, but not limited to, the separation of such waste products into
receptacles reasonably approved by Landlord and the removal of such receptacles in accordance with
any collection schedules prescribed by such regulations. Landlord reserves the right (i) to refuse
to accept from Tenant any waste products that are not prepared for collection in
accordance with any such regulations, (ii) to require Tenant to arrange for waste product
collection at Tenant’s sole cost and expense, utilizing a contractor reasonably satisfactory to
Landlord, and (iii) to require Tenant to pay all costs, expenses, fines, penalties, or damages that
may be imposed on Landlord or Tenant by reason of Tenant’s failure to comply with any
such regulations. Notwithstanding the foregoing, if Tenant is unable to comply with Landlord’s
standard procedures regarding the internal collection, sorting, separation and recycling of waste
products, Landlord



13









 







shall use reasonable efforts to arrange for alternative procedures for Tenant, and Tenant shall
pay Landlord all additional costs incurred by Landlord with respect thereto.



     e. Throughout the Term, Tenant shall be provided with access to the Building and the Premises
twenty-four (24) hours a day, 365 days a year, subject to applicable law and events of force
majeure. The Building’s main entrance doors and elevators shall be equipped with a card reader
security system or other similar security access system. Prior to the Commencement Date, Landlord
shall provide Tenant with one hundred (100) access cards, at no cost to Tenant. Tenant shall be
responsible for the cost of any additional or replacement access cards requested by Tenant. Subject
to Landlord’s review and approval of the plans and specifications for such system, Tenant shall be
entitled to install, at Tenant’s sole cost and expense, a card reader access system for the
Premises, which Tenant shall be permitted to coordinate with the Building’s main security access
system; provided that Tenant shall provide Landlord with a reasonable number of access cards by
which Landlord may gain access to the Premises using Tenant’s card reader access system. Tenant
hereby agrees to indemnify and hold Landlord and its agents, officers, directors and employees
harmless from and against any cost, damage, claim, liability or expense (including attorneys’ fees)
incurred by or claimed against Landlord and its agents, officers, directors and employees, directly
or indirectly, as a result of or in any way arising from Tenant’s installation or use of such card
reader access system.



     f. Throughout the Term, Landlord shall cause the common areas of the Building (and the Sole
Occupant Bathrooms) to be in compliance with all applicable laws, rules, orders, ordinances,
regulations and requirements of all applicable governmental authorities now or hereafter in effect,
unless such non-compliance is the result of (i) any act or omission of Tenant, its agents,
contractors or employees, or (ii) Tenant’s particular use of the Premises.



     g. As of the Commencement Date, all base-Building systems serving the Premises shall be in
working order.



10. RIGHTS OF LANDLORD.




     a. Landlord reserves the following rights:



          (i) to change the name or street address of the Building with thirty (30) days prior notice
to Tenant; provided that if Landlord changes the street address of the Building and such change is
not made by, directed by or requested by, the postal service or any governmental or
quasi-governmental authority, then Landlord shall reimburse Tenant for the actual cost of the
letterhead, business cards and other stationary on hand which bears the old address of the
Building, but in no event more than Two Thousand Five Hundred Dollars ($2,500.00);




          (ii) to approve the design, location, number, size and color of all signs or lettering on the
Premises or visible from the exterior of the Premises;




          (iii) to have pass keys and/or access cards to the Premises;




          (iv) to grant to anyone the exclusive right to conduct any particular business or undertaking
in the Building, provided the granting of such exclusive right shall not materially and adversely
affect Tenant’s business operations in the Premises;




          (v) to enter the Premises at any reasonable time for inspection upon reasonable prior notice
to Tenant (which notice may be oral), or at any time, without prior notice, in the event of any
emergency; to supply any service to be provided by Landlord hereunder; to submit the Premises to
prospective purchasers; during the last twelve (12) months of the Term, to submit the Premises to
prospective tenants; to post notices of non-responsibility; during the last twelve (12) months of
the Term, to affix and display “For Rent” signs; and to make repairs, alterations, additions or
improvements to the Premises or the Building; and




          (vi) to approve the design, location, number, size and color of all signs located on the
exterior of the Building.




     b. Without limiting the generality of the provisions of Section 10.a., above, at any time
during the Term of this Lease, Landlord shall have the right to remove, alter, improve, renovate or
rebuild the common areas of the Building (including, but not limited to, the lobby, hallways and
corridors thereof), and to install, repair, replace, alter, improve or rebuild in the Premises,
other tenants’ premises and/or the common areas of the Building (including the lobby, hallways and
corridors thereof), any mechanical, electrical, water, sprinkler, plumbing, heating, air
conditioning and ventilating systems, at any time during the Term of this Lease. In connection
with making any such installations, repairs, replacements, alterations, additions and improvements
under the terms of this Section 10, Landlord shall, upon reasonable prior notice to Tenant (except
in the event of an emergency, in which case no notice shall be required), have the right to access
through the Premises as well as the right to take into and upon and through the Premises or any
other part of the Building, all materials that may be required to make any such repairs,
replacements, alterations, additions or improvements, as well as the right in the course of such
work to close entrances, doors, corridors, elevators or other facilities located in the Building or
temporarily to cease the operations of any services or facilities therein or to take portion(s) of
the Premises reasonably necessary in connection with such work, without being deemed or held guilty
of an eviction of Tenant; provided, however that Landlord agrees to use all reasonable efforts not
to interfere



14









 







with or interrupt Tenant’s business operation in the Premises. Landlord shall have the right to
install, use and maintain pipes and conduits in and through the Premises, including, without
limitation, telephone and computer installations, provided that they do not permanently adversely
affect (i) Tenant’s access to or use of the Premises, or (ii) the aesthetic appearance of the
Premises. In connection with Landlord’s activities pursuant to this Section 10.b, Landlord will
use reasonable efforts not to materially and adversely interfere with Tenant’s business
operations in the Premises.



     c. Except for injury or death to persons or damage to property caused by the negligence or
willful misconduct of Landlord, its agents or employees, Landlord shall not be liable to Tenant
for any
expense, injury, loss or damage resulting from Landlord’s exercise of any rights under this
Section 10, all claims against Landlord for any and all such liability being hereby expressly
released by Tenant. Landlord shall not be liable to Tenant for damages by reason of
interference with the business of Tenant or inconvenience or annoyance to Tenant or the
customers of Tenant. The Rent reserved herein shall not abate while the Landlord’s rights
under this Section 10 are exercised, and Tenant shall not be entitled to any set-off or
counterclaims for damages of any kind against Landlord by reason thereof, all such claims
being hereby expressly released by Tenant.



     d. Landlord shall have the right to use any and all means which Landlord may deem proper to
open all of the doors in, upon and about the Premises, excluding Tenant’s vaults and safes, in any
emergency in order to obtain entry to the Premises. Any entry to the Premises obtained by Landlord
by any of said means shall not be construed or deemed to be a forcible or unlawful entry into, or
a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof.



11. LIABILITY.




     a. Except for injury or death to persons or damage to property caused by the negligence or
willful misconduct of Landlord, its agents or employees, Landlord and its agents, officers,
directors and employees assume no liability or responsibility whatsoever with respect to the
conduct or operation of the business to be conducted in the Premises and shall have no liability
for any claim of loss of business or interruption of operations (or any claim related thereto).
Landlord and its agents, officers, directors and employees shall not be liable for any accident
to or injury to any person or persons or property in or about the Premises which is caused by the
conduct and operation of said business or by virtue of equipment or property of Tenant in said
Premises. Tenant agrees to hold Landlord and its agents, officers, directors and employees
harmless against all such claims, except to the extent resulting from Landlord’s negligence or
willful misconduct. Landlord and its agents, officer, directors and employees shall not be
liable to Tenant, its employees, agents, business invitees,
licensees, customers, clients, family members or guests for any damage, compensation or claim arising out of or related to managing
the Premises or the Building, repairing any portion of the Premises or the Building, the
interruption in the use of the Premises, accident or damage resulting from the use or operation
(by Landlord and its agents, officers, directors and employees, Tenant, or any other person or
persons whatsoever) or failure of elevators, or heating, cooling, electrical or plumbing
equipment or apparatus, or the termination of this Lease by reason of the destruction of the
Premises, or from any fire, robbery, theft, mysterious disappearance and/or any other casualty,
or from any leakage in any part of portion of the Premises or the Building, or from water, rain
or snow that may leak into or flow from any part of the Premises or the Building, or from any
other cause whatsoever, unless occasioned by the negligence or willful misconduct of Landlord,
its agents or employees. In no event shall Landlord be liable for punitive or consequential
damages, nor shall Landlord be liable with respect to utilities furnished to the Premises, or the
lack of any utilities. Any goods, property or personal effects, stored or placed by Tenant in or
about the Premises or in the Building, shall be at the sole risk of Tenant, and Landlord and its
agents, officers, directors and employees shall not in any manner be held responsible therefor,
except if such injury or damage results from the negligence or willful misconduct of Landlord,
its agents or employees. The agents and employees of Landlord are prohibited from receiving any
packages or other articles delivered to the Building for Tenant, and if any such agent or
employee receives any such package or articles, such agent or employee shall be the agent of
Tenant for such purposes and not of Landlord.



     b. Tenant hereby agrees to indemnify and hold Landlord and its agents, officers, directors
and employees harmless from and against any cost, damage, claim, liability or expense (including
attorneys’ fees) incurred by or claimed against Landlord and its agents, officers, directors and
employees, directly or indirectly, as a result of or in any way arising from (i) Tenant’s use and
occupancy of the Premises or in any other manner which relates to the business of Tenant,
including, but not limited to, any cost, damage, claim, liability or expense arising from any
violation of any zoning, health, environmental or other law, ordinance, order, rule or regulation
of any governmental body or agency; (ii) the negligence or willful misconduct of Tenant, its
officers, directors, employees and agents; (iii) any default, breach or violation of this Lease
by Tenant; or (iv) injury or death to individuals or damage to property sustained in or about the
Premises.



     c. Notwithstanding any other provision of this Lease to the contrary, Landlord and Tenant
agree that in the event that the Building, the Premises or the contents thereof are damaged or
destroyed by fire or other casualty, each party hereto waives its rights, if any, against the
other party with respect to such damage or destruction to the extent such damage or destruction
is covered under the property insurance policy(ies) of the party waiving such rights (or would
have been covered had the party waiving such rights carried the property insurance required
hereunder to be carried by such party). All policies of fire and/or extended coverage or other
insurance covering the Premises or the contents thereof obtained by Landlord or Tenant shall
contain a clause or endorsement providing in substance that (i) such insurance shall not be
prejudiced if the insureds thereunder have waived in whole or in part the right of recovery from
any person or persons prior to the date and time of loss or damage, if any, and (ii) the



15









 







insurer waives any rights of subrogation against Landlord (in the case of Tenant’s
insurance policy) or Tenant (in the case of Landlord’s insurance policy), as the case may be.



12. INSURANCE.




     a. Tenant shall maintain at all times during the Term hereof and at its sole cost and
expense, broad-form commercial general liability insurance for bodily injury and property damage
naming Landlord as an additional insured, in such amounts as are adequate to protect Landlord and
Landlord’s managing agents against liability for injury to or death of any person in connection
with the use, operation or condition of the Premises. Such insurance at all times shall be in an
amount of not fewer than Five Million Dollars ($5,000,000) combined single limit aggregate for
bodily injury or death or damage to property. If, in the reasonable opinion of the insurance broker
retained by Landlord, the amount of public liability and property damage insurance coverage at any
time during the Term is not adequate, Tenant shall increase the insurance coverage as reasonably
required by Landlord’s insurance broker. In no event shall the limits of such policy be
considered as limiting the liability of Tenant under this Lease.



     b. Tenant shall at all times during the Term hereof maintain in effect policies of insurance
covering the Tenant Improvements (including any Alterations, additions or improvements as may be
made by Tenant after the Commencement Date), plate glass, trade fixtures, merchandise and all other
personal property from time to time in or on the Premises, in an amount not less than one hundred
percent (100%) of their actual replacement cost, providing protection against all risks covered by
standard form of “Fire and Extended Coverage Insurance,” together with insurance against vandalism
and malicious mischief. Tenant shall also maintain at its sole cost and expense workman’s
compensation insurance in the maximum amount required by law.



     c. All insurance required to be carried by Tenant shall be issued by responsible insurance
companies, qualified to do business in the Commonwealth of Virginia and reasonably acceptable to
Landlord. Each policy shall name Landlord and the property management company retained by Landlord
at the Building, as additional insureds, and shall contain a provision that the same may not be
cancelled or reduced without providing Landlord not fewer than thirty (30) days prior written
notice. Certificates of insurance (ACORD 28 only) evidencing the existence and amounts of said
insurance shall be delivered to Landlord no later than five (5) days prior to the Commencement
Date, and renewals thereof shall be delivered to Landlord at least ten (10) days prior to the
expiration of any such policy. If Tenant fails to adhere to the requirements of this Section 12,
Landlord may order such insurance and charge the cost thereof to Tenant, which amount shall be
deemed Additional Rent hereunder and shall be payable by Tenant upon demand. Tenant’s failure to
provide and keep in force the aforementioned insurance shall be regarded as a material default
hereunder, entitling Landlord to exercise any or all of the remedies provided in this Lease, Any
policy may be carried under so-called “blanket coverage” form of insurance policies. Tenant shall
obtain and furnish evidence to Landlord of the waiver by Tenant’s insurance carriers of any right
of subrogation against Landlord and Landlord’s management company at the Building.



     d. Each party hereby waives any and every right or cause of action for any and all loss of, or
damage to, any of its property (whether or not such loss or damage is caused by the fault or
negligence of the other party or anyone for whom said other party may be responsible), which loss
or damage is covered by valid and collectible fire, extended coverage, “All Risk” or similar
policies, maintained by such party or required to be maintained by such party under this Lease, but
only to the extent that such loss or damage is recovered under said insurance policies (if such
policy or policies have been obtained) or would have been recovered if such party had obtained the
required insurance coverage hereunder. Written notice of the terms of said mutual waivers shall be
given to each insurance carrier and said insurance policies shall be properly endorsed, if
necessary, to prevent the invalidation of said insurance coverages by reason of said waivers.



     e. During the Term, Landlord shall maintain a policy of casualty insurance covering the
Building in such amounts and with such other coverages as are normally and customarily carried by
prudent owners of comparable office buildings located in the Dulles Toll Road Corridor submarket.



13. FIRE OR CASUALTY.




     a. If the Premises or any part thereof shall be damaged by fire or any other cause,
Tenant shall give prompt notice thereof to Landlord. If, in the reasonable judgment of Landlord’s
architect, restoration of the Premises is feasible within a period of nine (9) months from the date
of the damage, and provided such damage was not caused by Tenant, its agents, servants or invitees,
Landlord shall restore the Premises to the condition existing as of the Commencement Date, provided
that adequate insurance proceeds are made available to Landlord. Tenant agrees to make all proceeds
of Tenant’s insurance policies available to Landlord in accordance with Tenant’s insurance
obligations set forth in Section 12, above. In addition, Tenant shall repair and restore, at
Tenant’s sole expense, all Alterations, furniture, fixtures and other property of Tenant located in
the Premises prior to such casualty. If the Premises are Unusable, in whole or in part, during such
restoration, the Monthly Base Rent and Additional Rent hereunder shall be abated to the extent and
for the period that the Premises are unusable; provided, however, that if such damage or
destruction shall result from the act or omission of Tenant, its employees, agents or invitees,
tenant shall not be entitled to any abatement of Monthly Base Rent or Additional Rent.



16









 





     b. If restoration is not feasible in the reasonable judgment of Landlord’s architect
within the aforesaid nine (9) month period, Landlord shall so notify Tenant, and Landlord and
Tenant shall each have the right to terminate this Lease by giving written notice thereof to the
other party within sixty (60) days after the occurrence of such damage, in which event this Lease
and the tenancy hereunder shall terminate as of the date of such damage or destruction and the
Monthly Base Rent and Additional Rent will be apportioned as of the date of such damage or
destruction. If neither party exercises its right of termination, the Premises shall be restored
as provided above. Landlord’s architect shall use reasonable efforts to determine, within sixty
(60) days after the date of the casualty, the approximate amount of time that will be required in
order to restore the Premises in accordance with the terms of this Lease.



     c. In case the Building is so severely damaged by fire or other casualty (although the
Premises may not be affected) that Landlord shall decide in its sole discretion not to rebuild or
reconstruct such Building, then this Lease and the tenancy hereunder shall terminate on the date
specified by Landlord in a notice given to Tenant no later than forty-five (45) days after the date
of such casualty.



14. EMINENT DOMAIN.




     If the Premises or any part thereof shall be taken or condemned by any governmental or
quasi-governmental authority pursuant to the power of eminent domain or otherwise, Tenant shall
make no claim for compensation in such proceedings and shall have no right to participate in any
condemnation proceedings under any statutes, laws or ordinances of the Commonwealth of Virginia.
All sums awarded or agreed upon between Landlord and the condemning authority for the taking of
the interest of Landlord or Tenant, whether as damages or as compensation, will be the property of
Landlord. In the event of such taking, Rent shall be paid to the date of vesting of title in the
condemning authority. Notwithstanding the foregoing, Tenant may assert any claim that it may have
against the condemning authority for compensation for any fixtures and personalty owned by Tenant
(which were not paid for out of the proceeds of the Improvement Allowance) and for any relocation
expense compensable by statute, and receive such award therefor as may be allowed in the
condemnation proceedings, if such award shall be made in addition to, and stated separately from,
the award made for the Land and the Building or the part thereof so taken, and shall not reduce
any award otherwise payable to Landlord.



15. SUBORDINATION AND ESTOPPEL CERTIFICATES.




     a. This Lease shall be subject and subordinate at all times to all ground or underlying leases
which now exist or may hereafter be executed affecting the Building or any part thereof or the
Land, and to the lien of any mortgages or deeds of trust in any amount or amounts whatsoever now or
hereafter placed on or against the Building or any part thereof or the Land, or on or against
Landlord’s interest or estate therein or on or against any ground or underlying lease without the
necessity of having further instruments on the part of Tenant to effect such subordination. Upon
request of Landlord, Tenant will execute any further written instrument necessary to subordinate
its rights hereunder to any such underlying leases or liens. If, at any time, or from time to
time during the Term, any mortgagee shall request that this Lease have priority over the lien of
such mortgage, and if Landlord consents thereto, this Lease shall have priority over the lien of
such mortgage and all renewals, modifications, replacements, consolidations and extensions thereof
and all advances made thereunder and interest thereon, and Tenant shall, within ten (10) business
days after receipt of a request therefor from Landlord, execute, acknowledge and deliver any and
all documents and instruments confirming the priority of this Lease. In any event, however, if this
Lease shall have priority over the lien of a first mortgage, this Lease shall not become subject or
subordinate to the lien of any subordinate mortgage, and Tenant shall not execute any subordination
documents or instruments for any subordinate mortgagee, without the written consent of the first
mortgagee. Notwithstanding the foregoing, the subordination of the Lease pursuant to this Section
15.a shall be conditioned upon the receipt by Tenant from the current mortgagee of a subordination
non-disturbance and attornment agreement (“SNDA”) for Tenant’s benefit on such mortgagee’s standard
form of SNDA. Throughout the Term, upon Tenant’s written request, Landlord shall use reasonable
efforts to obtain from any future mortgagee a SNDA for Tenant’s benefit on such mortgagee’s
standard form of SNDA. Tenant shall pay for (or reimburse Landlord for) all costs (including
reasonable attorneys’ fees) incurred by Landlord or any such mortgagee in connection with the
negotiation and drafting of any such SNDA, whether or not Landlord is ultimately able to obtain
same for Tenant’s benefit.



     b. In the event of: (i) a transfer of Landlord’s interest in the Building, (ii) the
termination of any ground or underlying lease of the Building, or the Land, or both, or (iii) the
purchase or other acquisition of the Building, or Landlord’s interest therein in a foreclosure sale
or by deed in lieu of foreclosure under any mortgage or deed of trust, or pursuant to a power of
sale contained in any mortgage or deed of trust, then in any of such events Tenant shall, at the
request of Landlord or Landlord’s successor in interest, attorn to and recognize the transferee or
purchaser of Landlord’s interest or the interest of the lessor under the terminated ground or
underlying lease, as the case may be, as “Landlord” under this Lease for the balance then remaining
of the Term, and thereafter this Lease shall continue as a direct lease between such person or
entity, as “Landlord,” and Tenant, as “Tenant,” except that such lessor, transferee or purchaser
shall not be liable for any act or omission of Landlord before such lease termination or before
such person’s succession to title, nor be subject to any offset, defense or counterclaim accruing
before such lease termination or before such person’s succession to title, nor be bound by any
payment of Monthly Base Rent or Additional Rent before such lease termination or before such
person’s succession to title for more than one month in advance.



     c. Tenant agrees, at any time, and from time to time, upon not fewer than fifteen (15) days
prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a statement in writing



17









 







certifying, to the extent accurate, that (i) this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect as modified and
stating the modifications); (ii) the Term of the Lease has commenced and the full rental is now
accruing hereunder; (iii) Tenant has accepted possession of the Premises and is presently occupying
the same; (iv) all improvements required by the terms of the Lease to be made by Landlord have
been completed and all tenant improvement allowances have been paid in full; (v) there are no
offsets, counterclaims, abatements or defenses against or with respect to the payment of any rent
or other charges due under the Lease; (vi) no rent under the Lease has been paid more than thirty
(30) days in advance of its due date; (vii) to the best of the knowledge of the Tenant, Landlord
is not in default in the performance of any covenant, agreement, provision or condition contained
in the Lease or, if so, specifying each such default of which Tenant may have knowledge; (viii)
the address for notices to be sent to Tenant; (ix) the only security deposit tendered by Tenant is
as set forth in the Lease, and such security deposit has been paid to Landlord; and (x) any other
information reasonably requested by Landlord or any mortgagee or ground lessor of the Building
and/or the Land it being intended that any such statement delivered pursuant hereto may be relied
upon by any prospective purchaser or lessee of the Building or any part thereof, any mortgagee or
prospective mortgagee thereof, any prospective assignee of any mortgage thereof, any ground lessor
or prospective ground lessor of the Land and/or the Building, or any prospective assignee of any
such ground lease. Tenant also agrees to execute and deliver from time to time such estoppel
certificates as an institutional lender may reasonably require with respect to this Lease.



16. DEFAULT AND REMEDIES.




     a. If Tenant shall (i) fail to pay any installment of Monthly Base Rent, although no legal or
formal demand has been made therefor, within five (5) calendar days after the due date therefor, or
(ii) fail to make any payment of Additional Rent or any other payment required by the terms and
provisions hereof, within five (5) days after notice or demand therefor; or (iii) convey, assign,
mortgage or sublet this Lease, the Premises or any part thereof, or Tenant’s interest therein, or
attempt any of the foregoing, without the prior written consent of Landlord; or (iv) abandon the
Premises for a period of ten (10) consecutive calendar days (coupled with the non-payment of Rent
as such amounts become due pursuant to the terms of this Lease); or (v) commit or suffer to exist
an Event of Bankruptcy (hereinafter defined), or (vi) fail to maintain the insurance coverage
required by Section 12, above, or (vii) violate or fail to perform any of the other terms,
conditions, covenants, or agreements herein made by Tenant and fails to cure such default within
thirty (30) calendar days after notice, provided, however, that if the nature of Tenant’s failure
is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not
be in default if it begins such cure within the thirty (30) day period described above and
thereafter diligently prosecutes such cure to completion within an additional thirty (30) days;
then there shall be deemed to have been committed an “Event of Default”. Notwithstanding the
foregoing cure periods, in the event that Tenant breaches its covenant set forth in Section 6.a.
hereof on more than two (2) occasions in any nine (9) consecutive month period, then any subsequent
breach of such covenant during the Term of this Lease shall be deemed to be an immediate Event of
Default. Upon an Event of Default, at Landlord’s option, this Lease shall terminate, without
prejudice however, to the right of Landlord to recover from Tenant all rent and any other sums
accrued up to the later of: (1) the date of termination of this Lease or (2) the date Landlord
recovers possession of the Premises, and without release of Tenant from any indemnification
obligations to Landlord under this Lease, which indemnification obligations arose or accrued
prior to the later of: (a) the date of termination of this Lease or (b) the date Landlord recovers
possession of the Premises. The foregoing is not intended to, and shall not, limit Landlord in the
exercise of any other remedy for such immediate Event of Default.



     b. In the event of any Event of Default by Tenant as defined in Section 16.a., Landlord may at
any time thereafter, without notice and demand and without limiting Landlord in the exercise of any
other right or remedy which Landlord may have by reason of such default or breach do any of the
following:



          (i) Landlord may terminate this Lease, by giving written notice of such termination to
Tenant, whereupon this Lease shall automatically cease and terminate and Tenant shall be
immediately obligated to quit the Premises. Any other notice to quit or notice of Landlord’s
intention to re-enter the Premises is hereby expressly waived. If Landlord elects to terminate
this Lease, everything contained in this Lease on the part of Landlord to be done and performed
shall cease without prejudice, subject, however, to the right of Landlord to recover from Tenant
all rent and any other sums accrued up to the time of termination or recovery of possession by
Landlord, whichever is later.




          (ii) With or without the termination of this Lease, Landlord may proceed to recover possession
of the Premises under and by virtue of the provisions of the laws of the jurisdiction in which the
Building is located, or by such other proceedings, including re-entry and possession, as may be
applicable. If this Lease is terminated or Landlord recovers possession of the Premises before the
expiration of the Term by reason of Tenant’s default as hereinabove provided, or if Tenant shall
abandon or vacate the Premises before the Lease Expiration Date for a period of ten (10)
consecutive calendar days (coupled with the non-payment of Rent as such amounts become due pursuant
to the terms of this Lease), Landlord shall have the option to take reasonable steps to relet the
Premises for such rent and upon such terms as are not unreasonable under the circumstances and, if
the full rental reserved under this Lease (and any of the costs, expenses or damages indicated
below) shall not be realized by Landlord, Tenant shall be liable for all damages sustained by
Landlord, including, without limitation, deficiency in rent during any period of vacancy or
otherwise; the costs of removing and storing the property of Tenant or of any other occupant; all
reasonable expenses incurred by Landlord in enforcing Landlord’s remedies, including, without
limitation, reasonable attorneys’ fees and Late Charges as provided herein, and advertising,
brokerage fees and expenses of placing the Premises in first class




18









 







rentable condition. Landlord, in putting the Premises in good order or preparing the same for
rerental may, at Landlord’s option, make such alterations, repairs, or replacements in the
Premises as Landlord, in its sole judgment, considers advisable and necessary for the purpose of
reletting the Premises, and the making of such alterations, repairs, or replacements shall not
operate or be construed to release Tenant from liability hereunder as aforesaid. If Tenant
requests in writing that Landlord attempt to relet the Premises after an Event of Default by
Tenant hereunder and Tenant states in such writing that an Event of Default has occurred and is
continuing under the Lease, Landlord agrees to use commercially reasonable efforts to relet the
Premises to another tenant (a “Substitute Tenant”) on terms and conditions determined by Landlord
in its sole discretion; provided, however, notwithstanding anything contained herein to the
contrary (a) Landlord shall have no obligation to solicit or entertain negotiations with any other
prospective tenants for the Premises until Landlord obtains full and complete possession of the
Premises; (b) Landlord shall not be obligated to offer the Premises to a prospective tenant when
other premises in the Building suitable for that prospective tenant’s use are (or soon will be)
available; (c) Landlord may, but shall not be obligated to, lease the Premises to a Substitute
Tenant for a rental less than the current fair market rental then prevailing for similar office
uses in comparable buildings in the same market area as the Building, nor shall Landlord be
obligated to enter into a new lease under other terms and conditions that are unacceptable to
Landlord in its sole discretion; (d) Landlord shall not be obligated to enter into a lease with
any proposed tenant whose use would: (1) violate any restriction, covenant or requirement
contained in the lease of another tenant of the Building; (2) adversely affect the reputation of
the Building; or (3) be incompatible with the operation of the Building as a first class building;
and (e) Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant
which does not have, in Landlord’s reasonable opinion, sufficient financial resources or operating
experience to operate the Premises in a first class manner and pay all Rent on time and fulfill
all of its obligations under such new lease. Tenant agrees to use commercially reasonable efforts
to mitigate any damages that Tenant may suffer as a result of any default by Landlord hereunder.




          (iii) Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at
Landlord’s option, at the time of termination of this Lease, the time of the reletting, or in
separate actions, from time to time, as said damage shall have been made more easily ascertainable
by successive relettings, or at Landlord’s option in a single proceeding deferred until the
expiration of the Term (in which event Tenant hereby agrees that the cause of action shall not be
deemed to have accrued until the date of expiration of said Term) or in a single proceeding prior
to either the time of reletting or the expiration of the Term. If the Landlord elects to repossess
the Premises without terminating this Lease, then Tenant shall be liable for and shall pay to
Landlord all Rent and other indebtedness accrued to the date of such repossession, plus Rent
required to be paid by Tenant to Landlord during the remainder of this Lease until the date of
expiration of the Term, diminished by any net sums thereafter received by Landlord through
reletting the Premises during such period (after deducting expenses incurred by Landlord as
provided in Section 16.b,(ii), above). In no event shall Tenant be entitled to any excess of any
Rent obtained by reletting over and above the Rent herein reserved. Actions to collect amounts due
from Tenant as provided in this Section 16.a.(iii) may be brought from time to time, on one or
more occasions, without the necessity of Landlord’s waiting until expiration of this Lease term.




     c. Notwithstanding the foregoing, if Landlord terminates this Lease pursuant
to Section 16.b.(i), above, Landlord shall be entitled to recover from Tenant, and Tenant shall pay
to Landlord on demand, as and for liquidated and agreed final damages for Tenant’s default, an
amount equal to the difference between (i) all Monthly Base Rent, Additional Rent and other sums
which would be payable under this Lease from the date of such demand (or, if it is earlier, the
date to which Tenant shall have satisfied in full its obligations under Section 16.b.(ii), above)
for what would be the then unexpired Term in the absence of such termination, and (ii) the fair
market rental value of the Premises over the same period (net of all expenses and all vacancy
periods reasonably projected by Landlord to be incurred in connection with the reletting of the
Premises), with such differential discounted at the rate of seven percent (7%) per annum. Nothing
herein shall be construed to affect or prejudice Landlord’s right to prove, and claim in full,
unpaid Rent or any other amounts accrued prior to termination of this Lease.



     d. Notwithstanding anything herein to the contrary, upon the occurrence of an Event of Default
hereunder, Landlord, with or without terminating the Lease, may immediately reenter and take
possession of the Premises and evict Tenant therefrom in accordance with applicable law, without
being liable for or guilty of trespass, forcible entry or any other tort.



     e. Tenant hereby expressly waives any and all rights of redemption granted by or under any
present of future laws in the event Tenant is evicted or dispossessed for any cause, or in the
event Landlord obtains possession of the Premises, by reason of the violation by Tenant of any of
the covenants and conditions of this Lease or otherwise. In addition, Tenant hereby expressly
waives any and all rights to bring any action whatsoever against any tenant taking possession after
Tenant has been dispossessed or evicted hereunder, or to make any such tenant or party to any
action brought by Tenant against Landlord.



     f. Landlord and Tenant shall and each does hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Lease or its termination, the
relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises or any claim of
injury or damage and any emergency statutory or any other statutory remedy. In the event Landlord
commences any summary proceeding for nonpayment of Rent or Additional Rent, or commences any other
action or proceeding against Tenant in connection with this Lease, Tenant will interpose no
counterclaim of whatever nature or description in any such proceeding, except mandatory
counter-claims.



19









 





     g. Nothing contained herein shall prevent the enforcement of any claim Landlord may have
against Tenant for anticipatory breach of the unexpired Term. In the event of a breach or
anticipatory breach by Tenant of any of the covenants or provisions hereof, Landlord shall have
the right of injunction and the right to invoke any remedy allowed at law or in equity as if
reentry, summary proceedings and other remedies were not provided for herein.



     h. In the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for
damages (Tenant hereby waiving the benefit of any laws granting Tenant a lien upon the property of
Landlord or upon Rent due Landlord), but prior to any such action Tenant will give Landlord and
any mortgagee notice specifying such default with particularity, and Landlord and/or such
mortgagee shall have thirty (30) days after receipt of such notice in which to cure any such
default; provided, however, that if such default cannot, by its nature, be cured within such
period, Landlord shall not be deemed in default if Landlord and/or such mortgagee shall within
such period commence to cure such default and shall diligently prosecute the same to completion.
Unless and until Landlord and/or any mortgagee fails so to cure any default after notice, Tenant
shall have no remedy or cause of action by reason thereof. All obligations of Landlord hereunder
will be construed as covenants, not conditions; all such obligations will be binding upon Landlord
only during the period of its ownership of the Building and not thereafter (provided that any
uncured default by Landlord of any of its obligations hereunder which occurs during Landlord’s
ownership of the Building shall not be extinguished as a result of the transfer or any other
disposition of the Building by Landlord, unless any purchaser, transferee or subsequent owner of
the Building assumes the obligations of Landlord under this Lease); and no default or alleged
default by Landlord shall relieve or delay performance by Tenant of its obligations to continue to
pay Annual Base Rent and Additional Rent hereunder as and when the
same shall be due.



17. BANKRUPTCY.




     a. For purposes of this Lease, the following shall be deemed “Events of Bankruptcy”: (i) if a
receiver or custodian is appointed for any or all of Tenant’s property or assets, or if there is
instituted a foreclosure action on any of Tenant’s property; or (ii) if Tenant files a voluntary
petition under 11 U.S.C. Article 101, et seq., as amended (the “Bankruptcy Code”), or under the
insolvency laws of any jurisdiction (the “Insolvency Laws”); or (iii) if there is filed an
involuntary petition against Tenant as the subject debtor under the Bankruptcy Code or Insolvency
Laws, which is not dismissed within sixty (60) days of filing; or (iv) if Tenant makes or consents
to an assignment of its assets, in whole or in part, for the benefit of creditors, or a common law
composition of creditors.



     b. Upon the occurrence of an Event of Bankruptcy, Landlord, at its option and sole discretion,
may terminate this Lease by written notice to Tenant (subject, however to applicable provisions of
the Bankruptcy Code or Insolvency Laws during the pendency of any action thereunder). If this Lease
is terminated under this Section 17, Tenant shall immediately surrender and vacate the Premises,
waives all statutory or other notice to quit, and agrees that Landlord shall have all rights and
remedies against Tenant provided in Section 16 in case of an Event of Default by Tenant.



     c. If Tenant becomes the subject debtor in a case pending under the Bankruptcy Code (the
“Bankruptcy Case”), Landlord’s right to terminate this Lease under this Section 17 shall be subject
to the applicable rights (if any) of the debtor-in-possession or the debtor’s trustee in bankruptcy
(collectively, the “Trustee”) to assume or assign this Lease as then provided for in the Bankruptcy
Code, however, the Trustee must give to Landlord, and Landlord must receive, proper written notice
of the Trustee’s assumption or rejection of this Lease, within sixty (60) days (or such other
applicable period as is provided pursuant to the Bankruptcy Code) after the commencement of the
Bankruptcy Case; it being agreed that failure of the Trustee to give notice of such assumption
hereof within said period shall conclusively and irrevocably constitute the Trustee’s rejection of
this Lease and waiver of any right of the Trustee to assume or assign this Lease. The Trustee
shall not have the right to assume or assign this Lease unless said Trustee (i) promptly and fully
cures all defaults under this Lease, (ii) promptly and fully compensates Landlord and any third
party (Including other tenants) for all monetary damages incurred as a result of such default, and
(iii) provides to Landlord “adequate assurance of future performance.” Landlord and Tenant (which
term may include the debtor or any permitted assignee of debtor) hereby agree in advance that
“adequate assurance of performance” as used in this paragraph, shall mean that all of the following
minimum criteria must be met: (1) the source of Monthly Base Rent, Additional Rent, and other
consideration due under this Lease, and the financial condition and operating performance of
Tenant, and its guarantor, if any, shall be similar to the financial condition and operating
performance of Tenant as of the Commencement Date; (2) Trustee or Tenant must pay to Landlord all
Monthly Base Rent and Additional Rent payable by Tenant hereunder in advance pursuant to the terms
of this Lease, (3) Trustee or Tenant must agree (by writing delivered to Landlord) that the use of
the Premises shall be used only for the permitted use as stated in this Lease, and that any
assumption or assignment of this Lease is subject to all of the provisions thereof and will not
violate or affect the rights or agreements of any other tenants or occupants in the Building or of
Landlord (including any mortgage or other financing agreement for the Building, (4) Trustee or
Tenant must pay to Landlord at the time the next Monthly Base Rent is due under this Lease, in
addition to such installment of Monthly Base Rent, an amount equal to the installments of Monthly
Base Rent and Additional Rent due under this Lease for the next four (4) months of this Lease, said
amount to be held by Landlord in escrow until either Trustee or Tenant defaults in its payment of
Monthly Base Rent and Additional Rent or other obligations under this Lease (whereupon Landlord
shall have the right to draw on such escrowed funds) or until the expiration of this Lease
(whereupon the funds shall be returned to Trustee or Tenant except to the extent the funds have
been drawn and not replaced); and (5) Trustee or Tenant must agree to pay to Landlord at any time
Landlord is authorized to and does draw oh the escrow account the amount necessary to restore such
escrow account to the original level required by clause (4), above. The criteria stated above are
not



20









 







intended to be exhaustive or all-inclusive and Landlord may reasonably determine that the
circumstances of Tenant or of this Lease require other or further assurances of future
performance. In the event Tenant is unable to: (a) cure its defaults, (b) reimburse Landlord for
its monetary damages, (c) pay the Monthly Base Rent and Additional Rent due under this Lease on
time, or (d) meet that criteria and obligations imposed by (1) through (5), above, then
Tenant hereby agrees in advance that it has not met its burden to provide adequate assurance of
future performance, and this Lease may be terminated by Landlord in accordance with Section 17.b.,
above.



18. PAYMENT OF TENANT’S OBLIGATIONS BY LANDLORD AND UNPAID RENT.




     All covenants and agreements to be performed by Tenant under any of the terms of this
Lease shall be performed by Tenant at Tenant’s sole cost and expense. If Tenant shall fail to pay
any sum of money, other than Rent, required to be paid by it hereunder or shall fail to perform
any other act on its part to be performed hereunder, and such failure shall continue beyond, any
applicable grace period set forth in this Lease, Landlord may, without waiving or releasing Tenant
from any of its obligations hereunder, make any such payment or perform any such other required
act on Tenant’s part. All sums so paid by Landlord, and all necessary incidental costs, together
with interest thereon at two percentage points (2%) over the Prime Rate then in effect, from the
date of such payment by Landlord, shall be payable by Tenant to Landlord as Additional Rent
hereunder, upon receipt of an invoice therefor, and Tenant covenants and agrees to pay any such
sums. Landlord shall have (in addition to any other right or remedy of Landlord hereunder or at
law) the same rights and remedies in the event of the nonpayment thereof by Tenant as in the case
of default by Tenant in the payment of Additional Rent. In addition, any Rent, including, without
limitation, Annual Base Rent, Additional Rent, Tenant’s Pass-Through Costs and/or Late Charges,
which is not paid timely will accrue interest per annum at two percentage points (2%) over the
Prime Rate from the date such payment is due until the date paid in full (including all accrued
interest).



19. VOLUNTARY SURRENDER.




     The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof,
shall not work a merger, and shall, at the sole option of Landlord, terminate all or any existing
subleases or subtenancies, or may, at the sole option of Landlord, operate as an assignment to
Landlord of any or all such subleases or subtenancies; provided however, that if Landlord elects
to treat such termination as an assignment of any such sublease, Landlord shall have no obligation
or liability to the subtenant thereunder for any claim, damage or injury which accrued prior to
the date of surrender or mutual cancellation hereunder.



20. ABANDONMENT OF PERSONAL PROPERTY.




     Upon the expiration of the Term or earlier termination of this Lease, Tenant shall forthwith
remove Tenant’s goods and effects and those of any other persons claiming through or under Tenant,
or subtenancies assigned to it, and quit and deliver the Premises to the Landlord peaceably and
quietly. Goods and effects not removed by Tenant after termination of this Lease (or within
forty-eight (48) hours after a termination by reason of Tenant’s default) shall be considered
abandoned. Landlord shall give Tenant notice of right to reclaim abandoned property pursuant to
applicable local law and may thereafter dispose of the same as Landlord deems expedient, including
public or private sale and/or storage in a public warehouse or elsewhere at the sole cost, and for
the account, of Tenant, and Tenant shall promptly upon demand reimburse Landlord for any expenses
incurred by Landlord in connection therewith, including reasonable attorneys’ fees.



21. HOLD-OVER.




     If Tenant shall not immediately surrender the Premises at the expiration of the Term then
Tenant shall, by virtue of the provisions of this Section 21, become a tenant by the month. In
such event Tenant shall be required to pay one hundred fifty percent (150%) of the amount of the
Monthly Base Rent then in effect and as subsequently escalated in accordance with the provisions
hereof, together with all Additional Rent in effect during the last month of the Term commencing
said monthly tenancy with the first day next after the end of the Term; and said Tenant, as a
month-to-month tenant, shall be subject to all of the conditions and covenants of this Lease as
though the same had originally been a monthly tenancy, except as otherwise provided above with
respect to the payment of Rent. Each party hereto shall give to the other at least thirty (30)
days written notice to quit the Premises, except in the event of non-payment of Rent provided for
herein when due, or of the breach of any other covenant by the said Tenant, in which event, Tenant
shall not be entitled to any notice to quit, the usual thirty (30) days notice to quit being
expressly waived; provided, however, that in the event that Tenant shall hold over after
expiration of the Term, and if Landlord shall desire to regain possession of said Premises
promptly at the expiration of the Term, then at any time prior to the acceptance of the Rent by
Landlord from Tenant, as a monthly tenant hereunder, Landlord, at its election or option, may
reenter and take possession of the Premises forthwith, without process, or by any legal action or
process in the Commonwealth of Virginia.



22. OPTION TO EXTEND TERM.




     a. Tenant shall have and is hereby granted the option to extend the Term hereof for two (2)
periods of five (5) years each (each, an “Extension Period”) commencing on the date immediately
following the Lease Expiration Date, or on the date immediately following the last day of the first
Extension Period, as applicable, provided that: (i) Tenant delivers written notice (the “Extension
Notice”)



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to Landlord, not more than fifteen (15), or less than twelve (12), months prior to the Lease
Expiration Date, or prior to last day of the first Extension Period, as applicable, time being of
the essence, of Tenant’s irrevocable election to exercise such extension option (provided,
however, that if the Premises contains more than 63,492 rentable square feet, Tenant shall deliver
the Extension Notice to Landlord not more than eighteen (18), or less than fifteen (15), months
prior to the Lease Expiration Date, or prior to last day of the first Extension Period, as
applicable); (ii) no event exists at the time of the exercise of such option or arises subsequent
thereto, which event by notice and/or the passage of time would constitute an Event of Default if
not cured within the applicable cure period; and (iii) Tenant has not assigned its interest in the
Lease or sublet more than thirty-five percent (35%) of the Premises (except to an Affiliate of
Tenant. Notwithstanding the foregoing, Tenant may elect to extend the Term hereof pursuant to the
terms of this Section 22 with respect to the entire Premises, or alternatively, with respect to
any full floor(s) which comprise the Premises as of the date Tenant delivers the Extension Notice
to Landlord, which notice shall set forth the portion of the Premises which shall be subject to
the applicable Extension Period. Notwithstanding the foregoing, if Tenant delivers to Landlord,
not more than nineteen (19), or less than sixteen (16), months prior to the Lease Expiration Date,
or prior to the last day of the first Extension Period, as applicable, written notice (the
“Extension Period Proposed Rent Notice”) requesting that Landlord furnish Tenant with Landlord’s
proposed Annual Base Rent, Base Year and other material economic terms and conditions for the
first or second (2nd) Extension Period, as applicable, Landlord shall furnish Tenant
with such proposed terms and conditions within thirty (30) days after Landlord’s receipt of the
Extension Period Proposed Rent Notice (provided, however, that if the Premises contains more than
63,492 rentable square feet, Tenant shall deliver the Extension Period Proposed Rent Notice to
Landlord not more than twenty-one (21), or less than eighteen (18), months prior to the Lease
Expiration Date, or prior to last day of the first Extension Period, as applicable).



     b. All terms and conditions of the Lease, including without limitation all provisions
governing the payment of Additional Rent and annual increases in Annual Base Rent, shall remain in
full force and effect during the any Extension Period, except that (i) Annual Base Rent (on a per
rentable square foot basis) payable during each Extension Period shall equal the Fair Market Rental
Rate (hereinafter defined) at the time of the commencement of the applicable Extension Period; (ii)
Landlord shall provide a “market” improvement allowance, rental abatement and other tenant
concessions in connection with the Extension Period; and (iii) the “Base Year” for Tenant’s
Proportionate Share of increases in Operating Expenses and Tenant’s Proportionate Share of
increases in Real Estate Taxes shall be mutually determined by and between Landlord and Tenant. As
used in this Lease, the term “Fair Market Rental Rate” shall mean the fair market rental rate that
would be agreed upon between a landlord and a tenant entering into a lease for comparable space as
to location, configuration, size and use, in a comparable building as to quality, reputation and
age which is located in the Dulles Toll Road Corridor submarket, with a comparable build-out and a
comparable term assuming the following: (A) the landlord and tenant are informed and well-advised
and each is acting in what it considers its own best interests; (B) the landlord shall provide a
“market” tenant improvement allowance, free rent period and other tenant concessions typically
provided to tenants of comparable space in comparable buildings for leases having terms comparable
to the applicable Extension Period; and (C) the tenant will continue to pay its proportionate share
of increases (over a new “Base Year” as negotiated by and between Landlord and Tenant) in Operating
Expenses and Real Estate Taxes as described above.



     c. Landlord and Tenant shall negotiate in good faith to determine the Annual Base Rent for
each Extension Period, for a period of thirty (30) days after the date on which Landlord receives
the Extension Notice. In the event Landlord and Tenant are unable to agree upon the Annual Base
Rent for any Extension Period within said thirty (30)-day period, the Fair Market Rental Rate for
the Premises shall be determined by a board of three (3) licensed real estate brokers, one of whom
shall be named by the Landlord, one of whom shall be named by Tenant, and the two so appointed
shall select a third (the ‘Third Broker”). Each real estate broker so selected shall be licensed in
the Commonwealth of Virginia as a real estate broker specializing in the field of office leasing in
Fairfax County, having no fewer than ten (10) years experience in such field, and recognized as
ethical and reputable within the field. Landlord and Tenant agree to make their
appointments promptly within ten (10) days after the expiration of the thirty (30)-day period, or
sooner if mutually agreed upon. The two (2) brokers selected by Landlord and Tenant shall select
the Third Broker within ten (10) days after they both have been appointed, and all three (3)
brokers shall, within fifteen (15) days after the Third Broker is selected, submit his or her
determination of the Fair Market Rental Rate. The Third Broker shall determine which determination
of Fair Market Rental Rate made by Landlord’s broker or Tenant’s broker is closest to the
determination of Fair Market Rental Rate made by the Third Broker (the “Closest Determination”).
The Fair Market Rental Rate hereunder shall be the mean of the Closest Determination and the
determination of Fair Market Rental Value made by the Third Broker. Landlord and Tenant shall
each pay the fee of the broker selected by it, and they shall equally share the payment of the fee
of the Third Broker.



     d. Should the Term of the Lease be extended hereunder, Tenant shall, if required by Landlord,
execute an amendment (the “Extension Amendment”) modifying the Lease within ten (10) business days
after Landlord presents same to Tenant, which Extension Amendment shall accurately set forth the
Annual Base Rent for each year of the applicable Extension Period and the other economic terms and
provisions in effect during such Extension Period, as determined pursuant to the terms of this
Section 22. Should Tenant fail to execute the Extension Amendment (which Extension Amendment
accurately sets forth the terms and provisions in effect during the applicable Extension Period)
within ten (10) business days after presentation of same by Landlord, time being of the essence,
Tenant’s right to extend the Term of the Lease shall, at Landlord’s sole option, terminate, and
Landlord shall be permitted to lease such space to any other person or entity upon whatever terms
and conditions are acceptable to Landlord in its sole discretion.



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23. RIGHT OF FIRST OFFER.




     a. Subject to (i) any expansion rights, renewal rights, rights of first offer or refusal or
other rights possessed by any tenant in the Building with respect to the Right of First Offer Space
(hereinafter defined) or any portion thereof existing as of the Effective Date, (ii) any renewal
rights granted by Landlord after the Effective Date to any tenant of all or any portion of the
Right of First Offer Space, and (iii) the right of any tenant of the Right of First Offer Space (or
any portion thereof) to negotiate an extension of the term of its lease of such space or a new
lease demising such space, Tenant shall be granted during the initial Term the following rights
with respect to the Right of First Offer Space. As used herein, the term “Right of First Offer
Space” shall mean any space in the Building (other than the Premises) which becomes available for
lease by third parties with respect to which Landlord receives during the initial Term an Offer
(hereinafter defined) to lease such space. Notwithstanding any provision of the Lease to the
contrary Tenant shall have no rights with respect to the Right of First Offer Space or any other
rights of first offer or refusal, or first right to negotiate, or any other expansion rights
whatsoever, except as expressly provided in this Section 23. Landlord represents and warrants to
Tenant that, other than the renewal rights of France Telecom USA set forth in its lease with
Landlord, no other tenant in the Building possesses any renewal rights, rights of first offer or
refusal or other expansion rights with respect to the portion of the Right of First Offer Space
which is located on the sixth (6th) floor of the Building.



     b. If, during the initial Term, Landlord receives a bona fide offer from a prospective tenant
which is not related to Landlord (a “Prospective Tenant”) to lease all or any portion of the Right
of First Offer Space (an “Offer”), the financial terms of which Landlord is prepared to accept,
Landlord shall notify Tenant in writing of such Offer (the “ROFO Notice”), and Landlord shall set
forth in the ROFO Notice: (i) a description of the portion of the Right of First Offer Space that
is subject to the Offer (the “Available Space”), (ii) the base rent, tenant concessions and other
terms and conditions pursuant to which Landlord would agree to lease the Available Space to Tenant
(which terms need not be those contained in the Offer), and (iii) the date on which Landlord
anticipates that the Available Space would become available for lease by Tenant (the “ROFO
Availability Date”). Provided that (A) no Event of Default then exists under the Lease; (B)
Tenant has not assigned the Lease, or sublet thirty-five percent (35%) or more of the Premises
(other than to an Affiliate of Tenant); (C) not less than thirty-six (36) months remain in the Term
as of the ROFO Availability Date; and (D) Tenant notifies Landlord, in writing, within ten (10)
business days after Tenant receives the ROFO Notice, time being of the essence, of Tenant’s
irrevocable election to lease all (but not less than all) of the Available Space described in the
ROFO Notice on the terms and conditions set forth in the ROFO Notice (the “ROFO Tenant Election
Notice”), Tenant shall have the right to lease all, but not less than all, of the Available Space
described in the ROFO Notice on the terms and conditions set forth in the ROFO Notice.



     c. In the event that Tenant timely delivers a ROFO Tenant Election Notice to Landlord,
Landlord shall prepare an amendment modifying the Lease to incorporate the Available Space (the
“ROFO Amendment”), which amendment shall accurately set forth, among other things: (i) the amount
of Annual Base Rent for the Available Space (based on the per rentable square foot rental rate set
forth in the ROFO Notice); (ii) the adjustments to Tenant’s obligation to pay Additional Rent
caused by the addition of the Available Space; and (iii) any other term and condition applicable to
the Available Space and mutually agreed to by and between Landlord and Tenant. The term of the
demise of the Available Space (the “Right of First Offer Space Term”) shall commence on the date on
which Landlord delivers such Available Space to Tenant (the “ROFO Space Commencement Date”), at
which time all of Tenant’s obligations with respect to the Available Space shall commence,
including the obligation to pay Annual Base Rent. In all instances, the Right of First Offer Space
Term shall be coterminous with the Term of this Lease.



     d. In the event that Landlord and Tenant enter in a ROFO Amendment, and Landlord is unable to
deliver to Tenant possession of the Available Space demised thereunder on the ROFO Availability
Date in vacant, broom-clean condition for any reason whatsoever, including without limitation the
failure of an existing tenant to vacate such space, Landlord shall not be liable or responsible for
any claims, damages or liabilities in connection therewith or by reason thereof/provided that (i)
Landlord shall use reasonable efforts to obtain possession of such space (which reasonable efforts
shall include the commencement of eviction proceedings) and deliver same to Tenant as soon as
reasonably practicable thereafter; and (ii) rent with respect to the Available Space shall abate
until Landlord delivers the Available Space to Tenant. In the event that Landlord is unable to
deliver the Available Space to Tenant by the date which is one hundred twenty (120) days after the
ROFO Availability Date, subject to a day-for- day extension for matters of Force Majeure (the
“Available Space Outside Delivery Date”), Tenant shall have the right, but not the obligation, to
terminate the applicable ROFO Amendment upon ten (10) business days prior written notice to
Landlord, in which event the applicable ROFO Amendment shall be null and void and of no further
force or effect; provided that if Landlord delivers the Available Space to Tenant during such ten
(10) business day period, the applicable ROFO Amendment shall not terminate and shall continue in
full force and effect in accordance with its terms.



     e. In the event Tenant fails timely to deliver a ROFO Tenant Election Notice to Landlord or,
having done so, Tenant fails to execute the ROFO Amendment tendered by Landlord within ten (10)
business days after Landlord tenders such amendment to Tenant: (i) Landlord may lease the Available
Space (or any portion thereof) described in the ROFO Notice to any person or entity of Landlord’s
choice, on whatever terms and conditions are selected by Landlord in its sole discretion; and (ii)
this Section 23 shall terminate automatically, and Tenant shall have no further right to lease any
Right of First Offer Space.




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24. USA PATRIOT ACT AND ANTI-TERRORISM LAWS.




     a. Landlord and Tenant each represents and warrants to, and covenants with, the other
party that neither it, nor any of its respective constituent owners or affiliates currently are, or
shall be at any time during the Term hereof, in violation of any laws relating to terrorism or
money laundering (collectively, the “Anti-Terrorism Laws”), including without limitation Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001 and relating to Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism (the “Executive Order”) and/or the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (the
“USA Patriot Act”).



     b. Landlord and Tenant each covenants with the other party that neither it nor any of its
respective constituent owners or affiliates is or shall be during the Term hereof a “Prohibited
Person,” which is defined as follows: (i) a person or entity that is listed in the Annex to, or is
otherwise subject to, the provisions of the Executive Order; (ii) a person or entity owned or
controlled by, or acting for or on behalf of, any person or entity that is listed in the Annex to,
or is otherwise subject to the provisions of, the Executive Order; (iii) a person or entity with
whom Landlord or Tenant, as applicable, is prohibited from dealing with or otherwise engaging in
any transaction by any Anti-Terrorism Law, including without limitation the Executive
Order and the USA Patriot Act; (iv) a person or entity who commits, threatens or conspires to
commit or support “terrorism” as defined in Section 3(d) of the Executive Order; (v) a person or
entity that is named as a “specially designated national and blocked person” on the then-most
current list published by the U.S. Treasury Department Office of Foreign Assets Control at its
official website, http://www.treas.gov/offices/eotffc/ofac/sdn/t11 sdn.pdf or at any
replacement website or other replacement official publication of such list; and (vi) a
person or entity who is affiliated with a person or entity listed in
items (i) through (v), above.



     c. At any time and from time-to-time during the Term, Landlord or Tenant, as applicable, shall
deliver to the other party, within ten (10) days after receipt of a written request therefor, a
written certification or such other evidence reasonably acceptable to such requesting party
evidencing and confirming the other party’s compliance with this Section 24.



25. QUIET ENJOYMENT.




     Landlord covenants that, if Tenant is not in default hereunder, Tenant shall at all
times during the Term peaceably and quietly have, hold and enjoy the Premises without disturbance
from Landlord, subject to the terms of this Lease and to the rights of the parties presently or
hereinafter secured by any deed of trust or mortgage against the Building.



26. PARKING.




     a. Tenant shall be provided, without charge during the initial Term of the Lease, the
right to park, on an unreserved basis, one hundred forty-two (142) automobiles (or 3.98 automobiles
per 1,000 r.s.f. of the Premises then being leased by Tenant) belonging to Tenant’s employees,
agents and guests on the surface lot adjacent to the Building (the “Surface Lot”) and/or the
parking structure adjacent to the Building (the “Parking Structure”), as determined by Landlord in
its sole discretion.



     b. Tenant agrees that it and its employees shall observe reasonable safety precautions in the
use of the Surface Lot and/or the Parking Structure, and shall at all times abide by all rules and
regulations promulgated by Landlord or the parking operator governing the use of the Surface Lot
and/or the Parking Structure. Landlord shall not intentionally discriminate against Tenant in
Landlord’s enforcement of such rules and regulations. Tenant understands and agrees that Landlord
does not assume any responsibility for any damage or loss to any automobiles parked on the Surface
Lot and/or the Parking Structure, or to any personal property located therein or thereon, or for
any injury sustained by any person in or about the Surface Lot and/or the Parking Structure.



27. NOTICES.




     Any and all notices or demands required or permitted herein shall be in writing and
served (a) personally, (b) by certified mail, return receipt requested, or (c) by guaranteed
overnight courier, at the addresses provided in Section 1.h, above. If served personally, service
shall be conclusively deemed made at the time of such delivery. If served by certified mail,
service shall be conclusively deemed made seventy-two (72) hours after the deposit thereof in the
United States mail, postage prepaid, pursuant to this Section 27. If served by overnight courier,
service shall be conclusively deemed made one (1) business day after deposit with such courier.
Either party may specify a different address according to the terms of this Section 27.



28. BROKERS.




     Landlord and Tenant recognize ACP Mid-Atlantic LLC, as Landlord’s broker, and The
Staubach Company — Northeast, Inc., as Tenant’s broker (collectively, the “Brokers”), as the sole
brokers with respect to this Lease and Landlord agrees to be responsible for the payment of any
leasing commissions owed to the aforesaid Brokers in accordance with the terms of separate
commission agreements entered into between Landlord and each of said Brokers. Landlord and Tenant
each represents and warrants to the other that, except for the Brokers, no other broker has been
employed in carrying on any negotiations



24









 







relating to this Lease and shall each indemnify and hold harmless the other from any claim for
brokerage or other commission arising from or out of any breach of the foregoing representation
and warranty.



29. ENVIRONMENTAL CONCERNS.




     a. Tenant, its agents, employees, contractors or invitees shall not (i) cause or permit any
Hazardous Materials to be brought upon, stored, used or disposed on, in or about the Premises
and/or the Building, or (ii) knowingly permit the release, discharge, spill or emission of any
Hazardous Material in or from the Premises. Notwithstanding the foregoing, “Hazardous Materials”
which are prohibited by the terms of this Section 29 shall not include cleaning solvents, office
supplies, or similar materials used in the ordinary course of a general office use (the “Office
Product Materials”) provided that such Office Product Materials are used and stored by Tenant in
strict accordance with all applicable Environmental Laws. In no event shall the foregoing sentence
be construed to permit Tenant to engage in research, product testing, or other non-office uses in
the Premises that involve the use of any Office Product Materials.



     b. Tenant hereby agrees that it is and shall be fully responsible for all costs, expenses,
damages or liabilities (including, but not limited to those incurred by Landlord and/or its
mortgagee) which may occur from the use, storage, disposal, release, spill, discharge or emissions
of Hazardous Materials by Tenant whether or not the same may be permitted by this Lease. Tenant
shall defend, indemnify and hold harmless Landlord, its mortgagee and its agents from and against
any claims, demands, administrative orders, judicial orders, penalties, fines, liabilities,
settlements, damages, costs or expenses (including, without limitation, reasonable attorney and
consultant fees, court costs and litigation expenses) of whatever kind, or nature, known or
unknown, contingent or otherwise, arising out of or in any way related to the use, storage,
disposal, release, discharge, spill or emission of any Hazardous Material, or the violation of any
Environmental Laws, by Tenant, its agents, employees, contractors or invitees. The provisions of
this Section 29 shall be in addition to any other obligations and liabilities Tenant may have to
Landlord at law or in equity and shall survive the transactions contemplated herein or any
termination of this Lease.



     c. As used in this Lease, the term “Hazardous Materials” shall include, without limitation:



          (i) those substances included within the definitions of “hazardous substances”, “hazardous
materials,” toxic substances,” or “solid waste” in the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. §9601 et seq.) (“CERCLA”), as amended by
Superfund Amendments and Reauthorization Act of 1986 (“SARA”), the Resource Conservation and
Recovery Act of 1976 (“RCRA”), and the Hazardous Materials Transportation Act, and in the
regulations promulgated pursuant to said laws, all as amended;




          (ii) those substances listed in the United States Department of Transportation Table (49 CFR
172.101 and amendments thereto) or by the Environmental Protection Agency (of any successor
agency) as hazardous substances (40 CFR Part 302 and amendments thereto); and




          (iii) any material, waste or substance which is (A) petroleum, (B) asbestos, (C)
polychlorinated biphenyl, (D) designated as a “hazardous substance” pursuant to Section 311 of the
Clean Water Act, 33 U.S.C. §1251 et seq. (33 U.S.C. .§1321) or listed pursuant to Section of the
Clean Water Act (33 U.S.C. §1317); (E) flammables or explosives; or (F) radioactive materials.




     d. All federal, state or local laws, statutes, regulations, rules, ordinances, codes,
standards, orders, licenses and permits of any governmental authority or issued or promulgated
thereunder shall be referred to as the “Environmental Laws”.



30. LANDLORD’S LIEN. Intentionally Omitted.



31. RULES AND REGULATIONS.




     Tenant shall at all times comply with the rules and regulations set forth in Exhibit
D attached hereto and with any reasonable additions thereto and modifications thereof adopted
from time to time by Landlord; Tenant shall be given five (5) business days written notice of any
such additions and modifications. Each such rule or regulation shall be deemed to be a covenant of
this Lease to be performed and observed by Tenant. Landlord shall not discriminate against Tenant
in its enforcement of the rules and regulations. In the event of any conflict between the rules
and regulations and the terms and conditions of this Lease, the terms and conditions of this Lease
shall control.



32. ROOFTOP COMMUNICATIONS EQUIPMENT.




     a. Tenant shall have the non-exclusive right, at no additional charge during the initial Term
hereof, to use a portion of the roof of the Building (the “Roof”) selected by Landlord and
reasonably agreeable to Tenant, the area of which shall not exceed sixty-four (64) square feet, for
the installation of one (1) microwave dish and one (1) antennae (collectively, the “Communications
Equipment”), provided that (i) the Communications Equipment sought to be installed by Tenant is
permitted under, and conforms to the requirements of, the laws, rules and regulations of the Town
of Herndon, Fairfax County, the Commonwealth of Virginia, any other governmental or
quasi-governmental authorities having appropriate jurisdiction over the Building, and any
restrictive covenants or other documents governing the use of the Project; (ii) Tenant obtains and
maintains all permits, licenses, variances, authorizations and approvals



25









 







that may be required in order to install such Communications Equipment; (iii) Tenant shall obtain
insurance coverages required by Landlord relating to the installation and operation of such
Communications Equipment; (iv) Tenant shall install any screen or other covering for the
Communications Equipment that Landlord may require in order to camouflage or conceal the
Communications Equipment; (v) Landlord shall have approved in its sole discretion the dimensions
and specifications for the Communications Equipment, and the proposed method of attaching the
Communications Equipment to the Roof; and (vi) Landlord’s engineer determines that the portion of
the Roof on which Tenant desires to install the Communications Equipment is capable of bearing
the weight of the Communications Equipment.



     b. Prior to or contemporaneous with requesting Landlord’s approval of the installation of the
Communications Equipment, Tenant shall provide to Landlord: (i) plans and specifications for the
Communications Equipment; (ii) copies of all required governmental and quasi-governmental permits,
licensees, special zoning variances, and authorizations for the installation and operation of the
Communications Equipment, all of which Tenant shall, obtain at its own cost and expense; and (iii)
a policy or certificate of insurance evidencing such insurance coverage as may be required by
Landlord for the installation, operation and maintenance of the Communications Equipment and
sufficient to cover, inter alia, the indemnities from Tenant to Landlord provided in the Lease
relating to the installation, maintenance, operation and removal of the Communications Equipment.
Landlord may withhold its approval of the installation of the Communications Equipment if the
installation, operation or removal of the Communications Equipment may (A) damage the structural
integrity of the Building or void any warranty or guaranty applicable to the Roof or the Building;
or (B) cause the violation of any zoning ordinance or other governmental or quasi-governmental law,
rule or regulation applicable to the Building. Landlord may require as a precondition to its
approval of the installation of the Communications Equipment that Tenant (or, at Landlord’s option,
Landlord), at Tenant’s sole cost and expense, install additional structural support (in a manner
determined by Landlord’s engineer in its sole discretion) to the portion of the Roof on which
Tenant desires to install the Communications Equipment. Tenant shall not be entitled to rely on any
such approval as being a representation by Landlord that such installation and operation is
permitted by or in accordance with any zoning ordinance or other governmental or quasi-governmental law, rule or regulation applicable to the Building.



     c. Landlord shall be provided with access to the Roof, including the portion of the Roof on
which the Communications Equipment is located, in order to inspect the Communications Equipment and
Roof to determine, inter alia, if the Communications Equipment is causing damage to the Roof or any
other part of the Building and/or to repair the Roof or remove or relocate the Communications
Equipment. Landlord, at its sole option and discretion, may require Tenant, at any time prior to
the expiration of the Lease, to terminate the operation of the Communications Equipment if it is
causing physical damage to the structural integrity of the Building or voids any warranty or
guaranty applicable to the Roof or the Building, or is interfering with any satellite dish,
antennae or other telecommunications device being operated on the Roof or elsewhere in the Building
by any tenant in the Building or other licensee authorized by Landlord, or causing the violation of
any condition or provision of the Lease or any governmental or quasi-governmental law, rule or
regulation (now or hereafter in effect) applicable to the Building.



     d. Tenant acknowledges that the rights contained in this Section 32 are non-exclusive, and
that Landlord may grant such rights to any other tenant in the Building or any other licensee of
Landlord’s choice (whether or not such licensee is a tenant of the Building). Tenant expressly
acknowledges that it may not (i) license or otherwise permit third parties to install on the Roof
of the Building or anywhere else in the Premises, any Communications Equipment; (ii) permit any
third party to use any portion of the Roof for any purpose whatsoever; or (iii) utilize the
Communications Equipment as a direct means of generating revenue. The breach of this provision
shall constitute an Event of Default under this Lease.



     e. Prior to the expiration or earlier termination of the Lease, Tenant, at Tenant’s sole cost,
shall remove the Communications Equipment and all cabling and other equipment relating thereto from
the Building, and Tenant shall restore the area where the Communications Equipment was located to
its condition existing prior to such installation in a manner and with materials determined by
Landlord. In the event Tenant fails to promptly do so, Tenant hereby authorizes Landlord to remove
the Communications Equipment and all cabling and other, equipment relating thereto and restore the
area of the roof and the other portions of the Building affected thereby, reasonable wear and tear
excepted, and charge Tenant for all reasonable costs and expenses incurred in connection therewith.
Tenant’s obligation to perform and observe this covenant shall survive the expiration or earlier
termination of the Term of the Lease.



     f. Tenant covenants and agrees that the installation, operation and removal of the
Communications Equipment shall be at its sole cost and risk. Tenant covenants and agrees absolutely
and unconditionally to indemnify, defend and hold Landlord harmless from and against all claims,
actions, damages, liability, judgments, settlements, costs and expenses (including attorneys’ fees
and expenses) suffered or sustained by Landlord arising out of the installation, operation,
maintenance or removal of the Communications Equipment, including without limitation any loss or
injury resulting from transmissions from the Communications Equipment.



     g. The rights contained in this Section 32 shall transfer to any assignee of Tenant, or any
subtenant of all of the Premises for a sublease term which expires during the last Lease Year of
the Term hereof.



     h. Tenant shall be entitled to connect the Communications Equipment to the Building’s
electric power source; provided, however, that: (i) the method of connecting any component of
the



26









 







Communications Equipment to the Building’s electric power source and the specific location in the
Building at which such connection shall be effected, shall be subject to Landlord’s prior approval;
and (ii) such connection shall be undertaken by licensed contractor(s) approved by Landlord. The
cost of connecting the Communications Equipment to the Building’s electric power source and the
cost of all electricity consumed by the Communications Equipment shall be borne solely by Tenant.
Except in the event of the negligence or willful misconduct of Landlord, its agents or employees,
Tenant hereby agrees to indemnify and hold Landlord and its agents, officers, directors and
employees harmless from and against any cost, damage, claim, liability or expense (including
attorneys’ fees) incurred by or claimed against Landlord and its agents, officers, directors and
employees, directly or indirectly, as a result of or in , any way relating to the connection of any
component of the Communications Equipment to, or the removal of any component of the Communications
Equipment from, the Building’s electric power source



33. EXTERIOR SIGNAGE.




     a. Tenant shall have the right to install, at Tenant’s sole cost and expense, a sign bearing
Tenant’s name and corporate logo (the “Exterior Sign”) on the top level of the exterior of the
Building, in the location which is currently occupied by the exterior sign previously installed by
France Telecom USA). All attributes of the Exterior Sign, including without limitation size,
materials and color, shall be subject to Landlord’s prior approval, which shall not be unreasonably
withheld, conditioned or delayed by Landlord, the approval of the Woodland Park Owners Association
(the “Association”) and the approval of Fairfax County. Prior to installing the Exterior Sign,
Tenant shall submit to Landlord for its approval a drawing of the Exterior Sign, which drawing
shall specify the dimensions, materials, color and other attributes of the Exterior Sign which
Tenant desires to install. Tenant’s right to install the Exterior Sign shall be subject to Tenant’s
receipt of all necessary permits and governmental approvals for such installation; provided that
the failure to obtain such permits or approvals shall not affect the Lease (or Tenant’s obligations
hereunder) in any way. The exact placement of the Exterior Sign on the Building shall be subject
to Landlord’s approval regarding structural support issues. Tenant shall be solely responsible for
obtaining and maintaining all permits and governmental approvals necessary for the installation and
operation of the Exterior Sign, including without limitation the approval of the Association.
Tenant shall be responsible for repairing and maintaining the Exterior Sign installed by Tenant in
a first-class condition throughout the Term and shall pay for the cost of all electricity consumed
by the Exterior Sign. The Exterior Sign shall be installed by a licensed contractor acceptable to
Landlord using a mounting procedure approved by Landlord in its sole discretion. Tenant shall cause
its insurance carrier to include the Exterior Sign in the coverage required to be obtained by
Tenant pursuant to Section 12, above. The right to install the Exterior Sign shall be personal to
K12 Inc. and shall not be applicable to any assignee or sublessee of Tenant (other than an
Affiliate of Tenant). Tenant agrees to indemnify Landlord and hold it harmless from and against all
claims, damage or liability (including attorneys’ fees) sustained or suffered by Landlord arising
out of or related to the installation, maintenance or removal of the Exterior Sign. Tenant shall
remove the Exterior Sign upon the date (the “Exterior Sign Removal Date”) which is the earlier to
occur of (1) the date on which Tenant has subleased in excess of forty percent (40%) of the
rentable square feet of the Premises (as the Premises may be expanded pursuant to the terms of this
Lease), or (2) the Lease Expiration Date (or any earlier termination date of the Lease), subject to
any extension thereof, and Tenant shall restore the portions of the Building affected by such
removal to their condition immediately prior to the installation of such sign, reasonable wear and
tear excepted. If Tenant fails to remove the Exterior Sign on or before the Exterior Sign Removal
Date or fails to restore the portions of the Building affected by such removal in accordance with
the terms of this Lease, Landlord may, but shall not be obligated to remove the Exterior Sign
and/or restore the portion of the Building affected thereby, and Tenant shall reimburse Landlord
for all reasonable costs and expenses incurred by Landlord with respect to such removal and/or
restoration immediately upon demand therefor.



     b. If, during the Term hereof, Landlord constructs a monument sign adjacent to the Building
for use by tenants of the Building, Tenant, at Tenant’s sole cost and expense, shall be permitted
to install a plaque bearing Tenant’s name (the “Monument Plaque”), on the upper-most position of
such monument sign. All attributes of the Monument Plaque, including without limitation size,
design, materials, and color, shall be subject to Landlord’s approval. Tenant’s right to install
the Monument Plaque shall be subject to Tenant’s receipt of all necessary permits and governmental
approvals for such installation; provided that the failure to obtain such permits or approvals
shall not affect the Lease (or Tenant’s obligations hereunder) in any way. Tenant shall be
responsible for repairing and maintaining the Monument Plaque in a first-class condition throughout
the Term. The Monument Plaque shall be installed by Landlord at Tenant’s sole cost and expense. The
right to install the Monument Plaque shall transfer to Tenant’s assignees or any subtenant of the
all of the Premises for a sublease term which expires in the last Lease Year of the Term hereof.
Tenant agrees to indemnify Landlord and hold it harmless from and against all claims, damage or
liability (including reasonable attorneys’ fees) sustained or suffered by Landlord arising out of
or related to the installation, maintenance or removal of the Monument Plaque. Tenant shall remove
the Monument Plaque upon the date (the “Monument Plaque Removal Date”) which is the earlier to
occur of (1) the date on which Tenant has subleased in excess of forty percent (40%) of the
rentable square feet of the Premises (as the Premises may be expanded pursuant to the terms of this
Lease), or (2) the Lease Expiration Date (or any earlier termination date of the Lease), subject to
any extension thereof, and Tenant shall restore the portion of Landlord’s monument sign affected by
such removal to its condition immediately prior to the installation of such Monument Plaque,
reasonable wear and tear excepted. If Tenant fails to remove the Monument Plaque from the monument
sign on or before the Monument Plaque Removal Date or fails to restore the portions of the monument
plaque affected by such removal in accordance with the terms of this Lease, Landlord may, but shall
not be obligated to remove the Monument Plaque and/or restore the portion of the monument sign
affected thereby, and Tenant shall reimburse Landlord for all reasonable costs and expenses
incurred by Landlord with respect to such removal and/or restoration immediately upon demand
therefor.



27









 





34. MUST-TAKE SPACE.




     a. Landlord and Tenant hereby acknowledge and agree that, subject to the terms and conditions
of this Section 34: (i) Landlord shall lease to Tenant, and Tenant shall lease from Landlord, for a
term commencing on the Must-Take Space Commencement Date (hereinafter defined) and ending on the
Lease Expiration Date, approximately 27,752 rentable square feet of office space comprising the
entire fifth (5th) floor of the Building (the “Must-Take Space,” as shown on the
attached Exhibit A-1); and (ii) the Must-Take Space is currently leased to France Telecom
USA (the “Current Tenant”) pursuant to a lease (the “FTUSA Lease”) the term of which expires on
September 30, 2009. Promptly after the expiration or earlier termination of the term of the FTUSA
Lease, Landlord shall use commercially reasonable efforts to regain possession of the Must-Take
Space and deliver same to Tenant. As used herein, the term “Must-Take Space Commencement Date”
shall mean the date Landlord delivers the Must-Take Space to Tenant. Landlord shall deliver the
Must-Take Space to Tenant promptly after the Current Tenant vacates the Must-Take Space and
delivers possession thereof to Landlord.



     b. Landlord shall deliver the Must-Take Space to Tenant in its “as-is” condition without (i)
any obligation on Landlord’s part to undertake or pay for any improvements or alterations therein;
or (ii) any representations or warranties regarding the condition thereof.



     c. Effective as of the Must-Take Space Commencement Date, Tenant shall pay Annual Base Rent to
Landlord for the Must-Take Space only (“Must-Take Space Annual Base Rent”) in the amounts set forth
immediately below, in accordance with the terms and provisions of Section 4, above:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Must Take space	 	Must Take Space	 	Must take Space
	   Lease	 	Annual Base Rent	 	Annual	 	Monthly
	   Year	 	per Square Foot	 	Base Rent	 	Base Rent
	1
	 	$	27.50	 	 	$	763,180.00	 	 	$	63,598.33	 
	2
	 	$	28.19	 	 	$	782,259.48	 	 	$	65,188.29	 
	3
	 	$	28,89	 	 	$	801,815.99	 	 	$	66,818.00	 
	4
	 	$	29.61	 	 	$	821,861.39	 	 	$	68,488.45	 
	5
	 	$	30.35	 	 	$	842,407.92	 	 	$	70,200.66	 
	6
	 	$	31.11	 	 	$	863,468.12	 	 	$	71,955.68	 
	7
	 	$	31.89	 	 	$	885,054.82	 	 	$	73,754.57	 






     d. From and after the Must-Take Space Commencement Date: (i) the aggregate number of rentable
square feet demised under the Lease shall be 63,492; (ii) wherever the term “Premises” appears in
the Lease, it is hereby deemed to mean the entire 63,492 rentable square feet (consisting of the
initial Premises and the Must-Take Space); and (iii) Tenant’s Pro Rata Share (Operating Expenses)
and Tenant’s Pro Rata Share (Real Estate Taxes) as set forth in Section 1.g, above, shall each be
increased to thirty-nine and ninety-six hundredths percent (39.96%). Tenant hereby acknowledges and
agrees that the Base Year shall remain calendar year 2006 from and after the Must-Take Space
Commencement Date.



     e. In the event that Landlord’s delivery of the Must-Take Space to Tenant is delayed for any
reason, Tenant shall remain obligated to lease the Must-Take Space from Landlord pursuant to the
terms of this Section 34 and Tenant shall have no claim against Landlord by reason of any such
delay. Tenant hereby acknowledges and agrees that Landlord’s obligation to deliver the Must-Take
Space to Tenant is expressly contingent upon the surrender to Landlord of the Must-Take Space by
the Current Tenant.



     f. In the event Tenant refuses to accept delivery of the Must-Take Space on the Must-Take
Space Commencement Date, time being of the essence, such refusal shall constitute an Event of
Default hereunder, whereupon Landlord may elect to (i) pursue all of its remedies as provided in
Section 16, above; and/or (ii) lease the Must-Take Space to any person or entity of Landlord’s
choice on whatever terms and conditions Landlord elects in its sole discretion.



35. SUPPLEMENTAL HVAC SYSTEM.




     a. At any time during the Term, Tenant shall have the right to elect to use the supplemental
HVAC units, if any, and the equipment related thereto, if any, located at the Premises on the
Effective Date, which equipment shall include any ceiling mounted supplemental HVAC units serving
the Premises (collectively, the “Supplemental HVAC Units”). Notwithstanding the foregoing, prior to
using any Supplemental HVAC Units, Tenant shall provide Landlord With all equipment plans and
specifications relating to the loads that would be imposed upon the Supplemental HVAC System
(hereinafter defined), and Landlord shall have the right to deny Tenant use of the Supplemental
HVAC Units if Landlord determines the Supplemental HVAC System will not or might not be adequate to
meet Tenant’s demand. In the event that Landlord rejects Tenant’s proposed plans and specifications
relating to the Supplemental HVAC Units and/or Tenant’s use of the Supplemental HVAC System,
Landlord shall work with Tenant’s engineers to design modifications to the Supplemental HVAC System
(the “HVAC System Modifications”) that would permit Tenant to use the Supplemental HVAC Units and
the Supplemental HVAC System in the manner envisioned by Tenant; provided that all HVAC System
Modifications (i) shall be subject to Landlord’s approval in its sole discretion; (ii) if approved
by Landlord, shall be undertaken by Landlord at



28









 







Tenant’s sole cost and expense; and (iii) shall, at Landlord’s sole option, either (A) be removed
by Tenant at the end of the Term (and the portions of the Supplemental HVAC System and the
Building which are affected by such removal restored to their condition immediately prior to the
installation of the HVAC System Modifications, reasonable wear and tear excepted), or (B) remain
in the Building and owned by Landlord; provided however that if Landlord desires that Tenant
remove any HVAC System Modifications at the end of the Term, Landlord must so indicate to Tenant
at the time Tenant submits its plans and specifications describing the HVAC System Modifications
proposed by Tenant; provided further however that Tenant shall not be obligated to remove the
Existing HVAC Units at the end of the Term. Throughout the Term, Tenant shall bear all costs
associated with the operation and repair of the HVAC System Modifications, as well as all
incremental repair and maintenance costs to the Supplemental HVAC Units and the Supplemental HVAC
System caused by the installation or use of the HVAC System Modifications, all as determined by
Landlord, and Tenant shall reimburse Landlord for all such costs within forty-five (45) days after
demand by Landlord. If Landlord approves of Tenant’s use of the Supplemental HVAC Units,
Landlord’s engineer or contractor will activate Tenant’s use of the Supplemental HVAC Units. The
minimum period for which Tenant can elect to use a Supplemental HVAC Unit is thirty (30) days and
Tenant shall provide Landlord with at least fifteen (15) days prior written notice if Tenant
elects at any time to discontinue using any Supplemental HVAC Unit.



     b. Except with respect to emergency repairs, Landlord will maintain, repair and make any
capital repairs or replacements of the Supplemental HVAC Units. If any Supplemental HVAC Units
require emergency repairs, Tenant shall send Landlord prompt written notice of such emergency and
Tenant shall make arrangements for such repairs directly with Landlord’s Supplemental HVAC Unit
contractor. Landlord will provide Tenant with written notice from time to time of the name and
telephone number of Landlord’s Supplemental HVAC Unit contractor. Landlord will maintain, repair
and make any capital repairs or replacements to any equipment relating to the operation of the
Supplemental HVAC Units that is not located at the Premises, which shall include the cooling
tower(s) located on the roof of the Building that generally serve(s) the supplemental HVAC units
presently located in the Building (collectively, the “Supplemental Common Equipment”). The
Supplemental HVAC Units and the Supplemental Common Equipment are together called the “Supplemental
HVAC System”.



     c. Beginning on the date on which Tenant commences to use the Supplemental HVAC System and
continuing thereafter during the Term, for so long as Tenant has elected to use any Supplemental
HVAC Unit:



          (i) Tenant shall pay all costs incurred by Landlord and/or Tenant during the Term in
connection with the ordinary maintenance and emergency and non-emergency repairs and replacements
to the Supplemental HVAC Units (whether for parts, labor, warranty coverage or otherwise) (the
“Supplemental Maintenance Costs”). If Tenant directly incurs any Supplemental Maintenance Costs,
Tenant shall pay such Supplemental Maintenance Costs as and when due and owing to the applicable
Supplemental HVAC Unit service provider.




          (ii) Tenant shall pay Tenant’s Supplemental Share (hereinafter defined) of all costs incurred
by Landlord in connection with the ordinary maintenance and emergency and non-emergency repairs
and replacements of the Supplemental Common Equipment (whether for parts, labor, warranty coverage
or otherwise) (the “Supplemental Common Costs”). As used herein, the term ‘Tenant’s Supplemental
Share” means a fraction, the numerator of which shall be the tonnage rating of the Supplemental
HVAC Units in the Premises and the denominator of which shall be the tonnage rating of all
supplemental HVAC units in the Building (exclusive of any such units that are owned by a tenant of
the Building) that any tenant of the Building from time to time elects to use.




          (iii) In addition to Tenant’s payment of Supplemental Maintenance Costs and Tenant’s
Supplemental Share, Tenant shall pay to Landlord the monthly electricity charge for the
Supplemental HVAC System as reasonably established from time to time by Landlord (the
“Supplemental Charge”). The current Supplemental Charge is $70.00 per ton per month.




          (iv) All sums payable by Tenant to Landlord under this Section 35 shall constitute Additional
Rent and shall be due and payable to Landlord within thirty (30) days after Landlord sends Tenant
an invoice therefor. Landlord will be entitled to an administrative charge of ten percent (10%) of
all costs payable by Tenant under this Section, other than the Supplemental Charge (the
“Supplemental Administrative Fee”).




     d. Except for liability resulting from the negligence or willful misconduct of Landlord, its
agents or employees, Landlord shall have no liability arising from any failure of the Supplemental
HVAC System or any component thereof to operate properly or at all at any time including, without
limitation, no liability if any such failure results in the Premises not being reasonably
comfortable or useable at all, any of Tenant’s equipment not functioning or not functioning fully
or properly, Tenant missing or being delayed in meeting any business or other deadlines, or Tenant
incurring any other costs or damages.



     e. Tenant shall cooperate with Landlord and shall abide by the rules and regulations which
Landlord may reasonably prescribe for the proper functioning and protection of the Supplemental
HVAC System. Landlord shall not discriminate against Tenant in its enforcement of such rules and
regulations.



     f. In the event that Landlord elects to discontinue the operation of the Supplemental HVAC
System at any time during the Term: (i) Landlord shall provide Tenant with at least thirty (30)
days prior written notice thereof; and (ii) Landlord, at Landlord’s sole cost, shall (A) connect
Tenant’s Supplemental



29









 







HVAC Units to the base Building HVAC System; and (B) install one or more meters or submeters to
measure Tenant’s consumption of electricity relating to the operation of the Supplemental HVAC
Units. Landlord shall bill Tenant monthly for the cost of such electricity consumption by Tenant,
as measured by such meters or submeters. Landlord shall determine in its reasonable discretion the
specifications, location and number of meters or submeters to be installed. Tenant agrees to pay
all charges for such electricity within thirty (30) days of written demand by Landlord. In
addition, Tenant shall pay to Landlord, within thirty (30) days after written demand by Landlord,
a reasonable monthly charge determined by Landlord for the additional maintenance and repair costs
with respect to the operation of the base Building HVAC System incurred by. Landlord as a result
of the connection of the Supplemental HVAC Units to the base Building HVAC System.



36. MISCELLANEOUS PROVISIONS.




     a. Time is of the essence with respect to all of Tenant’s and Landlord’s obligations under
this Lease.



     b. The waiver by Landlord or Tenant of any term, covenant or condition herein contained shall
not be deemed to be a waiver of such term, covenant or condition of any prior or subsequent breach
of the same or any other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any prior breach by Tenant of any
term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular
rental so accepted, regardless of Landlord’s knowledge of such prior breach at the time of
acceptance of such rent.



     c. In the event of any action or proceeding brought by either party against the other under
this Lease, the prevailing party shall be entitled to recover from the other party the fees of its
attorneys in such action or proceeding in such amount as the court may judge to be reasonable for
such attorneys’ fees.



     d. Except as expressly otherwise provided in this Lease, all of the provisions of this Lease
shall bind and inure to the benefit of the parties hereto and to their heirs, successors,
representatives, executors, administrators, transferees and assigns. The term “Landlord,” as used
herein, shall mean only the owner of the Building and the Land or of a lease of the Building and
the Land, at the time in question, so that in the event of any transfer or transfers of title to
the Building and the Land, or of Landlord’s interest in a lease of the Building and the Land, the
transferor shall be and hereby is relieved and freed of all obligations of Landlord under this
Lease accruing before such transfer, and it shall be deemed, without further agreement, that such
transferee has assumed and agreed to perform and observe all obligations of Landlord herein during
the period it is the holder of Landlord’s interest under this Lease.



     e. At Landlord’s request, Tenant will execute a memorandum of this Lease in recordable form
setting forth such provisions hereof as Landlord deems desirable. Further, at Landlord’s request,
Tenant shall acknowledge before a notary public its execution of this Lease, so that this Lease
shall be in form for recording. The cost of recording this Lease or memorandum thereof shall be
borne by Landlord.



     f. Notwithstanding any provision to the contrary herein, Tenant shall look solely to the
estate and property of Landlord in and to the Land and the Building in the event of any claim
against Landlord arising out of or in connection with this Lease, the relationship of Landlord and
Tenant, or Tenant’s use of the Premises, and Tenant agrees that the liability of Landlord arising
out of or in connection with this Lease, the relationship of Landlord and Tenant, or Tenant’s use
of the Premises, shall be limited to such estate and property of Landlord in and to the Land and
the Building. No properties or assets of Landlord other than the estate and property of Landlord
in and to the Building and no property owned by any partner of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of any judgment (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant’s use of the Premises.



     g. Landlord and Landlord’s agents have made no representations or promises with respect to the
Building, the Land or the Premises except as herein expressly set forth.



     h. Landlord and Tenant shall be excused from performing an obligation or undertaking provided
for in this Lease so long as such performance is prevented or delayed, retarded or hindered by an
Act of God, force majeure, fire, earthquake, flood, explosion, action of the elements, war,
invasion, insurrection, riot, mob violence, sabotage, inability to procure or a general shortage of
labor, equipment, facilities, materials or supplies in the open market, failure of transportation,
strike, lockout, action of labor unions, a taking by eminent domain, requisition, laws, orders of
government, or of civil, military or naval authorities, inability to obtain, or delays in
obtaining, permits or other governmental approvals, or any other cause whether similar or
dissimilar to the foregoing, not within the reasonable control of Landlord or Tenant, as
applicable, including delays in obtaining permits or governmental approvals or delays for
adjustments of insurance (collectively, “Force Majeure”); provided, however, that no such event or
cause shall relieve Tenant of its obligations hereunder to make full and timely payments of Rent as
provided herein.



     i. Tenant hereby elects domicile at the Premises for the purpose of service of all notices,
writs of summons or other legal documents or process in any suit, action or proceeding which
Landlord or any mortgagee may undertake under this Lease.



30









 





     j. Landlord shall not be liable to Tenant for any damage caused by other tenants or persons
in the Building or caused by operations of others in the construction of any private, public or
quasi-public work.



     k. If in this Lease it is provided that Landlord’s consent or approval as to any matter will
not be unreasonably withheld or delayed, and it is established by a court or body having final
jurisdiction thereover that Landlord has been unreasonable, the sole effect of such finding shall
be that Landlord shall be deemed to have given its consent or approval, but Landlord shall not be
liable to Tenant in any respect for money damages or expenses incurred by Tenant by reason of
Landlord having withheld its consent. Nothing contained in this paragraph shall be deemed to limit
Landlord’s right to give or withhold consent unless such limitation is expressly contained in the
paragraph to which such consent pertains.



     l. If any governmental entity or authority hereafter imposes a tax or assessment upon or
against any of the rent or other charges payable by Tenant to Landlord hereunder (whether such tax
takes the form of a lease tax, sales tax or other tax), Tenant shall be responsible for the timely
payment thereof. Unless Landlord and Tenant otherwise agree in writing with respect to the payment
thereof, Tenant shall pay the applicable tax to Landlord in monthly installments on the date upon
which Tenant pays to Landlord the installments of Monthly Base Rent due under this Lease.



     m. This Lease and the Exhibits hereto constitute the entire agreement between the parties,
and supersedes any prior agreements or understandings between them. This Lease is not effective
until executed and delivered by Landlord and Tenant and approved by any current mortgagee of the
Building and/or the Land. The provisions of this Lease may not be modified in any way except by
written agreement signed by both parties.



     n. This Lease shall be subject to and construed in accordance with the laws of the
Commonwealth of Virginia.



     o. All voice, data, video, audio, and other low-voltage control transport system cabling
and/or cable bundles installed in the Building shall be (a) plenum rated and/or have a composition
makeup suited for its environmental use in accordance with NFPA 70/National Electrical Code; (b)
labeled every 3 meters with the Tenant’s name and origination and destination points; (c)
installed in accordance with all EIA/TIA standards and the National Electric Code; (d) installed
and routed in accordance with a routing plan showing “as built” or “as installed” configurations
of cable pathways, outlet identification numbers, locations of all wall, ceiling and floor
penetrations, riser cable routing and conduit routing if applicable, and such other information as
Landlord may request. The routing plan shall be available to Landlord and its agents at the
Building upon request.



     p. Tenant (and any guarantor of this Lease), within fifteen (15) business days after Landlord
delivers to Tenant (or such guarantor) written request therefor (“Landlord’s Financial Statement
Request”), will provide Landlord with a copy of its most recent financial statements, consisting
of a Balance Sheet, Earnings Statement, Statement of Changes in Financial Position, Statement of
Changes in Owner’s Equity, and related footnotes, prepared in accordance with generally accepted
accounting principles. Such financial statements must be either certified by a certified public
accountant or sworn to as to their accuracy by Tenant’s (or the guarantor’s, if applicable) chief
financial officer. The financial statements provided must be as of a date not more than twelve
(12) months prior to the date of request. Landlord shall retain such statements in confidence, but
may provide copies to lenders and potential lenders as required. Notwithstanding the foregoing,
Landlord shall not deliver to Tenant (or any guarantor of this Lease) more than one (1) Landlord
Financial Statement Request in any twelve (12) month period, unless such Landlord Financial
Statement Request is delivered (i) at the request of Landlord’s lender or prospective Lender, (ii)
at the request of a potential purchaser of the Building, or (iii) after a default by Tenant under
the Lease.



     q. It is generally understood that mold spores are present essentially everywhere and that
mold can grow in most any moist location. Emphasis is properly placed on prevention of moisture and
on good housekeeping and ventilation practices. Tenant acknowledges the necessity of housekeeping,
ventilation, and moisture control (especially in kitchens, janitor’s closets, bathrooms, break
rooms and around outside walls) for mold prevention. Tenant represents that they have first
inspected the aforementioned Premises and certifies that they have not observed mold, mildew or
moisture within the Premises. Tenant agrees to immediately notify Landlord if they observe
mold/mildew and/or moisture conditions (from any source, including leaks), and allow Landlord to
evaluate and make recommendations and/or take appropriate corrective action. Except in the event of
the negligence or willful misconduct of Landlord, its agents or employees, Tenant releases Landlord
from any liability for any personal injury or damages to property caused by or associated with
moisture or the growth of or occurrence of mold or mildew on the Premises. In addition, execution
of this Lease constitutes acknowledgement by Tenant that control of moisture and mold prevention
are integral to its obligations under this Lease.



31









 





     IN WITNESS WHEREOF, duly authorized representatives of Landlord and Tenant have
executed this Deed of Lease under seal on the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	LANDLORD:
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	ACP/2300 CORPORATE PARK DRIVE, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	ACP/Woodland Park, LLC, a Delaware limited

liability company, its sole member
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS:
	 	 	 	 	 	By:	 	ACP/Woodland Park Manager, LLC,

a Delaware limited liability company, its Manager
	 
	 	 	 	 	 	 	 	 	 	 
	/s/
John Fleby

	 	 	 	 	 	 	 	By:	 	/s/ Douglas Fleet
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name: Douglas Fleet
	 

	 	 	 	 	 	 	 	 	 	Title:   Managing Member
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	TENANT:
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	K12 INC., a Delaware corporation
	 
	 	 	 	 	 	 	 	 	 	 
	/s/
Howard Polsky

	 	 	 	By:	 	/s/ John Baule
	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name: John Baule

Title: CFO






	 	 	 
	                     LIST OF EXHIBITS
	 
	EXHIBIT A:

	 	Floor Plan of Premises
	EXHIBIT A-1:

	 	Floor Plan of Must-Take Space
	EXHIBIT B:

	 	Work Agreement
	EXHIBIT C:

	 	Declaration of Commencement Date
	EXHIBIT D:

	 	Rules and Regulations
	EXHIBIT E:

	 	Form of Letter of Credit






32









 





EXHIBIT A




FLOOR PLAN OF PREMISES









 









 





EXHIBIT A-1




FLOOR PLAN OF MUST TAKE SPACE










 









 








EXHIBIT B




WORK AGREEMENT



     This Work Agreement (the “Work Agreement”) is attached to and made a part of that certain
Deed of Lease (the “Lease”) dated November ___, 2005 by and between ACP/2300 CORPORATE PARK
DRIVE, LLC, as landlord (“Landlord”), and K12 INC., as tenant (“Tenant”), for the premises (the
“Premises”) described therein in the building having a street address of 2300 Corporate Park
Drive, Herndon, Virginia (the “Building”). It is the intent of this Work Agreement that Tenant
shall be permitted freedom in the design and layout of the Premises, consistent with applicable
building codes and requirements of law, including without limitation the Americans with
Disabilities Act, and with sound architectural and construction practice in first-class office
buildings, provided that neither the design nor the implementation of the Tenant Improvements
(hereinafter defined) shall cause any interference to the operation of the Building’s HVAC,
mechanical, plumbing, life safety, electrical or other systems or to other Building operations or
functions, nor shall they increase maintenance or utility charges for operating the Building.
Capitalized terms not otherwise defined in this Work Agreement shall have the meanings set forth
in the Lease. In the event of any conflict between the terms hereof and the terms of the Lease,
the terms hereof shall prevail for the purposes of design and construction of the Tenant
Improvements.




     A. TENANT IMPROVEMENTS.



          1. As-ls Condition. Landlord shall have no obligation to perform or cause the performance or
construction of any improvements in or to the Premises and Landlord shall deliver the Premises to
Tenant in its “as is” condition; provided, however, that Landlord shall deliver the Premises to
Tenant vacant and in broom-clean condition. Tenant hereby acknowledges that Landlord has made no
representations or warranties to Tenant with respect to the condition of the Premises or the
working order of any systems or improvements therein existing as of the date of delivery.




          2. Tenant Improvements. Tenant, at its sole cost and expense, shall furnish and install in the
Premises in accordance with the terms of this Work Agreement, the improvements set forth in the
Tenant’s Plans (hereinafter defined) which are subject to Landlord’s approval in accordance with
Paragraph B.3, below (the “Tenant Improvements”). All costs of all design, space planning, and
architectural and engineering work for or in connection with the Tenant Improvements, including
without limitation all drawings, plans, specifications, licenses, permits or other approvals
relating thereto, and all insurance and other requirements and conditions hereunder, and all costs
of construction, including supervision thereof, shall be at Tenant’s sole cost and expense, subject
to the application of the Improvement Allowance in accordance with the terms of this Work
Agreement.




     B. PLANS AND SPECIFICATIONS



          1. Space Planner. Tenant shall retain the services of The M Group (the “Space Planner”) to
design the Tenant Improvements in the Premises and prepare the Final Space Plan (hereinafter
defined) and the Contract Documents (hereinafter defined). The Space Planner shall meet with the
Landlord and/or Landlord’s building manager from time to time to obtain information about the
Building and to insure that the improvements envisioned in the Contract Documents do not interfere
with and/or affect the Building or any systems therein. The Space Planner shall prepare all space
plans, working drawings, and plans and specifications described in Paragraph B.3, below, in
conformity with the base Building plans and systems, and the Space Planner shall coordinate its
plans and specifications with the Engineers (hereinafter defined) and Landlord. All fees of the
Space Planner shall be borne solely by Tenant, subject to application of the Improvement Allowance
as hereinafter provided.




          2. Engineers. Tenant shall retain the services of mechanical, electrical, plumbing and
structural engineers reasonably acceptable to Landlord (the “Engineers”) to (i) design the type,
number and location of all mechanical systems in the Premises, including without limitation the
heating, ventilating and air conditioning system therein, fire alarm system and to prepare all of
the mechanical plans, (ii) to assist Tenant and the Space Planner in connection with the electrical
design of the Premises, including the location and capacity of light fixtures, electrical
receptacles and other electrical elements, and to prepare all of the electrical plans, (iii) to
assist Tenant and the Space Planner in connection with plumbing-related issues involved in
designing the Premises and to prepare all of the plumbing plans and (iv) assist Tenant and the
Space Planner in connection with the structural elements of the Space Planner’s design of the
Premises and to prepare all of the structural plans. All fees of the Engineers shall be borne
solely by Tenant, subject to application of the Improvement Allowance as hereinafter provided.




          3. Time Schedule.




               a. Tenant
shall furnish to Landlord for its review and approval a proposed detailed space plan
for the Tenant Improvements (the “Final Space Plan”) prepared by the Space Planner, in consultation
with Landlord and the Engineers. The Final Space Plan shall contain the information and otherwise
comply with the requirements therefor described in Schedule B-1 attached hereto. Landlord
shall advise Tenant of Landlord’s approval or disapproval of the Final Space Plan within seven (7)
business days after Tenant submits the Final Space Plan to Landlord. Tenant shall promptly revise
the proposed Final Space Plan to meet Landlord’s objections, if any, and resubmit the Final Space
Plan to Landlord for its review and approval within five (5) days of Tenant’s receipt of Landlord’s
objections, if any.



 









 





               b. Within ten (10) business days after Landlord approves the Final Space Plan, Tenant shall
furnish to Landlord for its review and approval, all architectural plans, working drawings and
specifications (the “Contract Documents”) necessary and sufficient (i) for the construction of the
Tenant Improvements; and (ii) to enable Tenant to obtain a building permit for the construction of
the Tenant Improvements by the Contractor (hereinafter defined). The Contract Documents shall
contain the information and otherwise comply with the requirements therefore described in
Schedule B-2 attached hereto and shall set forth the location of any core drilling by
Tenant (the approval of same shall be subject to Landlord’s approval in its sole discretion).
Landlord shall advise Tenant of Landlord’s approval or disapproval of the Contract Documents, or
any of them, within ten (10) business days after Tenant submits the Contract Documents to Landlord.
Tenant shall promptly revise the Contract Documents to meet Landlord’s objections, if any, and
resubmit the Contract Documents to Landlord for its review and approval within five (5) days of
Tenant’s receipt of Landlord’s objections, if any. Landlord shall advise Tenant of Landlord’s
approval or disapproval of the revised Contract Documents within five (5) business days after
Tenant submits same. Notwithstanding anything herein to the contrary, approval by Landlord of the
Contract Documents shall not constitute an assurance by Landlord that the Contract Documents: (a)
satisfy Legal Requirements (hereinafter defined), (b) are sufficient to enable Tenant to obtain a
building permit for the undertaking of the Tenant Improvements in the Premises, or (c) will not
interfere with, and/or otherwise affect, base Building or base Building systems.



               c. The Final Space and the Contract Documents are referred to collectively herein as the
“Tenant’s Plans.”



               d. The Tenant Improvements shall be of first-class quality, commensurate with the level of
improvements for a first-class tenant in a first-class office building in the Herndon, Virginia
area. The Tenant’s Plans shall be prepared in accordance with a Data Cadd or convertible DXF format
for working drawings (using 1/8” reproducible drawings) in conformity with the base Building plans
and Building systems and with information furnished by and in coordination with Landlord and
Engineers. Tenant’s Plans shall comply with all applicable building codes, laws and regulations
(including without limitation the Americans with Disabilities Act), shall not contain any
improvements which interfere with or require any changes to or modifications of the Building’s
HVAC, mechanical, electrical, plumbing, life safety or other systems or to other Building
operations or functions, and, unless Tenant agrees in writing to pay all such excess costs or
charges, shall not increase maintenance or utility charges for operating the Building in excess of
the standard requirements for normal first-class office buildings in the Herndon, Virginia area.
Notwithstanding anything to the contrary contained in this Work Agreement, Landlord shall have the
right to disapprove, in its sole discretion, any portion of the Tenant’s Plans that Landlord
reasonably believes will or may affect the exterior or structure of the Building or will or may
affect the mechanical, electrical, plumbing, life safety, HVAC or other base Building systems.



               e. Notwithstanding anything to the contrary contained herein, Tenant shall reimburse Landlord,
within ten (10) business days after demand therefor, for all reasonable costs and expenses incurred
by Landlord in connection with Landlord’s, or its agents, review of Tenant’s Plans.



          4. Base Building Changes. If Tenant requests work to be done in the Premises or for the
benefit of the Premises that necessitates revisions or changes in the design or construction of the
base Building or affect Building systems, any such changes shall be subject to the prior written
approval of Landlord, in its sole discretion. Tenant shall be responsible for all costs and delays
resulting from such design revisions or construction changes, including architectural and
engineering charges, and any special permits or fees attributed thereto.




          5. Changes.




               a. In the event that Tenant requests any changes to the Contract Documents or the Final Space
Plan after Landlord has approved same, or if it is determined that the Contract Documents prepared
in accordance with the Final Space Plan do not conform to the plans for the base Building, deviate
from applicable Legal Requirements or contain improvements which will or may interfere with and/or
affect the base Building or any of the base Building systems, or in the event of any change orders,
Tenant shall be responsible for all costs and expenses and all delay resulting therefrom, including
without limitation costs or expenses relating to (i) any additional architectural or engineering
services and related design expenses, (ii) any changes to materials in process of fabrication,
(iii) cancellation or modification of supply or fabricating contracts, (iv) removal or alteration
of work or plans completed or in process, or (v) delay claims made by any subcontractor.



               b. No changes shall be made to the Contract Documents without the prior written approval of
Landlord, which approval shall not be unreasonably withheld, conditioned or delayed, provided,
however, that Landlord shall have the right to disapprove, in its sole discretion, any such change
that Landlord believes will affect the exterior or structure of the Building or will affect the
mechanical, electrical plumbing, life safety, HVAC or other base Building systems. Landlord shall
not be responsible for delay in occupancy by Tenant because of any changes to the Final Space Plan
or the Contract Documents after approval by Landlord, or because of delay caused by or attributable
to any deviation by the Contract Documents from applicable Legal Requirements. Tenant shall be
required to pay to Landlord the reasonable costs incurred by Landlord in connection with Landlord’s
review of any changes to the Contract Documents or Final Space Plan, in full, within thirty (30)
days after invoice. As used herein, the term “Legal Requirements” shall mean any laws, ordinances,
regulations and orders of the United States of America, the Commonwealth of Virginia and any other
governmental authority with jurisdiction over the Building or the construction of the Tenant
Improvements.



 









 





     C. COST OF TENANT IMPROVEMENTS/ALLOWANCES



          1. Construction Costs. All costs of design and construction of the Tenant Improvements,
including without limitation the costs of all space planning, architectural and engineering work
related thereto, all governmental and quasi-governmental approvals and permits required therefor,
any costs incurred by Landlord because of changes to the base Building or the base Building
systems, all construction costs, contractors’ overhead and profit, Tenant’s construction
management fees, insurance and other requirements, the cost of Tenant’s telecommunications cabling
and wiring, the cost of Tenant’s initial furniture, fixtures and equipment installed in the
Premises, and all other costs and expenses incurred in connection with the Tenant Improvements
(collectively, “Construction Costs”), shall be paid by Tenant, subject, however, to the
application of the Improvement Allowance in accordance with Paragraph C.2, below, not previously
disbursed pursuant to this Work Agreement (the “Available Allowance”).




          2 Improvement Allowance. Provided Tenant is not in default of the Lease, Landlord agrees to
provide to Tenant an allowance (the “Improvement Allowance”) in an amount up to One Million Five
Hundred Eighteen Thousand Nine Hundred Fifty Dollars ($1,518,950,00) (or Forty-Two and 50/100
Dollars ($42.50) per rentable square foot of the Premises) to be applied solely to the
Construction Costs. Notwithstanding the foregoing, Tenant hereby expressly acknowledges and agrees
that Tenant shall expend no less than One Million One Hundred Sixty-One Thousand Five Hundred
Fifty Dollars ($1,161,550.00) (or Thirty-Two and 50/100 Dollars ($32.50). per rentable square foot
of the Premises) on Construction Costs associated with the construction of the Tenant
Improvements. Provided that Tenant has fully performed all of its obligations under the Lease and
this Work Agreement, Construction Costs shall be disbursed by Landlord from the Available
Allowance, as and when such costs are actually incurred by Tenant. Tenant shall submit to
Landlord, from time to time, but not more often then once per calendar month, requests for direct
payments to third parties, of or for reimbursement to Tenant for Construction Costs incurred by
Tenant out of the Available Allowance, which requests shall be accompanied by (a) paid receipts
or invoices substantiating the costs for which payment is requested; (b) a signed statement from
Tenant certifying that the costs were actually incurred for the stated amount; (c) lien waivers
from the party supplying the services or materials for which payment is sought; and (d) such other
information as Landlord reasonably requires. Provided Tenant delivers to Landlord an approved draw
request, prepared as set forth above, Landlord shall pay the costs covered by such payment request
within thirty (30) days following receipt thereof (but Landlord shall not be obligated to make
more than one (1) such payment in any calendar month). Notwithstanding the foregoing, in no event
shall Landlord be obligated to pay, in the aggregate, an amount in excess of ninety percent (90%)
of the Improvement Allowance until satisfaction of the following conditions: (A) Tenant’s
occupancy of the Premises; (B) if previously submitted by Landlord to Tenant, Tenant’s execution
and delivery to Landlord of the Declaration attached to the Lease as
Exhibit C; (C)
receipt by Landlord of appropriate paid receipts or invoices and a final lien waiver from each
subcontractor and supplier covering all work performed by the subcontractors and all materials
used in connection with the construction of the Tenant Improvements; and (D) Tenant’s delivery to
Landlord of all receipts, invoices or other documentation necessary to substantiate all costs
payable by Landlord hereunder. If Tenant does not expend all of the Improvement Allowance for
Construction Costs as permitted hereunder within nine (9) months of the Effective Date, any unused
portion of the Improvement Allowance not so used shall be retained by Landlord. Notwithstanding
the foregoing, Tenant may elect to use all or any portion of the unused Improvement Allowance (but
in no event more than Three Hundred Fifty-Seven Thousand Four Hundred Dollars ($357,400.00) (or
Ten Dollars ($10.00) per rentable square foot of the Premises)) to defray (x) Annual Base Rent
payable by Tenant pursuant to the Lease, provided that Tenant gives written notice to Landlord of
Tenant’s election to utilize such credit at least ten (10) business days prior to the due date of
any installment of Annual Base Rent for which Tenant elects to use such credit, or (y) Tenant’s
costs associate with its move to the Premises (excluding legal fees).




          3. Test Fit Allowance. In addition to the Improvement Allowance, Landlord grants to
Tenant a “Test Fit Allowance” of up to Three Thousand Five
Hundred Seventy-Four Dollars ($3,574.00)
(or Ten Cents ($0.10) per rentable square foot of the Premises), which Test Fit Allowance shall be
used solely to reimburse Tenant for any architectural expenses incurred by Tenant in connection
with the preparation of “test fit” plans and drawings for the Premises (the “Test Fit Plans”).
Any costs and expenses relating to the preparation of the Test Fit Plans which exceed the Test Fit
Allowance shall be payable by Tenant. Landlord shall reimburse Tenant for the cost of the Test Fit
Plans, up to the amount of the Test Fit Allowance, promptly after Landlord’s receipt of a paid
invoice evidencing Tenant’s payment of such cost. Landlord shall retain any portion of the Test Fit
Allowance not expended by Tenant prior to the Rent Commencement Date.




          4. Costs Exceeding Available Allowance. All Construction Costs in excess of the Available
Allowance shall be paid solely by Tenant on or before the date such costs are due and payable (or
if previously paid by Landlord, shall be reimbursed to Landlord by Tenant within ten (10) days of
receipt by Tenant of invoices therefor from Landlord), and Tenant agrees to indemnify Landlord from
and against any such costs. All amounts payable by Tenant pursuant to this Work Agreement shall
be deemed to be Additional Rent for purposes of the Lease. If required by Landlord, Tenant shall
provide evidence reasonably satisfactory to Landlord that Tenant has sufficient funds available to
pay all Construction Costs in excess of the Improvement Allowance.




     D. CONSTRUCTION



          1. General Contractor. The general contractor undertaking construction of the Tenant
Improvements (the “Contractor”) shall be licensed in the Commonwealth of Virginia and mutually




 









 




selected by Landlord and Tenant. The Contractor shall be responsible for obtaining, at Tenant’s
cost, all permits and approvals required for the construction of the Tenant Improvements.




          2. Construction By The Contractor. In undertaking the Tenant Improvements, Tenant and the
Contractor shall strictly comply with the following conditions:




               a. No work involving or affecting the Building’s structure or the plumbing, mechanical,
electrical or life/safety systems of the Building shall be undertaken without (i) the prior written
approval of Landlord in its sole discretion, whether pursuant to its approval of Tenant’s Plans or
otherwise, (ii) the supervision of Landlord’s building engineer, the actual cost of which shall be
borne by Tenant, subject to the application of the Improvement Allowance, if more than one (1) hour
of such engineer’s time is spent in connection with the Tenant Improvements during any single day;
(iii) compliance by Tenant with the insurance requirements set forth in Paragraph D.2(c), below;
and (iv) compliance by Tenant with all of the terms and provisions of this Work Agreement;



               b. All Tenant Improvement work shall be performed in strict conformity with (i) the final
approved Tenant’s Plans; (ii) all applicable codes and regulations of governmental authorities
having jurisdiction over the Building and the Premises; (iii) valid building permits and other
authorizations from appropriate governmental agencies, when required, which shall be obtained by
Tenant, at Tenant’s expense; and (iv) Landlord’s construction policies, rules and regulations
attached hereto as Schedule B-3, as the same may be reasonably modified by Landlord from
time to time (“Construction Rules”). Any work not acceptable to the appropriate governmental
agencies or not reasonably satisfactory to Landlord shall be promptly replaced at Tenant’s sole
expense. Notwithstanding any failure by Landlord to object to any such work, Landlord shall have no
responsibility therefor; and



               c. Before
any work is commenced or any of Tenant’s, Contractor’s or any subcontractor’s
equipment is moved onto any part of the Building, Tenant shall deliver to Landlord policies or
certificates evidencing the following types of insurance coverage in the following minimum amounts,
which policies shall be issued by companies approved by Landlord, shall be maintained by Tenant at
all times during the performance of the Tenant Improvements, and which shall name Landlord as
additional insured:



                    (1) Worker’s compensation coverage in the maximum amount
required by law and employer’s liability insurance in an amount not less than $500,000.00 and
$500,000.00 per disease;



                    (2) Comprehensive general liability policy to
include
products/completed operations, premises/operations, blanket contractual broad form property damage
and contractual liability with limits in an amount per occurrence of not less than $1,000,000.00
Combined Single Limit for bodily injury and property damage and $1,000,000.00 for personal injury;
and



                    (3) Automobile liability coverage, with bodily injury limits of at least $1,000,000.00 per
accident.



          3. Construction Supervision. All Tenant Improvements shall be performed by the Contractor.
Landlord shall retain ACP Mid-Atlantic LLC (“Construction Supervisor”) as Landlord’s construction
supervisor in connection with the construction of the Tenant Improvements, and Landlord shall pay
the Construction Supervisor a construction supervision fee (“Construction Supervision Fee”) equal
to five percent (5%) of the cost of the Tenant Improvements, to cover the costs of coordination and
supervision of the Tenant Improvements work. Landlord shall not deduct any portion of the
Construction Supervision Fee from the Improvement Allowance and Tenant shall not otherwise be
responsible for the payment of any portion of the Construction Supervision Fee.




          4. Reimbursement of Landlord’s Costs. Notwithstanding anything contained herein to the
contrary, Tenant shall reimburse Landlord for all reasonable third-party expenses which Landlord
incurs in connection with Landlord’s review of the Tenant’s Plans.




     E. PERMITS AND LICENSES. Tenant shall be solely responsible for procuring, at its sole cost
and expense, all permits and licenses necessary to undertake the Tenant Improvements and, upon
completion of the Tenant Improvements, to occupy the Premises. Tenant’s inability to obtain, or
delay in obtaining, any such license or permit shall not delay or otherwise affect the Commencement
Date or any of Tenant’s obligations under this Lease.



     F. INSPECTION. Landlord is authorized, at its sole cost and expense, to make such
inspections of the Premises during construction as it deems reasonably necessary or advisable.



     G. INDEMNIFICATION. Tenant shall indemnify Landlord and hold it harmless from and against
all claims, injury, damage or loss (including reasonable attorneys’ fees) sustained by Landlord as
a result of the construction of the Tenant Improvements in the Premises.



LIST OF SCHEDULES




	 	 	 
	Schedule B-1

	 	Requirements for Final Space Plan
	Schedule B-2

	 	Requirements for Contract Documents
	Schedule B-3

	 	Construction Rules and Regulations







 









 








SCHEDULE B-1




REQUIREMENTS FOR FINAL SPACE PLAN




     Floor
plans, together with related information for mechanical, electrical and plumbing design
work, showing partition arrangement and reflected ceiling plans (three (3) sets), including
without limitation the following information:




	 	a.	 	identify the location of conference rooms and density of occupancy;
	 
	 	b.	 	indicate the density of occupancy for all rooms;
	 
	 	c.	 	identify the location of any food service areas or vending equipment rooms;
	 
	 	d.	 	identify areas, if any, requiring twenty-four (24) hour air conditioning;
	 
	 	e.	 	indicate those partitions that are to extend from floor to underside of
structural slab above or require special acoustical treatment;
	 
	 	f.	 	identify the location of rooms for, and layout of, telephone equipment other
than building core telephone closet;
	 
	 	g.	 	identify the locations and types of plumbing required for toilets (other than
core facilities), sinks, drinking fountains, etc.;
	 
	 	h.	 	indicate light switches in offices, conference rooms and all other rooms in the
Premises;
	 
	 	i.	 	indicate the layouts for specially installed equipment, including computer and
duplicating
equipment, the size and capacity of mechanical and electrical services required and
heat rejection of the equipment;
	 
	 	j.	 	indicate the dimensioned location of: (A) electrical receptacles (one hundred twenty
(120)
volts), including receptacles for wall Clocks, and telephone outlets and their
respective locations (wall or floor), (B) electrical receptacles for use in the
operation of Tenant’s business equipment which requires two hundred eight (208)
volts or separate electrical circuits, (C) electronic calculating and CRT systems,
etc., and (D) special audio-visual requirements;
	 
	 	k.	 	indicate proposed layout of sprinkler and other life safety and fire
protection equipment, including any special equipment and raised flooring;
	 
	 	l.	 	indicate the swing of each door;
	 
	 	m.	 	indicate a schedule for doors and frames, complete with hardware, if applicable;
and
	 
	 	n.	 	indicate any special file systems to be installed.






 









 








SCHEDULE B-2




REQUIREMENTS FOR CONTRACT DOCUMENTS




     Final architectural detail and working drawings, finish schedules and related plans
(three (3) reproducible sets) including without limitation the following information and/or
meeting the following conditions:




	 	a.	 	materials, colors and designs of wallcoverings, floor coverings and window coverings
and
finishes;
	 
	 	b.	 	paintings and decorative treatment required to complete all construction;
	 
	 	c.	 	complete, finished, detailed mechanical, electrical, plumbing and structural
plans and specifications for the Tenant Improvements, including but not limited to the
fire and life safety systems and all work necessary to connect any special or
non-standard facilities to the Building’s base mechanical systems;
	 
	 	d.	 	all final drawings and blueprints must be drawn to a scale of one-eighth (1/8)
inch to one (1) foot. Any architect or designer acting for or on behalf of Tenant shall
be deemed to be Tenant’s agent and authorized to bind Tenant in all respects with
respect to the design and construction of the Premises; and
	 
	 	e.	 	notwithstanding anything to the contrary set forth herein, in the Work Agreement or in
the
Lease, Tenant shall not request any work which would: (1) require changes to
structural components of the Building or the exterior design of the Building; (2)
require any material modification to the Building’s mechanical installations or
installations outside the Premises; (3) not comply with all applicable laws, rules,
regulations and requirements of any governmental department having jurisdiction over
the construction of the Building and/or the Premises, including specifically, but
without limitation, the Americans with Disabilities Act; (4) be incompatible with
the building plans filed with the appropriate governmental agency from which a
building permit is obtained for the construction of the Tenant Improvements or with
the occupancy of the Building as a first-class office building; or (5) delay the
completion of the Premises or any part thereof. Tenant shall not oppose or delay
changes required by any governmental agency affecting the construction of the
Building and/or the Tenant Improvements in the Premises.






 









 








SCHEDULE B-3




CONSTRUCTION RULES AND REGULATIONS





	 	1.	 	Tenant and/or the general contractor will supply Landlord with a copy of all permits (if
applicable) prior to the start of any work.
	 
	 	2.	 	Tenant and/or the general contractor will post the building permit (if applicable) on a wall
of the construction site while work is being performed.
	 
	 	3.	 	Public area corridor, and carpet, is to be protected by plastic runners or a series of
walk-off mats from the elevator to the suite under reconstruction.
	 
	 	4.	 	Walk-off mats are to be provided at entrance doors.
	 
	 	5.	 	Contractors will remove their trash and debris daily, or as often as necessary to maintain
cleanliness in the Building. Building trash containers are not to be used for construction
debris. Landlord reserves the right to bill Tenant for any cost incurred to clean up debris
left by the general contractor or any subcontractor. Further, the Building staff is instructed
to hold the driver’s license of any employee of the contractor while using the freight
elevator to ensure that all debris is removed from the elevator.
	 
	 	6.	 	No utilities (electricity, water, gas, plumbing) or services to the tenants are to be cut off
or interrupted without first having requested, in writing, and secured, in writing, the
permission of Landlord.
	 
	 	7.	 	No electrical services are to be put on the emergency circuit, without specific written
approval from Landlord.
	 
	 	8.	 	When utility meters are installed, the general contractor must provide the property manager
with a copy of the operating instructions for that particular meter.
	 
	 	9.	 	Landlord will be notified of all work schedules of all workmen on the job and will be
notified, in writing, of names of those who may be working in the building after “normal”
business hours.
	 
	 	10.	 	Passenger elevators shall not be used for moving building
materials and shall not be used for
construction personnel except in the event of an emergency. The designated freight elevator is
the only elevator to be used for moving materials and construction personnel. This elevator
may be used only when it is completely protected as determined by Landlord’s Building
engineer.
	 
	 	11.	 	Contractors or personnel will use loading dock area for all deliveries and will not use
loading dock for vehicle parking.
	 
	 	12.	 	Contractors will be responsible for daily removal of waste foods, milk and soft drink
containers, etc. to trash room and will not use any building trash receptacles but trash
receptacles supplied by
them.
	 
	 	13.	 	No building materials are to enter the Building by way of main lobby, and no materials are to
be stored in any lobbies at any time.
	 
	 	14.	 	Construction personnel are not to eat in the lobby or in front of Building nor are they to
congregate in the lobby or in front of Building.
	 
	 	15.	 	Landlord is to be contacted by Tenant when work is completed for inspection. All damage to
the Building will be determined at that time.
	 
	 	16.	 	All key access, fire alarm work, or interruption of security hours must be arranged with
Landlord’s Building engineer.
	 
	 	17.	 	There will be no radios allowed on job site.
	 
	 	18.	 	All workers are required to wear a shirt, shoes, and full length trousers.
	 
	 	19.	 	Protection of hallway carpets, wall coverings, and elevators from damage with masonite board,
carpet, cardboard, or pads is required.
	 
	 	20.	 	Public spaces — corridors, elevators, bathrooms, lobby, etc. — must be cleaned immediately
after use. Construction debris or materials found in public areas will be removed at Tenant’s
cost.
	 
	 	21.	 	There will be no smoking, eating, or open food containers in the elevators, carpeted areas or
public lobbies.
	 
	 	22.	 	There will be no yelling or boisterous activities.





 









 






	 	23.	 	All construction materials or debris must be stored within the project confines or in an
approved lock-up.
	 
	 	24.	 	There will be no alcohol or controlled substances allowed or tolerated.
	 
	 	25.	 	The general contractor and Tenant shall be responsible for all loss of their materials and
tools and shall hold Landlord harmless for such loss and from any damages or claims resulting
from the work.





 









 





EXHIBIT C



DECLARATION OF COMMENCEMENT DATE



     This
Declaration of Commencement Date is made as of       , 200     , by
ACP/2300 CORPORATE PARK DRIVE, LLC (“Landlord”), and K12 INC. (“Tenant”), who agree as
follows:



     1. Landlord
and Tenant entered into a Deed of Lease dated     , 2005, in
which Landlord leased to Tenant, and Tenant leased from Landlord, certain Premises described
therein in the office building located at 2300 Corporate Park Drive, Herndon, Virginia 20171 (the
“Building”). All capitalized terms herein are as defined in the Lease.



     2. Pursuant to the Lease, Landlord and Tenant agreed to and do hereby confirm the following
matters as of the Commencement Date of the Term:




	 	a.	 	the Commencement Date of the Lease is     , 200_;
	 
	 	b.	 	the Rent Commencement Date of the Lease is May 1, 2006;
	 
	 	c.	 	the Lease Expiration Date of the Lease is April 30, 2013;
	 
	 	d.	 	the number of rentable square feet of the Premises is 35,740;
	 
	 	e.	 	Tenant’s Pro Rata Share (Operating Expenses) is 22.49%; and
	 
	 	f.	 	Tenant’s Pro Rata Share (Real Estate Taxes) is 22.49%.





     3. Tenant confirms that:




	 	a.	 	it has accepted possession of the Premises as provided in the Lease;
	 
	 	b.	 	Landlord is not required to perform any work or furnish any
improvements to the Premises under the Lease; provided, however, that Landlord
is required to furnish the Improvement Allowance to Tenant pursuant to the
terms of the Lease;
	 
	 	c.	 	Landlord has fulfilled all of its obligations under the Lease as of the date
hereof;
	 
	 	d.	 	the Lease is in full force and effect and has not been
modified, altered, or amended, except as follows:
                                 ; and
	 
	 	e.	 	there are no set-offs or credits against Rent, and no Security
Deposit or prepaid Rent has been paid except as provided by the Lease.





     4. The provisions of this Declaration of Commencement Date shall inure to the benefit of, or
bind, as the case may require, the parties and their respective successors and assigns, and to all
mortgagees of the Building, subject to the restrictions on assignment and subleasing contained in
the Lease, and are hereby attached to and made a part of this Lease.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	LANDLORD:
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	ACP/2300 CORPORATE PARK DRIVE, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	ACP/Woodland Park, LLC, a Delaware limited

liability company, its sole member
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	 	 	By:	 	ACP/Woodland Park Manager, LLC,

a Delaware limited liability
company, 

its Manager
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name :
	 

	 	 	 	 	 	 	 	 	 	Title:
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	TENANT:
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	K12 INC., a Delaware corporation
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name: 

Title: 







 









 








EXHIBIT D




RULES & REGULATIONS





	1.	 	The water and wash closets and other plumbing fixtures shall not be used for any purposes
other than those for which they were constructed, and no sweepings, rubbish, rags or other
substances (including, without limitation, coffee grounds) shall be thrown therein. All
damages resulting from misuse of the fixtures shall be borne by Tenant if Tenant or its
servants, employees, agents, visitors or licensees shall have caused the same.
	 
	2.	 	No cooking (except for hot-plate and microwave cooking by Tenants’ employees for their own
consumption, the location and equipment of which is first approved by Landlord), sleeping or
lodging shall be permitted by any tenant on the Premises. No tenant shall cause or permit any
unusual or objectionable odors to be produced upon or permeate from the Premises.
	 
	3.	 	No inflammable, combustible, or explosive fluid, material, chemical or substance shall be
brought or kept upon, in or about the Premises. Fire protection devices, in and about the
Building, shall not be obstructed or encumbered in any way.
	 
	4.	 	Canvassing, soliciting and peddling in the Building is prohibited and each tenant shall
cooperate to prevent the same.
	 
	5.	 	There shall not be used in any space, or in the public halls of the Building, either by any
tenant or by its agents, contractors, jobbers or others, in the delivery or receipt of
merchandise, freight, or other matters, any hand trucks or other means of conveyance except
those equipped with rubber tires, rubber side guards, and such other safeguards as Landlord
may require, and Tenant shall be responsible to Landlord for any loss or damage resulting from
any deliveries to Tenant in the Building. Deliveries of mail, freight or bulky packages shall
be made through the freight entrance or through doors specified by Landlord for such purpose.
	 
	6.	 	Mats, trash or other objects shall not be placed in the public corridors. The sidewalks,
entries, passages, elevators, public corridors and staircases and other parts of the Building
which are not occupied by Tenant shall not be obstructed or used for any other purpose than
ingress or egress.
	 
	7.	 	Tenant shall not install or permit the installation of any awnings, shades, draperies and/or
other similar window coverings, treatments or like items visible from the exterior of the
Premises other than those approved by the Landlord in writing.
	 
	8.	 	Tenant shall not construct, maintain, use or operate within said Premises or elsewhere in the
Building or on the outside of the Building, any equipment or machinery which produces music,
sound or noise which is audible beyond the Premises.
	 
	9.	 	Bicycles, motor scooters or any other type of vehicle shall not be brought into the lobby or
elevators of the Building or into the Premises except for those vehicles which are used by a
physically disabled person in the Premises.
	 
	10.	 	All blinds for exterior windows shall be building standard and shall be maintained by Tenant.
	 
	11.	 	No additional locks shall be placed upon doors to or within the Premises except as shall be
necessary adequately to safeguard United States Government security classified documents
stored with the Premises. The doors leading to the corridors or main hall shall be kept
closed during business hours, except as the same may be used for ingress or egress.
	 
	12.	 	Tenant shall maintain and clean all areas or rooms within the Premises in which security
classified work is being conducted or in which such work is stored; Landlord shall not provide
standard janitorial service to such areas, the provisions of Section 9 of this
Lease notwithstanding.
	 
	13.	 	Landlord reserves the right to shut down the air conditioning, electrical systems, heating,
plumbing and/or elevators when necessary by reason of accident or emergency, or for repair,
alterations, replacements or improvement.
	 
	14.	 	No carpet, rug or other article shall be hung or shaken out of any window of the Building;
and Tenant shall not sweep or throw or permit to be swept or thrown from the Premises any dirt
or other substances into any of the corridors or halls, elevator, or out of the doors or
windows or stairways of the Building. Tenant shall not use, keep or permit to be used or kept
any foul or noxious gas or substance in the Premises, or permit or surfer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any animals or birds be kept in or about
the Building. Smoking or carrying lighted cigars or cigarettes in the elevators of the
Building is prohibited.
	 
	15.	 	Landlord reserves the right to exclude from the Building on weekdays between the hours of
6:00 p.m. and 8:00 a.m. and at all hours on weekends and legal holidays, all persons who do
not present a pass to the Building signed by Landlord; provided, however, that reasonable
access for




 









 






	 	 	Tenant’s employees and customers shall be accorded. Landlord will furnish passes to persons
for whom Tenant requires same in writing. Tenant shall be responsible for all persons for
whom it requests such passes and shall be liable to Landlord for all acts of such persons.
	 
	16.	 	Tenant agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Landlord with respect to the Building’s air conditioning and ventilation
systems.
	 
	17.	 	Tenant will replace all broken or cracked plate glass windows and doors at its own expense,
with glass of like kind and quality, provided that such windows and doors are not broken or
cracked by Landlord, its employees, agents or contractors.
	 
	18.	 	In the event it becomes necessary for the Landlord to gain access to the underfloor electric
and telephone distribution system for purposes of adding or removing wiring, then upon request
by Landlord, Tenant agrees to temporarily remove the carpet over the access covers to the
underfloor ducts for such period of time until work to be performed has been completed. The
cost of such work shall be borne by Landlord except to the extent such work was requested by
or is intended to benefit Tenant or the Premises, in which case the cost shall be borne by
Tenant.
	 
	19.	 	Violation of these rules, or any amendments thereof or additions thereto, may be considered a
default of Tenant’s lease and shall be sufficient cause for termination of this Lease at the
option of Landlord.




 









 











EXHIBIT E




FORM OF LETTER OF CREDIT




LETTER OF CREDIT




	 	 	 
	[Lending Institution Name]
	 	 
	[Address of Lending Institution]

	 	Date:                     , 200_






IRREVOCABLE STANDBY LETTER OF CREDIT NO.                                         




	 	 	 	 	 
	Account Party:

	 	K12 Inc.	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	In favor of:
	 	 	 	 
	 

	 	ACP/2300 Corporate Park Drive, LLC	 	 
	 

	 	c/o ACP Mid-Atlantic LLC, as Agent	 	 
	 

	 	2350 Corporate Park Drive	 	 
	 

	 	Suite 110	 	 
	 

	 	Herndon, Virginia 20171	 	 
	 

	 	Attention: Asset Manager	 	 






	 	 	 
	AMOUNT

	 	EXPIRY DATE:                     , 200_
	USD $                    
	 	 
	U.S. Dollars Only
	 	 






Gentlemen:




     We hereby establish our irrevocable letter of credit in favor of ACP/2300 Corporate Park Drive,
LLC in the amount of             
                ($                      ) (U.S. Dollars Only), effective immediately.
Funds under this Letter of Credit are available to you by your draft at sight drawn on the
[Lending Institution Name, Lending Institution Address], bearing the clause “Drawn under [Lending
Institution Name] Letter of Credit No.                     dated                     , 200___,” and accompanied by the following document:




Beneficiary’s signed statement stating that: “The undersigned Beneficiary is entitled to draw upon
this Letter of Credit pursuant to the terms of that Deed of Lease dated                     , 2005, for
premises at 2300 Corporate Park Drive, Herndon, Virginia between K12 Inc., as tenant, and
ACP/2300 Corporate Park Drive, LLC, as landlord, as such Deed of Lease may have been
modified or amended to date. The undersigned Beneficiary hereby makes demand for the
payment of                      of the Letter of Credit.”



     Such statement shall be conclusive as to such matters and we will accept such statement as
binding and correct without having to investigate or having to be responsible for the accuracy,
truthfulness or validity thereof or any part thereof and notwithstanding the claim of any person
to the contrary.



     This Letter of Credit is transferable to any transferee of Beneficiary’s interest as landlord in that
Deed of Lease dated                     , 2005, for premises at 2300 Corporate Park Drive, Herndon, Virginia
between K12 Inc., as tenant, and ACP/2300 Corporate Park Drive, LLC, as landlord, as the same may
be amended or modified from time to time. There shall be no fee payable by Beneficiary in
connection with such transfer.



     This Letter of Credit sets forth in full the terms of our undertaking and such undertaking
shall not in any way be modified, amended, or amplified by reference to any document(s),
instrument(s), contract(s), or agreement(s) referred to herein or in which this Letter of Credit
relates, and any such reference shall not be deemed to incorporate herein by reference any
document(s), instrument(s), contract(s), or agreement(s).



     It is a condition of this Letter of Credit that it shall be deemed automatically extended
without amendment for one (1) year from the present or any future expiration date of this Letter
of Credit unless at least sixty (60) days prior to the then current expiration date we notify the
Beneficiary by registered letter that we elect not to consider this Letter of Credit renewed for
such additional period. If such notice is given, then during such notice period (i.e. the sixty
(60) day period commencing on the date of such notice and ending with the then applicable
expiration date of this Letter of Credit), this Letter of Credit shall remain in full force and
effect and Beneficiary may draw up to the full amount of the sum when accompanied by a statement
described above in the first paragraph of this Letter of Credit.



     If a demand for payment made hereunder does not, in any instance, conform to the terms and
conditions of this Letter of Credit, we shall give you prompt notice that the purported
negotiation of this Letter of Credit was not effected in accordance with the terms and conditions
of this Letter of Credit, stating the reasons therefor and that we are holding any documents at
your disposal or are returning them to you, as you may elect. Upon being notified that the
purported negotiation of this Letter of Credit was not effected in conformity with this Letter of
Credit, you may attempt to correct any such nonconforming demand for payment.



 









 





     We hereby agree with you that drafts drawn and presented in compliance with the terms of this
Letter of Credit will be honored by us immediately if presented at any of our offices on or before
the Expiry Date, as such date may be extended pursuant to the terms hereof.



     Unless otherwise stated in this Letter of Credit, this Letter of Credit is subject to The
Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, which is incorporated by reference herein.



	 	 	 
	Very truly yours,
	 	 
	 
	 	 
	 

Authorized Signature