EXHIBIT 10.15.3
SECOND AMENDMENT TO LEASE
RENEWAL
This SECOND AMENDMENT TO LEASE (this "Second Amendment") is made this 7th day of
July, 2006 by and between TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA,
INC., a New York corporation ("Landlord") and NEAH POWER SYSTEMS, INC., a
Washington corporation ("Tenant").
RECITALS
Landlord is the landlord and Tenant is the tenant under that certain
Lease dated March 5, 2001 (the "Initial Lease"), as modified by First Amendment
to Lease dated for reference purposes June 6, 2003 (the "First Amendment"), for
premises located at 22118 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇, ▇▇▇▇ ▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Building H, Unit 161
(the "Premises"). The Premises consists of 8,069 rentable square feet (being
4,483 rsf office, 586 rsf warehouse and 3,000 rsf lab). As used herein the
"Amended Lease" shall mean the Initial Lease as amended by First Amendment, and
the "Lease" shall mean the Amended Lease as modified by this Second Amendment.
The parties desire to amend the Amended Lease to extend the Lease Term
and make certain other changes, on the following terms and conditions.
Except as otherwise specifically defined herein all capitalized terms
shall have the meanings assigned in the Initial Lease.
AGREEMENT
1. EXTENDED TERM OF THE LEASE. Section 1(g) of the Initial Lease is hereby
amended to extend the Term of the Lease for a term ("Extended Term") commencing
on September 1, 2006 ("Extended Term Commencement Date") and terminating on
August 31, 2007 ("Expiration Date").
2. BASE MONTHLY RENT. From and after the Extended Term Commencement Date,
Section 1(h) of the Initial Lease hereby is amended such that the Base Monthly
Rent during the Extended Term is as follows:
G/ 142 H/161
------ -----
Extended Term Commencement Date - August 31, $8,736.00 $2,125.00
2007
3. PROJECT AREA. As of the Extended Term Commencement Date, Section 1(f) is
hereby amended to reduce the Project Area to an agreed 361,439 rentable square
feet and Exhibit B to
the Initial Lease is replaced by Exhibit A to this Second Amendment.
4. As IS; LANDLORD'S WORK. Tenant leases the Premises during the Extended Term
in its as-is, where-is condition and acknowledges that Landlord has not agreed
to and shall not be required to make any improvements or alterations to the
same.
5. OPTION TO RENEW. Tenant is hereby granted the right to extend the Term of
this Lease beyond the Expiration Date of the Extended Term for one (I)
successive period of twelve (12) months (the "Second Extended Term"). This right
to extend may be exercised by Tenant only by giving Landlord written notice
("Notice") on or before February 28, 2007. If Tenant has defaulted in its
obligations under this Lease, and failed to cure such defaults within any
applicable cure period, then Tenant's right to extend the Lease for the Second
Extended Term shall automatically terminate. Tenant's right to extend the Lease
for the Second Extended Term is personal to Tenant and may not be exercised by
any subtenant or assignee of Tenant. Tenant's extension rights shall apply to
all of the Premises then leased by Tenant under this Lease. From and after the
commencement of the Second Extended Term, all of the terms, covenants, and
conditions of the Lease shall continue in full force and effect as written,
except that Sections 5, and 6 of this Second Amendment shall be deleted in their
entirety and Base Monthly Rent for the Second Extended Term shall be -at the-
rate - then - being - paid- - under-new- new-leases- for - similarly improved
and situated premises in the Canyon Park Business Center of which this Project
is a part, but not less than the Base Monthly Rent in effect for the last month
of the Extended Term. Tenant shall include with its Notice copies of Tenant's
then-current financial statement as well as financial statements from the three
(3) years prior to the current financial statement year, and shall provide
Landlord with such other financial information regarding Tenant as Landlord may
require. Tenant's right to extend the Term of this Lease for the Second Extended
Term is contingent upon Landlord's reasonable approval of such financial
statements and information.
Tenant hereby acknowledges and agrees that its renewal rights set forth in this
Section supersede and replace its renewal rights under Section 33 of the Initial
Lease, which Tenant failed to exercise and therefore are deemed void and of no
further force and effect.
6. RIGHT OF FIRST OPPORTUNITY. This Right of First Opportunity shall apply to
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇ of 22118 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Expansion Space"). This Right of First Opportunity shall be subordinate to any
other pre-existing tenant's expansion rights as of the date of mutual execution
of this Second Amendment and Landlord shall further be entitled to voluntarily
allow existing tenants to extend or renew their leases. Except as provided
above, at such time as Landlord intends to offer all or any part of the
Expansion Space for lease, Landlord shall so notify Tenant, which notice shall
include the terms (rate, term, etc.) on which Landlord intends to offer the
Expansion Space or part thereof (the "Offered Space"). If Landlord is offering a
portion of the Expansion Space in conjunction with other, adjacent space,
Landlord may designate the entirety of such offered space as the Offered Space.
Tenant shall have five (5) business days from receipt of such notice to notify
Landlord that Tenant agrees to enter into a lease for the Offered Space on the
terms stated in Landlord's notice or to enter into a lease for the Offered Space
on such other terms as may be mutually agreeable to Landlord and Tenant in their
sole discretion. If Tenant does not enter into a lease for the Offered Space as
provided in the proceeding sentence, this Right of First
Opportunity immediately and without further action by Landlord shall terminate
in its entirety. This Right of First Opportunity shall be exercisable by Tenant
only if Tenant is in possession of the Premises under this Lease and is not
then, nor, from and after the parties' mutual execution of this Second
Amendment, ever has been, in default beyond any applicable notice and cure
period under this Lease. Notwithstanding any other provision of this Section,
this Right of First Opportunity shall expire on the Expiration Date of the
Extended Term or the earlier termination of the Lease, provided that if Tenant
exercises its Option to Renew, this Right of First Opportunity shall be extended
until the expiration or termination of the Second Extended Term. Furthermore,
this Right of First Opportunity shall be personal to Tenant and may not be
exercised by any subtenant or assignee of Tenant.
7. BROKERS. Tenant was represented in this Second Amendment transaction by ▇▇▇▇
▇▇▇▇▇▇▇▇ of Washington Partners, who shall be compensated by Landlord pursuant
to a separate written agreement. Except for the broker set forth in the
preceding sentence, each party shall indemnify, defend and hold the other party
harmless from and against all costs, expenses, attorneys' fees, liens and other
liability for commissions or other compensation claimed by any broker or agent
claiming the same by, through, or under that party.
8. ENTIRE AGREEMENT. This Second Amendment and the Amended Lease constitute the
entire agreement between Landlord and Tenant with respect to the subject matter
of this Second Amendment.
9. FULL FORCE AND EFFECT. Except as specifically set forth herein, the Amended
Lease is and remains in full force and effect and binding on the parties. Tenant
confirms that Landlord is not now and has not in the past been in default under
the Lease, and Tenant has no claim against Landlord for damages or offset of any
type.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereby duly execute this Second Amendment
as of the date and year first set forth above.
Landlord: Teachers Insurance & Annuity Association of
America, Inc., a New York corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
▇▇▇▇▇ ▇▇▇▇▇▇
Its: Director
Tenant: Neah Power Systems, Inc., a Washington corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: President