**Exhibit10.1.1**

 

**FIFTHAMENDMENT TO LEASE**

 

**THIS FIFTH AMENDMENT TO LEASE**made as of this 16th day of July, 2004 (hereinafter referred to as this “Amendment”), between ALFRED SANZARIENTERPRISES, L.P., having an office c/o Alfred Sanzari Enterprises, Court PlazaNorth, 25 Main Street, 6th Floor, Hackensack, New Jersey 07601 (hereinafterreferred to as “Landlord”), and BIO-REFERENCE LABORATORIES, INC., a New Jerseycorporation, having an office at 481 Edward H. Ross Drive, Elmwood Park, NewJersey 07407 (hereinafter referred to as “Tenant”).

 

**WITNESSETH:**

 

**WHEREAS**, AlfredSanzari (Landlord’s predecessor-in-interest), as landlord (hereinafter referredto as “Sanzari”), and Pharmadyne Laboratories, Inc. (Tenant’s predecessor-in-interest), as tenant (hereinafter referred to as “Pharmadyne”), heretoforeentered into a certain written Lease dated as of November 7, 1978, whereinand whereby Landlord leased to Tenant, and Tenant hired from Landlord, certainpremises consisting of approximately thirty-one thousand five hundredtwenty-seven (31,527) square feet (hereinafter referred to as the “OriginalPremises”) in the building located at 481 Edward H. Ross Drive, in the Boroughof Elmwood Park, County of Bergen and State of New Jersey (hereinafter referredto as the “Original Building”), as more particularly described therein, for aterm 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 Leasewas modified by that certain First Amendment to Lease dated November 1,1979, wherein and whereby, interalia, Landlord and Tenantsettled certain disputes; and

 

**WHEREAS**, said Leaseand the interest of Pharmadyne as tenant thereunder, was assigned to CLLaboratories of New Jersey, Inc. (hereinafter referred to as “CL”), pursuant tothat certain Assignment and Assumption of Lease Agreement dated December 10,1981; and

 

**WHEREAS**, said Leasewas further modified by that certain Agreement dated as of March 23,1988,wherein and whereby, interalia the Lease and the interest of CLas tenant thereunder, was assigned to Med-Mobile, Inc. (hereinafter referred toas “Med-Mobile”), and the term of the Lease was extended for a further periodof five (5) years, commencing on March 1, 1989, and expiring on February 28,1994; and

 

**WHEREAS,**said Leasewas further modified by that certain Second Amendment to Lease dated as of March 23,1988; and

 

**WHEREAS,**said Leasewas further modified by that Third Amendment to lease dated January 31,1992,wherein and whereby, interalia, Landlord and Tenant settledcertain defaults by Tenant under the Lease and discontinued litigationinstituted by Landlord against Tenant in connection therewith; and

 

**WHEREAS,**on or aboutNovember 15, 1989, Med-Mobi1e changed its name to Bio- ReferenceLaboratories, Inc.; and

 

**WHEREAS,**said Leasewas further modified by that certain Third Amendment to Lease dated as of February 28,1994,wherein and whereby, interalia, the term of the Lease wasextended for a further period of five (5) years, commencing on March 1,1994,and expiring on February 28,1999; and

 

**WHEREAS,**said Leasewas further modified by that certain Fourth Amendment to Lease dated as of October 9,1998(hereinafter sometimes referred to as the “Fourth Amendment to Lease”), whereinand whereby, interalia, the term of the Lease was extended for afurther period of five (5) years, commencing March 1,1999, and expiring onFebruary 28,2004, and Landlord leased to Tenant, and Tenant hired fromLandlord, a portion of the building located at 487 Edward H. Ross Drive,Borough of Elmwood Park, County of Bergen and State of New Jersey (hereinafterreferred to as the “Adjacent Building”), consisting of approximately twenty-four thousand (24,000) square feet (hereinafter referred to as the “ AdditionalSpace”); and

 

**WHEREAS,**theOriginal Premises and the Additional Space are sometimes hereinaftercollectively referred to as the “Premises”; and

 

**WHEREAS,**said Lease,as so modified, and as the same may have been otherwise amended and/ormodified, is hereinafter collectively referred to as the “Lease”; and

 

**WHEREAS,**Landlordand Tenant desire to extend the term of the Lease, upon the terms, covenantsand conditions hereinafter set forth; and

 

**WHEREAS,**Landlordand Tenant desire to further modify the Lease only in the respects hereinafterstated.

 

**NOW, THEREFORE,**inconsideration of the Premises demised by the Lease and the mutual covenantshereinafter contained, and for other good and valuable consideration paid byeach party to the other, the receipt and adequacy

 

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of which is hereby acknowledged, the parties hereto by these presentscovenant and agree as follows:

 

I. The recital clauses set forth above shall be deemed a part of thisAmendment as though set forth verbatim and at length herein.

 

2. Except as otherwise expressly set forth herein, all capitalizedterms in this Amendment shall have the meanings set forth for such terms in theLease.

 

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 offive (5) years, commencing March 1,2004, to and including February 28,2009,inclusive, upon the terms, covenants, conditions, provisions and agreementscontained in the Lease, as modified by this Amendment.

 

B. Effective as of March 1, 2004, “Basic Rent” (as defined inParagraph A of Schedule “C” attached to the Lease) shall be:

 

( 1) solely with respect to the Original Premises, “the sum of TwoHundred Thirty-Six Thousand Four Hundred Fifty- Two and 50/lOO ($236,452.50)Dollars per annum, payable in equal monthly installments of Nineteen ThousandSeven Hundred Four and 38/lOO ($19,704.38) Dollars.”

 

(2) solely with respect to the Additional Space: “(i) the sum of OneHundred Seventy-Four Thousand and 00/lOO ($174,000.00) Dollars per annum,payable in equal monthly installments of Fourteen Thousand Five Hundred and00/lOO ($14,500.00) Dollars, for the period commencing March 1, 2004,through and including August 31, 2006, and (ii) the sum of One HundredEighty Thousand and 00/1 00 ($180,000.00) Dollars per annum, payable in equalmonthly installments of Fifteen Thousand and 00/100 ($15,000.00) Dollars, forthe period commencing September 1, 2006, through and including February 28,2009. “

 

4. Effective as of July 1, 2005:

 

A. (I) Landlord hereby leases to Tenant, and Tenant hereby hires fromLandlord, a portion of the Original Building, consisting of approximatelythirty-one thousand seven hundred forty-four (31,744) square feet, as shown onthe plan attached hereto and made a part hereof as Schedule “ A-3”(hereinafter referred to as the “Second Additional Space”).

 

(2) The “Demised Premises” (as defined in Article 1 of the Lease)shall be and be deemed to be: “(i) the entire Original Building, consisting ofapproximately sixty-three thousand two hundred seventy-one (63,271) squarefeet, as shown on Schedule “ A “ attached to the Lease and as shown on Schedule “A-3” attached hereto; and (ii) a portion of the Adjacent Building, consistingof approximately twenty-four thousand (24,000) square feet, as shown on Schedule “A-I “ attached to the Fourth Amendment to Lease.”

 

B. The following shall be applicable solely with respect to the SecondAdditional Space:

 

(1) “Basic Rent” (as defined in Paragraph A of Schedule “C”attached to the Lease) shall be “the sum of Two Hundred Thirty-Eight ThousandEighty and 00/lOO ($238,080.00) Dollars per annum, payable in equal monthlyinstallments of Nineteen Thousand Eight Hundred Forty and 00/lOO ($19,840.00)Dollars.”

 

(2) “Proportionate Share” (as defined in Paragraph E of Schedule “C”attached to the Lease) shall be “fifty and twenty hundredths (50.20%) percent.”

 

(3) The number of parking spaces shall be “twenty- five (25)”, as shownon the plan attached hereto and made a part hereof as Schedule “A-4”.

 

C. Tenant has examined and inspected the Second Additional Space andagrees to accept the same in the condition in which it exists on July 1,2005. Tenant hereby acknowledges and agrees that no materials whatsoever are tobe furnished by Landlord and no work whatever is to be performed by Landlord inConnection with said Second Additional Space or any part thereof.

 

5. Effective as of the date hereof:

 

A. Article 40 of the Lease and Paragraph 6 of the Fourth Amendmentto Lease shall be deemed to be deleted in their entireties.

 

B. The following paragraph shall be deemed to be added to the Lease as Article 45thereof:

 

“45. CROSS-DEFAULT: Landlord and Tenant acknowledge that Tenantis the assignee to the interest of M.O. Air International, Inc. (“M.O. Air”),under that certain Lease, dated as of May 31, 2000, between Landlord and M.O.Air, covering a portion of the Original Building consisting of approximatelythirty-one thousand seven hundred forty-four (31,744) square feet, located at481 Edward H. Ross Drive, Borough of Elmwood Park, County of Bergen and Stateof New Jersey, as more particularly described on Schedule “A” attachedthereto and made a part thereof (hereinafter referred to as the “Other Lease”).It is specifically understood and agreed that: (i) a default by Tenant underthe Other Lease shall, at Landlord’s option, without Landlord being required togive any other or further notice to Tenant, be deemed a default by Tenant underthis

 

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Lease, as though the same circumstance(s) which gave rise to thedefault by Tenant under the Other Lease has occurred under this Lease and,unless Tenant shall cure such default under the Other Lease within the timeprovided therein for the curing of such default thereunder, Landlord may, atits option, terminate this Lease and/or exercise its other remedies as if suchdefault had occurred and remained uncured under this Lease; and (ii) a defaultby Tenant under this Lease shall, at Landlord’s option, without Landlord beingrequired to give any other or further notice to Tenant, be deemed a default byTenant under the Other Lease, as though the same circumstance(s) which gaverise to the default by Tenant under this Lease has occurred under the OtherLease and, unless Tenant shall cure such default under this Lease within thetime provided herein for the curing of such default hereunder, Landlord may, atits option, terminate the Other Lease and/or exercise its other remedies as ifsuch default had occurred and remained uncured under the Other Lease.”

 

6. A. Tenant hereby affirms that it has heretofore deposited withLandlord, the sum of One Hundred Two Thousand Four Hundred Sixty- Two and72/100 ($102,462.72) Dollars, as security under the Lease (hereinafter referredto as the “Existing Security”).

 

B. Tenant hereby affirms that, as assignee to the interest of M.O. Airunder the Other Lease, there is currently on deposit with Landlord, the sum ofForty-Seven Thousand One Hundred Ninety-Two and 32/100 ($47,192.32) Dollars(hereinafter referred to as the “Other Security”).

 

C. Notwithstanding anything to the contrary contained herein or in theLease, Tenant hereby acknowledges and agrees that, provided Tenant is not indefault under the Lease or the Other Lease as of July 1, 2005, then,Landlord will add the Other Security to the Existing Security (hereinaftercollectively referred to as “Security”), such that the aggregate amount ofsecurity heretofore deposited by Tenant to Landlord under the Lease shall beOne Hundred Forty-Nine Thousand Six Hundred Fifty-Five and 04/100 ($149,655.04)Dollars.

 

D. Tenant hereby affirms that, if Landlord shall have applied all orany part of the Existing Security or the Other Security, in accordance with theprovisions of the Lease or the Other Lease, respectively, as the case may be,prior to July 1, 2005, Tenant shall replenish any amount so applied,pursuant to the terms of the Lease and the Other Lease, respectively, as thecase may be.

 

7. Tenant hereby represents and warrants to Landlord, that: (i) Tenanthas not dealt with any real estate agent or broker in connection with thisAmendment and/or the Second Additional Space; (ii) that this Amendment was notbrought about or procured through the use or instrumentality of any agent orbroker, and (iii) that all negotiations with respect to the terms of thisAmendment were conducted between Landlord and Tenant. Tenant hereby covenantsand agrees to indemnify and hold Landlord harmless from and against any and allclaims for commissions and other compensation made by any agent or agentsand/or any broker or brokers based on any dealings between Tenant and any agentor agents and/or broker or brokers, together with all costs and expensesincurred by Landlord in resisting such claims (including, without limitation,attorneys’ fees and disbursements).

 

8. A. Except as expressly modified by this Amendment, the Lease and allthe terms, covenants, conditions, provisions and agreements thereof, are herebyin all respects, ratified, confirmed and approved.

 

B. Tenant hereby affirms that, as of the date hereof, no breach ordefault by Landlord has occurred, and that the Lease and all of its terms,covenants, conditions, provisions and agreements, except as modified by thisAmendment, 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 and other matters of every nature which,through the date hereof, have or might have arisen out of or in any way inconnection with the Lease and/or the Demised Premises.

 

9. This Amendment and the Lease contains the entire understandingbetween the parties with respect to the matters contained herein. Norepresentations, warranties, covenants or agreements have been made concerningor affecting the subject matter of this Amendment, except as are expresslycontained herein.

 

10. This Amendment may not be changed orally, but only by an agreementin writing, signed by the party against whom enforcement of any waiver, change,modification or discharge is sought.

 

11. This Amendment shall be binding upon, and inure to the benefit ofthe parties hereto, their respective legal representatives, successors and,except as otherwise provided in the Lease, as modified by this Amendment, theirrespective assigns.

 

12. The submission of this Amendment to Tenant shall not be construedas an offer, nor shall Tenant have any rights with respect hereto, unless anduntil Landlord shall execute a copy of this Amendment and unconditionallydeliver the same to Tenant.

 

13. Tenant hereby represents and warrants to Landlord that: (i) theexecution, performance and delivery by Tenant of this Amendment does notviolate any provisions of its Charter or By-Laws, or any indenture, document,agreement or other instrument which may be heretofore binding upon Tenant, andhas been fully and validly authorized and approved by any required corporateaction of Tenant; (ii) the obligations of Tenant under this

 

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Amendment are legal, valid, binding and enforceable against Tenant inaccordance with its terms; and (iii) the person executing this Amendment onbehalf of Tenant has the authority to so execute, perform and deliver same.

 

14. Tenant hereby acknowledges and agrees that this Amendment is theresult of extensive negotiations between the parties. This Amendment shall beconstrued without regard to any presumption or other rule requiringconstruction against the party causing this Amendment to be drafted orprepared.

 

15. A determination that any provision of this Amendment is void, unenforceableor invalid shall not affect the enforceability or validity of any otherprovision, and any determination that the application of any provision of thisAmendment to any person or to particular circumstances is illegal orunenforceable shall not affect the enforceability or validity of such provisionas it may apply to other persons or circumstances.

 

16. Tenant hereby acknowledges and agrees that Landlord’s remedies arecumulative, and that mention of a particular remedy in this Amendment, does notpreclude Landlord from exercising any and all other rights and remediesavailable to it, whether herein, under the Lease or otherwise, whether at lawand/or in equity.

 

17.****ThisAmendment may be executed in one or more counterparts, each of which, when soexecuted and delivered, shall be deemed original, but all of which takentogether shall constitute but one and the same instrument.

 

18. This Amendment may be executed by facsimile transmission and shallbe deemed to have been executed and delivered by each party on the date sotransmitted to the other party, and in such event, each party will promptlyfurnish to the other party, an original counterpart hereof executed by suchparty.

 

19. The validity, performance and enforcement of this Amendment shallbe governed by and construed in accordance with the laws of the State of NewJersey, without regard to conflicts of law principles.

 

IN WITNESS WHEREOF, the parties hereto have respectively executed thisFifth Amendment to Lease as of the day and year first written above.

 
| ALFRED SANZARI ENTERPRISES, L.P. (Landlord) |
|---------------------------------------------|
|                                        |
| By: Alfred Sanzari Enterprises, Inc.,       |
|                                        |
|                                        | its General Partner |
|                                        |
| By:                                         | s/ David Sanzari |   |
|                                        |
| Name: David Sanzari                         |
| Title: President                            |
| BIO-REFERENCE LABORATORIES, INC.            |
|                                        |
| (Tenant)                                    |
| By:                                         | s/ Warren Erdmann |   |
|                                        |
| Title: Vice-President                       |
|                                             |  |  |  |

 

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