AMENDMENT TO LEASE AGREEMENT
BETWEEN EXCIMER VISION LEASING L.P.
AND
BRITESMILE, INC.
This Amendment to Lease Agreement is entered into as of
January 1, 2003 between Excimer Vision Leasing L.P. ("EVL") and BriteSmile, Inc.
("BriteSmile").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, EVL and BriteSmile are parties to an Amended and
Restated Agreement, dated February 25, 2001 (the "Lease Agreement") as amended
by an amendment dated March 8, 2002 and by a further amendment dated September
18, 2002 (the Lease Agreement, as so amended, being the "Amended Lease
Agreement"); and
WHEREAS, EVL and BriteSmile wish to amend the Amended Lease
Agreement in certain respects;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, EVL and BriteSmile do
hereby agree as follows:
1. Definitions. Capitalized term not otherwise defined herein
shall have their respective meanings as set forth in the Amended Lease
Agreement.
2. Variable Rent. Section 4(c) of the Amended Lease Agreement is
hereby amended to read in its entirety as follows:
(c) Variable Rent.
(i) The Variable Rent for each Leased System shall be based on the
Key Cards delivered for use with respect to the Leased System.
The Variable Rent shall be equal to $25 for each BriteSmile
Procedure that would be able to be performed on such System by
fully using all Key Cards delivered during the preceding month
for use with such System or $125 for each standard 5-Procedure
Key Card that is delivered. Payment of such Variable Rent shall
be made on the 40th day following the end of the month in which
delivery of such Key Cards occurred.
(ii) Notwithstanding the foregoing, the payment of Variable Rent due
with respect to Key Cards delivered in any month during the
calendar years 2002 and 2003 shall not be made on the 40th day
following the end of the month in which delivery of the Key Cards
occurred. Instead payment of such Variable Rent shall be
deferred, and payment of the aggregate amount of the Variable
Rent due with respect to all Key Cards delivered in all months
during the calendar year 2002 (the "Total Deferred 2002 Variable
Rent") and in all months during the calendar year 2003 (the
"Total Deferred 2003 Variable Rent") shall be made on January 1,
2004.
(iii) In addition to the payments required to be made under Section
4(c)(ii), BriteSmile shall pay EVL interest at the Prescribed
Rate, as hereinafter defined, on so much of the Total Deferred
2002 Variable Rent and on so much of the Total Deferred 2003
Variable Rent as has accrued and remains due but unpaid from time
to time from and after March 12, 2002, in the case of Total 2002
Variable Rent, and March 12, 2003, in the case of Total 2003
Variable Rent. For the purposes of the interest calculations
under this subsection (iii), Variable Rent included in Total
Deferred 2002 Variable Rent and in Total Deferred 2003 Variable
Rent shall be deemed to accrue on the date that payment of such
Variable Rent would be required to be made under Section 4(c)(i)
without giving effect to Section 4(c)(ii). All such interest that
accrues from March 12, 2002 to January 8, 2003 on account of
Total Deferred 2002 Variable Rent shall be paid on January 9,
2003. Thereafter such accrued interest on account of Total
Deferred 2002 Variable Rent shall be payable on the 9th day of
each month through December 9, 2003 and on January 1, 2004. All
such interest that accrues on account of Total Deferred 2003
Variable Rent shall be paid on the 9th day of each month
commencing April 9, 2003 through December 9, 2003 and on January
1, 2004.
(iv) The "Prescribed Rate" of interest due under Section 4(c)(iii)
means an interest rate, compounded monthly, equal to the sum of
(A) the London Interbank Offered Rate as quoted by The Bank of
Nova Scotia for the applicable Adjustment Date for deposits in
U.S. Dollars for one month maturities as determined on each
Adjustment Date plus (B) 200 basis points, such rate to change on
each Adjustment Date. The term "Adjustment Date" means (A) during
the calendar year 2002, each day on which payments of Variable
Rent for Key Cards delivered during 2002 would be required to be
made under Section 4(c)(i) without giving effect to the deferral
provided by Section 4(c)(ii), commencing with March 12, 2002, and
(B) during the calendar year 2003, the 9th day of each month
commencing January 9, 2003.
(v) BriteSmile may from time to time on three days written notice to
EVL prepay all or any portion of Total Deferred 2002 Variable
Rent then due by paying the portion thereof to be prepaid
together with all interest accrued under Section 4(c)(iii) on
Total Deferred 2002 Variable Rent to the date of prepayment. Upon
payment in full of all Total Deferred 2002 Variable Rent as
provided in the preceding sentence, BriteSmile may, from time to
time on three days written notice to EVL, prepay all or any
portion of Total Deferred 2003 Variable Rent then due by paying
the portion thereof to be prepaid together with all interest
accrued under Section 4(c)(iii) on Total Deferred 2003 Variable
Rent to the date of prepayment.
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(vi) In the event that a payment of Variable Rent is to be made, or an
Adjustment Date falls, on a day that is not a Business Day, such
payment shall be made, and such Adjustment Date shall be deemed
to occur, on the next Business Day. A "Business Day" means with
respect to a payment of Variable Rent any day excluding Saturday,
Sunday and a legal holiday under the laws of the State of
California and excluding a day on which banking institutions
located in such state are authorized or required by law or
governmental action to close, and, with respect to an Adjustment
Date, means a Business Day that is also a day on which trading by
and between banks in U.S. Dollar deposits in the London interbank
market occurs.
(vii) The following example is provided to illustrate the provisions of
Section 4(c)(ii)-(iv).
Example: Assume that Variable Rent accrues under the Lease at a rate
of $300,000 per month for each month during 2002 and 2003. Payment of
the $300,000 of Variable Rent attributable to Key Cards delivered in
January 2002 would otherwise be due on March 12, 2002. Instead such
Variable Rent otherwise due on March 12, 2002 and all other Variable
Rent due with respect to Key Cards delivered in 2002 (an aggregate of
$3,600,000) and all other Variable Rent due with respect to Key Cards
delivered in 2003 (an aggregate of another $3,600,000) is due on
January 1, 2004.
Interest will accrue on the accrued Variable Rent from March 12, 2002
at the Prescribed Rate. The amount of Variable Rent on which interest
accrues shall be the amount of rent that has been deferred (e.g.,
$300,000 from March 12, 2002 to April 9, 2002; $600,000 from April 9,
2002 to May 10, 2002, etc.).
All accrued interest is due on January 9, 2003. Thereafter interest
shall accrue on the balance of Total Deferred 2002 Variable Rent and
Total Deferred 2003 Variable Rent which remains unpaid (e.g.,
$3,600,000 from January 9, 2003 to March 12, 2003, $3,900,000 from
March 12, 2003 to April 9, 2003; $4,200,000 from April 19, 2003 to May
10, 2003, etc.
The interest rate is determined on a monthly basis. During 2002,
interest is fixed on the date that Variable Rent otherwise would have
been due but for the deferral, e.g. March 12, 2002, April 9, 2002,
etc. During 2003, interest is fixed on the ninth day of each month.
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3. General Provisions.
(a) Nothing in this Amendment shall affect the obligation of
BriteSmile to make Fixed Payments under the Amended Lease Agreement at any time,
including but not limited to with respect to the period from January 1, 2002 to
December 31, 2003.
(b) BriteSmile shall continue to supply EVL with all reports referred
to in Section 14 of the Lease Agreement regardless of whether Variable Rent is
due with respect to the period covered by the report.
(c) This Amendment may be executed in counterparts, including
facsimile counterparts.
IN WITNESS WHEREOF, the parties have executed and delivered
this Amendment as of the date above within.
EXCIMER VISION LEASING, L.P.
By: CAP Properties Limited,
its General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
BRITESMILE, INC.
By: /s/ Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: Chief Executive Officer
