exv10w53



 





Exhibit 10.53




THIRD AMENDMENT TO LEASE




          THIS THIRD AMENDMENT TO LEASE (this “Amendment”) is made and entered into as of July 18, 2007,
by and between RREEF AMERICA REIT II CORP. FFF, a Maryland corporation (“Landlord”), and AVANIR
PHARMACEUTICALS, a California corporation (“Tenant”).



RECITALS





	A.	 	Landlord and Tenant are parties to that certain Lease, dated April 28, 2006 (the “Original
Lease”), which Original Lease has been previously amended by that certain First Amendment to
Lease, dated December 14, 2006, and that certain Second Amendment to Lease, dated March 13,
2007 (collectively, the “Lease”). Pursuant to the Lease, Landlord has leased to Tenant space
currently containing approximately 17,609 rentable square feet (the “Original Premises”)
described as Suite No. 300A and 300B (collectively, “Suite 300”) and Suite 320 (“Suite 320”,
together with Suite 300, the “Initial Premises”) and Suites 330 and 335 (collectively, the
“Additional Premises”) on the third floor of the building located at 101 Enterprise, Aliso
Viejo, California (the “Building”).
	 
	B.	 	Tenant desires to surrender to Landlord the Additional Premises containing approximately
6,290 rentable square feet described as Suite No. 330 (“Suite 330”) and Suite No. 335 (“Suite
335”) of the Building as shown on Exhibit A hereto (collectively, the “Reduction Space”) (the
Original Premises, less the Reduction Space, is referred to herein as the “Remaining
Premises”) and that the Lease be appropriately amended, and Landlord is willing to accept such
surrender on the following terms and conditions.





          NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:




	1.	 	Reduction.






	 	1.1	 	Tenant shall vacate the Reduction Space in accordance with the terms of the
Lease on or prior to July 31, 2007, which is the date immediately preceding the
Reduction Effective Date (defined in 1.2 below) and, except as expressly set forth in
this Section 1.1, Tenant shall fully comply with all obligations under the Lease
respecting the Reduction Space up to the Reduction Effective Date, including those
provisions relating to the condition of the Reduction Space and removal of Tenant’s
Property therefrom; provided however, Landlord and Tenant hereby acknowledge that as of
the date hereof, notwithstanding the applicable Additional Premises Commencement Dates
with respect to Suite 300 and Suite 335 (as more particularly described in the first
sentence of Section 2 below), Tenant has never physically occupied the Reduction Space
and therefore shall not have any obligation to remove any personal property, equipment
or fixtures from the Reduction Space or to restore the Reduction Space. Tenant hereby
agrees that Tenant shall have no right to enter or occupy the Reduction Space at any
time and, accordingly, Tenant shall return all keys to the Reduction Space and shall
deliver possession of the Reduction Space to Landlord upon Tenant’s execution hereof.
	 
	 	1.2	 	Effective as of August 1, 2007 (the “Reduction Effective Date”), the Premises
is decreased from approximately 17,609 rentable square feet of the Building to
approximately 11,319 rentable square feet comprised of Suite 300 and Suite 320 of the
Building by the elimination of the Reduction Space, and the number of unreserved
parking spaces available to Tenant




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	 	 	 	shall be proportionately reduced. As of the Reduction Effective Date, the Reduction
Space shall be deemed surrendered by Tenant to Landlord, the Lease shall be deemed
terminated with respect to the Reduction Space, and the “Premises”, as defined in
the Lease and as used herein shall be deemed to mean the Remaining Premises;
provided, if Tenant shall violate any provision hereof or if Tenant’s
representations herein shall be false or materially misleading, Landlord shall have
the right to declare this Amendment null and void and to reinstate the Lease with
respect to the Reduction Space in addition to, and not in lieu of, any other rights
or remedies available to Landlord.
	 
	 	1.3	 	If Tenant shall holdover in the Reduction Space beyond the day immediately
preceding the Reduction Effective Date, Tenant shall be liable for Monthly Installment
of Rent, Tenant’s Proportionate Share of Expenses, Insurance Costs and Taxes and other
charges respecting the Reduction Space equal to 150% of the amount in effect under the
Lease prorated on a per diem basis and on a per square foot basis for the Reduction
Space. Such holdover amount shall not be in limitation of Tenant’s liability for
damages arising from Tenant’s holding over nor shall it be deemed permission for Tenant
to holdover in the Reduction Space. If, as a result of Tenant’s holding over, Landlord
shall install a wall separating the Reduction Space from the balance of the Premises or
otherwise incur expense in installing separate utility meters or effecting similar
separations, Tenant, upon demand, shall reimburse Landlord’s costs in connection
therewith.






	2.	 	Monthly Installment of Rent. Tenant hereby acknowledges and agrees that (a) the
Additional Premises Commencement Date with respect to Suite 335 occurred on April 15, 2007 and
the Additional Premises Commencement Date with respect to Suite 330 occurred on July 1, 2007;
and (b) Tenant shall pay Monthly Installment of Rent and Tenant’s Proportionate Share of
Expenses, Taxes and Insurance Costs with respect to Suite 335 and Suite 330 for the period
beginning on the applicable Additional Premises Commencement Date and ending on the Reduction
Effective Date. Concurrently with Tenant’s execution of this Amendment, Tenant shall deliver
to Landlord an amount equal to $26,091.60, representing the Monthly Installment of Rent owed
with respect to the Suite 335 for the months (or applicable portion thereof) of April, May,
June and July of 2007 and with respect to Suite 330 for the month of July of 2007. Tenant
shall remain liable, subject to and in accordance with the terms of the Lease, for the payment
of Tenant’s Proportionate Share of Expenses, Taxes and Insurance Costs with respect to the
Additional Premises accruing prior to the Reduction Effective Date. Effective as of the
Reduction Effective Date, the schedule of Monthly Installment of Rent contained in the Lease
is deleted, and the following is substituted therefor:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	Rentable	 	Annual Rate	 	 	 	 	 	Monthly
	 	 	 	Square	 	Per Square	 	 	 	 	 	Installment of
	Period	 	 	Footage	 	Foot	 	Annual Rent	 	Rent
	  7/1/07 – 7/9/07

	 	 	 	11,319	 	 	$	31.80	 	 	$	359,944.20	 	 	$	29,995.35	 
	7/10/07 – 7/9/08

	 	 	 	11,319	 	 	$	32.75	 	 	$	370,697.25	 	 	$	30,891.44	 
	7/10/08 – 7/9/09

	 	 	 	11,319	 	 	$	33.73	 	 	$	381,789.87	 	 	$	31,815.82	 
	7/10/09 – 7/9/10

	 	 	 	11,319	 	 	$	34.74	 	 	$	393,222.06	 	 	$	32,768.51	 
	7/10/10 – 7/9/11

	 	 	 	11,319	 	 	$	35.78	 	 	$	404,993.82	 	 	$	33,749.49	 







	 	 	All such Monthly Installment of Rent shall be payable by Tenant in accordance with the terms
of the Lease, as amended hereby.
	 
	3.	 	Additional Security Deposit. No additional Security Deposit shall be required in
connection with this Amendment. Notwithstanding the foregoing, and provided that, during the
twelve (12) month




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	 	 	period immediately preceding the effective date of any reduction of the Security Deposit,
Tenant has timely paid all Monthly Installments of Rent, Tenant’s Proportionate Share of
Expenses and Taxes and all other sums and charges payable under this Lease and no default
has occurred under this Lease (the “Security Reduction Conditions”), Tenant shall have the
right to reduce the amount of the Security Deposit so that the new Security Deposit amount
will be as follows: $37,124.65 effective as of August 1, 2008. If Tenant is entitled to a
reduction in the Security Deposit, Tenant shall provide Landlord with written notice on or
before June 15, 2008 requesting that the Security Deposit be reduced as provided above (the
“Security Reduction Notice”). If Tenant provides Landlord with a Security Reduction Notice,
and Tenant is entitled to reduce the Security Deposit as provided herein, Landlord shall
refund the applicable portion of the Security Deposit to Tenant within forty-five (45) days
after the later to occur of (a) Landlord’s receipt of the Security Reduction Notice, or (b)
the date upon which Tenant is entitled to a reduction in the Security Deposit as provided
above.
	 
	4.	 	Additional Consideration. As additional consideration for this Amendment, Tenant
agrees to pay Landlord upon the Reduction Effective Date: (a) with respect to Suite 330, an
amount equal to $63,187.45, plus the Additional Amount (as defined below), and (b) with
respect to Suite 335, an amount equal to $10,350.39. As used herein, “Additional Amount”
means an amount equal to the rent (i.e., monthly installments of rent plus tenant’s
proportionate share of expenses, insurance costs and taxes) due and payable by Barney (as
defined in Section 10 below), as tenant, under the Barney Lease (as defined in Section 10
below) with respect to the period beginning on the Substitution Effective Date (as defined in
the Barney Amendment (as defined in Section 10 below)) and ending on January 31, 2008;
provided, however, that in no event shall the Additional Amount exceed $42,185.00, which
Landlord represents is the sum of five (5) months of monthly installment of rent payable by
Barney pursuant to the terms of the Barney Lease (and Landlord shall provide to Tenant an
invoice showing such amount).
	 
	5.	 	Tenant’s Proportionate Share. For the period commencing on the Reduction Effective
Date and ending on the Termination Date, Tenant’s Proportionate Share of the Building for
Expenses and Insurance Costs is 14.13%, and Tenant’s Proportionate Share of the Building for
Taxes is 6.71% Notwithstanding anything in this Amendment to the contrary, Tenant shall
remain liable for all year-end adjustments with respect to Tenant’s Proportionate Share of
Expenses, Insurance Costs and Taxes applicable to the Reduction Space for that portion of the
calendar year commencing on the applicable Additional Premises Commencement Date and ending on
the Reduction Effective Date for each of Suites 330 and 335, respectively. Such adjustments
shall be paid at the time, in the manner and otherwise in accordance with the terms of the
Lease, unless otherwise specified herein.
	 
	6.	 	Expenses, Insurance Costs and Taxes. For the period commencing on the Reduction
Effective Date and ending on the Termination Date, Tenant shall pay for Tenant’s Proportionate
Share of Expenses, Insurance Costs, and Taxes in accordance with the terms of the Lease.
	 
	7.	 	Improvements to Remaining Premises.






	 	7.1	 	Condition of Remaining Premises. Tenant is in possession of the Remaining
Premises and agrees to accept the same “as is” without any agreements, representations,
understandings or obligations on the part of Landlord to perform any alterations,
repairs or improvements, except as may be expressly provided otherwise in this
Amendment. Tenant hereby acknowledges and agrees that, effective as of the date
hereof, Tenant is not entitled to the Additional Premises Maximum Amount (as defined in
Exhibit B to the Original Lease) or any portion thereof, and such Additional Premises
Maximum Amount has been, in effect,




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	 	 	 	credited to Tenant as reflected in the calculation of the consideration owed by
Tenant pursuant to the terms of Section 4 above.
	 
	 	7.2	 	Responsibility for Improvements to Remaining Premises. Any construction,
alterations or improvements to the Remaining Premises shall be performed by Tenant at
its sole cost and expense using contractors selected by Tenant and approved by Landlord
and shall be governed in all respects by the provisions of Article 6 of the Original
Lease.






	8.	 	Representations. Each party represents to the other that it has full power and
authority to execute this Amendment. Tenant represents that it has not made any assignment,
sublease, transfer, conveyance of the Lease or any interest therein or in the Reduction Space
other than those explicitly recited herein and further represents that there is not and will
not hereafter be any claim, demand, obligation, liability, action or cause of action by any
other party claiming through Tenant respecting, relating to or arising out of the Reduction
Space, and Tenant agrees to indemnify and hold harmless Landlord and the Landlord Related
Parties (as defined in Section 11.6 below) from all liabilities, expenses, claims, demands,
judgments, damages or costs arising from any of the same, including without limitation,
attorneys’ fees. Tenant acknowledges that Landlord will be relying on this Amendment in
entering into leases for the Reduction Space with other parties.
	 
	9.	 	Other Pertinent Provisions. Landlord and Tenant agree that, effective as of the date
of this Amendment (unless different effective date(s) is/are specifically referenced in this
Section), the Lease shall be amended in the following additional respects:






	 	9.1	 	Additional Premises References. Effective as of the Reduction Effective Date,
any references in the Original Lease to the “Additional Premises” or the “Additional
Premises Commencement Date” are hereby deleted in their entirety.
	 
	 	9.2	 	Monument Signage. Article 45 (Monument Signage) is hereby deleted in its entirety.
	 
	 	9.3	 	Right of First Offer. The first sentence of Section 41.1 of the Lease is
hereby deleted in its entirety and replaced with the following: “Tenant shall have the
on-going right of offer (the “Offer Right”) to lease space located on the third
(3rd) floor of the Building (“Offer Space”), provided that said space is not
already encumbered by options of existing tenants at the Building, effective at such
time as the subject Offer Space is vacated by the prior tenant (or, if the prior tenant
has confirmed in writing that tenant will not extend or renew its lease prior to
vacating the Offer Space, upon such time as Landlord receives such written
confirmation).”






	10.	 	Contingencies. This Amendment, as it relates to Suite 330, specifically is
contingent upon the modification of that certain Lease, dated December 20, 2005 (the “Barney
Lease”), by and between Landlord and Barney & Barney, LLC, a California limited liability
company (“Barney”). This Amendment, as it relates to Suite 335, specifically is contingent
upon the modification of that certain Lease, dated January 18, 2006 (the “NCSoft Lease”), by
and between Landlord and NCSoft Corporation, a Korean corporation (“NCSoft”). Landlord
currently is negotiating the terms of an agreement with Barney to amend the Barney Lease (the
“Barney Amendment”) to relocate Barney to Suite 330, and Landlord currently is negotiating the
terms of an agreement with NCSoft to amend the NCSoft Lease (the “NCSoft Amendment”) to expand
the premises leased thereunder to include Suite 335. Landlord and Tenant agree that the
foregoing contingencies are independent of each other. For the avoidance of doubt, this
Amendment shall be effective (a) with respect to Suite 330 if an acceptable Barney Amendment
is executed by Landlord and Barney on or before the Contingency Date (as defined below), and
(b) with respect to Suite 335, if an acceptable NCSoft Amendment is




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	 	 	executed by Landlord and NCSoft on or before the Contingency Date. If Landlord fails to
enter into the Barney Amendment with Barney and/or the NCSoft Amendment with NCSoft in form
and substance satisfactory to Landlord on or before the date (the “Contingency Date”) that
is the later of (i) July 20, 2007, or (ii) five (5) days following the date this Amendment,
executed by Tenant, is delivered to Landlord, then Landlord may terminate this Amendment (or
relevant portions thereof) by providing written notice thereof to Tenant, and Landlord and
Tenant shall enter into an amendment or other agreement to document any necessary revisions
related thereto (i.e., changes to the rent chart reflecting Monthly Installment of Rent,
Tenant’s Proportionate Share, etc.).
	 
	11.	 	Miscellaneous.






	 	11.1	 	This Amendment, including Exhibit A (Outline and Location of Reduction Space)
attached hereto, sets forth the entire agreement between the parties with respect to
the matters set forth herein. There have been no additional oral or written
representations or agreements. Under no circumstances shall Tenant be entitled to any
rent abatement, improvement allowance, leasehold improvements, or other work to the
Premises, or any similar economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically set forth in this
Amendment. This Amendment shall not be relied upon by any other party, individual,
corporation, partnership or entity as a basis for reducing its lease obligations with
Landlord or for any other purpose. Tenant agrees that it shall not disclose any
matters set forth in this Amendment or disseminate or distribute any information
concerning the terms, details or conditions hereof to any person, firm or entity
without obtaining the express written consent of Landlord.
	 
	 	11.2	 	Except as herein modified or amended, the provisions, conditions and terms of
the Lease shall remain unchanged and in full force and effect.
	 
	 	11.3	 	In the case of any inconsistency between the provisions of the Lease and this
Amendment, the provisions of this Amendment shall govern and control.
	 
	 	11.4	 	Submission of this Amendment by Landlord is not an offer to enter into this
Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not
be bound by this Amendment until Landlord has executed and delivered the same to
Tenant.
	 
	 	11.5	 	The capitalized terms used in this Amendment shall have the same definitions as
set forth in the Lease to the extent that such capitalized terms are defined therein
and not redefined in this Amendment.
	 
	 	11.6	 	Tenant hereby represents to Landlord that Tenant has dealt with no broker in
connection with this Amendment. Tenant agrees to indemnify and hold Landlord, its
members, principals, beneficiaries, partners, officers, directors, employees,
representatives, mortgagee(s) and agents, and the respective principals and members of
any such agents (collectively, the “Landlord Related Parties”) harmless from all claims
of any brokers claiming to have represented Tenant in connection with this Amendment.
Landlord hereby represents to Tenant that Landlord has dealt with no broker in
connection with this Amendment. Landlord agrees to indemnify and hold Tenant, its
officers, directors, shareholders, employees, representatives and agents harmless from
all claims of any brokers claiming to have represented Landlord in connection with this
Amendment.
	 
	 	11.7	 	Each signatory of this Amendment represents hereby that he or she has the
authority to execute and deliver the same on behalf of the party hereto for which such
signatory is acting.




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	 	 	 	Tenant hereby represents and warrants that neither Tenant, nor any persons or
entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the
target of any sanctions program that is established by Executive Order of the
President or published by the Office of Foreign Assets Control, U.S. Department of
the Treasury (“OFAC”); (ii) designated by the President or OFAC pursuant to the
Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56,
Executive Order 13224 (September 23, 2001) or any Executive Order of the President
issued pursuant to such statutes; or (iii) named on the following list that is
published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If
the foregoing representation is untrue at any time during the Term, an Event of
Default under the Lease will be deemed to have occurred, without the necessity of
notice to Tenant.





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	 	11.8	 	Redress for any claim against Landlord under the Lease and this Amendment shall
be limited to and enforceable only against and to the extent of Landlord’s interest in
the Property. The obligations of Landlord under the Lease are not intended to and
shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers, as the case may
be, its investment manager, the general partners thereof, or any beneficiaries,
stockholders, employees, or agents of Landlord or the investment manager.





          IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the day and
year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	TENANT:
	 
	 	 	 	 	 	 	 	 	 	 
	RREEF AMERICA REIT II CORP. FFF,

a Maryland corporation	 	AVANIR PHARMACEUTICALS,

a California corporation
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	RREEF Management Company, a Delaware

corporation, its Authorized Agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Keith Walters
	 	By:
	 	/s/ Keith Katkin	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	Name:

	 	Keith Walters
	 	Name:
	 	Keith Katkin	 	 	 	 
	 
	Title:

	 	 Vice President, District Manager
	 	Title:
	 	President and CEO	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 7/19/07
	 	Dated:
	 	7/18/07	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Martin Sturgeon	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 

	 	 	 	Name:


Title:
	 	Martin Sturgeon



CFO	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Dated:
	 	7/18/07	 	 	 	 







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EXHIBIT A — OUTLINE AND LOCATION OF REDUCTION SPACE




attached to and made a part of the Amendment dated as of July 18, 2007,

between RREEF AMERICA REIT II CORP. FFF, a Maryland corporation,

as Landlord and AVANIR PHARMACEUTICALS, a California corporation, as Tenant



Exhibit A is intended only to show the general layout of the Reduction Space as of the beginning of
the Reduction Effective Date. It does not in any way supersede any of Landlord’s rights set forth
in the Lease with respect to arrangements and/or locations of public parts of the Building and
changes in such arrangements and/or locations. It is not to be scaled; any measurements or
distances shown should be taken as approximate.


	 	 	 
	 	 	 
	 	Initials




A-1