EXHIBIT 10.44
THIRD AMENDMENT TO LEASE
THIRD AMENDMENT TO LEASE made as of February 12, 2004, (the "Third
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") and a Second Amendment to Lease dated July 30,
2002 (the "Second Amendment"; the lease, as amended by the First Amendment and
the Second 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") 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, Lessee wishes to lease and hire from Lessor, additional space
consisting of approximately 4,420 gross rentable square feet on the lobby level
of the Building (the "Additional Space'), as shown on Exhibit A annexed hereto
and made a part hereof, and Lessor is willing to lease the Additional Space to
Lessee; and
WHEREAS, Lessor and Lessee wish to amend the Lease only upon and
subject to the provisions of this Third 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 Third 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, 2004. The Term is hereby extended from June 25, 2004 to and
including June 30, 2005; and Reference Page Sections (15) and (16) of the Lease
are deemed amended accordingly.
3. As of the date first written above (the "Effective Date"), and in
accordance with the provisions hereinafter contained, the Additional Space is
hereby Leased to Lessee by Lessor, and hired from Lessor by Lessee, through the
balance of the Term, such that the Existing Premises and Additional Space shall
be hereafter collectively referred to as the "Demised Premises" unless the
context dictates otherwise.
4. With respect to the Existing Premises, only from and after the
Effective Date:
(a) from the Effective Date through the remainder of the Term,
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 following the
Effective Date (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.
5. With respect to the Additional Space only from and after the
Effective Date:
(a) the Annual Fixed Basic Rent shall be $88,400.00 (exclusive of
the Electric Rent Inclusion Factor for the Additional Space, as
described herein), and the Monthly Fixed Basic Rent shall be
$7,366.67.
(b) Lessee's Percentage shall be 0.75%;
(c) the Base Operating Costs, Base Real Estate Taxes and Base
Utility and Energy Costs shall be those Costs incurred during
"Calendar Year 2004";
(d) Lessee's Electric Rent Inclusion Factor shall be $6,630.00 per
annum ($552.50 per month);
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(e) Lessee shall be entitled to eighteen (18) non-reserved parking
spaces of which twelve (12) shall be in the covered garage; and
(f) Lessee shall be given rights respecting directory listings, keys
and signage in proportion to the increase in gross rentable
square footage leased by Lessee pursuant to the Lease as amended
by this Amendment by reason of Lessee leasing the Additional
Space.
(g) Lessee has inspected the Additional Space, Building and Complex,
and is thoroughly acquainted with their respective conditions
and agrees to take same in its "AS IS" condition as of the date
hereof.
(h) Except as provided in this Third Amendment, the letting of the
Additional Space shall be upon all of the terms and conditions
of the Lease.
(i) Lessee represents and warrants to Lessor that Xxxxxxx &
Wakefield of New Jersey, Inc. ("Broker") is the sole broker with
whom Lessee has dealt in bringing about this Third 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 Third Amendment. Lessor shall
pay Broker any fees or commissions due Broker as a result of
this Third Amendment pursuant to the terms of a separate
agreement with Broker.
(j) 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 Third Amendment.
(k) Except as modified by this Third 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 Third 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 Third
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Amendment and the Lease, the provisions contained in this Third
Amendment shall prevail and be paramount.
(l) The submission of this Third Amendment for examination does not
constitute a reservation of, or option for, the Additional Space
and this Third Amendment becomes binding and effective only upon
execution and delivery thereof by Lessor and Lessee.
6. (a) Lessor agrees that, at Lessor's expense, it will do
substantially all of the work in the Additional Space in accordance with
Exhibit B ("Lessor's Work") attached hereto and made a part hereof.
(b) Lessee hereby agrees to contribute up to a maximum amount
of $49,991.00 toward the actual cost of Lessor's Work (the "Lessee's
Contribution"), which Lessee's Contribution shall be paid by Lessee to Lessor as
follows: (i) $24,995.00 upon Lessee's execution of Lease, (ii) $12,498 upon the
delivery, the roughing inspection to Lessee and (iii) $12,498 upon the earlier
to occur of (x) occupancy of the Demised Premises by Lessee or (y) the delivery
of a Certificate of Occupancy for the Additional Space (if required pursuant to
local law).
(c) All of Lessor's Work, whether paid for in whole or in part
by Lessee, is and shall remain the property of Lessor.
7. Section 45 of the Lease is herby deleted in its entirety and the
following is substituted therefor:
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given only if (a) delivered personally or
(b) sent by registered mail or certified mail in a postpaid envelope or
by regulated carrier service with return receipt or (c) sent by
nationally recognized overnight courier service such as Federal
Express, addressed if to Lessee, at the above-described Building, with
a copy to Shepard, Federgreen, Xxxxxxx Del Deo, et al, Xxx Xxxxxxxxx
Xxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000; if to Lessor, at Lessor's address
as set forth above, with copy to Xxxxxxx Xxxxxx & Fein LLP, 000 Xxxxx
Xxxxxx, 00xx Xx., Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxxx, Esq.; or to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed to have
been duly given upon its receipt or rejection as evidenced by a xxxx of
lading or return receipt or upon delivery if personally served.
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IN WITNESS WHEREOF, Lessor and Lessee have entered into this Third
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 Third Amendment.
DOV PHARMACEUTICALS, INC. STELLAR CONTINENTAL LLC
By: Stellar Capital Investors LLC,
Its Manager
By:____________________________ By:________________________________
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