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EXHIBIT 10.3A
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (this "Amendment") is made as of the 31st
day of January, 2001 by and between XXXXXX X. XXXX, XXXXXX X. XXXX, XX. and
XXXXXX X. XXXX, not individually but as TRUSTEES OF NETWORK PLUS REALTY TRUST,
u/d/t dated June 30, 1993 and recorded with the Norfolk County Registry of
Deeds, with an address of 000-000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("Landlord") and NETWORK PLUS, INC., a Massachusetts corporation with an address
of 00 Xxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
R E C I T A L S
A. Landlord and Tenant entered into a certain lease entitled "Net
Lease," dated July 1, 1993 (the "Lease") for approximately 34,359 rentable
square feet on the second, third and fourth floors and comprising units 20, 21,
30, 40, 41, 43 and 44 of the Furnace Brook Office Condominium (the "Premises")
in the building located at and commonly known as 000-000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX (the "Building"), all as more particularly described in the Lease.
B. By mutual agreement, Landlord and Tenant have expanded the Premises
to include approximately 7,347 additional rentable square feet on the first
floor of the Building, as shown on Exhibit A attached hereto.
C. The Lease commenced on July 1, 1993 and expired on June 30, 2000.
D. Landlord and Tenant wish to enter into this Amendment to (i) extend
the term of the Lease, and (ii) amend certain other terms and conditions of the
Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, Landlord and Tenant agree
as follows:
1. Recitals; Capitalized Terms. All of the foregoing recitals are true
and correct. Any capitalized term not otherwise modified or defined herein shall
have the meaning ascribed to such term in the Lease.
2. Term. The term of the Lease is hereby extended for an additional
term (the "Term") of twelve (12) years and eight (8) months commencing as of
July 1, 2000 (the "Effective Date") and expiring on February 28, 2013 (the
"Termination Date"), unless extended pursuant to paragraph 5 below. The Term
shall be upon all of the terms and conditions of the Lease, except as otherwise
provided in this Amendment.
3. Premises. Commencing on the Effective Date, the Premises shall be
deemed to consist of approximately 41,706 square feet on the first, second,
third and fourth floors of the
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Building.
4. Annual Fixed Rent. Commencing on the Effective Date and continuing
through the Termination Date, the Annual Fixed Rent payable with respect to the
Premises shall be as follows:
RENTAL PERIOD ANNUAL BASE RENT MONTHLY PAYMENT PER SQ. FT.
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From the Effective Date through February 28, 2005 $875,826.00 $72,985.50 $21.00
From March 1, 2005 through February 28, 2009 $959,238.00 $79,936.50 $23.00
From March 1, 2009 through the Termination Date $1,042,650.00 $86,887.50 $25.00
5. Extension Option.
(a) Provided that, at the time of each such exercise, (i) the Lease is
in full force and effect, and (ii) no default of Tenant, as such term is defined
in Section 7.1 of the Lease, shall have occurred and be continuing (either at
the time of exercise or at the commencement of an Extended Term, as hereinafter
defined), Tenant shall have the right and option to extend the Term of the Lease
for two (2) extended terms (collectively, the "Extended Terms") of five (5)
years each by giving written notice to Landlord not later than six (6) months
prior to the expiration date of the Term with respect to the first Extended Term
and not later than six (6) months prior to the expiration date of the first
Extended Term with respect to the second Extended Term. The effective giving of
such notice of extension by Tenant shall automatically extend the Term of the
Lease for the applicable Extended Term, and no instrument of renewal or
extension need be executed. In the event that Tenant fails timely to give such
notice to Landlord, the Lease shall automatically terminate at the end of the
Term then in effect, and Tenant shall have no further option to extend the Term
of the Lease. Each Extended Term shall commence on the day immediately
succeeding the expiration date of the Term or the preceding Extended Term, as
the case may be, and shall end on the day immediately preceding the fifth (5th)
anniversary of the first day of such Extended Term. The Extended Terms shall be
on all the terms and conditions of the Lease, except: (i) during the Extended
Terms, Tenant shall have no further option to extend the Term, except as
provided herein during the first Extended Term with respect to the second
Extended Term, and (ii) the Annual Fixed Rent for the Extended Terms shall be
the Fair Market Rental Value of the Premises as of the commencement of the
Extended Term in question, taking into account all relevant factors, determined
pursuant to PARAGRAPH (b) below but in no event shall the Annual Fixed Rent for
the Extended Term be less than the Annual Fixed Rent at the expiration of the
Term or
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Extended Term immediately preceding the commencement of the Extended Term in
question.
(b) Promptly after receiving Tenant's notice extending the Term of this
Lease pursuant to PARAGRAPH (a) above, Landlord shall provide Tenant with
Landlord's good faith estimate of the Fair Market Rental Value of the Premises
for the upcoming Extended Term based upon rents being paid by tenants entering
into leases in the area in which the Premises is located. If Tenant is unwilling
to accept Landlord's estimate of Fair Market Rental Value as set forth in
Landlord's notice referred to above, and the parties are unable to reach
agreement thereon within thirty (30) days after the delivery of such notice by
Landlord, then Landlord and Tenant shall, not later than thirty (30) days after
the expiration of the aforesaid thirty (30) day period, each retain a real
estate professional with at least ten (10) years continuous experience in the
business of appraising or marketing commercial real estate in the greater Boston
area who shall, within thirty (30) days of his or her selection, prepare a
written report summarizing his or her determination of the Fair Market Rental
Value for the applicable Extended Term. Landlord and Tenant shall simultaneously
exchange such reports; provided, however, if either party has not obtained such
a report within sixty (60) days after Tenant receives Landlord's notice, then
the determination set forth in the other party's report shall be final and
binding upon the parties. If both parties receive reports within such time and
the lower determination is within ten percent (10%) of the higher determination,
then the greater of (i) the Annual Fixed Rent in effect immediately preceding
such Extended Term or (ii) the average of the two determinations shall be deemed
to be the Fair Market Rental Value for such Extended Term. If the lower
determination is not within ten percent (10%) of the higher determination, then
Landlord and Tenant shall mutually select a person with the qualifications
stated above (the "Final Professional") to resolve the dispute as to the Fair
Market Rental Value for such Extended Term. If Landlord and Tenant cannot agree
upon the designation of the Final Professional within thirty (30) days of the
exchange of the first valuation reports, either party may apply to the American
Arbitration Association, the Greater Boston Real Estate Board, or any successor
thereto, for the designation of a Final Professional. Within ten (10) days of
the selection of the Final Professional, Landlord and Tenant shall each submit
to the Final Professional a copy of their respective real estate professional's
determination of the Fair Market Rental Value for such Extended Term. The Final
Professional shall not perform his or her own valuation, but rather shall,
within thirty (30) days after such submissions, select the submission which is
closest to the determination of the Fair Market Rental Value for such Extended
Term which the Final Professional would have made acting alone. The Final
Professional shall give notice of his or her selection to Landlord and Tenant
and such decision shall, subject to the terms of the last two (2) sentences of
this PARAGRAPH (b) below, be final and binding upon Landlord and Tenant,
provided, however, in no event shall the Fair Market Rental Value be less than
the Annual Fixed Rent in effect immediately preceding such Extended Term. Each
party shall pay the fees and expenses of its real estate professional and
counsel, if any, in connection with any proceeding under this paragraph, and the
parties shall each pay one-half of the fees and expenses of the Final
Professional. If Tenant is unwilling to accept the Fair Market Rental Value
determined in accordance with the process set forth above, then Tenant shall
have the option to rescind its notice of election to extend the Term of
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the Lease by delivering written notice to Landlord within ten (10) days of, as
applicable, (i) receipt of both reports from each of Tenant's and Landlord's
respective selected real estate professionals, if the lower determination is
within ten percent (10%) of the higher determination, (ii) the expiration of the
sixty (60) day period after Tenant receives Landlord's notice of its estimate of
Fair Market Value, if Tenant is unwilling to accept such estimate and either
party has not obtained a report summarizing a real estate professional's
determination of Fair Market Value within such sixty (60) day period, or (iii)
receipt of notice from the Final Professional of his or her selection of the
determination of the Fair Market Rental Value. The effective giving of such
notice by Tenant shall rescind its notice of extension, and thereafter Tenant
shall have no further option to extend the Term of the Lease, and the Lease
shall expire on the originally scheduled expiration date of the Term or, if
Tenant has extended the Term in accordance with the terms hereof, the first
Extended Term, as applicable.
6. Ratification. Except as expressly modified by this Amendment, the
Lease shall remain in full force and effect and, as further modified by this
Amendment, is expressly ratified and confirmed by the parties hereto.
7. Binding Agreement. The submission of this document for examination
and negotiation does not constitute an offer to lease, or a reservation of, or
option for extension, and this document shall become effective and binding only
upon the execution and delivery of this Amendment by both Landlord and Tenant.
8. Brokerage. Landlord and Tenant each represent and warrant to the
other that neither of them has employed or dealt with any broker, agent or
finder in carrying on the negotiations relating to this Amendment. Tenant shall
indemnify and hold Landlord harmless from and against any claim or claims for
brokerage or other commissions asserted by any broker, agent or finder engaged
by Tenant or with whom Tenant has had prior dealings. Similarly, Landlord shall
indemnify and hold Tenant harmless from and against any claims asserted by any
broker, agent or finder engaged by Landlord or with whom Landlord has had prior
dealings. The representations and warranties contained in this Paragraph 8 shall
survive any termination of the Lease.
9. Miscellaneous. Tenant hereby acknowledges that (i) Landlord has no
undischarged obligations under the Lease to perform any work or improvements to
the Premises, or otherwise; (ii) there are no offsets or defenses that Tenant
has against the full enforcement of the Lease by Landlord; (iii) neither Tenant
nor, to Tenant's knowledge, Landlord is in any respect in default under the
Lease; and (iv) Tenant has not assigned, transferred or hypothecated the Lease
or any interest therein or subleased all or any portion of the Premises.
10. Governing Law; Interpretation and Partial Invalidity. This
Amendment shall be governed and construed in accordance with the laws of The
Commonwealth of Massachusetts. If any term of this Amendment, or the application
thereof to any person or circumstances, shall
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to any extent be invalid or unenforceable, the remainder of this Amendment, or
the application of such term to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
term of this Amendment shall be valid and enforceable to the fullest extent
permitted by law. The titles for the paragraphs are for convenience only and not
to be considered in construing this Amendment. This Amendment contains all of
the agreements of the parties with respect to the subject matter hereof, and
supersedes all prior dealings between them with respect to such subject matter.
No delay or omission on the part of either party to this Amendment in requiring
performance by the other party or exercising any right hereunder shall operate
as a waiver of any provision hereof or any rights hereunder, and no waiver,
omission or delay in requiring performance or exercising any right hereunder on
any one occasion shall be construed as a bar to or waiver of such performance or
right on any future occasion.
11. Counterparts and Authority. This Amendment may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same document. Landlord hereby
warrants and represents to Tenant that it is the current record owner of the
Building. Landlord and Tenant each warrant and represent to the other that the
person or persons executing this Amendment on its behalf has or have authority
to do so and that such execution has fully obligated and bound such party to all
terms and provisions of this Amendment.
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IN WITNESS WHEREOF, the undersigned executed this Amendment as of the
date and year first written above.
NETWORK PLUS REALTY TRUST
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, not individually but as
Trustee of Network Plus Realty Trust
By: /s/ Xxxxxx X. Xxxx, Xx.
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Xxxxxx X. Xxxx, Xx., not individually
but as Trustee of Network Plus Realty Trust
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, not individually but as
Trustee of Network Plus Realty Trust
NETWORK PLUS, INC., a Massachusetts corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Its: EVP/COO
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EXHIBIT A
First Floor Premises
(see attached)
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[FIRST FLOOR PREMISES FLOORPLAN]
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