FIRST AMENDMENT TO ATTORNMENT AGREEMENT
Exhibit
10.3.3
FIRST
AMENDMENT TO ATTORNMENT AGREEMENT
THIS
FIRST AMENDMENT TO ATTORNMENT AGREEMENT ("Amendment")
is
made
and entered into as of the 15th
day of
November, 2005 by and between LBA REALTY FUND-HOLDING
CO. I, LLC, a Delaware limited liability company ("Master
Landlord"), and
AMERICAN
TECHNOLOGY CORPORATION, a Delaware corporation ("Subtenant").
R
E C
I T A L S:
A. Master
Landlord and Subtenant entered into that certain Attornment Agreement dated
as
of August 1, 2005 (the "Agreement"),
whereby
Master Landlord succeeded to the sublandlord interest under that certain Amended
and Restated Sublease Agreement dated September 1, 2000 between Subtenant and
Smiths Industries Aerospace & Defense Systems, Inc., pursuant to which
Subtenant leased certain space in the building located at 00000 Xxxxxxx Xxxxx
Xxxxx, Xxxxx, Xxx Xxxxx, Xxxxxxxxxx ("Building").
B. By
this
Amendment, Master Landlord and Subtenant desire to modify the Agreement as
provided herein.
C. Unless
otherwise defined herein, capitalized terms as used herein shall have the same
meanings as given thereto in the Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
A
G R
E E M E N T:
1. Term.
Effective as of the date hereof, Section 2.2 of the Agreement shall be deemed
deleted in its entirety and replaced with the following: "The Term of the
Sublease shall end on January 31, 2006."
2. Brokers.
Each
party represents and warrants to the other that no broker, agent or finder
negotiated or was instrumental in negotiating or consummating this Amendment.
Each party further agrees to defend, indemnify and hold harmless the other
party
from and against any claim for commission or finder's fee by any person or
entity who claims or alleges that they were retained or engaged by the
indemnifying party or at the request of such party in connection with this
Amendment.
3. Subtenant
Representations.
Each
person executing this Amendment on behalf of Subtenant represents and warrants
to Master Landlord that: (a) Subtenant is properly formed and validly existing
under the laws of the state in which Subtenant is formed and Subtenant is
authorized to transact business in the state in which the Building is located;
(b) Subtenant has full
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right
and
authority to enter into this Amendment and to perform all of Subtenant's
obligations hereunder; and (c) each person (and both persons if more than one
signs) signing this Amendment on behalf of Subtenant is duly and validly
authorized to do so.
4. No
Further Modification.
Except
as set forth in this Amendment, all of the terms and provisions of the Agreement
shall remain unmodified and in full force and effect. Effective as of the date
hereof, all references to the "Agreement" shall refer to the Agreement as
amended by this Amendment.
5. Counterparts
and Fax Signatures.
This
Amendment may be executed in counterparts, each of which shall be deemed an
original, but such counterparts, when taken together, shall constitute one
agreement. This Amendment may be executed by a party's signature transmitted
by
facsimile ("fax"), and copies of this Amendment executed and delivered by means
of faxed signatures shall have the same force and effect as copies hereof
executed and delivered with original signatures. All parties hereto may rely
upon faxed signatures as if such signatures were originals. Any party executing
and delivering this Amendment by fax shall promptly thereafter deliver a
counterpart signature page of this Amendment containing said party's original
signature. All parties hereto agree that a faxed signature page may be
introduced into evidence in any proceeding arising out of or related to this
Amendment as if it were an original signature page.
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"Master
Landlord":
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LBA
REALTY FUND-XXXXXXX CO. I, LLC,
a
Delaware limited liability company
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By:
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LBA Realty
Fund, L.P.,
a
Delaware limited partnership
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its
Manager
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By:
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LBA
Management Company, LLC,
a
Delaware limited liability company,
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its
General Partner
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By:
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LBA,
Inc.,
a
California corporation,
its
Manager
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| By: |
/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
Authorized Signatory
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"Subtenant"*:
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AMERICAN
TECHNOLOGY CORPORATION,
a
Delaware corporation
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Print
Name: Xxxxxxx X. Xxxxxxx
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Title:
CFO
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By:
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Print
Name:
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Title:
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*NOTE:
If
Subtenant is a California corporation, then
one
of the following alternative requirements must be satisfied:
(A) This
Amendment must be signed by two (2) officers of such corporation: one being
the
chairman of the board, the president or a vice president, and the other being
the secretary, an assistant secretary, the chief financial officer or an
assistant treasurer. If one (1) individual is signing in two (2) of the
foregoing capacities, that individual must identify the two (2)
capacities.
(B) If
the
requirements of (A) above are not satisfied, then Subtenant shall deliver to
Master Landlord evidence in a form reasonably acceptable to Master Landlord
that
the signatory(ies) is (are) authorized to execute this Amendment.
If
Subtenant is a corporation incorporated in a state other than California,
then
Subtenant shall deliver to Master Landlord evidence in a form reasonably
acceptable to Master Landlord that the signatory(ies) is (are) authorized to
execute this Amendment.
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