SEVENTH AMENDMENT TO LEASE
Exhibit
10.45
SEVENTH
AMENDMENT TO LEASE
THIS
SEVENTH AMENDMENT
("the
Amendment") made as of September 7, 2005, by and between MSNW
CONTINENTAL ASSOCIATES, LLC,
a
Delaware limited liability company with an office at 00 Xxxx Xxxxx Xxxx,
0xx
Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Lessor")
and
DOV
PHARMACEUTICAL, INC.,
a
Delaware corporation, located at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 ("Lessee").
WITNESSETH:
WHEREAS,
Lessor’s predecessor-in-interest and Lessee entered into a lease dated May 24,
1999, as modified by a First Amendment to Lease dated July 31, 2000 (the
“First
Amendment”)
a
Second Amendment to Lease dated July 30, 2002 (the “Second
Amendment”),
a
Third Amendment to Lease dated February 12, 2003 (the “Third
Amendment”),
a
Fourth Amendment to Lease dated March ___, 2004 (the “Fourth
Amendment”),
a
Fifth Amendment to Lease dated November 15, 2004 (the “Fifth
Amendment”),
and a
Sixth Amendment to Lease dated July 6, 2005 (the “Sixth
Amendment”)
(the
lease, as amended by the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment, the Fifth Amendment and the Sixth Amendment
is
hereinafter referred to as the “Lease”);
and
WHEREAS,
Lessee
desires to lease additional premises within the building known as 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (the “433
Building”);
and
WHEREAS,
the
parties hereto desire to amend the Lease in accordance with this
Amendment.
NOW,
THEREFORE,
Lessor
and Lessee agree as follows:
1. For
purposes of this Amendment, capitalized terms have the meanings ascribed to
them
in the Lease unless otherwise defined herein.
2. Effective
as of September 1, 2005 (the “Temporary Expansion Premises Commencement Date”),
Lessee shall lease from Lessor 4,098 gross rentable square feet on the twelfth
(12th)
floor
in the 433 Building, which premises are shown on Exhibit A annexed hereto and
made a part hereof (the “Temporary Expansion Premises”). Lessee shall lease the
Temporary Expansion Premises from the Temporary Expansion Premises Commencement
Date through that date upon which the Expansion Premises (as hereinafter
defined) is available and ready for Lessee’s occupancy (which date shall be no
later than January 9, 2006, and is referred to herein as the “Expansion Premises
Commencement Date”).
3. Effective
as of the Expansion Premises Commencement Date, Lessee shall surrender to Lessor
all of its right, title and interest under the Lease in and to the Temporary
Expansion Premises, it being understood and agreed that all of Lessee's estate
under the Lease in and to the Temporary Expansion Premises shall be wholly
terminated and extinguished as of the Expansion Premises Commencement Date;
and
Lessor shall accept from Lessee as of the Expansion Premises Commencement Date,
such surrender of all of Lessee's right, title and interest under the Lease
in
and to the Temporary Expansion Premises.
4. Lessee
hereby agrees that effective as of the Expansion Premises Commencement Date,
the
Temporary Expansion Premises shall be surrendered to Lessor, broom clean,
vacant, unleased and free and clear of all rights of occupancy by others, and
in
the condition required by the Lease. Lessee represents and covenants to Lessor
that nothing has been done or suffered and nothing will be done or suffered
whereby the estate of Lessee in and to the Temporary Expansion Premises or
any
portion thereof, has been or will be encumbered in any way whatsoever; that
Lessee has the legal right to surrender same; and that no one other than Lessee,
has acquired or will acquire by, through or under Lessee, any right, title
or
interest in or to the Temporary Expansion Premises or any portion
thereof.
Notwithstanding
any provisions of this Amendment to the contrary, Lessee agrees that Lessee
shall remain liable for the payment of Fixed Basic Rent and Additional Rent
relating to the Temporary Expansion Premises, including any retroactive
adjustments or escalation charges thereto which may be payable pursuant to
the
terms and provisions of the Lease, on account of the Temporary Expansion
Premises for the period up to and including the Expansion Premises Commencement
Date.
5. Effective
as of the Expansion Premises Commencement Date through and including the
Termination Date, Lessee shall lease from Lessor 9,169 gross rentable square
feet on the second (2nd)
floor
(the "Expansion
Premises")
in the
433 Building which Expansion Premises are shown on Exhibit
B annexed
hereto and made a part hereof. Reference Page Paragraphs (5) and (7) of the
Lease shall be deemed modified accordingly.
6. From
and
after the Temporary Expansion Premises Commencement Date through the Expansion
Premises Commencement Date, the following shall apply with respect to the
Temporary Expansion Premises:
(a) Paragraph
(8) of the Reference page (“Electric Rent Inclusion Factor”) shall be deemed
deleted and replaced as follows:
(8)
Lessee Electric: Six Thousand One Hundred Forty-Seven and 00/100 Dollars
($6,147.00) per year, which shall be payable in addition to (and not included
in) Annual Fixed Basic Rent.
(b) Any
and
all references in the Lease to “Electric Rent Inclusion Factor” shall be
replaced by “Lessee Electric”. All references to increasing or decreasing the
Term Fixed Basic Rent as a result of changes in the Electric Rent Inclusion
Factor shall be changed to refer to increasing or decreasing the Lessee
Electric. No change in the method of measuring Lessee’s electrical consumption,
as a result of Lessor no longer redistributing electricity to the Premises,
as
provided in Paragraph 24(E), separately metering electrical consumption, as
provided in Paragraph 24(J), or any other provision in the Lease, shall affect
Term Fixed Basic Rent or Monthly Fixed Basic Rent, but may affect the amount
of
Lessee Electric. Lessee Electric shall be paid in monthly installments of Five
Hundred Twelve and 25/100 Dollars ($512.25), at the same time and in the manner
as Monthly Fixed Basic Rent. Lessee Electric is an estimated amount subject
to
adjustment as provided in Paragraph 24(B) of the Lease. Paragraphs 24(B)(iii)
and (iv) of the Lease shall be deleted and replaced as follows:
2
(iii) Lessee
agrees that an independent electrical engineering consultant selected by Lessor
may from time to time make a survey of the electric power demand of the electric
lighting fixtures and the electric equipment of Lessee used in the Premises
to
determine the average monthly electric consumption thereof, said survey to
be at
Lessee’s expense. Lessor reserves the right to estimate Lessee’s electric
consumption until such a survey is made. The estimate will be based on One
and
50/100 Dollars ($1.50) per square foot per year of the rentable area of the
Expansion Premises and Lessee agrees to pay Lessor Six Thousand One Hundred
Forty-Seven and 00/100 Dollars ($6,147.00) per year (“Lessee
Electric”),
payable in equal monthly installments of Five Hundred Twelve and 25/100 Dollars
($512.25) per month as Additional Rent. Lessee Electric is not included in
Annual Fixed Basic Rent. The aforesaid survey shall take into account, among
other things, any special electrical requirements of the Lessee and use by
Lessee of electrical energy at times other than during Building Hours on
Business Days. Unless objected to by Lessee in accordance with the terms and
conditions of paragraph 24(B) of the Lease, the finding of such engineer or
consultant as to the proper Lessee Electric based on such average monthly
electric consumption shall be conclusive and the Lessee Electric shall be
revised to twelve (12) times the average monthly electric determined by the
survey, effective as of the first day of the month following the month in which
the survey is completed;
(iv) If
the
Electric Rates (as hereafter defined) on which the initial determination of
the
consultant was based shall be increased or decreased, than the Lessee Electric
shall be increased or decreased in the amount equal to the change in Lessor’s
cost of supplying electrical current to the Premises resulting from such rate
change, retroactive if necessary, to the date of such increase or decrease
in
such Electric Rates.
(c) Paragraph
22 of the Lease shall be amended to provide that Lessee shall pay the sum of
One
Hundred and 00/100 dollars ($100.00) per hour for use of HVAC beyond Building
Hours, plus the additional percentage increase over the Base Utility Rate as
set
forth in the Lease. In no event shall Lessee pay less than the sum of $100.00
per hour for such overtime use.
(d) Paragraph
(12) of the Reference Page is hereby amended in its entirety to read as
follows:
(12) A
total
of 16 spaces, of which 12 shall be in the covered parking area described in
Section 38 below.
(e) Lessee’s
Percentage is 0.7% and Paragraph 10 of the Reference Page shall be amended
accordingly.
(f) Term
Fixed Basic Rent shall be payable in advance on the first day of each month
of
the Term as follows:
3
|
Period
|
Annual
Fixed Basic Rent
|
Monthly
Fixed Basic Rent
|
|
Temporary
Expansion Premises
|
||
|
Commencement
Date -
|
||
|
Expansion
Premises
|
||
|
Commencement
Date
|
$110,646.00
|
$9,220.50
|
Reference
Page Section (9) of the Lease shall be deemed amended accordingly.
(g) The
Base
Year for all Base Period Costs shall be calendar year 2005, and Reference Page
Sections 2(A), (B) and (C) of the Lease shall be deemed amended
accordingly.
7. From
and
after the Expansion Premises Commencement Date, the following shall apply with
respect to the Expansion Premises:
(a) Paragraph
(8) of the Reference page (“Electric Rent Inclusion Factor”) shall be deemed
deleted and replaced as follows:
(8)
Lessee Electric: Thirteen Thousand Seven Hundred Fifty-Three and 50/100 Dollars
($13,753.50) per year, which shall be payable in addition to (and not included
in) Annual Fixed Basic Rent.
(b) Any
and
all references in the Lease to “Electric Rent Inclusion Factor” shall be
replaced by “Lessee Electric”. All references to increasing or decreasing the
Term Fixed Basic Rent as a result of changes in the Electric Rent Inclusion
Factor shall be changed to refer to increasing or decreasing the Lessee
Electric. No change in the method of measuring Lessee’s electrical consumption,
as a result of Lessor no longer redistributing electricity to the Premises,
as
provided in Paragraph 24(E), separately metering electrical consumption, as
provided in Paragraph 24(J), or any other provision in the Lease, shall affect
Term Fixed Basic Rent or Monthly Fixed Basic Rent, but may affect the amount
of
Lessee Electric. Lessee Electric shall be paid in monthly installments of One
Thousand One Hundred Forty-Six and 13/100 Dollars ($1,146.13), at the same
time
and manner as Monthly Fixed Basic Rent. Lessee Electric is an estimated amount
subject to adjustment as provided in Paragraph 24(B) of the Lease. Paragraphs
24(B)(iii) and (iv) of the Lease shall be deleted and replaced as
follows:
(iii) Lessee
agrees that an independent electrical engineering consultant selected by Lessor
may from time to time make a survey of the electric power demand of the electric
lighting fixtures and the electric equipment of Lessee used in the Lobby
Premises to determine the average monthly electric consumption thereof, said
survey to be at Lessee’s expense. Lessor reserves the right to estimate Lessee’s
electric consumption until such a survey is made. The estimate will be based
on
One and 50/100 Dollars ($1.50) per square foot per year of the rentable area
of
the Premises and Lessee agrees to pay Lessor Thirteen Thousand Seven Hundred
Fifty-Three and 50/100 Dollars ($13,753.50) per year (“Lessee
Electric”),
payable in equal monthly installments of One Thousand One Hundred Forty-Six
and
13/100 Dollars ($1,146.13) per month as Additional Rent. Lessee Electric is
not
included in Annual Fixed Basic Rent. The aforesaid survey shall take into
account, among other things, any special electrical requirements of the Lessee
and use by Lessee of electrical energy at times other than during Building
Hours
on Business Days. Unless objected to by Lessee in accordance with the terms
and
conditions of paragraph 24(B) of the Lease, the finding of such engineer or
consultant as to the proper Lessee Electric based on such average monthly
electric consumption shall be conclusive and the Lessee Electric shall be
revised to twelve (12) times the average monthly electric determined by the
survey, effective as of the first day of the month following the month in which
the survey is completed;
4
(iv) If
the
Electric Rates (as hereafter defined) on which the initial determination of
the
consultant was based shall be increased or decreased, than the Lessee Electric
shall be increased or decreased in the amount equal to the change in Lessor’s
cost of supplying electrical current to the Premises resulting from such rate
change, retroactive if necessary, to the date of such increase or decrease
in
such Electric Rates.
(c) Paragraph
22 of the Lease shall be amended to provide that Lessee shall pay the sum of
One
Hundred and 00/100 dollars ($100.00) per hour for use of HVAC beyond Building
Hours, plus the additional percentage increase over the Base Utility Rate as
set
forth in the Lease. In no event shall Lessee pay less than the sum of $100.00
per hour for such overtime use.
(d) Paragraph
(12) of the Reference Page is hereby amended in its entirety to read as
follows:
(12) A
total
of 36 spaces, of which 27 shall be in the covered parking area described in
Section 38 below.
(e) Lessee’s
Percentage is 1.55% and Paragraph 10 of the Reference Page shall be amended
accordingly.
(f) Term
Fixed Basic Rent shall be payable in advance on the first day of each month
of
the Term as follows:
|
Period
|
Annual
Fixed Basic Rent
|
Monthly
Fixed Basic Rent
|
|
Expansion
Premises
|
||
|
Commencement
Date -
|
||
|
June
30, 2006
|
$247,563.00
|
$20,630.25
|
|
July
1, 2006 - June 30, 2007
|
$252,147.50
|
$21,012.29
|
|
July
1, 2007 - June 30, 2008
|
$256,732.00
|
$21,394.33
|
5
Reference
Page Section (9) of the Lease shall be deemed amended accordingly.
(g) The
Base
Year for all Base Period Costs shall be calendar year 2005, and Reference Page
Sections 2(A), (B) and (C) of the Lease shall be deemed amended
accordingly.
8. Lessee
has inspected the Temporary Expansion Premises and Expansion Premises, and
is
thoroughly acquainted with their respective conditions and agrees to take same
"AS IS"; provided, however, that Lessor shall relocate from the 12th
floor to
the 2nd
floor
one (1) existing supplemental air-conditioning unit or provide Tenant with
a
supplemental air-conditioning unit similar to the unit located on the
12th
floor.
However, notwithstanding the foregoing, in the event Lessee exercises its
termination option by January 1, 2006, such that Lessee does not lease and
occupy the Expansion Premises through at least June 30, 2006, then Lessee shall
reimburse Lessor upon demand a pro-rata portion of the cost of the supplemental
air-conditioning unit in an amount equal to the product of $75.88 multiplied
by
the number of days from the termination date through June 30, 2006 (so, for
example, if the termination date is May 31, 2006, then Lessee’s pro-rata amount
shall be $2,276.40 (i.e., $75.88 x 30)). Lessee acknowledges that the taking
of
the Temporary Expansion Premises and the Expansion Premises by Lessee shall
be
conclusive evidence that each of the respective premises was in good and
satisfactory condition at the time possession of each of the respective premises
was so taken.
9. Lessee
represents and warrants to the Lessor that Lessee has not dealt with any broker
in bringing about this Amendment other than GVA Xxxxxxxx. Lessee agrees to
indemnify and hold Lessor harmless from any and all claims of any broker and
expenses in connection therewith arising out of or in connection with the
negotiation of or the entering into this Amendment by Lessor and Lessee.
10. Lessee
represents, warrants and covenants that, to the best of Lessee’s knowledge,
Lessor is not in default under any of its obligations under the Lease and that,
to the best of Lessee's knowledge, Lessee is not in default of any of its
obligations under the Lease, and no event has occurred which, with the passage
of time or the giving of notice, or both, would constitute a default by either
Lessor or Lessee thereunder.
11. Except
as
modified by this Amendment, the Lease and all the covenants, agreements, terms,
provisions and conditions thereof (including, without limitation, paragraph
9 of
the Fifth Amendment) shall remain in full force and effect and are hereby
ratified and affirmed.
12. The
covenants, agreements, terms, provisions and conditions contained in this
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and except as otherwise provided in the Lease as modified
by this Amendment, their respective assigns. In the event of any conflict
between the terms contained in this Amendment and the Lease, the terms herein
shall supersede and control the obligations and liabilities of the
parties.
6
13.
The
submission of this Amendment for examination does not constitute a reservation
of, or option for, the Premises, and this Amendment becomes effective only
upon
execution and delivery thereof by Lessor and Lessee.
[Signature
Page to Follow]
IN
WITNESS WHEREOF,
Lessor
and Lessee have executed this Amendment as of the date and year first above
written, and acknowledge to each other that they possess the requisite authority
to enter into this transaction and to sign this Amendment.
|
ATTEST:
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
Title:
Director
of Corporate Development
WITNESS:
By:
/s/
Xxxxxxx X’Xxxxx
Name: Xxxxxxx
X’Xxxxx
Title:
VP
- Leasing
|
LESSEE:
DOV
PHARMACEUTICAL, INC.
By:
/s/
J. Xxxxxx Xxxxxx
Name:
J.
Xxxxxx Xxxxxx
Its:
Sr.
Vice President and General Counsel
LESSOR:
MSNW
CONTINENTAL ASSOCIATES, LLC, a Delaware limited liability
company
BY: MSNW
CONTINENTAL ACQUISITION, LLC, a Delaware limited liability company,
its
sole member
BY: NORMANDY
CONTINENTAL ADMINISTRATOR II, LLC, a Delaware limited liability company,
its Administrator
BY:
/s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
Vice
President
|
7
EXHIBIT
A
THE
TEMPORARY EXPANSION PREMISES
8
EXHIBIT
B
THE
EXPANSION PREMISES
9
