First Amendment to Lease, dated July 25, 2018, by and between Registrant and NWALP PHOP Property Owner LLC

Tenant shall vacate the Original Premises in accordance with Section 16.2 of the Lease and as further described herein and shall relocate from the Original Premises to the New Premises;

The Lease shall terminate with respect only to the Original Premises;

Basic Rent shall be as set forth in this Amendment; and

Certain other Amendments shall become effective as set forth in this Amendment.

Rent.  As of the New Premises Substantial Completion Date (as hereinafter defined), the Basic Rent Table set forth in the Definition of “Basic Rent” is deleted and replaced with the following:

Premises.  As of the New Premises Substantial Completion Date, Exhibit A – Plan of the Premises attached to the Lease is deleted and replaced with Exhibit A - Plan of Premises attached to this Amendment.   In addition, the title of Exhibit A-1 set forth in Section 1.2 of the Lease is deleted and replaced with “Site Plan of the Office Park”

Expiration Date.  As of the New Premises Substantial Completion Date, the definition of “Expiration Date” is deleted in its entirety and replaced with the following:

Term.  As of the New Premises Substantial Completion Date, the definition of “Term” is deleted in its entirety and replaced with the following:

Termination of Lease with respect to Original Premises.  Within ten (10) Business Days after the New Premises Substantial Completion Date, Tenant shall vacate the Original Premises in accordance with Section 16.2 of the Lease. Landlord acknowledges and agrees that Tenant is not required to remove the Initial Work or Alterations (if any), and notwithstanding the terms and provisions of said Section 16.2 to the contrary, Tenant shall not be required to remove its telecommunications lines and cabling from the Original Premises or elsewhere in the building located at 200 Fifth Avenue.   Failure by Tenant to vacate the Original Premises by the date set forth in the prior sentence shall constitute Default of Tenant entitling Landlord its rights and remedies as set forth in the Lease including, without limitation, those set forth in Section 16.1 of the Lease.  As of the date the Tenant vacates the Original Premises (the “Original Premises Termination Date”), the terms and provisions of the Lease with respect only to the Original Premises shall cease and terminate in the same manner as if the Original Premises Termination Date were the natural expiration date of the Lease with respect only to the Original Premises, except those which by express provision survive expiration and/or termination thereof.  Effective as of the Original Premises Termination Date, Tenant releases Landlord from any and all claims, obligations, and liabilities under the Lease with respect only to the Original Premises, except for those obligations and liabilities which, by their express terms, survive the termination or expiration of the Lease, and, effective as of the Original Premises Termination Date Landlord releases Tenant from any and all claims, obligations and liabilities accruing under the Lease with respect only to the Original Premises, except for those obligations and liabilities which survive the termination or expiration of the Lease.

New Premises Work.

The plans (the “New Premises Plans”) for the TI Work interior finish and layout of initial improvements to the New Premises (the “New Premises Work”), prepared by Landlord, at Landlord’s sole cost and expense are attached to this Amendment as Exhibit B.  

The New Premises will be ready for occupancy on the first date after the New Premises Work has been substantially completed as described in subsection (c) below (the “New Premises Substantial Completion Date”).  Landlord shall use commercially reasonable efforts to substantially complete the New Premises Work by November 1, 2018.

The New Premises shall be deemed ready for occupancy on the first day after the date that Landlord receives a certificate of occupancy for the New Premises, to the extent that the same is required under applicable Law, and the New Premises Work has been substantially completed except for items of work which can be completed after occupancy has been taken without preventing Tenant from operating at the New Premises (i.e. so-called “punch list” items) and Tenant has been given notice thereof.  Landlord shall complete all “punch list” items within sixty (60) days after the date of such notice, and Tenant shall afford Landlord access to the Premises for such purposes.

Tenant shall give Landlord notice, not later than two (2) calendar months after the New Premises Substantial Completion Date, of any respects in which Landlord has not performed the New Premises Work fully, properly and in accordance with the terms of this Lease.  Except as identified in any such notice from Tenant to Landlord and except for latent defects, Tenant shall have no right to make any claim that Landlord has failed to perform any of the New Premises Work fully, properly and in accordance with the terms of this Lease (except for punch list items, to which Tenant may object on or before that date which is two (2) calendar months after the completion thereof).

If a delay shall occur in the New Premises Substantial Completion Date as the result of:

any request by Tenant that Landlord delay the commencement, continuance or completion of the New Premises Work;

any material change by Tenant to any of the New Premises Plans after initial approval thereof by Tenant;

any other act or omission by Tenant or its Agents or independent contractors; or

any reasonably necessary displacement of any of the New Premises Work from its place in Landlord’s construction schedule resulting from any of the causes for delay referred to in this subsection (e) and the fitting of such New Premises Work back into such construction schedule;

Early Entry.  Provided that Tenant does not interfere with Landlord’s performance of the New Premises Work, Landlord agrees to allow Tenant to have access to the New Premises for fifteen (15) days reasonably determined by Landlord taking into account the New Premises Work, after the execution hereof for design, space planning, inspection and the like and for installation of its telecommunications equipment and to install its fixtures.  Prior to any entry onto the Premises, Tenant shall deliver to Landlord certificates of insurance evidencing the coverages required herein.  With respect to the period commencing upon any such early entry, all of Tenant’s obligations hereunder (other than its obligation to pay Basic Rent or Additional Rent for the New Premises) shall commence with respect to the New Premises.

Right of First Offer.  As of the New Premises Substantial Completion Date, Tenant shall have the following rights with regard to space on the fourth floor of the Building, the fifth floor of the Building and the sixth floor of the Building as depicted in Exhibit C attached to this Amendment (the “ROFO Space”), subject to the rights of tenants under leases currently existing at the Building with regard to the ROFO Space. In the event that Landlord submits a proposal to a prospective tenant for any of the ROFO Space (a “Proposal”), Landlord will simultaneously issue a proposal to Tenant for such ROFO Space upon the same terms and conditions as those set forth in the Proposal. Tenant shall have ten (10) days to accept the proposal by providing written notice of such election to Landlord within such ten (10) day period, time being of the essence in this regard. Failure by Tenant to respond within such ten (10) day period shall conclusively be deemed as a rejection of the proposal. In the event that Tenant rejects any proposal or is deemed to have rejected any proposal, Landlord shall be free to lease the applicable space to the prospective tenant upon terms and conditions which are not materially more favorable to the prospective tenant than those set forth in the proposal.  In the event that the applicable ROFO Space is not leased to the prospective tenant or if the terms upon which Landlord proposes to lease the applicable ROFO Space to the prospective tenant changes in a material manner, or if the space is leased to such prospective tenant but the term of such lease terminates or expires, the ROFO Space will once again be offered to Tenant upon the terms that the ROFO Space is being offered to the prospective tenant and the process set forth in this Section 8 shall be repeated. Tenant’s right to exercise its rights under this Section 8 is conditioned upon (a) no Default of Tenant existing on the date of exercise or the date the ROFO Space expansion is to commence, (b) this Lease being in full force and effect, and (c) the Tenant as originally named in this Lease and/or a Permitted Transferee is at the time of the exercise of the ROFO occupying at least sixty percent (60%) of the Premises. For purposes of this Section 8, (i) the term “material” shall mean a deviation in the overall economic terms of the transaction of ten percent (10%) of the total cost of the lease taking into account all relevant factors including, without limitation, Basic Rent Additional Rent, base years for taxes and operating expenses, tenant improvement allowances and/ or work, rent concessions and transaction costs; and (ii) all Proposals shall be non-binding and shall be subject to the rights of Tenant hereunder.  

Security Deposit.  Within ten (10) days of the New Premises Substantial Completion Date, Tenant shall deliver to Landlord the sum of One Hundred Seventy Seven Thousand Five Hundred and no/100 Dollars ($177,500.00) which amount shall be added to and become a part of the Security Deposit. Notwithstanding anything to the contrary contained herein or in the Lease, provided that there is no Default of Tenant existing on the Reduction Date (as hereinafter defined), $44,375.00 of the Security Deposit shall be returned to Tenant on the first day of the thirty-sixth month following the New Premises Substantial Completion Date (the “Reduction Date”).

Electricity.  (a)  The following is added after the first sentence of Section 10.1 of the Lease:

As a material inducement to Landlord entering into this Amendment, Tenant represents and certifies to Landlord that as of the date hereof: (i) the Lease as modified by this Amendment, contains the entire agreement between the parties hereto relating to the Original Premises and the New Premises and that there are no other agreements between the parties relating to the Original Premises and the New Premises, the Lease or the Building which are not contained or referred to herein or in the Lease, (ii) to the best of Tenant’s knowledge, Landlord is not in default in any respect in any of the terms, covenant and conditions of the Lease, (iii) to the best of Tenant’s knowledge, Tenant has no existing set-offs, counterclaims or defenses against Landlord under the Lease, (iv) Tenant has not assigned or pledged its leasehold interest under the Lease or sublet or licensed or granted any other occupancy rights with respect to any or all of the Premises, (iv) no consent or approval of any third party or parties is required in order for Tenant to enter into and be bound by this Amendment and (vi) Tenant is not, and the performance by Tenant of its obligations hereunder shall not render Tenant, insolvent within the meaning of the United States Bankruptcy Code, the Internal Revenue Code or any other applicable law, code or regulation.

Each of Landlord and Tenant hereby represents that such party has not dealt with any brokers with respect to the transactions contemplated by this other than CBRE and T3 Advisors (collectively, the “Broker”).  Each of Landlord and Tenant hereby agrees to defend, indemnify and hold harmless the other, and its successors and assigns, against and from all claims, losses, liabilities and expenses including, without limitation, reasonable attorney’s fees, arising out of any claim by any broker, consultant, finder or like agent, which are based upon alleged dealings by such party with respect to this Amendment other than the Broker.

Capitalized terms that are not otherwise defined herein shall have the meaning set forth in the Lease.

Other than as expressly set forth herein, the terms and provisions of the Lease are hereby ratified, confirmed and shall remain unmodified and in full force and effect.

This Amendment shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions.

This Amendment may be executed in counterparts, each of which shall constitute an original document and all of which, together, shall constitute one and the same instrument.