SIXTH AMENDMENT TO LEASE
Exhibit
10.44
SIXTH
AMENDMENT TO LEASE
THIS
SIXTH AMENDMENT
("the
Amendment") made as of July 6, 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”),
and a
Fifth Amendment to Lease dated November 15, 2004 (the “Fifth
Amendment”)
(the
lease, as amended by the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment and the Fifth Amendment is hereinafter referred
to as the “Lease”),
whereby Lessee is currently in possession of two separate premises on the lobby
level, one containing approximately 7,185 gross rentable square feet of space
and the other containing approximately 4,420 gross rentable square feet of
space
respectively (the “Lobby
Premises”),
approximately 4,099 gross rentable square feet on the twelfth (12th)
floor
(the “12th
Floor Premises”)
and
two separate premises on the sixth (6th)
floor,
one containing approximately 1,951 gross rentable square feet of space and
the
other containing approximately 1,330 rentable square feet of space respectively
(collectively, the “6th
Floor Premises”)
(the
12th
Floor
Premises and the 6th
Floor
Premises are collectively referred to herein as the "Surrender
Premises")
in the
building known as 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (the
"Building");
and
WHEREAS,
Lessee
desires to surrender to Lessor, as of the Surrender Date (as hereinafter
defined), the Surrender Premises and relocate to other premises within the
building known as 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (the
“411
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. Lessor
and Lessee hereby acknowledge and agree that, subject to paragraph 9 of the
Fifth Amendment, the Termination Date of the Lease, as amended by this
Amendment, is June 30, 2008.
3. For
purposes of this Amendment, the "Surrender Date" shall be 11:59 p.m. on the
day
immediately preceding the Effective Date (as hereinafter defined).
4. Effective
as of the Surrender Date, Lessee hereby surrenders to Lessor all of its right,
title and interest under the Lease in and to the Surrender Premises, it being
understood and agreed that all of Lessee's estate under the Lease in and to
the
Surrender Premises shall be wholly terminated and extinguished as of the
Surrender Date; and Lessor hereby accepts from Lessee as of the Surrender Date,
such surrender of all of Lessee's right, title and interest under the Lease
in
and to the Surrender Premises.
5. Lessee
hereby agrees that effective as of the Surrender Date, the Surrender 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 Surrender 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 Surrender
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 Surrender 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 Surrender Premises for the period
up
to and including the Surrender Date. Effective as of the Surrender Date,
provided Lessee complies with the obligations set forth in the first
subparagraph of this Section 5 and subject to it’s continuing obligations set
forth in the second subparagraph of this Section 5, Lessee shall be released
from all other obligations with respect to the Surrender Space.
6. Effective
as of June 15, 2005 (the "Effective
Date")
Lessee
shall lease from Lessor 16,264 gross rentable square feet on the ninth
(9th)
floor
(the "Expansion
Premises")
in the
411 Building which Expansion Premises are shown on Exhibit
A annexed
hereto and made a part hereof. Reference Page Paragraphs (5) and (7) of the
Lease shall be deemed modified accordingly.
7. From
and
after the Effective 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: Twenty-Four Thousand Three Hundred Ninety-Six and 00/100
Dollars ($24,396.00) per year, which shall be payable in addition to (and not
included in) Annual Fixed Basic Rent.
2
(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 Two
Thousand Thirty-Three and 00/100 Dollars ($2,033.00), 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:
(iii) Lessee
agrees that an independent electrical engineering consultant selected by Lessor
shall 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 Twenty-Four Thousand
Three Hundred Ninety-Six and 00/100 Dollars ($24,396.00) per year (“Lessee
Electric”),
payable in equal monthly installments of Two Thousand Thirty-Three and 00/100
Dollars ($2,033.00) 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:
3
(12) A
total
of 64 spaces, of which 24 shall be in the covered parking area described in
Section 38 below.
(e) Lessee’s
Percentage is 2.76% 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
|
|
June
15, 2005 -
June
30, 2006
|
$439,128.00
|
$36,594.00
|
|
July
1, 2006-
June
30-2007
|
$447,260.00
|
$37,271.67
|
|
July
1, 2007-
June
30, 2008
|
$455,392.00
|
$37,949.33
|
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. From
and
after the Effective Date, the following shall apply with respect to the Lobby
Premises:
(a) Paragraph
(8) of the Reference page (“Electric Rent Inclusion Factor”) shall be deemed
deleted and replaced as follows:
(8)
Lessee Electric: Seventeen Thousand Four Hundred Seven and 50/100 Dollars
($17,407.50) 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 Four Hundred Fifty and 63/100 Dollars ($1,450.63), 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:
4
(iii) Lessee
agrees that an independent electrical engineering consultant selected by Lessor
shall 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 Seventeen Thousand Four
Hundred Seven and 50/100 Dollars ($17,407.50) per year (“Lessee
Electric”),
payable in equal monthly installments of One Thousand Four Hundred Fifty and
63/100 Dollars ($1,450.63) 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. 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 46 spaces, of which 33 shall be in the covered parking area described in
Section 38 below.
(e) Lessee’s
Percentage is 2.0% 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:
5
|
Period
|
Annual
Fixed Basic Rent
|
Monthly
Fixed Basic Rent
|
|
June
15, 2005 -
June
30, 2006
|
$313,335.00
|
$26,111.25
|
|
July
1, 2006-
June
30-2007
|
$319,137.50
|
$26,594.79
|
|
July
1, 2007-
June
30, 2008
|
$324,940.00
|
$27,078.33
|
Reference
Page Section (9) of the Lease shall be deemed amended accordingly.
9. Lessee
has inspected the Relocated Premises and Relocated Building, and is thoroughly
acquainted with their respective conditions and agrees to take same "AS IS".
Lessee acknowledges that the taking of the Relocated Premises by Lessee shall
be
conclusive evidence that the Relocated Premises and the Relocated Building
were
in good and satisfactory condition at the time possession of the Relocated
Premises were so taken.
10. 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.
11. 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.
12. Paragraph
44 of the Lease is amended to provide the following addresses for notices to
Lessor:
MSNW
Continental Associates, LLC
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attention:
Property Manager
6
with
copies to: MSNW
Continental Associates, LLC
c/o
Normandy Real Estate Management, LLC
1776
On
the Green
00
Xxxx
Xxxxx Xxxx, 0xx
Xxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attention:
General Counsel
13. 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.
14. 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.
15.
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]
7
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: ________________
Name:
______________
Title:
_______________
WITNESS:
By:
/s/
Xxxxx X. Xxxxxx
Name:Xxxxx
X. Xxxxxx
Title:
VP
of Finance
|
LESSEE:
DOV
PHARMACEUTICAL, INC.
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx
Xxxxx
Its:
Chief
Executive Officer
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
|
8
EXHIBIT
A
EXPANSION
PREMISES
9
