Exhibit 10.4
FIFTH AMENDMENT TO LEASE
Reference is made to certain lease dated September 14, 1989, as amended
by Amendment to Lease dated December 5, 1991, as further amended by Second
Amendment to Lease dated December 16, 1992, as further amended by Third
Amendment to Lease dated February 28, 1994 as further amended by Fourth
Amendment to Lease dated December 18, 1995 (collectively, "Lease") between
X.X. MANAGEMENT COMPANY, INC., a Delaware corporation ("Tenant"), and Xxxxxxx
X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxxx, as Trustees of Bare Cove Realty Trust
u/d/t dated January 10, 1984 recorded in the Plymouth County Registry of
Deeds in Book 5608, Page 292 as amended to date ("Landlord") for office space
on the first and second floor of Bare Cove Executive Park II, 00 Xxxxxxxxxx
Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx.
AGREEMENT
In consideration of the mutual benefits and obligations described in this
Fourth Amendment, and for other good and valuable consideration, Landlord and
Tenant agree to amend the Lease as follows:
1. Section 1 of the Lease is amended, as of the Fifth Amendment
Commencement Date (defined below), so that the demised premises will include
an additional 1,935 square feet of floor area (the "Fifth Amendment
Additional Space"), thus bringing the total floor area to 21,577 square feet
as shown on the attached Fifth Amendment Exhibit A. Section 1 is further
amended so that "the computation square footage" will include an additional
2,163 square feet, thus bringing the total computation square footage to
25,882 square feet.
2. Tenant agrees to accept the Fifth Amendment Additional Space in
substantially its present "as is" condition.
3. Section 3.1 of the Lease is amended so that the term of the Lease
with respect to the Fifth Amendment Additional Space only is five years from
the Fifth Amendment Commencement Date.
4. Exhibit C to the Lease is amended by adding, with respect to the
Fifth Amendment Additional Space only, the minimum rent schedule as follows:
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MONTHLY
MINIMUM RENT PER ANNUAL MINIMUM
PERIOD COMPUTATION SQUARE FOOT MINIMUM RENT RENT
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Entire Term $19.50 for Fifth $42,178.50 $3,514.88
Amendment Additional
Space (2,163)
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5. With respect only to the Fifth Amendment Additional Space, the Tax
Excess referred to in Section 6.1 of the Lease shall be based on $3,244.50,
(being the product of $1.50 and the Fifth Amendment Additional Space
Computation Square Footage)
6. With respect only to the Fifth Amendment Additional Space, the
Operating Excess referred to in Section 8.3 of the Lease shall be based on
$8,652.00 (being the product of $4.00 and the Fifth Amendment Additional
Space Computation Square Footage)
7. Tenant acknowledges that the Fifth Amendment Additional Space
currently is occupied by the Rheinner Group, Inc. under a lease that is
scheduled to expire on December 31, 1998. Tenant agrees to accept the Fifth
Amendment Additional Space earlier if for any reason The Rheinner Group
vacates earlier. The Fifth Amendment Commencement Date shall be January 1,
1999, or, if earlier, 30 days after notice from Landlord that the Fifth
Amendment Additional Space is available to Tenant. (If Landlord is unable to
give possession on January 1, 1999, for any reason, Landlord shall not have
any liability whatsoever for the failure to give possession on such date, nor
shall such failure in any way
affect the validity of this Fifth Amendment or the obligations of Tenant
hereunder. However, rent attributable to the Fifth Amendment Additional Space
shall be abated for any period during which Landlord shall be unable to
deliver possession.
Except as specifically amended by this Fifth Amendment, all provisions of
the Lease are hereby ratified by Landlord and Tenant and remain in full force
and effect.
Executed as a document under seal on 27th August, 1998.
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/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx, as Trustee
of Bare Cove Realty Trust, and
not individually
/s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx, as
Trustee of Bare Cove Realty
Trust, and not individually
X.X. MANAGEMENT COMPANY, INC.
By: /s/ XXXX X. XXXXXX
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Its: Chief Financial Officer
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hereunto duly authorized
FIFTH AMENDMENT EXHIBIT "A"
See attached floor plan. (ommitted)
ADDENDUM TO FIFTH AMENDMENT TO LEASE:
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With reference to item #2 in the Agreement, DM Management will have the
opportunity to tour and review the condition of the "Fifth Amendment
Additional Space" prior to taking occupancy to ensure that the space is in
"substantially" the same condition as it was during the DM Management
walk-through on August 14, 1998. If it is determined that the space is not in
"substantially" the same condition, Landlord agrees to perform, at its sole
cost, any and all repairs to restore the space to its 8/14/98 condition.
ACCEPTED AND AGREED TO: /s/ XXXXXXX X. XXXXXXXX 8/27/98
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Bare Cove Realty Trust Date
/s/ XXXX X. XXXXXX 8/24/98
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DM Management Company, Inc. Date
