FIRST AMENDMENT TO LEASE

1. Defined Terms; Recitals.  Unless otherwise expressly defined herein, all capitalized terms used herein shall have the meanings set forth for such terms in the Lease.  The recitals set forth above are hereby incorporated into the body of this Amendment as if fully restated herein.

2. Extension Term.  Effective as of the date hereof, the Term of the Lease is hereby extended for an additional period of sixty-two (62) full calendar months (the "Extension Term"), which Extension Term shall commence on December 1, 2016 (the "Extension Term Commencement Date") and expire on January 31, 2022 (the "Expiration Date").  The Lease is hereby amended in all respects necessary to reflect that the Termination Date shall be deemed to be the Expiration Date.

3. Annual Rent.  Without limitation of Tenant's obligation to pay Annual Rent prior to the Extension Term Commencement Date, from and after the Extension Term Commencement Date through the Expiration Date, the Annual Rent in the amounts set forth below shall be payable to Landlord in accordance with the provisions of the Lease.

4. Additional Rent.  Effective as of the Extension Term Commencement Date, the Lease is hereby amended in all respects necessary to reflect that, in addition to the Annual Rent as set forth above and without limiting Tenant's liabilities and obligations under the Lease that accrue prior to the Extension Term Commencement Date or relate to matters or events occurring prior to the Extension Term Commencement Date, the Lease shall be a "triple net lease," without regard to any base year or stops or caps, and any references to the contrary set forth in the Lease are hereby deleted in their entirety and of no force or effect, and Tenant shall pay Tenant's Proportionate Share of Expenses, Taxes and Insurance Costs for the Building during the Extension Term, all as more particularly set forth on Exhibit C attached hereto and made a part hereof.  As of the date hereof, Landlord estimates that Tenant's Proportionate Share of (i) Expenses for calendar year 2017 shall equal $55,252.46, (ii) Taxes for calendar year 2017 shall equal $189,212.82, and (iii) Insurance Costs for calendar year 2017 shall equal $13,636.96 (Tenant's Proportionate Share of Expenses, Taxes and Insurance Costs are hereinafter collectively referred to as "Shared Expenses," and Shared Expenses and all other amounts or charges due under the Lease by Tenant are hereinafter collectively referred to as "Additional Rent").  The Shared Expenses shall be payable by Tenant to Landlord in equal monthly installments of $21,508.52 (subject to increase as set forth in this Amendment) on or before the first day of each calendar month (commencing on the Extension Term Commencement Date).  The foregoing estimate of Tenant's initial monthly payment of Shared Expenses does not reflect any taxes, if applicable, that apply to such payments.  Tenant acknowledges that the foregoing estimates do not supersede the specific provisions contained in Exhibit C and may be adjusted by Landlord as provided on Exhibit C.

5. Landlord's Work. Tenant hereby acknowledges that (a) Landlord shall have no obligation whatsoever to perform any work to the Premises in connection with this Amendment or the Extension Term except as specifically set forth in this Amendment, including, without limitation, Exhibit A, (b) Tenant is familiar with and has inspected the Premises, and (c) except as otherwise set forth in this Amendment, Tenant shall accept the Premises on an "AS-IS," "WHERE-IS" basis.  Landlord shall, at Landlord's sole cost and expense and without charging the same to Tenant in any manner, including, without limitation as a Shared Expense (except with respect to a Tenant Delay and as set forth in Exhibit A with respect to the Dock Work), using building-standard materials, furnish or perform the improvements to the Premises set forth on Exhibit A attached hereto and made a part hereof (collectively, the "Landlord's Work").  Landlord shall commence the Landlord's Work promptly after the date hereof and shall use commercially reasonable efforts to complete the Landlord's Work within ninety (90) days after the date hereof.  Landlord and Tenant acknowledge and agree that (i) Landlord shall not be liable to Tenant for any inconveniences Tenant may experience during the performance, construction or installation of the Landlord's Work which are beyond Landlord's control or, except as expressly set forth in this Section 5, for any delays in Landlord's completion of the Landlord's Work (regardless of the length of any such delays); (ii) Landlord shall not be obligated to perform, construct or install (or cause to be performed, constructed or installed) the Landlord's Work at any time other than during normal business hours on regular business days; (iii) Tenant shall ensure that neither Tenant, nor any of Tenant's agents, sublessees, employees, representatives, contractors, subcontractors, suppliers, customers and invitees (collectively, the "Tenant Parties"), interfere with or impede the performance and completion of the Landlord's Work (regardless of whether such Landlord's Work is performed by Landlord or any of Landlord's agents, employees, contractors, or subcontractors); (iv) Landlord shall ensure that Landlord, and all of Landlord's agents, employees, representatives, contractors, subcontractors, and suppliers shall use commercially reasonable efforts to minimize disruptions to Tenant's business that may be caused by the performance of Landlord's Work; (v) Landlord shall have access to the Premises at reasonable times and upon reasonable notice for the purpose of performing, installing and completing the Landlord's Work; and (vi) Tenant and Landlord shall use good faith efforts to cooperate with each other during the performance, construction and installation of the Landlord's Work, and Tenant shall be responsible, at no cost to Landlord, for the moving of any and all furniture, trade fixtures, equipment and/or personal property that is reasonably necessary for Landlord to complete (or cause the completion of) the Landlord's Work.  Notwithstanding anything to the contrary contained herein, in the event the Landlord's Work is not Substantially Completed on or before the date that is one hundred twenty (120) days after the date hereof (the "Outside Completion Date"), Tenant shall be entitled to a $500 credit against Annual Rent for each day the Substantial Completion of the Landlord's Work is delayed beyond such Outside Completion Date (such credit to be in addition to the abatement of Monthly Installments of Annual Rent set forth in Section 3 above).  Notwithstanding the foregoing, if Substantial Completion of the Landlord's Work is delayed beyond such Outside Completion Date as a result of (x) matters beyond the reasonable control of Landlord (such as delays in receiving permits), and/or (y) Tenant Delays (as hereinafter defined), such delays shall be excused for all relevant purposes and the Outside Completion Date shall be extended by one (1) day for every one (1) day of such delays. Landlord shall perform the Landlord's Work in a good and workmanlike manner and in compliance with all applicable laws, rules, ordinances or requirements of any governing authority having jurisdiction over the Premises (but not matters arising due to Tenant's specific use of the Premises).  Nothing contained in this amendment shall eliminate, limit or modify Landlord's or Tenant's repair and maintenance obligations set forth in the Lease.  In the event any accrued Tenant Delays cause Landlord to pay or incur costs or expenses in connection with the design, construction and substantial completion of the Landlord's Work in excess of the costs or expenses that would otherwise have been paid or incurred by Landlord, Tenant shall pay any such reasonable out-of-pocket excess costs and expenses to Landlord, as Additional Rent, within ten (10) days after Landlord submits invoices for any such excess costs or expenses.  For purposes herein, "Tenant Delays" shall mean delays in the design, construction or substantial completion of the Landlord's Work by or on behalf of Landlord caused or contributed to by Tenant or any of the Tenant Parties.  For purposes herein, "Substantially Completed" or "Substantial Completion" means the Landlord's Work has been completed except for minor or insubstantial details of construction, repair, mechanical adjustment, or finishing touches, which items shall not adversely affect Tenant's conduct of its ordinary business activities in the Premises, as reasonably determined by Landlord's contractor or architect.

 

 

6. Renewal Option.  Tenant shall have the option to extend the Term of the Lease for all of the then leased Premises for one (1) additional period of five (5) years ("Renewal Option"), under and subject to the following terms and conditions:

(a) The renewal term ("Renewal Term") shall be for a five (5) year period commencing on the day immediately following the expiration of the Extension Term and expiring on the day immediately preceding the fifth (5th) anniversary thereof. Tenant must exercise the Renewal Option, if at all, by written notice to Landlord delivered at least two hundred seventy (270) days and no more than three hundred sixty-five (365) days prior to the expiration date of the Extension Term, time being of the essence.

(b) As a condition to Tenant's exercise of the Renewal Option, at the time Tenant delivers its notice of election to exercise the Renewal Option to Landlord and at the time the Renewal Term is scheduled to commence, there shall be no Event of Default then existing and the Lease shall be in full force and effect, and Tenant shall not have assigned the Lease or sublet the Premises to a party that is not an Affiliate (as defined in Section 9.8 of the Lease).

(c) The Annual Rent for the first year of the Renewal Term shall be the then current fair market rent for renewals for comparable space in similar buildings within a three (3) mile radius of the Building, but in no event less than the Annual Rent for the last year of the Extension Term (the "Minimum Fair Market Rental"), and Annual Rent for each subsequent year during the Renewal Term shall increase consistent with then existing market annual escalations ("Fair Market Rental").

(d) Landlord shall determine the Fair Market Rental using its good faith judgment and shall provide written notice ("Landlord's Notice") of such Fair Market Rental within fifteen (15) days after delivery of Tenant's renewal notice pursuant to this Section 6.  Tenant shall thereupon have the following options: (i) accept Landlord's proposed Fair Market Rental or (ii) object to Landlord's proposed Fair Market Rental.  Tenant shall provide Landlord with written notice ("Tenant's Notice") of its election to accept or object to Landlord's proposed Fair Market Rental within fifteen (15) days after Tenant's receipt of Landlord's Notice.  If Tenant fails to provide Tenant's Notice within such fifteen (15) day period, Tenant shall be deemed to have accepted Landlord's proposed Fair Market Rental in accordance with clause (i) above.  If Tenant objects to Landlord's proposed Fair Market Rental in accordance with clause (ii) above, Landlord and Tenant shall attempt to negotiate a mutually acceptable Fair Market Rental within fifteen (15) days following Landlord's receipt of Tenant's Notice.  If such negotiations have not been concluded within such fifteen (15) day period, either Landlord or Tenant (in such capacity, the "Initiating Party") may request an independent determination of the Fair Market Rental for the Renewal Term by giving written notice ("Independent Appraiser Notice") to the other party (the "Responding Party") no later than five (5) days after the expiration of such fifteen (15) day period.  The Independent Appraiser Notice shall designate an MAI real estate appraiser or real estate broker with at least ten (10) years' experience in leasing comparable space in similar buildings within a three (3) mile radius of the Building (a "Qualified Appraiser").  Within ten (10) days after receipt of the Independent Appraiser Notice, the Responding Party shall select a different Qualified Appraiser and give written notice of such selection to the Initiating Party.  If the Qualified Appraisers selected by the Initiating Party and the Responding Party fail to agree upon the Fair Market Rental within ten (10) days after selection of the second Qualified Appraiser, the Qualified Appraisers shall select a third Qualified Appraiser to determine the Fair Market Rental within ten (10) days after the selection of such third Qualified Appraiser.  The Fair Market Rental for the Renewal Term shall be equal to the arithmetic average of the three (3) determinations of Fair Market Rental by the Qualified Appraisers; provided, however, that if one of the determinations of Fair Market Rental submitted by a Qualified Appraiser deviates from the median of the three (3) determinations of Fair Market Rental by more than five percent (5%), the Fair Market Rental for the Renewal Term shall be equal to the arithmetic average of the other two (2) determinations of Fair Market Rental.  The determination of the Fair Market Rental in accordance with this Section 6(d) shall be final, binding and conclusive on Landlord and Tenant (subject to the Minimum Fair Market Rental).  Each of Landlord and Tenant shall be responsible for the costs and expenses of its Qualified Appraiser and shall split evenly the costs and expenses of the third Qualified Appraiser.

(e) Notwithstanding anything to the contrary in the Lease, except as specifically set forth in this Amendment, Tenant shall have no right or option to renew or extend the Term of the Lease.  Without limitation of the foregoing, Section 39 of the Lease is hereby deleted in its entirety and of no force or effect.

 

 

7. Termination Option.  Tenant shall have one (1) option to terminate the Lease, subject to the terms and conditions set forth on Exhibit B attached hereto and made a part hereof.  Notwithstanding anything in the Lease to the contrary, except as specifically set forth in this Amendment, Tenant shall have no rights or options to terminate the Lease.  Without limitation of the foregoing, Section 40 of the Lease is hereby deleted in its entirety and of no force or effect.

8. Broker.  Landlord and Tenant each hereby represents and warrants to the other that it did not engage or deal with any broker, finder, or agent, other than Mohr Partners, Inc. (the "Broker"), in connection with the negotiation and/or execution of this Amendment.  Landlord and Tenant agree to indemnify and save the other harmless from any claim, demand, damage, liability, cost or expense (including, without limitation, attorneys' fees) paid or incurred by the indemnified party as a result of any claim for brokerage or other commissions or fees made by any broker, finder, or agent (other than Broker), whether or not meritorious, employed or engaged or claiming employment or engagement by, through, or under the indemnifying party in connection with this Amendment.  Broker shall be compensated by Landlord pursuant to the terms of a separate commission agreement.

9. Effect of Amendment.  Except as expressly amended hereby, the Lease shall continue in full force and effect and unamended.  In the event of any conflict or inconsistency between the provisions of the Lease (other than this Amendment) and this Amendment, the provisions of this Amendment shall control.  From and after the date hereof, references to the "Lease" (including, without limitation, any and all references contained in this Amendment) shall mean the Lease as amended by this Amendment.

10. Binding Effect.  This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

11. Headings.  The paragraph headings that appear in this Amendment are for purposes of convenience of reference only and are not in any sense to be construed as modifying the substance of the paragraphs in which they appear.

12. Counterparts.  This Amendment may be executed in one or more counterparts, each of which will constitute an original, and all of which together shall constitute one and the same agreement.  Executed copies hereof may be delivered by e-mail or facsimile and, upon receipt, shall be deemed originals and binding upon the parties hereto.  Without limiting or otherwise affecting the validity of executed copies hereof that have been delivered by e-mail or facsimile, the parties will use reasonable efforts to deliver originals as promptly as possible after execution.

13. Governing Law.  This Amendment shall be governed by and construed in accordance with the laws of the state in which the Premises are located.

 

 

14. Authority.  The parties represent and warrant to each other that it has full power, right and authority to execute and perform this Amendment and all corporate action necessary to do so have been duly taken.

15. Binding Agreement.  Submission of this Amendment shall not be deemed to be an offer or an acceptance of the terms herein, and neither Landlord nor Tenant shall be bound by the terms herein until Landlord has delivered to Tenant, or to Tenant's agent, or designated representative, a fully executed copy of this Amendment (which may be delivered in counterparts as described above), signed by both of the parties in the spaces herein provided.

16. OFAC.  Tenant represents and warrants that neither it nor any of its officers or directors is, and that, to the actual knowledge of the signatory to this Amendment, none of its employees, representatives, or agents is, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental regulation, and that it will not transfer the Lease to, or knowingly contract with or otherwise engage in any dealings or transactions or be otherwise associated with such persons or entities.  Tenant represents and warrants that it is currently in compliance with, and shall at all times during the term of the Lease remain in compliance with, the regulations of OFAC and any other governmental requirement relating thereto.

17. Notices.  The Lease is hereby amended in all respects necessary to reflect that the address of Landlord for notice purposes is:

 

 

 

 

i. If Tenant desires to exercise the Termination Option, Tenant shall (a) give Landlord irrevocable written notice ("Termination Notice") of Tenant's exercise of this Termination Option no later than 5:00 p.m. (local time at the Premises) on January 31, 2019, and (b) pay Landlord, in immediately available funds, a termination fee in the amount of $170,000.00 (the "Termination Fee").  The Termination Fee must be delivered simultaneously with the Termination Notice in order for the Termination Notice to be effective.  In the event Tenant timely and properly delivers the Termination Notice and Termination Fee to Landlord, the Lease shall terminate effective as of 11:59 p.m. (local time at the Building) on January 31, 2020 (the "Early Termination Date").  Time is of the essence with respect to Landlord's receipt of the Termination Notice and all other deadlines in this Exhibit B.

ii. Tenant's obligations to pay Annual Rent, Additional Rent, and any other costs or charges under the Lease, and to perform all other Lease obligations for the period up to and including the Early Termination Date, shall survive the termination of the Lease.  In addition, any and all of Tenant's obligations under the Lease which, by their terms, expressly survive the termination of the Lease, shall survive the termination of the Lease.

iii. Notwithstanding the foregoing, if at any time during the period on or after the date on which Tenant delivers a Termination Notice and including the Early Termination Date, an Event of Default occurs beyond the applicable notice and cure period, then the Termination Notice shall, at Landlord's election, automatically be revoked and the Lease shall remain in full force and effect, subject to all relevant provisions concerning default, notice, cure and remedies.  In such event, the Termination Fee shall be promptly returned to Tenant.

iv. In the event Tenant exercises the Termination Option, Tenant covenants and agrees to surrender full and complete possession of the Premises to Landlord on or before the Early Termination Date vacant and in accordance with the provisions of the Lease.  Additionally, on the Early Termination Date, the Premises shall be free and clear of all leases, tenancies, and rights of occupancy of any entity claiming by or through Tenant.

v. If Tenant fails to deliver possession of the Premises on or before the Early Termination Date in accordance with the terms of the Lease and this Exhibit B, Tenant shall be deemed to be a holdover tenant from and after the Early Termination Date, and any and all applicable provisions of the Lease shall apply to Tenant's holdover of the Premises.  Accordingly, in response to such a holdover by Tenant, Landlord shall be entitled to exercise or pursue (i) any and all of its rights under the Lease, and (ii) any other legal or equitable remedies otherwise available to Landlord.  Landlord may accept any such holdover payments from Tenant without prejudice to Landlord's right to evict Tenant from the Premises by any lawful means.

vi. If Tenant timely and properly exercises the Termination Option and complies with the terms and conditions of this Exhibit B, the Lease shall cease and expire on the Early Termination Date with the same force and effect as if said Early Termination Date were the date originally provided in the Lease as the expiration date of the term of the Lease.

vii. The Termination Option is personal to Tenant and Tenant's Affiliates.  If the Lease is assigned to a party that is not an Affiliate or all or a portion of the Premises is sublet to a party that is not an Affiliate, this Termination Option shall automatically be deemed null and void and neither Tenant nor any assignee or subtenant (other than an Affiliate) shall have the right to exercise the Termination Option during the term of such assignment or sublease.