FIRST AMENDMENT TO DEED OF
LEASE
THIS FIRST
AMENDMENT TO DEED OF LEASE (this “First Amendment”)
is made this 30 th day of November, 2006 (the “Effective
Date”), by and between ACP/2300 CORPORATE PARK OWNER,
LLC, a Delaware limited liability company
(“Landlord”), and K12 INC. , a Delaware
corporation (“Tenant”).
WHEREAS,
pursuant to that certain Deed of Lease dated December 7, 2005
(the “Original Lease”), ACP/2300 Corporate Park Drive,
LLC (“Original Landlord”) leased to Tenant, and Tenant
leased from Original Landlord, approximately 35,740 rentable square
feet of office space (the “Original Premises”)
comprising a portion of the first (1 st )
floor and the entire second (2 nd )
floor of the building located at 2300 Corporate Park Drive,
Herndon, Virginia (the “Building”);
WHEREAS,
Landlord has purchased the Building from Original Landlord and has
succeeded to the interest of Original Landlord under the Original
Lease; and
WHEREAS,
Landlord and Tenant desire to amend the Original Lease to provide
for the demise to Tenant of the Expansion Space (hereinafter
defined), upon the terms and conditions set forth in this First
Amendment.
NOW,
THEREFORE, in consideration of the foregoing and for other good
and valuable consideration and of the mutual agreements hereinafter
set forth, it is hereby mutually agreed as follows:
1. Incorporation of Recitals. The foregoing recitals
are hereby incorporated in this First Amendment and made a part
hereof by this reference.
2. Definitions. All capitalized terms used in this
First Amendment shall have the meanings ascribed thereto in the
Original Lease, unless otherwise defined herein. As used herein and
in the Original Lease: (a) the term “Lease” shall
mean the Original Lease, as amended by this First Amendment; and
(b) from and after the Expansion Space Commencement Date
(hereinafter defined), the term “Premises” shall mean
the Original Premises together with the Expansion Space.
3. Expansion Space. Subject to the terms and conditions
set forth herein, Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, for a term beginning on the Expansion
Space Commencement Date and ending on April 30, 2013 (i.e. the
“Lease Expiration Date” under the Original Lease),
6,930 rentable square feet of office space located on the fourth
(4 th
) floor of the Building, as shown on
the attached Exhibit A (the “Expansion
Space”). As of the Expansion Space Commencement Date, the
aggregate number of rentable square feet demised to Tenant under
the Lease (consisting of the Original Premises and the Expansion
Space) shall be 42,670.
4. Improvements to the Expansion Space.
A.
Landlord shall deliver the Expansion Space to Tenant in its
“as-is” condition (broom clean and free of all
furniture and work stations) and Landlord shall have no obligation
to perform, or, except as expressly set forth in this Paragraph
4 , pay for, any work, improvements or alterations in or to
the Expansion Space in connection with this First Amendment or
otherwise. Notwithstanding the foregoing, and provided that Tenant
is not then in default under the Lease, Landlord shall provide
Tenant with a refurbishment allowance of Fifty-One Thousand Nine
Hundred Seventy-Five Dollars ($51,975.00) (or Seven and 50/100
Dollars ($7.50) per rentable square foot of the Expansion Space)
(the “Refurbishment Allowance”) to pay for costs and
expenses incurred by Tenant in connection with the design and
construction of improvements which Tenant desires to undertake in
and to the Expansion Space (the “Expansion Space
Improvements”), which costs and expenses shall include
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 installed in the Expansion Space, the cost of
Tenant’s initial furniture, fixtures and equipment installed
in the Expansion Space, and all other costs and expenses incurred
in connection with the Expansion Space Improvements. Disbursements
of the Refurbishment Allowance by Landlord (“Partial
Payments”) shall be made on a monthly basis, if requested in
writing by Tenant, or, if not so requested, paid out by Landlord
upon completion of the Expansion Space Improvements, and the
satisfaction of the conditions set forth below, including the
receipt by Landlord of final lien waivers from all general
contractors, subcontractors and material suppliers who perform work
or provide materials in connection therewith. Each of
Tenant’s requests for a Partial Payment (the “Draw
Requests”) shall be accompanied by (a) the general
contractor’s application for payment (including, if
applicable, an architect’s certification thereof) setting
forth a detailed description of the work completed (including the
percentage of the total job which the work with respect to which
the contractor seeks payment represents) and the total cost of such
work; (b) invoices for design, architectural or permit costs
incurred by Tenant; (c) a written approval by Tenant and its
architect of the contractor’s application of payment and the
work performed by the contractor(s); and (d) partial lien
waivers (or, with respect to the final Draw Request, final lien
waivers) and releases of mechanic’s and materialmen’s
liens from the general contractor, subcontractors and material
suppliers providing work or services in or to the Expansion Space.
The Landlord shall make Partial Payments of the Refurbishment
Allowance within thirty (30) days after receipt of a Draw
Request from Tenant, provided that such Draw Request is accompanied
by all applicable information and documentation set forth in
(a)-(d), above. The Tenant’s final Draw Request shall include
a certificate of substantial completion prepared by Tenant’s
architect and shall also include all applicable final lien waivers.
Prior to undertaking any Expansion Space Improvements in the
Expansion Space, Tenant shall submit to Landlord for its approval
full working drawings (the “Working Drawings”)
depicting all Expansion Space Improvements which Tenant desires to
install in the Expansion Space, which Working Drawings shall
satisfy the requirements set forth for the “Tenant’s
Plans” pursuant to Exhibit B attached to the Original
Lease (captioned, “Work Agreement”). All Working
Drawings depicting the Expansion Space Improvements to be
constructed in or to the Expansion Space shall be subject to
approval by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed, except if Landlord determines
that any proposed Expansion Space Improvement depicted therein will
alter or affect the structural elements of the Building or any of
the systems therein, in which event Landlord’s approval may
be withheld in its sole discretion with respect to such
improvements. The Expansion Space Improvements shall be constructed
(1) in a good and workmanlike manner, (2) in strict
accordance with the terms and conditions of the Original Lease,
including but not limited to the terms and conditions of Section 8
thereof and (3) by licensed contractor(s) approved in writing
by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Any portion of the Refurbishment Allowance
with respect to which Tenant fails to submit to Landlord a Draw
Request within six (6) months after the Expansion Space Rent
Commencement Date (hereinafter defined) shall be retained by
Landlord.
B.
In the event that Tenant notifies Landlord in writing, on or before
the date which is thirty (30) days prior to the Expansion
Space Rent Commencement Date, that Tenant wishes to increase the
Refurbishment Allowance, and Tenant specifies in such notice the
amount of such proposed increase, which increase shall not exceed
the Maximum Increase Amount (hereinafter defined), and evidences to
Landlord’s reasonable satisfaction that the cost of
undertaking the Expansion Space Improvements exceeds the
Refurbishment Allowance by the approximate amount of the Excess
Cost Allowance (hereinafter defined) requested by Tenant, then
Landlord shall make available to Tenant an additional tenant
improvement allowance (the “Excess Cost Allowance”) in
the amount requested by Tenant, provided that the Excess Cost
Allowance shall not exceed the Maximum Increase Amount. As used
herein, the term “Maximum Increase Amount” means the
sum of Fifty-One Thousand Nine Hundred Seventy-Five Dollars
($51,975.00) (or Seven and 50/100 Dollars ($7.50) per rentable
square foot of the Expansion Space). The Excess Cost Allowance
shall be paid out by the Landlord in accordance with the
Page 2
provisions of
Paragraph 4(A), above. Tenant shall repay to Landlord the
amount of the Excess Cost Allowance over the Expansion Space Term
(hereinafter
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