SECOND AMENDMENT TO DEED OF
LEASE
THIS SECOND
AMENDMENT TO DEED OF LEASE (this “Second
Amendment”) is made this 26th day of March, 2007 (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;
WHEREAS,
pursuant to that certain First Amendment to Deed of Lease dated
November 30, 2006 (the “First Amendment”),
Landlord and Tenant amended the Original Lease to provide for the
demise to Tenant of the Expansion Space (as more particularly
described in the First Amendment), upon the terms and conditions
set forth in the First Amendment; and
WHEREAS,
Landlord and Tenant desire to amend the Original Lease, as amended,
to provide for the demise to Tenant of the Second Expansion Space
(hereinafter defined), upon the terms and conditions set forth in
this Second 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 Second Amendment and made a part
hereof by this reference.
2. Definitions. All capitalized terms used in this
Second 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 the First Amendment and this
Second Amendment; and (b) from and after the Second Expansion
Space Commencement Date (hereinafter defined), the term
“Premises” shall mean the Original Premises together
with the Expansion Space and the Second Expansion Space.
Notwithstanding the foregoing, in the event the Must-Take Space
Commencement Date occurs prior to the Second Expansion Space
Commencement Date, then, as of the Second Expansion Space
Commencement Date, the term “Premises” shall mean the
Original Premises together with the Expansion Space, the Second
Expansion Space and the Must-Take Space.
3. Second
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 Second Expansion Space
Commencement Date and ending on April 30, 2013 (i.e. the
“Lease Expiration Date” under the Original Lease),
27,752 rentable square feet of office space consisting of the
entire sixth (6 th )
floor of the Building, as shown on the attached
Exhibit A (the “Second Expansion Space”).
As of the Second Expansion Space Commencement Date, the aggregate
number of rentable square feet demised to Tenant under the Lease
(consisting of the Original Premises, the Expansion Space and the
Second Expansion Space) shall be 70,422. Notwithstanding the
foregoing, in the event the Must-Take Space Commencement Date
occurs prior to the Second Expansion Space Commencement Date, then,
as of the Second Expansion Space Commencement Date, the aggregate
number of rentable square feet demised to
Tenant under
the Lease (consisting of the Original Premises, the Expansion
Space, the Second Expansion Space and the Must-Take Space) shall be
98,174.
4. Improvements to the Second Expansion Space. Landlord
shall deliver the Second Expansion Space to Tenant in its
“as-is” condition (broom clean and free of all
furniture and work stations, except for the Second Expansion Space
Existing Furniture (hereinafter defined)) 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 Second Expansion Space in connection with this Second
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 (the
“Refurbishment Allowance”) of Two Hundred Twenty-Two
Thousand Sixteen Dollars ($222,016.00) (or Eight Dollars ($8.00)
per rentable square foot of the Second Expansion Space) 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 Second Expansion Space (the “Second 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 Second Expansion Space, the
cost of Tenant’s initial furniture, fixtures and equipment
installed in the Second Expansion Space, and all other costs and
expenses incurred in connection with the Second 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 Second
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 Second 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 Second Expansion Space Improvements in the Second
Expansion Space, Tenant shall submit to Landlord for its approval
full working drawings (the “Working Drawings”)
depicting all Second Expansion Space Improvements which Tenant
desires to install in the Second 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 Second
Expansion Space Improvements to be constructed in or to the Second
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 Second
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
Second 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 (captioned, “Improvements and
Fixtures”) 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
Page 2
Allowance with
respect to which Tenant fails to submit to Landlord a Draw Request
within six (6) months after the Second Expansion Space Rent
Commencement Date (hereinafter defined) shall be retained by
Landlord.
5. Second
Expansion Space Term.
A.
The Term with respect to the demise of the Second Expansion Space
to Tenant (the “Second Expansion Space Term”) shall
commence on the Second Expansion Space Commencement Date and shall
expire on April 30, 2013, unless earlier terminated in
accordance with the terms and provisions of the Lease. As used
herein, the term “Second Expansion Space Commencement
Date” shall mean the date on which Landlord delivers the
Expansion Space to Tenant, which date is currently anticipated to
occur on or about October 1, 2009. As used herein, the term
“S.E.S. Lease Year” shall mean each consecutive
twelve-month period during the Second Expansion Space Term,
beginning with the Second Expansion Space Rent Commencement Date,
except that if the Second Expansion Space Rent Commencement Date
does not occur on the first day of a calendar month, the first
S.E.S. Lease Year shall commence on the Second Expansion Space Rent
Commencement Date and terminate on the last day of the twelfth
(12 th
) full calendar month after the
Second Expansion Space Rent Commencement Date, and (b) each
successive period of twelve (12) calendar months thereafter
during the Second Expansi
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