EXHIBIT 10.46
FOURTH AMENDMENT TO LEASE
FOURTH AMENDMENT TO LEASE made as of March 11, 2004 (the "Fourth
Amendment") by and between STELLAR CONTINENTAL LLC, a Delaware limited liability
company, with an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Lessor"), and DOV PHARMACEUTICALS INC., a Delaware corporation, located at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Lessee").
W I T N E S S E T H:
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") and a Third Amendment to Lease dated February 12,
2003 (the "Third Amendment"; the lease, as amended by the First Amendment, the
Second Amendment and the Third Amendment is hereinafter referred to as, the
"Lease") whereby Lessee is currently in possession of 7,185 gross rentable
square feet on the lobby level and 4,099 gross rentable square feet on the
twelfth (12th) floor of the Building (together, hereinafter, the "Existing
Premises") and an additional 4,420 gross rentable square feet on the lobby level
(the "Additional Space") of the building known as 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx (the "Building"); and
WHEREAS, the Building is part of an office complex consisting of 401,
407, 411 and 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, which complex is
known as Continental Plaza (the "Complex"); and
WHEREAS, Lessor and Lessee wish to amend the Lease only upon and
subject to the provisions of this Fourth Amendment.
NOW, THEREFORE, in consideration of the sum of Ten ($10.00) Dollars and
other good and valuable consideration exchanged by Lessor and Lessee, the
receipt and sufficiency of which hereby expressly are acknowledged; it is
AGREED:
1. For the purposes of this Fourth Amendment, capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
ascribed to them in the Lease.
2. Lessor and Lessee hereby confirm that the Expiration Date of the
Lease is June 25, 2005.
3. Paragraph 4 of the Third Amendment is hereby deleted in its entirety
and the following is substituted in its place and stead.
With respect to the Existing Premises only, from and after July 1, 2004
through the remainder of the Term:
(a) Lessee shall pay to Lessor Annual Fixed Basic Rent in the sum of
$293,384 (exclusive of Electric Rent Inclusion Factor for the
Existing Premises) and the Monthly Fixed Basic Rent shall be
$24,448.69;
(b) Lessee's Electric Rent Inclusion Factor shall be $16,926 per
annum ($1,410.50 per month);
(c) provided Lessee is not in default beyond the expiration of any
applicable notice or cure periods and notwithstanding anything
contained herein to the contrary, Lessee shall be entitled to a
Term Fixed Basic Rent abatement in the amount of $36,673.00,
said concession to be applied against the installments of
Monthly Fixed Basic Rent due pursuant to this Lease, as amended,
for the (i) the month commencing on July 1, 2004 and (ii) half
of the month commencing on August 1, 2004 (the "Concession
Period"). The entire Fixed Basic Rent otherwise due and payable
during the Concession Period shall become due and payable to
Lessor upon the occurrence of an event of default by Lessee
under the Lease that results in the termination of the Lease.
4. Lessee represents and warrants to Lessor that Xxxxxxx & Xxxxxxxxx
of New Jersey, Inc. ("Broker") is the sole broker with whom Lessee has
dealt in bringing about this Fourth Amendment. Lessee and Lessor each
agrees to hold the other harmless and indemnify and defend the other from
and against any and all loss, cost, liability, damage and expense arising
out of the inaccuracy of the representation contained in the preceding
sentence and each party represents to the other that it has not engaged and
is not responsible for the payment of a fee, commission or other
compensation to any other person in connection with the Lease or the Fourth
Amendment. Lessor shall pay Broker any fees or commissions due Broker as a
result of this Fourth Amendment pursuant to the terms of a separate
agreement with Broker.
5. Lessee and Lessor each represents, warrants and covenants that the
other is not in default under any of its obligations under the Lease and
that, to the best of its knowledge, the other is not in default of its
obligations under the Lease, and no event has occurred nor do any
circumstances exist which, with lapse of time or notice or both, would
constitute a default by Lessor or Lessee under the Lease as modified by
this Fourth Amendment.
6. Except as modified by this Fourth Amendment, the Lease and all of
the covenants, agreements, terms, provisions and conditions thereof shall
remain in full force and effect and are hereby ratified and affirmed. The
covenants, agreements, terms, provisions and conditions contained in this
Fourth Amendment shall bind the parties hereto and their respective
successor and assigns and shall inure to the benefit of the parties hereto
and their respective permitted successors and assigns. In the event of any
conflict between the provisions of this Fourth Amendment and the Lease, the
provisions contained in this Fourth Amendment shall prevail and be
paramount.
2
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Fourth
Amendment as of the day and year first written above, and acknowledge one to the
other that they possess the requisite authority to enter into this transaction
and to sign this Fourth Amendment.
DOV PHARMACEUTICALS, INC. STELLAR CONTINENTAL LLC
By: Stellar Capital Investors LLC,
Its Manager
By:____________________________ By:________________________________
