EXHIBIT 10.5.3
THIRD AMENDMENT TO
LEASE
THIS THIRD AMENDMENT is made and
entered into as of March 25, 2009 by and between MEPT Commerce
Park Tualatin II and III LLC, a Delaware limited liability company
(aka 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 and a Second Amendment to Lease dated
November 18, 2008 (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 Second 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 February 1, 2009 through April 30,
2009, Tenant’s Base Rent shall be partially abated by $12,000
for each of the three months during such period less a credit of
$3,887.46 (for Tenant’s overpayment of Operating Costs in
2008) for a total adjusted abatement of $32,112.54 (“Partial
Abatement II”). Partial Abatement II, 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 II (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. Until the
Partial Abatement is paid in full, Tenant shall provide Landlord
with monthly financial statements of the Tenant certified as true
and accurate by the Vice President of Finance or other officer of
Tenant on or before the 15 th of each month for the prior
month’s reporting period commencing on December 15,
2008.
2.
Non-Waiver . The granting of Partial Abatement II 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
