AMENDMENT NO. 1
Exhibit
10.7
AMENDMENT
NO. 1
This
Amendment No. 1 (this “Amendment”)
is
executed as of December ____, 2006, between INDUSTRIAL
PROPERTIES CORPORATION,
a Texas
corporation (“Landlord”),
and
NANO-PROPRIETARY,
INC.,
a
Delaware corporation (“Tenant”),
for
the purpose of amending the Lease Agreement between Landlord and Tenant dated
February 6, 2004 (the “Lease”).
Capitalized terms used herein but not defined shall be given the meanings
assigned to them in the Lease.
RECITALS:
Pursuant
to the terms of the Lease, Tenant is currently leasing Suites 105, 106, 107,
108
and 109 consisting of 16,111 square feet of space in the building located at
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx, commonly known as 0000
Xxxxxxxx Xxxxxxxxx (the “Building”).
Tenant desires to extend the Term for a period of 12 months, and Landlord has
agreed to such extension on the terms and conditions contained
herein.
AGREEMENTS:
For
valuable consideration, whose receipt and sufficiency are acknowledged, Landlord
and Tenant agree as follows:
1. Extension
of Term.
The
Term is hereby extended such that it expires at 5:00 p.m., Austin, Texas time,
on February 14, 2008, rather than February 14, 2007, on the terms and conditions
of the Lease, as modified hereby.
2. Rent.
(a) Base
Rent.
Beginning February 15, 2007, the monthly installments of Base Rent shall be
$8,378.00.
(b) Additional
Rent.
Beginning February 15, 2007, the monthly installments of Reimbursable Expenses
shall be as follows:
Tenant’s
Share of Taxes:$1,283.00
Tenant’s
Share of Common Area Maintenance:$367.00
Tenant’s
Share of Insurance Premiums:$86.00
Tenant
acknowledges and agrees that the foregoing amounts are estimates only and that
such amounts shall be adjusted in accordance with the terms of the Lease (as
amended by this Amendment).
3. Condition
of Premises.
Tenant
hereby accepts the Premises in their “AS-IS”
condition, and Landlord shall have no obligation for any construction or
finish-out allowance or providing to Tenant any other tenant
inducement.
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4. Limitation
of Liability.
In
addition to any other limitations of Landlord’s liability as contained in the
Lease, as amended to date, the liability of Landlord (and its partners,
shareholders or members) to Tenant (or any person or entity claiming by, through
or under Tenant) for any default by Landlord under the terms of the Lease or
any
matter relating to or arising out of the occupancy or use of the Premises and/or
other areas of the Building shall be limited to Tenant’s actual direct, but not
consequential, damages therefor and shall be recoverable only from the interest
of Landlord in the Building, and neither Landlord nor any principal or affiliate
of Landlord shall be personally liable for any deficiency.
5. Notices.
All
notices and other communications given pursuant to the Lease shall be in writing
and shall be 1) mailed
by first class, United States mail, postage prepaid, certified, with return
receipt requested, and addressed to the parties hereto at the address listed
below, 2) hand
delivered to the intended addressee, 3) sent
by nationally recognized overnight courier, or 4) sent
by facsimile transmission during the hours of 9:00 a.m. and 4:00 p.m. Dallas,
Texas time on a business day, followed by a confirmatory letter. Notice sent
by
certified mail, postage prepaid, shall be effective three business days after
being deposited in the United States mail; all other notices shall be effective
upon delivery to the address of the addressee (even if such addressee refuses
delivery thereof). The parties hereto may change their addresses by giving
notice thereof to the other in conformity with this provision. Landlord and
Tenant hereby agree not to conduct the transactions or communications
contemplated by the Lease, as amended hereby, by electronic means, except by
facsimile transmission as specifically set forth in this
Section 5;
nor
shall the use of the phrase “in writing” or the word “written” be construed to
include electronic communications except by facsimile transmissions as
specifically set forth in this Section 5.
The
addresses for notice set forth below shall supersede and replace any addresses
for notice set forth in the Lease.
| Landlord: |
Industrial
Properties Corporation
000
XxXxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xxx Xxxxxxx, Xx.
Telecopy
No.: 214.661.1001
|
| with a copy to: |
Crow
Holdings
0000
XxXxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Asset Manager - IPC - DASA
Telecopy
No.: 214.661.8041
|
| Tenant: |
Nano-Proprietary,
Inc.
0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxxx Xxxxx
Telecopy
No.: 512.339.5021
|
6. Brokerage.
Landlord and Tenant each warrant to the other that it has not dealt with any
broker or agent in connection with the negotiation or execution of this
Amendment other than DASA Management, L.P., whose commission shall be paid
by
Landlord pursuant to a separate written agreement. Tenant and Landlord shall
each indemnify the other against all costs, expenses, attorneys’ fees, and other
liability for commissions or other compensation claimed by any other broker
or
agent claiming the same by, through, or under the indemnifying
party.
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7. Determination
of Charges.
Landlord and Tenant agree that each provision of the Lease (as amended by this
Amendment) for determining charges and amounts payable by Tenant (including
provisions regarding Additional Rent) is commercially reasonable and, as to
each
such charge or amount, constitutes a statement of the amount of the charge
or a
method by which the charge is to be computed for purposes of Section 93.012
of the Texas Property Code.
8. Prohibited
Persons and Transactions.
Tenant
represents and warrants to Landlord that Tenant is currently in compliance
with,
and shall at all times during the Term (including any extension thereof) remain
in compliance with, the regulations of the Office of Foreign Asset Control
(“OFAC”)
of the
Department of the Treasury (including those named on OFAC’s Specially Designated
Nationals and Blocked Persons List) and any statute, executive order (including
the September 24, 2001, Executive Order Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action relating thereto.
9. Ratification.
Tenant
hereby ratifies and confirms its obligations under the Lease, and represents
and
warrants to Landlord that Tenant has no defenses thereto. Additionally, Tenant
further confirms and ratifies that, as of the date hereof, 5) the
Lease is and remains in good standing and in full force and effect, 6) Tenant
has no claims, counterclaims, set-offs or defenses against Landlord arising
out
of the Lease or in any way relating thereto or arising out of any other
transaction between Landlord and Tenant, and 7) all
tenant finish-work allowances provided to Tenant under the Lease or otherwise,
if any, have been paid in full by Landlord to Tenant, and Landlord has no
further obligations with respect thereto.
10. Binding
Effect; Governing Law.
Except
as modified hereby, the Lease shall remain in full effect and this Amendment
shall be binding upon Landlord and Tenant and their respective successors and
assigns. If any inconsistency exists or arises between the terms of the Lease
and the terms of this Amendment, the terms of this Amendment shall prevail.
This
Amendment shall be governed by the laws of the State of Texas.
11.
Counterparts.
This
Amendment may be executed in multiple counterparts, each of which shall
constitute an original, but all of which shall constitute one
document.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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Executed
as of the date first written above.
|
LANDLORD:
|
INDUSTRIAL
PROPERTIES CORPORATION,
a
Texas corporation
By:_______________________________
Name:
_____________________________
Title:
______________________________
|
| TENANT: |
NANO-PROPRIETARY,
INC.,
a
Delaware corporation
By:_______________________________
Name:
_____________________________
Title:
______________________________
|
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