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. |
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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 ”). |
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| B. |
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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:
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1.1 |
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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. |
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1.2 |
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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. |
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1.3 |
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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. |
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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 $26,091.60, representing the Monthly
Installment of Rent owed with respect to the Suite 335 for the
months (or applicable portion thereof) of April, May, June and July
of 2007 and with respect to Suite 330 for the month of July of
2007. Tenant shall remain liable, subject to and in accordance with
the terms of the Lease, for the payment of Tenant’s
Proportionate Share of Expenses, Taxes and Insurance Costs with
respect to the Additional Premises accruing prior to the Reduction
Effective Date. Effective as of the Reduction Effective Date, the
schedule of Monthly Installment of Rent contained in the Lease is
deleted, and the following is substituted therefor: |
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Rentable |
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Annual Rate |
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Monthly |
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Square |
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Per Square |
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Installment of |
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Period |
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Footage |
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Foot |
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Annual Rent |
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Rent |
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7/1/07
– 7/9/07
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11,319 |
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$ |
31.80 |
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$ |
359,944.20 |
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$ |
29,995.35 |
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7/10/07 –
7/9/08
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11,319 |
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$ |
32.75 |
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$ |
370,697.25 |
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$ |
30,891.44 |
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7/10/08 –
7/9/09
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11,319 |
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$ |
33.73 |
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$ |
381,789.87 |
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$ |
31,815.82 |
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7/10/09 –
7/9/10
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11,319 |
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$ |
34.74 |
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$ |
393,222.06 |
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$ |
32,768.51 |
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7/10/10 –
7/9/11
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11,319 |
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$ |
35.78 |
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$ |
404,993.82 |
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$ |
33,749.49 |
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All such Monthly Installment of Rent shall be payable by Tenant
in accordance with the terms of the Lease, as amended hereby. |
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| 3. |
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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. |
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| 4. |
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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 |
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