THIRD AMENDMENT OF LEASE
THIS THIRD AMENDMENT OF LEASE is made as of the 30th day of
September, 1996, by and between OPTA FOOD INGREDIENTS, INC., a
Delaware corporation, with an address of 00 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx (the "Lessor"), successor in interest to
Springfield Institution for Savings, and HOLOMETRIX, INC., a
Delaware corporation having a principal office at 00 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx and Tytronics Incorporated, a
Massachusetts corporation having a principal place of business at
00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, (together the
"Lessee").
R E C I T A L S:
A. Reference is hereby made to a certain Lease, dated
June 28, 1991, by and between Xxxxxxxx Bedford Realty Trust,
predecessor in interest to Springfield Institution for Savings as
lessor and Lessee as lessee, demising certain premises (the
"Premises") located at 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx, as amended by First Amendment of Lease
(the "First Amendment") dated August 19, 1993 and by Second
Amendment of Lease (the "Second Amendment") dated January 15,
1995 (together, the "Lease");
X. Xxxxxx and Lessee are the current holders,
respectively, of the landlord and tenant interest under the
Lease.
X. Xxxxxx and Lessee wish to amend the Lease upon such
terms and conditions as are hereinafter provided.
A G R E E M E N T S:
IN CONSIDERATION OF One ($1.00) Dollar, the mutual covenants
as hereinafter contained and other good and valuable
consideration, Lessor and Lessee agree to amend the Lease,
effective as of the date hereof, as follows:
1. The term of the Lease shall be extended for three (3)
years, commencing October 1, 1996 and expiring on September 30,
1999; provided, however, that from and after October 1, 1997,
Lessor and Lessee shall each have the right to terminate the
Lease, by 90 days written notice to the other.
2. Base Rent under Article III, Section 1 of the Lease is
revised as follows; Annually, for the period October 1, 1996
through September 30, 1997, the amount of Sixty Eight Thousand
Four Hundred ($68,400) Dollars payable in equal monthly
installments of Five Thousand Seven Hundred ($5,700) Dollars; for
the period October 1, 1997 through September 30, 1998, the amount
of Seventy Six Thousand ($76,000) Dollars, payable in equal
monthly installments of Six Thousand Three Hundred Thirty Three
and Thirty Three One Hundredths ($6,333.33) Dollars; and for the
period October 1, 1998 through September 30, 1999, the amount of
Eighty Three Thousand Six Hundred ($83,600) Dollars payable in
equal monthly installments of Six Thousand Nine Hundred Sixty-six
and Sixty-six One Hundredths ($6,966.66) Dollars.
3. Section 2 of the Second Amendment is hereby deleted.
4. Article XXII, Section 11 of the Lease is hereby deleted
and replaced by the following:
Assignment or Subletting. (a) Lessee shall not mortgage,
pledge, hypothecate, or assign this Lease or sublease the
Premises or any portion thereof (which term shall be deemed to
include any arrangement pursuant to which a third party is
permitted by Lessee to occupy all or any portion of the
Premises), without obtaining, an each occasion, the prior written
consent of Lessor, which consent may be given or withheld in
Lessor's sole discretion.
(b) If Lessee wishes to assign this Lease or sublease all or any
portion of the Premises, Lessee shall so notify Lessor in writing
and request Lessor's consent thereto. Such notice shall include
(i) the name of the proposed assignee or sublessee, (ii) a
general description of the types of business conducted by the
proposed assignee or sublessee and a reasonably detailed
description of the business operations proposed to be conducted
in the Premises by such person or entity, (iii) such financial
information concerning the proposed assignee or sublessee as
Lessor may reasonably require, and (iv) all terms and provisions
upon which such assignment or sublease is proposed to be made.
Lessor shall have twenty (20) days from the day on which it
receives Lessee's notice and such require information to give
notice to Lessee that either (i) Lessor consents to such
assignment or sublease, or (ii) Lessor withholds its consent to
such assignment or sublease, or (iii) where applicable, Lessor is
exercising its right of recapture pursuant to paragraph (e)
below.
(c) If Lessor consents to an assignment or sublease: (i) Lessee
shall promptly deliver to Lessor a fully executed copy of said
assignment or sublease; (ii) Lessee shall remain primarily liable
to Lessor hereunder (which liability shall be joint and several
with the assignee or sublessee); and (iii) if the aggregate rent
and other amounts payable to Lessee under or in connection with
such assignment or sublease, after deduction of the costs
reasonably incurred by Lessee in entering into such assignment or
sublease (including, without limitation, reasonable attorneys'
fees, brokerage commissions and alteration costs amortized on a
straight-line basis over the term of such sublease), exceeds the
rent and other amounts payable hereunder, Lessee shall pay to
Lessor, as Additional Rent, one-half (1/2) of the amount of such
excess immediately upon receipt thereof by Lessee.
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(d) If Lessor withholds its consent to such assignment or
sublease, Lessee shall not enter into the proposed assignment or
sublease with such person or entity.
(e) If Lessor so elects, it shall have the right to consider
Lessee's request for Lessor's consent to any assignment of the
Lease, or a request for Lessor's consent to a sublease, as an
offer to Lessor to release from this Lease that portion of the
Premises which is proposed to be the subject of such sublease for
the term of such proposed sublease or, in the case of a proposed
assignment of this Lease, the entire Premises for the entire
Lease Term. If Lessor accepts such offer, then (i) in the case
of a proposed sublease, this Lease shall be deemed to be amended
as of the proposed effective date of such sublease so as to
delete the portion of the Premise which would have been subject
thereto from the Premises for purposes of this Lease (with a
commensurate adjustment in Rent and the percentage representing
Lessee's Proportionate Share) for the remaining term of the
Lease, or (ii) in the case of a proposed assignment, this Lease
shall terminate as of the proposed effective date of such
assignment as if such date was the last day of the Lease Term.
(f) Regardless of whether Lessor grants such consent, Lessee
shall reimburse Lessor on demand, as Additional Rent, for all out
of pocket costs and expenses (including, without limitation,
attorneys' fees) reasonably incurred by Lesser in responding to a
request for such consent,
(g) Lessee shall not be entitled to enter into any assignment or
sublease, or to request Lessor's consent thereto, during the
continuance of an Event of Default hereunder by Lessee.
(h) Any assignment or sublease entered into pursuant to this
Section shall be subject to all or the terms and provisions of
the Lease, including without limitation this Section. If Lessee
enters into any such assignment or sublease, Lessor may, at any
time and from time to time after the occurrence of a default
hereunder, collect rent from such assignee or sublessee, and
apply the net amount collected against Lessee's obligations
hereunder, but no such assignment or sublease or collection shall
be deemed an acceptance by Lessor of such assignee or sublessee
as a lessee hereunder or as a release of the original named
Lessee hereunder.
5. Section 4 of the Second Amendment is revised by adding
the following:
If Lessor requires use of the storage area shown on
Exhibit A to the Second Amendment, Lessee shall vacate the same
upon 90 days written notice by Lessor. Further, Lessor agrees to
maintain the storage area in a safe and neat condition. If
Lessee is notified by any authority that the storage area is in
violation of any law or regulation, Lessee shall immediately
notify Lessor of the same. If such violation is not cured within
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forty-eight (48) hours of Lessee's receipt of notification
thereof, or such shorter time as set forth in the notice to
Lessee, all of Lessee's rights to the storage area shall
terminate immediately. Since Lessee's access to the storage area
is hereby limited, stored items should only be those needed on an
infrequent basis.
6. Lessee shall maintain the grounds outside in a neat and
orderly manner, keep the loading dock clear of all obstructions,
keep all trash in containers and retrain from feeding animals.
7. Except as hereinabove amended, the Lease shall remain
in full force and effect.
LESSOR:
OPTA FOOD INGREDIENTS, INC.
By: /s/ Xxxxx X. Xxxx, CFO
(Title)
LESSEE:
HOLOMETRIX, INC.
By:_/s/ Xxxx X. Xxxxxxx,
Manager, Finance and
Administration_____
(Title)
TYTRONICS INCORPORATED
By:_/s/ Xxxx X. Xxxxxxx,
Manager, Finance and
Administration________
(Title)
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