Exhibit 10.1
FOURTH AMENDMENT TO
LEASE
THIS FOURTH AMENDMENT is made and
entered into as of June 30, 2009 by and between MEPT Commerce
Park Tualatin II and III LLC, a Delaware limited liability company
(fka NewTower Trust Company Multi-Employer Property Trust, a trust
organized under 12 C.F.R. § 9.18) (the
“Landlord”), and Bioject Medical Technologies, Inc., an
Oregon corporation (the “Tenant”). All capitalized
terms not defined herein shall have the meanings given to them in
the Lease (defined below).
RECITALS
A. Landlord and Tenant are parties
to that certain Lease dated October 24, 2003, as amended by
that certain First Amendment to Lease dated December 2003, a Second
Amendment to Lease dated November 18, 2008, and a Third
Amendment to Lease dated March 25, 2009 (collectively, the
“Lease”), for certain Premises containing approximately
40,572 square feet (the “Premises”) within Building H
of the project commonly known as Tualatin Corporate Center (the
“Project”). The Premises is more particularly described
in the Lease.
B. Tenant desires to extend the
temporary Base Rent deferral arrangement set forth in the Third
Amendment. Landlord desires to accommodate Tenant’s request
on the terms and conditions set forth below.
AGREEMENTS
For good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the parties
agree to amend the Lease as follows:
1. Temporary (Partial) Base Rent
Abatement . For the period commencing on May 1, 2009
through June 30, 2009, Tenant’s Base Rent shall be
partially abated by $12,000 for each of the two months during such
period for a total abatement of $24,000 (“Partial Abatement
III”). Landlord, in its sole discretion, may, by written
notice, extend the period of Partial Abatement III on a
month-to-month basis through December 31, 2009. Partial
Abatement III, plus accrued interest at the rate of 9% per
annum, shall be due within sixty (60) days upon the earlier to
occur of (i) sale of all or substantially all of the assets of
Tenant or the acquisition or merger of Tenant or the occurrence of
any other transaction identified in Section 4.15.4 of the
Lease, (ii) capital or equity raise of $3,000,000 (Three
million dollars) or more, (iii) strategic partnership with
up-front payments over $300,000 (Three hundred thousand dollars),
(iv) default by Tenant under the Lease; provided, that if none
of the foregoing events have occurred by December 31, 2010,
Tenant shall commence paying back Partial Abatement III (plus
interest) in twelve (12) equal installments at the same time
and in the same manner as Base Rent commencing on January 1,
2011 and on the first of each month thereafter until paid in full.
The parties acknowledge that Partial Abatement I and Partial
Abatement II are still accruing. The schedule attached as Exhibit A
shows the total amount accruing to date and the payment
schedule.
2. Non-Waiver . The granting
of Partial Abatement III shall not be deemed a waiver by Landlord
of its right to demand the prompt payment of Base Rent and other
sums due under the Lease now or in the future. Further, the failure
of the Tenant to comply with the terms of this
1
Amendment or to pay Partial Abatement III when
due shall be a default and Landlord shall be entitled to pursue all
of its remedies under the Lease for non-payment of Rent.
3. Full Force and Effect .
The terms and conditions of the Lease, as modified by this
Amendment, shall remain in full force and effect are hereby
ratified and affirmed.
DATED as of the date first above
written.
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LANDLORD:
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TENANT:
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MEPT Commerce
Park Tualatin II and III LLC, a Delaware limi
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