EXHIBIT 10.8
LEASE
BY AND BETWEEN
MB ASSOCIATES
AND
BBI - NORTH AMERICAN CLINICAL LABORATORIES, INC.
75 NORTH MOUNTAIN ROAD
NEW BRITAIN, CONNECTICUT
DATED AS OF JULY 28, 1995
CONTENTS
--------
SECTION CAPTION PAGE
- ------- ------- ----
1. Demise - Premises - Term ........................................................................
2. Rent ............................................................................................
3. Renewal Options .................................................................................
4. Construction by the Landlord ....................................................................
5. Use .............................................................................................
6. Signs ...........................................................................................
7. Subordination of Lease ..........................................................................
8. Quiet Enjoyment .................................................................................
9. Assignments and Subleases .......................................................................
10. No Nuisance; Compliance with Laws and Requirements of Public Authorities.........................
11. Insurance .......................................................................................
12. Rules and Regulations ...........................................................................
13. Alterations and Improvements ....................................................................
14. Tenant's Property ...............................................................................
15. Tenant's Repairs ................................................................................
16. Landlord's Repairs, Maintenance, ................................................................
17. Access to Demised Premises ......................................................................
18. Damage or Destruction ...........................................................................
19. Condemnation ....................................................................................
20. Surrender .......................................................................................
21. Default and Damages .............................................................................
22. Parking .........................................................................................
23. Unperformed Covenants ...........................................................................
24. Holding Over ....................................................................................
25. Certain Rights Reserved by the Landlord .........................................................
26. Waiver of Notice ................................................................................
27. Notices .........................................................................................
28. Estoppel Certificate ............................................................................
29. Limitation of Liability .........................................................................
30. Rights of Landlord; Non-Waiver ..................................................................
31. Broker ..........................................................................................
32. Notice of Lease .................................................................................
33. Prior Agreements ................................................................................
34. Captions; Sections; Gender ......................................................................
35. Benefit and Burden ..............................................................................
36. Applicable Law ..................................................................................
Signatures ......................................................................................
EXHIBITS
- --------
Exhibit A - Plan of Demised Premises
Exhibit B - Schedule of Landlord's Work
Exhibit C - Rules and Regulations
LEASE
-----
THIS LEASE made as of the 28th day of July, 1995, by and between MB
ASSOCIATES, a Connecticut partnership having its office at Plainville,
Connecticut (the "Landlord", and BBI- NORTH AMERICAN CLINICAL LABORATORIES,
INC., a Massachusetts corporation having an address of 75 North Mountain Road,
New Britain, Connecticut (the "Tenant").
1. Demise - Premises - Term.
(a) The Landlord hereby demises and leases to the Tenant, and the
Tenant hereby takes and hires from the Landlord, for the term hereinafter
stated, for the rent hereinafter reserved, and upon and subject to the
covenants, agreements, terms, conditions, limitations, exceptions and
reservations of this lease, the building known as 75 North Mountain Road, New
Britain, Connecticut, together with the exclusive use of the parking area and
land shown and described in Exhibit A, attached hereto and made a part hereof
(the "Demised Premises).
(b) The term of this lease and the estate hereby granted (collectively
the "term of this Lease") shall commence on the Commencement Date (as defined in
section 1(c)) and shall end on the last day of the calendar month in which
occurs the day preceding the fifth (5th) anniversary of the Commencement Date,
which ending date, unless the context otherwise requires, is hereinafter called
the "Expiration Date", or shall end on such earlier date upon which the term of
this lease may expire or be terminated pursuant to any of the provisions of this
lease or pursuant to law.
(c) The term "Commencement Date: shall be that date when the Demised
Premises are ready for occupancy by the Tenant, or on August 1, 1995, whichever
date shall occur later, and all of the following conditions are met: (i)
temporary or final certificate of occupancy shall have been issued by the City
of New Britain permitting the activities specified in Section 5 to be conducted
in the Demised Premises; (ii) the contractor engaged by the Landlord has issued
a certificate attesting that the Landlord's Work (as defined in section 4(b))
has been substantially completed; and (iii) the Landlord's Work has been
substantially completed, and it shall be deemed to be substantially completed
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment or decoration remain to be performed, the noncompletion of
which does not interfere materially with the Tenant's normal use and occupancy
of the Demised Premises, provided, however, that if substantial completion of
the Landlord's Work shall be delayed beyond July 31, 1995, because of changes in
the Landlord's Work at the request of the Tenant as provided in Section 4(c)
(within fifteen (15) days after the delivery of any such change request, the
Landlord shall notify the Tenant
Initials
_________ (Landlord)
_________ (Tenant)
-1-
whether or not such change request is likely to cause a delay in the completion
of the Landlord's Work beyond July 31, 1995) then the Commencement Date shall be
deemed to be August 1, 1995, provided all other work has been substantially
completed, even though the conditions set forth in this Section 1(c) shall not
have been satisfied.
2. Rent.
(a) The rent reserved under this lease (the "Rent") for the term hereof
shall commence to accrue on the Commencement Date and shall be:
(i) Annual Fixed Rent For the First Year, [Language Deleted Due To Confidential Treatment Request.]
(ii) Annual Fixed Rent For the Second Year, [Language Deleted Due To Confidential Treatment Request.]
(iii) Annual Fixed Rent For the Third Year, [Language Deleted Due To Confidential Treatment Request.]
(iv) Annual Fixed Rent For the Fourth Year, [Language Deleted Due To Confidential Treatment Request.]
(v) Annual Fixed Rent For the Fifth Year, [Language Deleted Due To Confidential Treatment Request.]
(vi) such other sums of money as shall become due and
payable by the Tenant to the Landlord as provided in
this lease, such other sums of money to be deemed to
be additional rent whether or not such sums of money
are designated as such hereunder.
(b) The Rent shall be paid to the Landlord at its address specified in
Section 27, or at such other place as the Landlord may from time to time
designate, in lawful money of the United States of America, as and when the same
shall become due and payable and without abatement or offset and without notice
or demand therefor.
(c) The annual Fixed Rent for each lease year shall be payable in equal
monthly installments in advance on the first day of each and every calendar
month during each lease year. If the Commencement Date is other than the first
day of the calendar month, the first monthly installment of the Fixed Rent shall
include a pro rata installment of Fixed Rent for the period from the
Commencement Date to the last day of the month in which the Commencement Date
occurs based upon the Fixed Rent payable during the term hereof.
Initials
_________ (Landlord)
_________ (Tenant)
-2-
(d) If the Tenant fails to pay within ten (10) days after the same is
due and payable any installment of Fixed Rent or any additional rent to be paid
by the Tenant to the Landlord as provided in this lease, such unpaid amount
shall bear interest from the due date thereof to the date of payment at the rate
equal to the lesser of (i) twelve percent (12%) per annum, or (ii) the maximum
rate permitted by applicable law. Such interest shall be paid by the Tenant to
the Landlord on the earlier to occur of A) at the time that the Tenant pays to
the Landlord the installment of Fixed Rent or the additional rent upon which
such interest shall have accrued or (B) five (5) days after written demand
therefor.
(e) As used herein, the term "lease year" shall mean the period
commencing on the Commencement Date and ending on the last day of the calendar
month in which occurs the day preceding the first (1st) anniversary of the
Commencement Date, and each period of twelve (12) consecutive calendar months
thereafter.
(f) If, on the Grand Lists of 10/1/95, 10/1/96, 10/1/97, 10/1/98 and
10/1/99, as a result of Tenant's use of the Demised Premises, the City of New
Britain provides real property tax abatement for the Demised Premises, the rent
reserved in Section 2(a), above, will be reduced by an amount equal to the
amount of tax abatement received, but in no event less than Six Thousand Dollars
($6,000.00) per year for the 2nd through the 5th year of the Term, and the first
year of the first renewal term of this Lease.
The parties agree to execute an amendment to this Lease establishing
the fixed annual rent in the event of such tax abatement and to establish the
annual fixed rent for the renewal terms set forth in Sections 3 (a) and (b).
3. Renewal Options:
(a) Tenant shall have the option to renew this Lease for a term of five
(5) years on the same terms and conditions as provided herein except that the
annual fixed rent for each year during said first renewal term shall be the
greater of (i) [Language Deleted Due To Confidential Treatment Request.] or (ii)
[Language Deleted Due To Confidential Treatment Request.] plus the cumulative
percentage of increase, if any, in the Consumer Price Index All Item Figures for
Urban Wage Earners and Clerical Workers (N.Y., Northern N.J., Long Island, N.Y,
NJ, CT) (1982-94 = 100) published by the Bureau of Labor Statistics, U.S.
Department of Labor as of the date of the commencement of the first renewal
period over the said Index as of the date of the commencement of the initial
term of this Lease, which increase shall not exceed [Language Deleted Due To
Confidential Treatment Request.].
(b) Tenant shall have a further option to renew this Lease for an
additional term of five
Initials
_________ (Landlord)
_________ (Tenant)
-3-
(5) years on the same terms and conditions as provided herein except that there
shall be no further right of renewal and that the annual fixed rent for each
year of said second renewal term shall be the greater of (i) an amount equal to
the annual fixed rent during said first renewal term plus [Language Deleted Due
To Confidential Treatment Request.] or (ii) the annual fixed rent during said
first renewal term plus the cumulative percentage of increase, if any, in the
Consumer Price Index All Item Figures for Urban Wage Earners and Clerical
Workers (N.Y., Northern N.J., Long Island, N.Y, NJ, CT) (1982-94 = 100)
published by the Bureau of Labor Statistics, U.S. Department of Labor as of the
date of the commencement of the second renewal period over the said Index as of
the date of the commencement of the first renewal period of this Lease, which
increase shall not exceed [Language Deleted Due To Confidential Treatment
Request.].
(c) The Tenant's right to exercise its options to renew hereunder shall
be contingent upon (i) the Tenant's giving to the Landlord notice of the
Tenant's election to exercise its option to renew not later than nine (9) months
prior to the expiration date of the initial term or first renewal term, as the
case may be, of this Lease and (ii) the term of this lease being in full force
and effect on the date that the Landlord receives notice of the Tenant's
election to exercise its option to renew and on the expiration date of the
initial term or first renewal term as the case may be of this lease. If such
contingencies shall be satisfied in respect to the exercise of the Tenant's
options to renew hereunder, then the renewal period shall be added to and become
part of the term of this lease and any reference in this lease to "term of this
lease"; the "term hereof" or any similar expression shall be deemed to include
such renewal period.
(d) If at any time the Landlord shall be restricted or prevented by
virtue of any law, rule, regulation or order, such as a "Wage-Price-Rent
Freeze", from obtaining the full amount of the Rent for such renewal term, then
on any occasion upon which it becomes lawful to obtain and receive the balance
(or any part thereof) of the full rent payable, the Fixed Rent payable hereunder
shall be increased by the maximum amount lawful until the full Fair Market
Rental Value for such renewal period is received by the Landlord.
(e) A memorandum recording the amount of the rent payable for such
renewal period shall be annexed hereto and signed by the Landlord and the Tenant
promptly upon the same being agreed or determined in accordance with the terms
hereof.
4. Construction by the Landlord.
(a) The Landlord may make such improvements or additions to the Demised
Premises and its appurtenances as the Landlord shall see fit except that the
Landlord shall secure the prior written approval of the Tenant, which approval
shall not be unreasonably withheld or delayed, in the
Initials
_________ (Landlord)
_________ (Tenant)
-4-
case of any change, addition or deletion which materially and adversely affects
the visibility, access of or to Tenant's use of the Demised Premises for the
purposes set forth in Section 5 or any other rights of the Tenant under this
lease.
(b) The Landlord shall perform work and make installations in the
Demised Premises in a good and workmanlike manner and in accordance with the
plans and specifications set forth in Exhibit B attached hereto. (All of the
work to be performed by the Landlord pursuant to this Section 4(b) is referred
to as the "Landlord's Work").
(c) The Tenant may make written requests for changes in the Landlord's
Work, and the Landlord shall comply with any such request that in the Landlord's
judgment is not unreasonable. Any change in the scope of the Landlord's Work
which would result from such a request and which would unreasonably interfere
with or delay the work of the Landlord's contractors and subcontractors in the
Demised Premises or elsewhere in or about the building shall be conclusively
deemed unreasonable. Any increase in the Landlord's cost of construction of the
Landlord's Work resulting from such a request shall be acknowledged in writing
by the Tenant prior to the performance of the change in the Landlord's Work. Any
net increase arising from all such changes in the Landlord's Work shall be paid
by the Tenant to the Landlord, as additional rent, within ten (10) days after
the Landlord's written demand. The Tenant shall not be entitled to any payment
from the Landlord, or to any credit against or reduction in the Rent, on account
of any net decrease arising from all such changes in the Landlord's Work.
(d) The Tenant, by entering into actual possession of any part or parts
of the Demised Premises, shall be deemed to have agreed that the Landlord, up to
the time of such possession, has performed all of its obligations hereunder with
respect to preparation of such part or parts of the Demised Premises for the
Tenant's possession, except for (i) latent defects and (ii) minor items
remaining incomplete. The Tenant, within sixty (60) days after the Commencement
Date, shall give the Landlord written notices of any incomplete work,
unsatisfactory conditions or defects, and the Landlord shall repair or replace
all materials and workmanship, fixtures, systems, facilities and equipment
installed by the Landlord in or serving the Demised Premises which prove to be
defective, and shall prosecute those items remaining incomplete to completion
with reasonable diligence.
5. Use. The Tenant shall have the right to occupy and use the Demised
Premises for a medical laboratory, clinical laboratory, biomedical
manufacturing, biomedical repository, research and general office purposes, and
the Tenant shall not use or permit the use of the Demised Premises for any other
purpose.
Initials
_________ (Landlord)
_________ (Tenant)
-5-
6. Signs. Unless the Landlord shall have given its prior written
consent, which consent shall not be unreasonably withheld, the Tenant shall not
install, paint, inscribe or maintain any lettering, name, sign, business
designation, advertising or publicity device on the Land or on any exterior
window or on any other interior or exteriors portion of the building. All
signage shall be consistent with a comprehensive sign plan for the planned area
development of this North Mountain Road area and is contingent upon approval
from all appropriate governmental agencies.
7. Subordination of Lease.
Tenant agrees that upon the request of Landlord in writing it will
subordinate this Lease and the lien hereof from time to time to the lien of any
present or future mortgage to a bank, insurance company or similar financial
institution, irrespective of the time of execution or time of recording of any
such mortgage or mortgages, provided that the holder of any such mortgage shall
enter into an agreement with Tenant, in recordable form, that in the event of
foreclosure or other right asserted under the mortgage by the holder or any
assignee thereof, this Lease and the rights of Tenant hereunder shall continue
in full force and effect and shall not be terminated or disturbed except in
accordance with the provisions of this Lease. Tenant agrees that if requested by
the holder of any such mortgage it will be a party to said agreement and will
agree in substance that if the mortgagee or any person claiming under the
mortgagee shall succeed to the interest of Landlord in this Lease, it will
recognize said mortgagee or person as its landlord under the terms of this
Lease. Tenant agrees that it will upon the request of Landlord, execute,
acknowledge and deliver any and all instruments necessary or desirable to give
effect to or notice of such subordination. The word "mortgage" as used herein
includes mortgages, deeds of trust or other similar instruments and
modifications, consolidations, extensions, renewals, replacements and
substitutes thereof.
Such subordination agreement shall include, but not be limited to,
statements that if the lender or ground lessor succeeds to the interest of
Landlord under this Lease, lender or ground lessor shall not be:
(i) liable for any act or omission of any prior landlord
(including Landlord) except for those acts or omissions which
are continuing after lender succeeds to landlord's interest;
or
(ii)subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord); or
Initials
_________ (Landlord)
_________ (Tenant)
-6-
(iii) bound by any rent or additional rent which Tenant might
have paid for more than the current month to any prior
landlord (including Landlord).
(b) If, in connection with the procurement, amendment or renewal of any
financing of the Demised Premises, the mortgagee shall request reasonable
modifications of this lease as a condition of such financing, the Tenant shall
not withhold or delay its consent to such modifications provided that they do
not increase the obligations of the Tenant under this lease or adversely affect
the rights of the Tenant under this lease.
8. Quiet Enjoyment. The Landlord covenants and agrees that so long as
the Tenant pays the Rent and performs the remainder of the Tenant's obligations
under this lease, the Tenant shall peaceably and quietly have, hold, and enjoy
the Demised Premises without interference by any person claiming by, through or
under the Landlord.
9. Assignments and Subleases.
(a) Except as otherwise provided in this Section 9, the Tenant agrees
not to assign or in any way encumber this lease, nor to sublet the Demised
Premises, or any part thereof, nor to permit the Demised Premises, or any part
thereof, to be used by others, without obtaining the prior written consent of
the Landlord in each instance, which consent shall not be unreasonably withheld
or delayed.
(b) So long as no event of default shall have occurred and be
continuing hereunder, the Tenant may assign this lease to any corporation or
other entity into which the Tenant may be merged or with which the Tenant may be
consolidated, or to which all or substantially all of the Tenant's assets shall
be transferred, provided that such corporation or other entity shall have a net
worth at least equal to that of the Tenant immediately prior to such merger,
consolidation or transfer. The Tenant shall give notice to the Landlord of any
assignment under this Section 9(b), and shall deliver to the Landlord an
executed counterpart of the instrument effecting such assignment, together with
an undertaking by any such corporation or other entity to agree to be bound by
and to perform all of the Tenant's obligations hereunder.
(c) (Left Intentionally Blank)
(d) No assignment or subletting of this lease shall relieve the Tenant
of any of the Tenant's obligations under this lease, unless otherwise agreed to
in writing by Landlord.
Initials
_________ (Landlord)
_________ (Tenant)
-7-
(e) Notwithstanding Subparagraph 9(a) above, until such time as Tenant
is able to utilize the entire floor space of the building of the Demised
Premises, Tenant may sublet that portion of the building which it does not use
for its business purposes, with Landlord's prior written approval which shall
not be unreasonably withheld or delayed, subject, however, to the following
conditions:
1. Sublessee shall be of good reputation and financial responsibility.
2. Character of business to be conducted by such sublessee shall be
reasonably acceptable to Landlord, and the premises shall be used only for a
purpose allowed in Section 5 above and shall be in keeping with the character,
standing, and quality of the building.
3. Any assignee or subleasee shall be bound by the terms of this Lease,
including Schedule C hereto.
4. Tenant shall not be released by reason of such subletting from the
due, prompt, and punctual performance of all of the terms, covenants, and
conditions contained in this lease to be performed on its part and from the
payment of the rents and additional rents herein reserved.
5. Landlord's consent to such subletting shall not constitute a waiver
of any provision of this agreement and no further subletting shall be made
without Lessor's written consent. The sublessee shall not further assign,
sublet, or underlet the premises without Landlord's prior written consent, and
then only on compliance with all of the provisions contained in this Paragraph.
10. No Nuisance; Compliance with Laws and Requirements of Public
Authorities. The Tenant agrees (a) not to create or permit any nuisance in or
about the Demised Premises, (b) to comply with and conform to (i) all of the
laws and regulations of the State of Connecticut, and (ii) the by-laws,
ordinances, rules and regulations of the City of New Britain so far as the
Tenant's use of the Demised premises may be concerned, and (c) to save the
Landlord harmless from all damages, fines, penalties and costs for violation of
or non-compliance by the Tenant or the Tenant's servants, employees, agents,
customers, invitees, licensees, or visitors with the provisions of this Section
10 and obtain and keep in effect all permits required by governmental agencies
for the operation of a medical laboratory, including, but not limited to, waste
discharge permits from the Connecticut Department of Environmental Protection.
11. Insurance.
(a) At all times during the term of this lease, the Landlord shall
insure the building
Initials
_________ (Landlord)
_________ (Tenant)
-8-
against loss or damage by fire, and such other casualties as may be included
within the extended coverage clauses of policies which are then standard for use
in the State of Connecticut, in such amount as the Landlord in its sole judgment
shall deem appropriate.
(b) The Tenant shall not commit or permit any violation of the policies
carried by the Landlord pursuant to Section 11(a), or do or permit anything to
be done, or keep or permit anything to be kept, on or in the Demised Premises,
which, in case of any of the foregoing (i) would result in termination of any of
such policies, (ii) would adversely affect the Landlord's right of recovery
under any of such policies, or (iii) would result in the refusal by reputable
and independent insurance companies to insure the building or the property of
the Landlord therein in amounts reasonably satisfactory to the Landlord. If any
such action by the Tenant, or any failure by the Tenant to comply with the
reasonable requirements of insurance policies with respect to the building or to
perform any of the Tenant's obligations under this lease, or the use of the
Demised Premises by the Tenant, shall result in any increase in the rate of
premiums payable with respect to such policies carried by the Landlord, the
Tenant shall pay to the Landlord, as additional rent, within ten (10) days after
demand therefor, the resulting additional premiums which shall be paid by the
Landlord, it being understood that such policies obtained by Landlord will
permit without extra cost the uses described in Paragraph 5 above.
(c) At all times during the term of this lease, the Tenant shall (i)
insure the Tenant's Improvements (as defined in Section 13), but excluding all
fixtures and real property and the Tenant's Property (as defined in Section 14)
against loss or damage by fire and such other casualties as may be included
within the extended coverage clauses of policies which are then standard for use
in the State of Connecticut in amounts at all times equal to the full
replacement value of the Tenant's Improvements and the Tenant's Property, and
(ii) keep in full force and effect a policy of public liability and property
damage insurance with respect to the Demised Premises, the building and the Land
in which the limits initially shall be not less than One Million Dollars
($1,000,000.00) for each person and Three Million Dollars ($3,000,000.00) for
each accident, and in which the limit for property damage initially shall not be
less than Two Hundred Fifty Thousand Dollars ($250,000.00), such limits to be
increased from time to time as reasonably specified by the Landlord. In
addition, for and during any time when the Tenant shall be constructing or
making Tenant's Improvements, the Tenant shall keep in full force and effect a
policy of completed value builder's risk insurance (or an "installations
floater") for the Demised Premises, covering loss or damage from fire,
lightning, extended coverage, perils, vandalism and malicious mischief and
perils in an amount not less than the final cost, as reasonably estimated by the
Tenant, of such Tenant's Improvements.
(d) Each party hereto shall procure an appropriate clause in, or
endorsement on, each of
Initials
_________ (Landlord)
_________ (Tenant)
-9-
its policies for fire and extended coverage insurance covering the Demised
Premises, the Tenant's Improvements, or the building or personal property,
fixtures or equipment located thereon or therein, pursuant to which the
insurance company waives subrogation or consents to a waiver of right of
recovery against the other party, and if such a clause or endorsement of waiver
of subrogation or consent to a waiver of right of recovery is obtained, such
party hereby agrees that it will not make any claim against or seek to recover
from the other for any loss or damage to its property or the property of others
covered by such fire or extended coverage insurance; provided, however, that the
release, discharge, exoneration and covenant not to sue herein contained shall
be limited by the terms and provisions of the waiver of subrogation clause or
endorsement or the clause or endorsement consenting to a waiver of right of
recovery and shall be co-extensive therewith.
(e) All insurance provided by the Tenant pursuant to this Section 11
shall be effected under valid and enforceable policies in form and substance
then standard in the State of Connecticut, issued by insurers of recognized
responsibility licensed to do business in the State of Connecticut. Upon the
Commencement Date, and thereafter not less than thirty (30) days prior to the
expiration dates of expiring policies provided by the Tenant pursuant to this
Section 11, the Tenant shall deliver to the Landlord copies of policies or
certificates with respect to the insurance being maintained by the Tenant
pursuant to the terms of this lease. All such policies or certificates shall
contain an agreement by the insurers that such policies will not be canceled,
amended or otherwise modified without at least thirty (30) days prior written
notice to the Landlord, and that the Landlord's rights and interests under such
polices shall not be subject to cancellation by reason of any act or omission of
the Tenant. All insurance policies provided by the Tenant pursuant to this
Section 11 shall name the Landlord and the Landlord's mortgage lenders as
additional insureds as their interests may appear.
(f) The Tenant shall indemnify and hold the Landlord harmless against
and from any liability or expense, including, without limitation, reasonable
attorney's fees, on account of (i) any accident or injury to the Tenant, the
Tenant's servants, employees, agents, customers, invitees, licensees, or
visitors who may be injured or suffer an accident in the Demised Premises unless
the same is caused by the negligence or willful act of the Landlord, or the
Landlord's servants, agents or employees, and (ii) the Tenant's activities in or
use of the Demised Premises or elsewhere on the Land or in the building.
12. Rules and Regulations. The Tenant and its officers, employees and
agents shall conform to and aide by such reasonable rules and regulations,
including those Rules and Regulations as are set forth on Exhibit C attached
hereto, as shall be established from time to time by the Landlord in connection
with the operation, maintenance, safety and security of the Demised
Initials
_________ (Landlord)
_________ (Tenant)
-10-
Premises. The Landlord shall not be liable to the Tenant for violation of such
rules and regulations by others.
13. Alterations and Improvements.
(a) The Tenant may make or have made interior alterations,
improvements, decorations, installations and substitutions (collectively called
"Tenant's Improvements"), to the Demised premises without the prior written
consent of the Landlord, but shall make no structural alterations or exterior
improvements or additions without the prior written consent of Landlord. Any
improvements or alterations in the Demised Premises made by the Tenant
(including, without limitation, permanent partitions, wall paneling and lighting
fixtures, but excepting the Tenant's Property (as defined in Section 14)) shall
be and remain the property of the Landlord and, except as provided in Section
20, shall remain upon and be surrendered with the Demised Premises at the
termination of the term of this lease. If the Landlord consents to any such
alterations, improvements or additions, it may impose such conditions with
respect thereto as the Landlord reasonably deems appropriate, including, without
limitations, requiring the Tenant to furnish the Landlord with security for the
payment of all costs to be incurred in connection with such work, insurance
against liabilities which may arise out of such work and plans, specifications
and permits necessary for such work. Upon completion of such work the Tenant
shall deliver to the Landlord, if payment is made directly to contractors,
evidence of payment, contractors' affidavits and full and final waivers of all
liens for labor, services of materials.
(b) The Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of the Tenant's
improvements (other than the Landlord's Work) and for final approval thereof
upon completion, and shall cause the Tenant's Improvements (other than the
Landlord's Work) to be performed in compliance therewith and with all applicable
laws and requirements of public authorities, and in a good and workmanlike
manner using only good grades of materials.
(c) The Tenant's Improvements shall not constitute the basis for a
claim against the Landlord, nor a lien or charge upon or against the Demised
Premises, and if at any time any such claim, lien or charge shall be filed
against the Demised Premises, the Tenant shall cause such claim, lien or charge
to be properly released of record within forty-five (45) days after the filing
thereof, and if the Tenant shall fail to do so, then the Landlord may discharge
the same. The Tenant shall defend, indemnify and save harmless the Landlord from
and against any and all such claims, liens and charges, and all costs and
expenses, including reasonable attorney's fees, incurred by the Landlord in
procuring the discharge of any such claim, lien or charge or in connection with
any
Initials
_________ (Landlord)
_________ (Tenant)
-11-
action or proceeding brought thereon.
(d) The Tenant shall pay for all materials, excluding Tenant's
equipment and personal property constituting Tenant's Improvements, and the
Tenant agrees that none of such materials that are incorporated into and made a
part of the building or real estate shall be at any time subject to or
encumbered by any lien, security interest, encumbrance, charge, installment
sales contract or the interest of any other person, firm or corporation whether
created voluntarily or involuntarily.
14. Tenant's Property.
(a) Except for Tenant's Improvements and those items furnished or
installed by the Landlord as part of the Landlord's Work as provided in Section
4(b), all movable partitions, business machinery and equipment, communications
equipment and all other property which is not attached to or built into the
Demised Premises and which is installed in the Demised Premises by or for the
account of the Tenant at its sole expense, and all furniture, furnishings and
other articles of personal property owned by the Tenant and located in the
Demised Premises (all of which are collectively called the "Tenant's Property"),
shall be and shall remain the property of the Tenant, and shall be removed by it
at the termination of the term of this lease. The Tenant shall repair or pay the
cost of repairing any damage to the Demised Premises or to the building
resulting from such removal.
(b) The Landlord shall not be liable to the Tenant or any other person
for any loss or damage to the Tenant's Property or the Tenant's Improvements, or
to any property of any other person, from any cause, including, without
limitation, theft, vandalism, illegal entry, or by steam, gases or electricity,
or by water, rain or snow, whether the same may leak into, issue or flow from
any part of the building, or from the pipes or plumbing work of the building, or
from any other place or quarter, unless caused by the negligence or willful act
of the Landlord, its servants, agents or employees.
15. Tenant's Repairs, Cleaning & Utilities.
(a) Except for the maintenance for which the Landlord is expressly
responsible pursuant to the provisions of Section 16, the Tenant agrees that
throughout the term of this lease, the Tenant, at its expense, shall (i) keep
the interior of Demised Premises in a clean condition and in clean and neat
condition, and (ii) not do or suffer any waste, damage in or to the Demised
Premises or the Tenant's Improvements.
(b) Except for loss or damage by reason of the causes set forth in
Section 11(a), the
Initials
_________ (Landlord)
_________ (Tenant)
Tenant shall reimburse the Landlord for all costs and expense incurred by the
Landlord to repair all damage to the Demised Premises as shall be required by
reason of the fault or neglect of the Tenant, or any of its officers, employees,
contractors, agents or invitees, such payment to be made within ten (10) days
after written demand therefor.
(c) Tenant shall provide its own janitorial services within the Demised
Premises and shall pay for all utility charges related to the provision of hot
and cold running water, electricity, heat, air conditioning and ventilation in
the building on the Demised Premises. At the end of the first Lease year, the
parties agree to review the costs of janitorial and utility services paid for by
Tenant. Upon the signing of this Lease, the Tenant has estimated its janitorial
costs to be $7,800.00 per year and Landlord has estimated the utility costs, for
a 5-day, 14-hour per day week, and a 1/2 day Saturday, to be $42,000.00 per
year. If the actual costs for utility services vary from the above estimate by
more than five percent (5%), the parties agree to discuss in good faith
modifying the amount of rent payable under this Lease in light of such variance.
The parties shall consider splitting the cost of purchasing and installing such
energy saving measures as they may mutually agree upon, but are not obligated to
do so.
16. Landlord's Repairs, Maintenance
The Landlord shall keep, maintain and repair the Demised Premises,
including without limitation, its fixtures, appurtenances, systems and
facilities, sidewalks, exterior, roof, structural elements, foundation, parking
lot, exterior lighting and other appurtenances thereto, in good working order
and condition and will obtain and pay for maintenance service contracts for the
Landlord's systems. The Landlord shall not be required to maintain or repair the
Tenant's Improvements.
17. Access to Demised Premises.
(a) The Landlord and the Landlord's agents shall have the right, but
not the obligation, to enter and pass through the Demised Premises or any part
or parts thereof during business hours and at such other times as such entry
shall be required by circumstances of emergency affecting the Demised Premises
(i) to examine the Demised Premises and to show them to any mortgagee,
prospective mortgagees or purchasers of the Demised Premises, and (ii) for the
purpose of performing such maintenance and making such repairs or changes in or
to the Demised Premises or its facilities as may be provided for or permitted by
this lease or as may be mutually agreed upon by the parties or as the Landlord
may be required to make by laws and requirements of public authorities. The
Landlord shall be allowed to take all materials into and upon the Demised
Premises that may be required for such repairs, changes or maintenance. Landlord
agrees to abide by Tenant's
Initials
_________ (Landlord)
_________ (Tenant)
restricted access policies and written safety procedures. Tenant shall cooperate
with Landlord in making access available consistent with such policies and
procedures.
(b) During the period of six (6) months prior to the Expiration Date,
the Landlord may, unless the Tenant shall have theretofore given notice to the
Landlord of its election to exercise its option to renew the term of this lease,
exhibit the Demised Premises to prospective tenants.
18. Damage or Destruction.
(a) In the event that the Demised Premises (other than Tenant's
Improvements), or any part thereof, or access thereto, shall be damaged or
destroyed by fire or other insured casualty, but the Tenant shall continue to
have reasonably convenient access to the Demised Premises and no portion of the
Demised Premises (other than Tenant's Improvements) shall thereby be rendered
unfit for use and occupancy by the Tenant for the purposes set forth in Section
5, the Landlord shall promptly and diligently repair such damage or destruction
(except damage or destruction to Tenant's Property or Tenant's Improvements).
During the period when such repair work is being conducted, the Rent shall not
be abated or suspended.
(b) In the event that the Demised Premises (other than Tenant's
Improvements), or any part thereof, or access thereto, shall be so damaged or
destroyed by fire or other insured casualty that the Tenant shall not have
reasonably convenient access to the Demised Premises or any portion of the
Demised Premises (other than Tenant's Improvements), or so that part of but not
more than 25% of the Demised Premises' square footage then in use by the Tenant
shall thereby be rendered unfit for use or occupancy by the Tenant for the
purposes set forth in Section 5, and if in Landlord's determination reasonably
exercised the damage or destruction may be repaired within ninety (90) days
after the occurrence of the damage or destruction, then the Landlord shall so
notify the Tenant within thirty (30) days after the occurrence of the damage or
destruction and shall promptly and diligently repair such damage or destruction
(except damage or destruction to Tenant's Property or Tenant's Improvements). In
the event that the Landlord shall not complete such repairs within ninety (90)
days after the occurrence of the damage or destruction, then the Tenant shall
have the right to terminate the term of this lease by giving written notice of
such termination to the Landlord within then (10) days after the end of such
ninety (90) day period. If in the Landlord's determination reasonably exercised
the Demised Premises (other than Tenant's Improvements), or means of access
thereto, cannot be repaired within ninety (90) days after the occurrence of the
damage or destruction or, if more than 25% of the Demised Premises' square
footage then in use by the Tenant should be rendered unfit for use and occupancy
by Tenant, then either party shall have the right to terminate the term of this
lease by giving written notice of such termination to the other party within the
period
Initials
_________ (Landlord)
_________ (Tenant)
-14-
of thirty (30) to forty-five (45) days after the occurrence of such damage or
destruction. If neither party give such notice of intention to terminate the
term of this lease, then the Landlord shall promptly and diligently repair the
damage or destruction.
(c) If any casualty results in the suspension of business in the
Demised Premises, all rents and additional charges shall abate from the date of
such suspension of business until the date business is resumed. If the casualty
or restoration results in a partial suspension of business, rent and additional
charges shall be equitably abated during any such period. If Landlord fails to
begin or complete the restoration within a reasonable time period, then Tenant
may, in addition to any other remedies it may have, perform all or a portion of
such restoration, and Landlord shall pay to Tenant the reasonable costs incurred
by Tenant to restore the Demised Premises.
(d) In addition to and apart from the foregoing provisions of this
Section, (i) if more than twenty-five percent (25%) of the Gross Rentable Area
of the Demised Premises shall be totally or almost totally damaged or destroyed
by fire or other cause at any time during the last six (6) months of the term of
this lease, or during the last six (6) months of any renewal or extension
thereof, either the Landlord or the Tenant may terminate the term of this lease
by giving written notice of such termination to the other party within ten (10)
days after the occurrence of such damage or destruction, and (ii) if the
building on the Demised Premises is damaged or destroyed by fire or other cause
to such extent that the cost of repair the damage or destruction, as reasonably
estimated by the Landlord,, will be more than twenty-five percent (25%) of the
replacement value of the building immediately prior tot he occurrence of such
damage or destruction, then either party may terminate the term of this lease by
giving written notice of such termination to the Tenant within thirty (30) days
after the occurrence of such damage or destruction.
(e) Except as provided in this Section, no damages, compensation or
claim shall be payable by the Landlord to the Tenant, or any other person by
reason of inconvenience, loss of business or annoyance arising from any damage
or destruction, or any repair thereof, as if referred to in this Section.
19. Condemnation.
(a) If all of the building, or so much of the building or the Demised
Premises as is necessary for the Tenant's use and occupancy of the Demised
Premises for the purposes set forth in Section 5, or for reasonably convenient
access to the Demised Premises, shall be taken by condemnation or in any other
manner for any public or quasi-public use and purpose, then the term of this
lease shall forthwith terminate as of the date title vests in the taking
authority and the Rent
Initials
_________ (Landlord)
_________ (Tenant)
shall be apportioned as of such date.
(b) In addition to and apart from the foregoing provisions of Section
20(a), if more than twenty-five percent (25%) of the Gross Rentable Area of the
building shall be so taken, then either party may terminate the term of this
lease by giving written notice of such termination to the other within thirty
(30) days after the date title vests in the taking authority.
(c) The Tenant shall have the exclusive right in any proceeding with
respect to any taking referred to in this Section 20 to any award payable for
the Tenant's moving expenses and the then value of the Tenant's Property, but
the Tenant shall have no other right to any award for either a total taking or a
partial taking of the land, the building or the Demised Premises, including any
right for the contract value of this lease, and any such award shall be retained
by the Landlord as the Landlord's sole property.
(d) In the event of any taking which does not result in a termination
of the term of this lease, the Rent shall be equitably suspended or abated and
the Landlord, at its expense, shall proceed with reasonable diligence to repair
and restore the remaining part of the building and the Demised Premises to
substantially its former condition to the extent that the same may be feasible.
Any suspension or abatement of Rent shall cease upon substantial completion of
such repairs or restoration.
20. Surrender. On the Expiration Date, or on the expiration of the
final renewal period to which the Tenant exercises its right, or upon any
earlier termination of the term of this lease, the Tenant shall quit and
surrender the Demised Premises, including Tenant's Improvements, to the Landlord
in good order, condition and repair, except for (a) Ordinary wear and tear and
(b) Conditions requiring repairs which are not required to be made by the
Tenant. The Tenant shall remove all of the Tenant's Property, and at the
Landlord's request, shall remove those portions of the Tenant's Improvements as
shall be designated by the Landlord for Tenant's removal at the time the
Landlord approves the plans therefor, and shall repair any damage to the Demised
Premises on account of such removal.
21. Default and Damages.
(a) Any of the following occurrences or acts shall constitute an event
of default under this lease: (i) whenever the Tenant shall default in the
payment of any Rent or any other charge payable by the Tenant to the Landlord,
on any day upon which the same is due, and such default shall continue for five
(5) days after written notice thereof from Landlord; or (ii) whenever the
Initials
_________ (Landlord)
_________ (Tenant)
Tenant shall do, or fail to do, or permit to be done, whether by action or
inaction, anything contrary to any of the Tenant's obligations hereunder, and if
such situation shall continue and shall not be remedied by the Tenant within
(A) Five (5) days after notice in the case of any voluntary
situation within the Tenant's reasonable control, or
(B) Thirty (30) days in the case of any involuntary
situation not within the Tenant's reasonable control, after the Landlord shall
have given to the Tenant a notice specifying the same, or, in the case of a
situation which cannot with due diligence be cured within a period of five (5)
or thirty (30) days, as the case may be, if the Tenant shall not (1) within such
5-day or 30-day period, as the case may be, advise the Landlord of the Tenant's
intention duly to institute all steps necessary to remedy such situation, and
(2) duly institute within such 5-day or 30-day period, as the case may be, and
thereafter diligently prosecute to completion, all steps necessary to remedy the
same; (iii) whenever the Tenant is dissolved (other than in the contest of a
corporate reorganization where the business enterprise is continued), makes
assignment for the benefit of creditors, files a voluntary petition in
bankruptcy, is adjudicated a bankrupt or insolvent, files a petition or answer
seeking for the Tenant any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, files an answer or other pleading admitting or failing to contest
material allegations of a petition filed against the Tenant in any proceeding of
this nature, or seeks, consents to, or acquiesces in the appointment of a
trustee, receiver, or liquidator of the Tenant or of all or any substantial part
of the Tenant's properties; or (iv) if within sixty (60) days after the
commencement of any proceeding against the Tenant seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law, or regulation, the proceeding has not been
dismissed; or if within sixty (60) days after the appointment without the
Tenant's consent or acquiescence of a trustee, receiver, or liquidator of the
Tenant or of all or any substantial part of the Tenant's properties, the
appointment is not vacated or stayed; or if within sixty (60) days after
expiration of any such stay, the appointment is not vacated; or (v) the event of
an occurrence of default beyond any applicable grace period in that certain
$87,000 Promissory Note from Tenant to Landlord of even date herewith.
(b) If an event of default shall have happened and be continuing, the
Landlord shall have the immediate right at its election (i) to terminate the
term of this lease by giving the Tenant not less than five (5) days written
notice of the Landlord's election to terminate, and (ii) whether or not the
Landlord shall have terminated the term of this lease pursuant to this Section
21(b), and without demand or notice whatever, to re-enter and take possession of
the Demised Premises, removing all persons and property therefrom either by
summary process proceedings or by other action, without being liable for any
damages therefor.
Initials
_________ (Landlord)
_________ (Tenant)
-17-
(c) If the Landlord elects to re-enter and take possession of the
Demised Premises pursuant to Section 21 (b), and whether or not the Landlord
shall have terminated the term of this lease pursuant to Section 21 (b), the
Landlord may (but shall be under no obligation to) re-let the whole or any part
of the Demised Premises on behalf of the Tenant for a period equal to, or
greater or less than, the remainder of the term of this lease, at such rent and
upon such terms and conditions as the Landlord shall determine reasonable, to
any tenant the Landlord may consider suitable and for any use or purpose the
Landlord may deem appropriate in the Demised Premises. The Landlord shall not be
liable for failure to re-let the Demised Premises, and the Landlord shall be
entitled to receive and retain the rent received upon such re-letting, whether
or not such rent is in excess of the Rent.
(d) Should Landlord elect to re-enter as herein provided or should it
take possession pursuant to legal proceedings or pursuant to any notice provided
for by law, it may either terminate this Lease or make such alterations and
repairs as may be necessary in order to relet the premises, and relet said
premises or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Landlord in its discretion may deem
advisable; and upon each such reletting all rentals received by the Landlord
from such reletting shall be applied first, to the payment of any indebtedness
other than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs and expenses of such reletting, including brokerage fees and
attorneys' fees and of costs and expenses of such reletting, including the costs
of recovering possession of the Demised Premises, brokerage fees and attorneys'
fees and of costs of such alterations and repairs; third, all utility expenses
and expenses of maintaining the Demised Premises while vacant, fourth, to the
payment of rent due and unpaid hereunder, and the residue, if any, shall be held
by Landlord and applied in payment of future rent as the same may become due and
payable hereunder. If such rentals received from such reletting during any month
be less than that to be paid during that month by Tenant hereunder, Tenant shall
pay any deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such re-entry or taking possession of Demised Premises by Landlord
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant or unless the termination
thereof be decreed by a court of competent jurisdiction.
22. Parking. The Landlord shall provide to the Tenant seventy (70)
parking spaces in the parking area provided and maintained by the Landlord.
23. Unperformed Covenants. If the Tenant shall default in the
performance of any of the Tenant's obligations hereunder, the Landlord, without
thereby waiving such default, may, at the Landlord's option, by reason of any
default of the Tenant hereunder, perform the same for the
Initials
_________ (Landlord)
_________ (Tenant)
account of the Tenant. If the Landlord makes any expenditures or incurs any
obligations for the payment of money, including attorneys' fees, such sums paid
or obligations incurred shall be paid by the Tenant to the Landlord on the first
day of the calendar month next following the rendition to the Tenant of the
Landlord's bill therefor to the Tenant.
24. Holding Over. The Tenant shall pay to the Landlord an amount as
Rent equal to one hundred fifty percent (150%) of one-twelfth (1/12) of the
Fixed Rent required to be paid by the Tenant during the previous Lease Year as
herein provided for each month or portion thereof for which the Tenant shall
retain possession of the Demised Premises, or any part thereof, after the
termination of the term of this lease, whether by lapse of time or otherwise,
and also shall pay all damages sustained by the Landlord, whether direct or
consequential, on account thereof. The provisions of this Section 24 shall not
be deemed to limit or constitute a waiver of any other rights or remedies of the
Landlord provided herein or at law. Without limiting any rights or remedies of
the Landlord resulting by reason of the wrongful holding over by the Tenant, or
creating any right in the Tenant to continue in possession of the Demised
Premises, all of the Tenant's obligations with respect to the use, occupancy and
maintenance of the Demised Premises shall continue during such period of
unlawful retention.
25. Certain Rights Reserved by the Landlord. The Landlord shall have
the following rights, each of which the Landlord may exercise with notice to the
Tenant but without liability to the Tenant for damage or injury to property,
person or business on account of the exercise thereof, and the exercise of any
such rights shall not be deemed to constitute an eviction or disturbance of the
Tenant's use or possession of the Demised Premises and shall not give rise to
any claim for set-off or abatement of rent or any other claim, provided that the
Landlord agrees that in the exercise of such rights it shall not do or cause to
be done anything which is, in any material respect, inconsistent with the
operation of the Demised Premises as a first-class/laboratory office building:
(a) To change the building's street address, if required by the U.S.
Postal Service.
(b) To install, affix and maintain any and all reasonable directional
signs on the land of the Demised Premises.
(c) Upon reasonable notice to Tenant, to make repairs, or improvements,
whether structural or otherwise, in an about the building, or any part thereof,
and for such purposes to enter upon the Demised Premises, Landlord agrees to use
reasonable efforts to cause minimal disruption to the Tenant's use of the
Demised Premises.
Initials
_________ (Landlord)
_________ (Tenant)
-19-
(d) The Tenant shall not install or operate machinery or any mechanical
devices of a nature not directly related to the Tenant's ordinary use of the
Demised Premises without the prior written consent of the Landlord. The Tenant's
movements of property into or out of the building or Demised Premises and within
the building are entirely at the risk and responsibility of the Tenant.
26. Waiver of Notice. The Tenant hereby waives any notice to quit under
the statutes relating to summary process which, were it not for this waiver,
might otherwise be necessary in obtaining possession of the Demised Premises.
27. Notices. Any notice, approval, request, consent, bill, statement or
other communication required or permitted to be given, rendered, served or made
by either party hereto, shall be in writing and shall be sent by certified or
registered United Stated Mail, postage prepaid, return receipt requested, or
federal express, or hand delivery or over night carrier:
(a) addressed to the Tenant at:
BBI - North American Clinical Laboratories, Inc.
C/O Boston Biomedica, Inc.
375 West Street
West Bridgewater, MA 02379
Attn: Treasurer
Fax No. 508-580-1110
Telephone No. 508-580-1900
(b) addressed to the Landlord at:
MB Associates
414 New Britain Road
P.O. Box 99
Plainville, CT 06062
Attn: Property Management Department
Fax No. 203-747-5299
Telephone No. 203-229-4853
Either party may, from time to time, by written notice to the other, designate a
different mailing address for notices, bills, statements or other communications
intended for it.
Initials
_________ (Landlord)
_________ (Tenant)
-20-
28. Estoppel Certificate. The Tenant shall, from time to time, within
ten (10) days after the Landlord's written request, deliver to the Landlord a
written certificate, in recordable form, ratifying this lease, and stating
(a) the Commencement Date and the Expiration Date,
(b) that this lease is in full force and effect and has not been
assigned, modified, supplemented or amended (except by such writings as shall be
stated),
(c) that all conditions under this lease to be performed by the
Landlord have been satisfied,
(d) that there are no defenses or offsets against the enforcement of
this lease by the Landlord, or stating those claimed by the Tenant,
(e) the amount of advance rental, if any (or none if such is the case),
paid by the Tenant,
(f) the date to which rental has been paid, and
(g) the amount of security deposited with the Landlord, provided,
however, that the Tenant shall not be required to make written declarations as
to any matters which to its knowledge are inaccurate or not true. Any such
certificate may be relied upon by any mortgagee of the Land and the building,
any assignee of such mortgagee, and any prospective purchaser of the Land and
the building. Landlord agrees to provide written confirmation of the Lease terms
and status upon Tenant's written request.
29. Limitation of Liability. Anything in this lease to the contrary
notwithstanding, the Tenant agrees that it shall look solely to the estate and
property of the Landlord in the Demised Premises for the collection of any
judgment (or other judicial process) requiring the payment of money by the
Landlord in the event of any default or breach by the Landlord with respect to
any of the terms, covenants and conditions of this lease to be observed or
performed by the Landlord, and no other assets of the Landlord or of any partner
in the Landlord shall be subject to levy, execution or other procedures for the
satisfaction of the Tenant's remedies.
30. Rights of Landlord; Non-Waiver. No right or remedy herein conferred
upon or reserved to the Landlord is intended to be exclusive of any other right
or remedy, and every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or
Initials
_________ (Landlord)
_________ (Tenant)
hereafter existing. The failure of the Landlord to insist upon the strict
performance of any provision hereof or to exercise any option, right, power or
remedy contained herein shall not be construed as a waiver or relinquishment
thereof for the future. Receipt by the Landlord of any Fixed Rent, any
additional rent or any other sum payable hereunder with knowledge of the breach
of any provision hereof shall not be deemed a waiver of such breach, and no
waiver by the Landlord of any provision hereof shall be deemed to have been made
unless expressed in writing and signed by the Landlord. In addition to other
remedies provided herein, the Landlord shall be entitled, to the extent not
prohibited by law, to injunctive relief in case of the violation, or attempted
or threatened violation, of any of the provisions hereof, or to a decree
compelling performance of any of the provisions hereof, or to any other remedy
allowed to the Landlord by law.
31. Broker. The Tenant represents that no broker or agent other than
Grubb & Ellis participated with the Tenant in this transaction. The Tenant
agrees to indemnify and hold the Landlord harmless from and against any claim or
demand of any other broker or agent who claims that he participated with the
Tenant in this transaction. Landlord represents that it has only dealt with
Grubb & Ellis in connection with this lease.
32. Notice of Lease.
(a) This lease shall not be recorded in the New Britain Land Records.
Upon the request of either party, the other party shall execute a Notice of
Lease, in recordable form, satisfying the requirements of Section 47-19 of the
Connecticut General Statutes, Rev. 1958, as amended.
(b) The parties shall also enter into recordable supplementary notices
setting forth, among other proper matters, such items as the termination of this
lease and the exercise of any options afforded by this lease.
33. Prior Agreements. This lease and the exhibits and Notice of Lease
constitute the entire agreement by and between the parties hereto affecting the
Demised Premises and supersedes any and all previous agreements, written or
oral, between the parties and affecting the Demised Premises.
34. Captions; Sections; Gender. The captions contained herein have been
inserted for convenience only and shall not have the effect of modifying,
amending or changing the express terms and provisions of this lease. All
references to a "Section" shall refer to a Section of this lease unless the
context otherwise requires. Whenever used, the singular number shall include the
plural, the plural the singular, and use of any gender shall include all
genders.
Initials
_________ (Landlord)
_________ (Tenant)
-22-
35. Benefit and Burden. The covenants, conditions, agreements and terms
of this lease shall be binding upon and shall inure to the benefit of the
parties hereto and their successors and permitted assigns.
36. Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Connecticut.
37. Signatures. This Lease may be signed in counterparts and any number
of counterparts signed in the aggregate by the parties shall constitute a single
original document. Additionally, a facsimile signature shall be deemed
equivalent to an original signature.
TENANT ACKNOWLEDGES THAT THIS LEASE IS A COMMERCIAL TRANSACTION AND
THAT IT HAS THE RIGHT UNDER CHAPTER 903a of the CONNECTICUT GENERAL STATUTES,
SUBJECT TO CERTAIN LIMITATIONS, TO NOTICE OF, AND HEARING ON, THE RIGHT OF THE
LANDLORD TO OBTAIN A PREJUDGMENT REMEDY, SUCH AS ATTACHMENT OR GARNISHMENT UPON
COMMENCING ANY LITIGATION AGAINST IT. NOTWITHSTANDING, TENANT HEREBY WAIVES ALL
RIGHTS TO NOTICE, JUDICIAL HEARING OR PRIOR COURT ORDER IN CONNECTION WITH THE
ASSERTION BY THE LANDLORD OF ANY PREJUDGMENT REMEDY TO COLLECT THE OBLIGATIONS
OR TO ENFORCE LANDLORDS RIGHTS HEREUNDER.
Initials
_________ (Landlord)
_________ (Tenant)
IN WITNESS WHEREOF, the Landlord and the Tenant have hereunto caused to
be set their hands and seals as of the day and year first above written.
WITNESSES: LANDLORD: MB ASSOCIATES
___________________________ By_______________________________
___________________________ A Partner, Duly Authorized
TENANT: BBI - NORTH
AMERICAN CLINICAL LABORATORIES,
INC.
____________________________ By_________________________________
Kevin Quinlan
Its Sr. Vice President & Treasurer
____________________________ Duly Authorized
Initials
_________ (Landlord)
_________ (Tenant)
-24-
STATE OF CONNECTICUT)
) ss: July 28, 1995
COUNTY OF HARTFORD )
Personally appeared ____________________, __________________ of MB
Associates, signer and sealer of the foregoing instrument and acknowledged the
same to be his free act and deed and the free act and deed of said partnership,
before me.
-------------------------------
Commissioner, Superior Court
Notary Public
My Commission Expires:
STATE OF )
) ss: July 28, 1995
COUNTY OF )
Personally appeared ____________________, __________________ of BBI -
North American Clinical Laboratories, Inc., signer and sealer of the foregoing
instrument and acknowledged the same to be his free act and deed and the free
act and deed of said corporation, before me.
-------------------------------
Commissioner, Superior Court
Notary Public
My Commission Expires:
GUARANTY OF TENANT'S PERFORMANCE
--------------------------------
In consideration of Landlord's having executed said Lease a the request
of the undersigned and in further consideration of One Dollar ($1.00) and other
valuable considerations paid, the receipt whereof is hereby acknowledged, the
undersigned (Guarantor) hereby unconditionally guarantees to Landlord and its
successors and assigns, the payment of the rents and other sums provided for in
said Lease and the performance and observance of all agreements and conditions
contained in said Lease on the part of Tenant to be performed or observed.
Guarantor hereby waives presentment for payment, demand for payment,
notice of nonpayment or dishonor, protest and notice of protest, diligence in
collection, and any and all
Initials
_________ (Landlord)
_________ (Tenant)
formalities which may be legally required to charge it with liability; and the
Guarantor does further agree that its liability as Guarantor shall in nowise be
impaired or affected by any renewals, waivers, or extensions which may be made
from time to time, with or without its knowledge and consent, of any default or
the time of payment or performance required under said Lease, or by any
forbearance or delay in enforcing any obligation thereof, or by assignment of
said Lease or subletting of the demised premises, neglect or refusal to enforce
or to realize upon any security which may have been given or may hereafter be
given thereunder or hereunder, or by any modifications of the terms or
provisions of the Lease.
The Guarantor further covenants and agrees to pay all expenses and
fees, including attorney's fees which may be incurred by the landlord or its
successors and assigns in enforcing any of the terms or provisions of this
Guaranty.
This Guaranty shall be binding upon the successors, and assigns of the
Guarantors, shall not be discharged or affected, in whole or in part by the
bankruptcy, or insolvency of the Tenant.
This Guaranty is absolute, unconditional, and continuing and payment of
the sums for which the undersigned become liable shall be made at the office of
the Landlord or its successors or assigns from time to time on demand as the
same become or are declared due.
Dated: July 28, 1995 BOSTON BIOMEDICA, INC.
BY:_____________________________
Kevin Quinlan
Its Sr. Vice President & Treasurer
Duly Authorized
Initials
_________ (Landlord)
_________ (Tenant)
-26-
EXHIBIT A
---------
LEASED PREMISES
EXHIBIT 'A'
LEASED PREMISES
A certain piece or parcel of land with all buildings and improvements thereon
situated northerly of North Mountain Road in the City of New Britain,
Connecticut and being more particularly shown on a map entitled "Map Showing
Location Of Proposed Leasing Agreement For BBI - North American Clinical
Laboratories, Inc. Located At #75 North Mountain Road, New Britain, Connecticut
Map Prepared By: MBA Engineering, Inc., 211 New Britain Road, Suite 103,
Kensington, Connecticut 06037 (203) 827-0222 Job Number: 95068, Scale 1" = 50'
Drawn By: BNB Checked By LJM Date: July 13, 1995" and containing 4.081 +/- acres
and being more particularly bounded and described as follows:
Beginning at a point located in the westerly line of Lot No. 206 which point is
the southeast corner of the within described premises; thence running N 89o 07'
53" W. 417.53 feet to a point as shown on said map; thence running N 06o 75'
26" E, 66.77 feet to a point as shown on said map; thence running N 31o 03' 55"
W, 35.15 feet to a point as shown on said map; thence running N 00o 09' 15" W.
276.41 feet, to a point as shown on said map; thence running N 77o 44' 24" E,
291.54 feet, to a point as shown on said map; thence running S 86o 44' 06" E,
152.84 feet to a point as shown on said map; thence running S O1o 07' 17" W.
426.62 feet to the point and place of beginning.
Said premises are leased together with a 30 foot wide right-of-way from North
Mountain Road to the leased premises, in common with the Landlord and others,
for motor vehicle and pedestrian ingress and egress. Said right-of-way is shown
on said map as "Minimum 30 Ft. Wide Driveway Right-of-Way From North Mountain
Road to Leased Portion of Site. R.O.W. to be centered of 24 Ft. BIT. Driveway"
and "Minimum 30 Ft. Wide Right-of-Way From Driveway R.O.W. To Front Entrance of
Site. R.O.W. to be centered over aisle portion of existing BIT. Parking Lot."
Initials
_________ (Landlord)
_________ (Tenant)
EXHIBIT B
---------
SCHEDULE OF LANDLORD'S WORK
The Improvement list below is a detailed list subject to minor modifications.
These "modifications" must be finalized immediately. Both parties understand
that this final plan directly correlates to the Landlord's Performance Schedule.
Improvements
1. Existing cafeteria to be subdivided and used as an employee lounge and
soundproofed conference room.
2. One existing Lab area, as specified in the front left area of the facility,
to be renovated into 3 or 4 offices, to be located as reasonably determined by
Tenant.
3. One existing lab area to be refurbished as a client service/specimen
processing, as determined by Tenant.
4. all existing computer and phone wiring to be removed.
5. Floor areas, as designated by Tenant, to be sealed.
6. All carpets, as designated by Tenant, to be replaced.
7. Any damaged ceiling tiles to be replaced.
8. Interior to be cleaned and painted.
9. Landlord to warrant that electrical systems HVAC and plumbing are in good
working order, including all Emergency Lighting, exterior building/parking lot
lighting and the existing security camera in the parking area is operational.
10. New driveway and parking area adjacent to Tenant's building.
11. Lab furniture to be in good working order as reasonably determined by the
parties.
Initials
_________ (Landlord)
_________ (Tenant)
12. Landlord to warrant that the electric circuits are fully operational via the
back-up generator or will identify which circuits/outlets are operational from
this generator.
Initials
_________ (Landlord)
_________ (Tenant)
EXHIBIT C
---------
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors and public parts of the Building shall not be obstructed or encumbered
by Tenant or used by Tenant for any purpose other than ingress and egress to and
from the Demised Premises.
2. No awnings, air conditioning units or other projections shall be attached to
the outside walls or windowsills of the Building or otherwise project from the
Building, without the prior written consent of landlord.
3. All signs or lettering affixed by Tenant on any part of the outside of the
Demised Premises shall be approved by landlord, which approval shall not be
unreasonably withheld or delayed.
4. No bottles, parcels or other articles be placed on the windowsills or in any
other part of the Building, nor shall any article be thrown out of the doors or
windows of the Demised Premises.
5. Tenant shall not make, or permit to be made, unseemly or disturbing noises or
interfere with other tenants or those having business with them.
6. Tenant shall not put any covering of any type or nature upon the exterior of
windows in the Demised Premises.
Initials
_________ (Landlord)
_________ (Tenant)