Exhibit 10.1
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE made as of this 9th day of October 1998,
(hereinafter referred to as this "Amendment"), between XXXXXX XXXXXXX
ENTERPRISES, L.P., having an office x/x Xxxxxx Xxxxxxx Xxxxxxxxxxx, Xxxxx Xxxxx
Xxxxx, 00 Main Street, 6th Floor, Hackensack, new Jersey 07601 (hereinafter
referred to as "Landlord"), and BIO-REFERENCE LABORATORIES, INC., a New Jersey
corporation, having an office at 481 Xxxxxx X. Xxxx Xxxxx, Xxxxxxx Xxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Xxxxxx Xxxxxxx (Landlord's predecessor-in-interest), as landlord
(hereinafter referred to as "Sanzari"), and Pharmadyne Laboratories, Inc.
(Tenant's predecessor-in-interest), as tenant (hereinafter referred to as
"Pharmadyne"), heretofore entered into a certain written Lease dated as of
November 7, 1978, wherein and whereby Landlord leased to Tenant, and Tenant
hired from Landlord, certain premises consisting of approximately thirty-one
thousand five hundred twenty-seven (31,527) square feet (hereinafter sometimes
referred to as the "Original Premises" or the "Premises"),in the building
located at 481 Xxxxxx X. Xxxx Drive, in the Borough of Elmwood Park, county of
Bergen and State of New Jersey (hereinafter referred to as the "Building"), as
more particularly described therein, for a term which commenced on March 1,
1979, and was scheduled to expire on February 28, 1989, at the Basic Rent and
additional rent, and upon the terms, covenants, conditions, provisions and
agreements contained in said Lease; and
WHEREAS, said Lease was modified by that certain First Amendment to Lease
dated November 1, 1979, wherein and whereby, inter alia, Landlord and Tenant
settled certain disputes; and
WHEREAS, said Lease and the interest of Pharmadyne as tenant thereunder,
was assigned to CL Laboratories of New Jersey, Inc. (hereinafter referred to as
"CL"), pursuant to that certain Assignment and Assumption of Lease Agreement
dated December 10, 1981; and
WHEREAS, said Lease was further modified by that certain Agreement dated
as of March 23, 1988, wherein and whereby, inter alia, the Lease and the
interest of CL as tenant thereunder, was assigned to Med-Mobile, Inc.
(hereinafter referred to as "Med- Mobile"), and the term of the Lease was
extended for a further period of five (5) years, commencing on March 1 1989, and
expiring on February 28, 1984; and
WHEREAS, said Lease was further modified by that Certain Second Amendment
to Lease dated as of March 23, 1988; and
WHEREAS, said Lease was modified by that Third Amendment to lease dated
January 31, 1992, wherein and whereby, inter alia, Landlord and Tenant settled
certain defaults by Tenant under the Lease and discontinued litigation
instituted by Landlord against Tenant in connection therewith; and
WHEREAS, on or about November 15, 1989, Med-Mobile changed its
name to Tenant; and
WHEREAS, said Lease was further modified by that certain Third Amendment
to Lease dated as of February 28, 1994, wherein and whereby, inter alia, the
term of the Lease was extended for a further period of five (5) years,
commencing on March 1, 1994, and expiring on February 28, 1999; and
WHEREAS, said Lease, as so modified, and as the same may have been
otherwise amended and/or modified, is hereinafter collectively referred to as
the "Lease"; and
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WHEREAS, Landlord and Tenant desire to further modify the Lease only in
the respects hereinafter stated.
NOW THEREFORE, in consideration of the premises demised by the Lease and
the mutual covenants hereinafter contained and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto by these presents do covenant and agree as follows:
1. The recital clauses set forth above shall be deemed a part of this
Amendment as though set forth verbatim and at length herein.
2. Except as otherwise expressly set forth herein, all capitalized terms
in this Amendment shall have the meanings set forth for such terms in the Lease.
3. A. The "Term" of the Lease (as defined in Paragraph B of Schedule "C"
attached to the Lease) shall be deemed to be further extended for a period of
vive (5) years, commencing March 1, 1999, to and including February 28, 2004,
inclusive, upon the terms, covenants, conditions, provisions and agreements
contained in the Lease, as modified by this Amendment.
B. Effective as of March 1, 1999, "Basic Rent" (as defined in
Paragraph A of Schedule "C" attached to the Lease) shall be deemed to be the sum
of Two Hundred Twenty Thousand Six Hundred Eighty-Nine and 00/100 ($220,689.00)
Dollars per annum, payable in equal monthly installments of Eighteen Thousand
Three Hundred Ninety and 75/100 ($18,390.75) Dollars each.
4. A. (1) Effective as of the date Landlord delivers
possession of the "Additional Space" (as hereinafter defined)
(hereinafter referred to as the "Additional Space Commencement
Date"), Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, a portion of the building located at 487 Xxxxxx X.
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Xxxx Xxxxx, Xxxxxxx xx Xxxxxxx Xxxx, Xxxxxx of Bergen and State of New Jersey
(hereinafter referred to as the "Adjacent Building"), consisting of
approximately twenty-four thousand (24,000) square feet, as shown on the plan
attached hereto and made a part hereof as Schedule "A-1" (hereinafter referred
to as the "Additional Space").
(2) The "Demised Premises" (as defined in Article 1 of the
Lease) shall be and be deemed to be: "(I) a portion of the Building, consisting
of approximately thirty-one thousand five hundred twenty-seven (31, 527) square
feet, as shown on Schedule "A" attached to the Lease; and (ii) a portion of the
Adjacent Building, consisting of approximately twenty-four thousand (24,000)
square feet, as shown on Schedule "A-1" attached hereto."
B. Effective as of the Additional Space Commencement
Date, the following shall be applicable solely with respect to the
Additional space:
(1) "Basic Rent" (as defined in Paragraph A of Schedule "C"
attached to the Lease) shall be deemed to be the sum of One Hundred Fifty-Six
Thousand and 00/100 ($156,000.00) Dollars per annum, payable in equal monthly
installments of Thirteen Thousand and 00/100 ($13,000.00) Dollars each.
(2) "Proportionate Share' (as defined in Paragraph E of
Schedule "C" attached to the Lease) shall be deemed to be "twenty-five (25%)(
percent/"
(3) The number of parking spaces provided in Paragraph 4 of
the Third Amendment to Lease dated as of February 28, 1994, shall be deemed to
be "twenty (20)", a shown on the plan attached hereto and made a part hereof as
Schedule "A-2."
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(4) Wherever in the Lease reference is made to the "Building"
or the "building," same shall be deemed to be the Adjacent Building.
(C) (1) Tenant has examined and inspected the Additional Space and
agrees to accept the same in the condition in which it exists on the Additional
Space Commencement Date. Tenant hereby acknowledges and agrees that no materials
whatsoever are to be furnished by Landlord and no work whatever is to be
performed by Landlord in connection with said Additional Space or any part
thereof.
(2) (I) Tenant agrees, at Tenant's sole cost and expense, to perform
all work in accordance with plans and specifications to be prepared by Tenant,
at Tenant's sole cost and expense, and thereafter, delivered to Landlord for
Landlord's approval, which approval shall not be unreasonably withheld
(hereinafter referred to as "Tenant's Additional Space Work").
(ii) Tenant's Additional Space Work shall be performed in
accordance with all applicable laws and in good and workmanlike manner,
utilizing new and first-class materials. Tenant shall obtain and deliver to
Landlord all "sign-offs" and approvals in connection therewith, including,
without limitation, a certificate of occupance.
(iii) (a) Tenant acknowledges and agrees that Landlord shall
have the right to submit a bid for the performance of Tenant's Additional Space
Work.
(b) In the event Tenant selects Landlord
to perform Tenant's Additional Space Work, Tenant agrees to pay Landlord, the
total cost of Tenant's Additional Space work, as follows: (x) twenty-five (25%)
percent shall be paid by Tenant to Landlord upon commencement of Tenant's
Additional Space Work, as
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additional rent, upon demand therefor; (y) twenty-five (25%) percent shall be
paid by Tenant to Landlord upon completion of Tenant's Additional Space Work, as
additional rent, upon demand therefor; and (z) fifty (50%) percent shall be paid
by Tenant to Landlord, by increasing the Basic Rent reserved and covenanted to
be paid by Tenant to Landlord under the Leae, as modified by this Amendment, by
the annual amount required to fully amortize such amount over sixty (60) months,
plus interest, at the rate of ten (10%) percent per annum, in which event,
Landlord and Tenant shall execute and deliver to each other an agreement
modifying the Lease (including this Amendment), setting forth the increased
Basic Rent, but such increase shall nevertheless be effective even if such
agreement is not executed and delivered.
(iv) Tenant shall be required to utilize
Landlord or the contractors designated by Landlord with respect to any work
which involves penetrating or altering the exterior, facade, floor slab, roof or
structure of the Building which Tenant desires to perform in connection with
Tenant's Additional Space Work (or any other work in and to the Demised
Premises), provided that the cost charged by Landlord or the contractor
designated by Landlord is not greater than ten 910%) percent of the lowest bid
received by Tenant in a competitive bid for the same scope of work. In the event
the cost charged by Landlord or the contractor designated by Landlord is greater
than ten (10%) percent of the lowest bid received by Tenant as aforesaid, then
Tenant shall be entitled to retain its own contractors to perform which work,
subject to the prior written approval of Landlord, which approval shall not be
unreasonably withheld or delayed.
(3) (I) Landlord shall be liable and responsible
for the costs of compliance with any environmental laws [including,
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without limitation, the Industrial Site Recovery Act, N.J.S.A. 13:1k-6 ET SEQ.,
and the regulations promulgated thereunder (hereinafter collectively referred to
as "ISRA")] for spills or discharges of "hazardous substances" or "hazardous
wastes" (as such terms are defined under such environmental laws) which occurred
in or to the Additional Space prior to the Additional Space Term Commencement
Date and which were not caused in whole or in part, by Tenant or its agents,
servants, employees, contractors or representatives.
(ii) Landlord shall indemnify and hold Tenant
harmless from and against any and all claims and liabilities (including, but not
limited to, reasonable attorneys' fees) which may be incurred by Tenant in
connection with, or arising out of Landlord's obligations contained in (I)
hereof.
5. Effective as of the date hereof:
A. Article 40 of the Lease shall be deemed to be
deleted, and the following inserted in its place:
"40. RENEWAL OPTION:
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A. Subject to the provisions set forth below, Tenant shall have the
option to renew this Lease for an additional term of five (5) years
(hereinafter referred to as the "Renewal Term"), which Renewal Term
shall commence upon the expiration of the term of this Lease
(hereinafter referred to as the "Initial Term"). All of the terms,
covenants and conditions of this Lease shall govern the Renewal
Term, except as otherwise specifically set forth hereinafter or if
APPLICABLE thereto:
(1) The Annual Basic Rent shall be the greater of: (I)
the "Market Rent" (as defined in subsection (2) hereof); or (ii) the
Basic Rent and additional rent which was in effect during the last
year of the Initial Term.
(2) "Market Rent" shall mean the
fair market rent for the Premises for the
Renewal Term, determined as of the date one
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hundred eighty (180) days prior to the expiration of the Initial
Term (hereinafter referred to as the "Determination Date"), based
upon the rents generally in effect for comparable condition in
Bergen County, New Jersey. Market Rent (for the purposes of
determining the Basic Rent only during the commonly known as a "net"
basis; that is, in computing Market Rent it shall be assumed that
all real estate taxes and customary services are excluded from such
Basic Rent.
(3) Landlord shall notify Tenant (hereinafter referred
to as "Landlord's Determination Notice") of Landlord's Determination
Notice") of Landlord's determination of the Market Rent within sixty
(60) days of the Determination Date. If Tenant disagrees with
Landlord's determination, Tenant shall notify Landlord (hereinafter
referred to as "Tenant's Notice of Disagreement") within thirty (30)
days of receipt of Landlord's Determination Notice. Time shall be of
the essence with respect to Tenant's Notice of Disagreement, and the
failure of Tenant to give such notice within the time period set
forth above shall conclusively be deemed an acceptance by Tenant of
the Market Rent as determined by Landlord and a waiver by Tenant of
any right to dispute such Market Rent. If Tenant timely gives its
Tenant's Notice of disagreement, then the Market Rent shall be
determined as follows: Landlord and Tenant shall, within thirty (30
days of the date on which Tenant's Notice of Disagreement was given,
each appoint "Appraiser" (as hereinafter defined) for the purpose of
determining the Market Rent. An "Appraiser" shall mean either: (1) a
duly qualified impartial real estate appraiser who is a member of
the American Institute of Real Estate Appraisers and who has at
least ten (1) years experience in appraising the rental value of
industrial/warehouse properties comparable to the Building and
located in Northern New Jersey; or (ii) a New Jersey licensed real
estate broker for a period in excess of ten (1) years and who has at
least ten 91) years experience in leasing industrial/warehouse space
in buildings comparable to the Building located in Northern New
Jersey. In the event that the two 92) Appraisers so appointed fail
to agree ass to the Market Rent within a period of thirty (3) days
after the appointment of the second Appraiser, such two 92)
Appraisers shall forthwith appoint a third Appraiser who shall make
a determination in the manner hereinafter described within thirty
93) days thereafter.
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If such two (2) Appraisers fail to agree upon such third Appraiser
within ten (1) days following the last thirty 93) day period, such
third Appraiser shall be appointed by the Bergen County Assignment
Judge of the New Jersey Superior Court. Such two (2) Appraisers or
the third Appraiser, as the case may be, shall proceed with all
reasonable dispatch to determine the Market Rent. Within fifteen
915) days following the appointment of the third Appraiser, each
party shall submit to the third Appraiser a written report setting
forth its determination of the market Rent, together with such
information on comparable rentals, or such other evidence as such
party shall deem relevant. The third Appraiser shall, within thirty
(30) days following the submission of such written reports render
its decision by selecting the determination of Market Rent submitted
by either the Appraiser selected by Landlord or the Appraise
selected by Tenant which, in the judgement of the third Appraiser,
most nearly reflects the Market Rent. It is expressly understood
that such third Appraiser shall have no power or authority to select
any Market Rent other than a Market Rent submitted by the Appraiser
selected by Landlord or the Appraiser selected by Tenant, and the
decision of such third Appraiser shall be final and binding upon the
parties hereto. The decision of such Appraisers shall be final, and
such decision shall be in writing and a copy shall be delivered
simultaneously to Landlord and to Tenant. If such Appraisers fail to
deliver their decision as set forth above prior to the commencement
of the Renewal Term, Tenant shall pay Landlord the Basic Rent which
was in effect as of the last day of the Initial Term, until such
decision is so delivered. If the Market Rent as determined above is
in excess of the actual rent paid, then Tenant, upon demand, shall
pay to Landlord the difference between the actual rent paid and the
Market Rent from the commencement of the Renewal Term. Landlord and
Tenant shall each be responsible for and shall pay the fee of the
Appraiser appointed by them respectively, and Landlord and Tenant
shall share equally the fee of the third Appraiser.
B. Tenant's option to renew, as
provided in subparagraph A hereof, shall be
conditioned upon and subject to each of the
following:
(1) Tenant shall notify Landlord in writing of its
exercise of its option to renew at least twelve (12) months but not
more than
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fifteen (15) months prior to the expiration of
the Initial Term;
(2) At the time Landlord receives Tenant's notice as
provided in subsection 91) hereof and at the commencement of the
Renewal Term: (I) Tenant shall not be in default under the terms of
provisions of this Lease; and (ii) Tenant shall not have subleased
fifty (50%) percent or more of the Premises, exclusive of subleases
to any parent, subsidiary or affiliate of Tenant;
(3) Tenant shall have no further renewal option other
than the option to renew this Lease for the one (1) Renewal Term as
set forth in subparagraph A hereof;
(4) This option to renew shall be deemed personal to
Tenant and may not be assigned or transferred, except in connection
with an assignment effectuated in accordance with the provisions of
Article 12 hereof; and
(5) Landlord shall have no obligation to do any work or
perform any services for the Renewal Term with respect to the
premises, which Tenant agrees to accept in its then "as is"
condition)"
B. The following paragraphs shall be deemed to be
added to the Lease as Articles 41 through 44 thereof:
"41. NO MONEY DAMAGES: If in this Lease it is provided that
Landlord's consent or approval as to any matter will not be
unreasonably withheld, and it is established by a court or body
having final jurisdiction there over that Landlord has been
unreasonable, then Landlord shall be deemed to have given its
consent or approval and, in addition thereto, shall be liable to
Tenant for money damages [excluding, however, consequential damages
(e.g., lost profits or loss of business)] by reason of withholding
its consent, if such court or body specifically determined that
landlord has acted in bad faith or maliciously (the burden of which
shall be Landlord's responsibility to prove that landlord has not
acted in bad fair or maliciously), subject nevertheless to the
provisions of Article 36 hereof."
"42. HOLDING OVER: If Tenant retains
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possession of the Premises or any part
thereof, after the termination of the term by
lapse of time or otherwise, without prior
written approval of Landlord, Tenant shall pay
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Landlord, two 92) times the monthly Basic Rent payable by Tenant
during the last full month of the term, together with additional
rent and other charges as provided herein, for the time Tenant thus
remains in possession, and, in addition thereto, shall pay Landlord
all damages, consequential as well as direct, sustained by reason of
Tenant's retention of possession. If Tenant remains in possession of
the Premises or any part thereof, after the termination of the term
by lapse of time or otherwise, such holding over shall, at the
election of Landlord expressed in a written notice to Tenant and not
otherwise, constitute an extension of this lease on a month-to-month
basis, at two (2) times the monthly Basic Rent payable by Tenant
during the lat full month of the term, together with additional rent
and other charges as provided herein. The provision of this Article
do not exclude Landlord rights of re-entry or any other right
hereunder."
"43. RIGHT OF FIRST OFFER:
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A. So long as: (I) Tenant is not in default under this Lease;
(ii) this Lease is in full force and effect; and (iii) Tenant and
any parent, subsidiary or affiliate of Tenant is occupying the
entire Premises for the purpose of conducting its business, then
Landlord agrees that, in the event any space in Elmwood Corporate
Park which is then owned by Landlord (hereinafter called the "Offer
Space"), shall become "available for leasing" (as hereinafter
define), at any time and from time to time after the commencement
date of this Lease, before offering to lease such Offer Space to any
third party, Landlord will first offer to Tenant in writing (such
offer by Landlord to Tenant being hereinafter called "Landlord's
Offer") the right to include such Offer Space within the Premises as
of the date specified by Landlord in Landlord's Offer (hereinafter
called the "Availability Date"). The Availability Date shall be the
date that the Offer Space which is the subject of Landlord's offer
is reasonably expected to become available for leasing. Landlord
shall specify in Landlord's Offer, the terms and conditions upon
which Landlord is willing to lease such Offer Space to Tenant
(hereinafter collectively called "Landlord's Terms"), including,
without limitation:
(1) the Availability Date of such
Offer Space;
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(2) the amount of square footage
contained in such Offer Space;
(3) Tenant's Proportionate Share;
(4) the amount of Basic Rent and
additional rent;
(5) the term of the leasing of such
Offer Space which may be for period longer
than the Term);
(6) the location and configuration
of such Offer Space; and
(7) such other terms and conditions upon which Landlord
is willing to lease the Offer Space to Tenant.
B. Tenant shall have the right to accept Landlord's Offer with
respect to such Offer Space within fifteen (15) days after
Landlord's Offer. Time shall be of the essence with respect to
Tenant's acceptance of Landlord's Offer. If Tenant does not duly and
timely accept Landlord's Offer with respect to the Offer Space: (I)
landlord shall be under no further obligation to Tenant with respect
thereto, and Landlord may then lease the Offer Space contained in
Landlord's Offer (or any part or parts thereof) to others, on such
terms and conditions (including rent and additional rent) as
Landlord then elects in its sole discretion.
C. if Tenant duly and timely accepts
Landlord's Offer, such Offer Space shall be
added to the Premises on Landlord's Terms, and
upon the following further terms and
conditions, effective as of the Availability
Date:
(1) Landlord shall have no obligation to do any work or
perform any services with respect to the Offer Space, which Tenant
agrees to accept in its then "as is" condition;
(2) the Premises shall be the space
originally demised by this Lease, plus the
Offer Space; and
(3) any other changes which are required to reflect the
addition of such Offer Space shall be appropriately made to this
Lease.
D. Except as expressly set forth
hereinabove, the leasing of such Offer Space
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shall be subject to and in accordance with all of the other terms,
covenants and provisions of this Lease.
E. Notwithstanding the foregoing, the Offer Space shall not be
"available for leasing," if: (I) the Offer Space is subject to a
right or option or a renewal right or option contained in any other
lease entered into by Landlord prior to the date hereof; or (ii))
the Offers Space remains occupied by the tenant to whom the Offer
Space is presently leased (whether by renewal or extension or
otherwise), or is offered for re-letting to a subtenant or assignees
of such present tenant; or (iii) if another party desires to lease
more space in Elmwood Corporate Park than Tenant, which space
includes the Offer space.
F. The right of first offer set forth
in this Article, is personal to Tenant named
herein and may not be assigned or transferred.
G. Upon request of Landlord, Tenant shall execute and deliver
an agreement setting forth the terms and condition xxxxxx which any
such Offer Space is added to the premises; it being understood and
agreed that such terms and conditions shall nevertheless be
effective regardless if such agreement is not executed and
delivered.
H. Tenant acknowledges and agrees that landlord shall be
obligated to make Landlord's Offer to Tenant only at such time as
each Offer Space initially becomes "available for leasing;" it being
understood and agreed by Tenant, the right of first offer contained
herein is a one 91) time right only with respect to each Offer
Space."
"44. TENANT'S RIGHT OF SELF-HELP:
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A. If Landlord fails to make any repairs or do any work
required of Landlord solely with respect to the roof of the
Building, in accordance with the provisions of this Leae, and any
such failure continues for period of five 95) days after notice
thereof is given by Tenant to Landlord, or, if such failure require
more than ten (10) days to cure in the exercise of due diligence,
unless Landlord commences to cure same within said ten (10) day
period an d thereafter diligently prosecute the same to completion,
then Tenant, in addition to such other rights and remedies as may be
available to Tenant hereunder, may, but shall not be obligated to,
make such repairs or perform such work in accordance
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with the provision of this Lease, at Tenants
sole cost and expense.
B. In the event Tenant makes such repairs or performs such
work, Tenant shall use only those contractors utilized by Landlord
in the Building for such work unless such contractors are unwilling
or unable to perform such work, in which event Tenant may utilize
the services of any other qualified contractor which normally and
regularly performs similar work in comparable building in the
vicinity of the Building, and provided that: (I) any such contractor
does not void or limit any warranty or guaranty procured by Landlord
regarding the roof; (ii) such work is performed by Tenant in
accordance with the provision of this Leae; and (iii)) Tenant
indemnifies and holds Landlord harmless from and against any and all
claims, damages and losses incurred by Landlord an/or any other
tenant or occupant in the Building as a result of the making of such
repairs or the performance of such work."
C. The address "90 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
xxx Xxxxxx, 00000" contained in Article 28 of the lease, shall be
deemed to be deleted, and the address "c/o Xxxxxx Xxxxxxx
Enterprises, X.X. Xxx 0000, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000-
2187, with a copy to Cole, Schotz, Meisel, Xxxxxx and Xxxxxxx,
P.A., Court Plaza North, 00 Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx,
Xxx Xxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq." inserted
in its place.
D. The following shall be deemed to be inserted after the third
sentence in Article 12 of the Lease; "In the event Landlord withholds its
consent to the subletting or assignment as provided herein, Landlord agrees that
it will so notify Tenant in writing within the aforesaid ten (10) day period,
specifying therein, in reasonable detail, the reason(s) for the withholding of
such consent."
6. A. Tenant understands and agrees that: (I) the remises
contiguous to the Original Premises, consisting of approximately
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thirty-one thousand seven hundred forty-four (31,74) square feet (hereinafter
referred to as the "Contiguous Space"), is currently leased to, and occupied by
CTX Termination, inc. (hereinafter referred to as "CTX"); and (ii) CTX exercised
its option to renew the term of its lease which now expires March 21, 2004
(hereinafter referred to as the "CTX Lease").
B. So long as (I) Tenant is not in default under the Lease, as
modified by this Amendment; (ii) the Lease, as modified by this Amendment, is in
full force and effect; and (iii) Tenant is occupying the entire Premises for the
purpose of conducing its business, then, provided Tenant, at its sole cost and
expense, secures the early termination of the CTX Lease, or CTX vacates the
Contiguous Space or the CTX Lease is terminated prior to the expiration of the
term thereof, landlord shall give Tenant the right to relocate from the
Additional Space to the Contiguous Space, upon not less than six (6) months'
prior written notice given at any time prior to February 29, 2000 (hereinafter
referred to as the "Relocation Notice").
C. In the event Tenant duly and timely exercise the right to
relocate as provided herein, the Contiguous Space shall be substituted for the
Additional Space as of the effective date of such relocation, upon all of the
terms, covenants, conditions, provisions and agreements contained in the Lease,
as modified by this Amendment, except that:
(1) "Basic Rent" (on a per square foot per annum basis) and
additional rent shall be deemed to be the amounts then payable to Tenant to
Landlord with respect to the Original Premises;
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(2) "Proportionate Share" shall be deemed to be
"one hundred (100%) percent";
(3) The number of parking spaces provided in Paragraph 4 of
the Third Amendment to Lease dated as of February 28, 1994, shall be deemed to
be "thirty-six (36)";
(4) The reference to "Adjacent Building" shall be
deemed to be deleted;
(5) At the time Landlord receives the Relocation Notice and
upon the effective date of such relocation, Tenant shall not be in default under
this Lease;
(6) Tenant pays to Landlord, simultaneously with the
Relocation Notice, a sum equal to four (4) months' Basic Rent and additional
rent then payable by Tenant to landlord under the Lease, as modified by this
Amendment, as consideration fro Tenant's exercise of its right to relocate to
the Contiguous Space;
(7) Tenant provides Landlord, simultaneously with the
Relocation Notice, any documents which evidence the early termination of the CTX
Lease, if applicable; and
(8) Tenant shall be liable and responsible for restoring the
Contiguous Space to the condition which existed as of the effective date of such
relocation.
D. In the event Tenant does not duly and timely exercise the right
to relocate as provided herein, the provisions of this Paragraph shall be null
and void and of no further force or effect and Tenant shall have no further
right to relocate to the Contiguous Space.
E. The right to relocate as provided herein, is personal to Tenant
named herein and may not be assigned or transferred.
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F. Upon request of Landlord, Tenant shall execute and deliver an
agreement setting forth the terms and conditions under which the Contiguous
Space is substituted for the Additional Space; it being understood and agreed
that such terms and conditions shall nevertheless be effective regardless if
such agreement is not executed and delivered.
7. Notwithstanding anything to the contrary contained herein, Landlord
hereby approves the following work which may be performed by Tenant, at its sole
cost and expense, subject nevertheless to all of the other terms, covenants,
conditions, provisions and agreements of the Lease, as modified by this
Amendment (including, without limitation, article 22 thereof):
A. the conversion of approximately five thousand (5,000) square feet
of warehouse space currently existing in the Original Premises as of the date
hereof, to space to be utilized for production; and
B. the conversion of approximately eleven thousand (11,000) square
feet of warehouse space currently existing gin the Additional Space as of the
dat hereof, to office space.
8. Tenant hereby affirms that security in the amount of One Hundred Two
thousand four Hundred Sixty-Two and 72/100 ($102,462.72) Dollars has heretofore
been deposited by Tenant to Landlord under the lease.
9. Tenant hereby represents and warrants to Landlord, that Tenant has not
dealt with any real estate agent or broker in connection with this Amendment
and/or the Additional Space, that this Amendment was not brought about or
procured through the use or instrumentality of any agent or broker, and that all
negotiations with respect to the term of this Amendment were conducted between
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landlord, and Tenant. Tenant hereby covenants and agrees to indemnify and hold
Landlord harmless from and against any and all claims for commissions and other
compensation made by any agent or agents and/or any broker or brokers based on
any dealings between Tenant and any agent or agents and/or broker or brokers,
together with all costs and expenses incurred by Landlord in resisting such
claim s(including, without limitation, attorney's fees and disbursements).
10. A. Except as expressly modified by this Amendment, the Lease and all
the terms, covenants, conditions, provisions and agreements thereof, are hereby
in all respects, ratified, confirmed and approved.
B. Tenant hereby affirms that, as of the date hereof, no breach or
default by Landlord has occurred, and that the Lease and all of its terms,
covenants, conditions, provisions and agreements, except as modified by this
Amendment, are in full force and effect, with no defenses or offsets thereto.
C. Tenant hereby releases Landlord of and from all liabilities,
claims controversies, causes of action an other matters of every nature which,
through the date hereof, have or might have arisen out of or in any way in
connection with the Lease and/or the Demised Premises.
11. This Amendment and the Lease contain the entire understanding between
the parties with respect to the matters contained herein. No representations,
warranties, covenants or agreements have been made concerning or affecting the
subject matter of this amendment, except as are expressly contained herein.
12. This Amendment may not be changed orally, but only by an agreement in
writing by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
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13. This Amendment shall be binding upon, an enure to the benefit of the
parties hereto, their respective legal representatives, successors, and, except
as otherwise provided I the Lease, as modified by his amendment, their
respective assigns.
14. The submission of this Amendment to Tenant shall not be construed as
an offer, nor shall Tenant have any rights with respect hereto, unless and until
Landlord shall execute a copy of this Amendment an unconditionally deliver the
same to Tenant.
15. Tenant hereby represents and warrants to landlord that: (I) the
execution, performance and delivery by Tenant of this Amendment does not violate
any provisions of its Charter or By- Laws, and has been fully and validly
authorized and approved by any required corporate action of Tenant; (ii) the
obligations of Tenant under this Amendment are legal, valid, binding and
enforceable against Tenant in accordance with its terms; and (iii)) the person
executing this Amendment has the authority to so execute, perform and deliver
this Amendment on behalf of Tenant.
16. Tenant hereby acknowledges and agrees that this Amendment is the
result of extensive negotiations between the parties. This Amendment shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Amendment to be drafted or prepared.
17. A determination that any provision of this Amendment is void
unenforceable or invalid shall not affect the enforceability of validity of any
other provision, and any determination that the application of any provision of
this Amendment to any person or to particular circumstance sis illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to other person or circumstances.
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18. This Amendment may be executed in one or more counterparts, each of
which, when so executed and delivered, shall be deemed original, but all of
which taken together shall constitute but one and the same instrument.
19. The validity, performance and enforcement of this Amendment shall be
governed by and construed in accordance with the laws of the State of new
Jersey.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Fourth Amendment to Lease as of the day and year first written above.
Witness for Landlord: XXXXXX XXXXXXX ENTERPRISES,
L.P.
By: Xxxxxx Xxxxxxx
Enterprises, Inc., its
General Partner
By:
-------------------------------
Name: Xxxxx Xxxxxxx
Title: President
Attest for Tenant: BIO-REFERENCE LABORATORIES,
INC.
By: By:
----------------------------
Name: Name:
------------------------
Title: Secretary Title: President
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