**Exhibit 10.61**

 

**SECOND AMENDMENT TO LEASE AGREEMENT**

 

This SecondAmendment to Lease Agreement (this “Amendment”) is made as of the 1st day ofJuly, 2002, by and between DMV SUB 4 LLC, a Delaware limited liability company(“Landlord”), and INVISION TECHNOLOGIES, INC., a Delaware corporation(“Tenant”).

 

**RECITALS**

 

A.                         Tenantand WHLNF Real Estate Limited Partnership (“WHLNF”) entered into that certainLease Agreement dated February 11, 1997, as amended by that certain FirstAmendment to Lease Agreement dated December 10, 1997 (collectively the“Lease”), for premises located in Building II (the “Building”) located at 7151Gateway Boulevard, in the Bridgeway Technology Center, in the City of Newark,County of Alameda, State of California, all as more particularly set forth inthe Lease (the “Original Premises”).

 

B.                           WHLNFconveyed all of its interest in the Building and the Park to Landlord by grantdeed.

 

C.                           Landlordand Tenant desire to amend the Lease upon the terms and conditions set forthbelow.

 

NOW, THEREFORE,in consideration of the foregoing, the parties hereto agree as follows:

 

The Lease ishereby amended as follows:

 

1.        Expansion of Premises.  In addition to the Original Premisescurrently leased by Tenant, on September 1, 2002 (the “Effective Date”), Landlordand Tenant agree that Tenant shall also lease approximately 18,742 rentablesquare feet located at 7007 Gateway Boulevard, Newark, California 94560 (the“Expansion Premises”), as depicted on the floor plan attached hereto and made apart thereof as Exhibit A.  All terms,covenants and conditions of the Lease, as amended hereby, shall cover the leaseof the Expansion Premises during the Expansion Period (as defined below).

 

2.        Expansion PremisesTerm.  The term of the Leasecovering the Expansion Premises shall be for a period of twenty five (25)months from and including the Effective Date to and including September 30,2004 (the “Expansion Period”).

 

3.        Condition ofExpansion Premises.  Landlord shallnot be responsible for making any improvements to the Expansion Premises andTenant agrees to accept the Expansion Premises in their “as-is” condition as ofthe date hereof, including without limitation, leaving all currently existingracking in the Expansion Premises for Tenant’s use thereof during the ExpansionPeriod. Landlord shall, at its sole cost and expense, provide Tenant with anallowance of Fifty Six Thousand Two Hundred Twenty Six and No/100 Dollars($56,226.00) (the

 

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“Allowance”) for the purpose ofTenant’s installation of general improvements to the Expansion Premises subjectto compliance with the provisions of Section 10.1 of the Lease. The Allowanceshall be  available for application tothe cost of such improvements only to the extent such improvements have beencompleted on or before December 31, 2002, absent any Landlord-caused  delays related thereto. The Allowance shallbe paid to Tenant or to Tenant’s Contractor(s) (as hereinafter defined) orTenant’s agents at Tenant’s direction, within fifteen (15) business days afterthe receipt of written notice, accompanied by the following (an “Applicationfor Payment”): (i) invoices covering the subject work, (ii) a writtencertification from Tenant’s architect that the work described on all suchinvoices has been substantially completed in accordance with the plans andspecifications approved by Landlord, and (iii) copies of conditional orunconditional, partial or complete waivers of lien, as appropriate, from allcontractors subcontractors and materialmen (“Tenant’s Contractor(s)”) coveringall work which is the subject of the invoices so submitted, and (iv) in theevent payment is to be made to Tenant, copies of any applicable documentationthat indicates that Tenant has made payment to Tenant’s Contractor(s) or agentsrelated to the invoices for which payment is requested. Tenant and Landlordagree that all costs of the work in excess of the Allowance shall be paid byTenant prior to any disbursement by Landlord of the Allowance.  If any portion of the Allowance exceeds thecosts of the work for which it is applicable, Tenant shall not be entitled toany payment, rent reduction, or credit therefor.  Tenant may enter the Expansion Premises prior to the EffectiveDate to ready the Expansion Premises for its occupancy upon all of the terms ofthe Lease other than the obligation to pay rent for the Expansion Premises, inwhatever form.

 

4.        Rent Amendment.  Commencing on October 1, 2002, andcontinuing throughout the Expansion Period, the monthly Base Rent due under theLease for the Expansion Premises, shall be Seventeen Thousand Eight HundredFour and 90/100 Dollars ($17,804.90). No Base Rent applicable to the ExpansionPremises shall be due for the month of September, 2002.

 

5.        Tenant’s PercentageShare.  Commencing on October 1,2002, and continuing throughout the Expansion Period, Tenant’s Share ofOperating Expenses, of Tax Expenses, of Common Area Utility Costs and ofUtility Expenses, pursuant to Sections 6.1, 6.2 and 7 of the Lease,respectively, as applicable to the Expansion Premises, shall be ten and 98/100percent (10.98%) based on 18,742 rentable square feet for the ExpansionPremises and 170,675 rentable square feet for the Park).

 

6.        Meaning of “Premises”.  From and after the Effective Date, whereverin the Lease, as amended hereby, the term “Premises” is used (other than in theterms “Expansion Premises” and “Original Premises”), it shall mean and refer toboth the Expansion Premises and the Original Premises.

 

7.        Brokers.  Landlord shall pay to CB Richard Ellis(“Landlord’s Broker”) a commission in connection with this Amendment asprovided for in a separate agreement between Landlord and Landlord’s Broker.Tenant and Landlord agree that, except for Landlord’s Broker

 

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and Insignia/ESG, Inc.  (“Tenant’s Broker”), who shall be free toshare the commission paid by Landlord to Landlord’s Broker, as they may agree,no brokers or finders have been involved in the transaction described in thisamendment and Landlord and Tenant agree that in the event any other broker,salesperson or other person makes any claim for any commission or finder’s feebased upon the lease of the Expansion Premises to Tenant or any other items orinterests contemplated by this Amendment, the party through whom said broker,salesperson or other person makes its claim shall defend, indemnify and holdharmless the other party from said claim and all liabilities, costs andexpenses relating thereto, including reasonable attorneys’ fees, which may beincurred by such other party in connection with such claim.

 

8.        Entire Agreement.  This Amendment and the Lease contain all ofthe covenants, conditions and agreements between the parties concerning thePremises, and shall supersede all prior correspondence, agreements andunderstandings concerning the Premises, both oral and written.

 

9.        Authority.  Each person executing this Amendment onbehalf of a party hereto represents and warrants that he or she is authorizedand empowered to do so and to thereby bind the party on whose behalf he or sheis authorized and empowered to do so and to thereby bind the party on whosebehalf he or she is signing.

 

10.      Definitions.  All capitalized terms used herein shall havethe meanings set forth herein or, if not set forth herein, shall have themeanings set forth in the Lease for said terms.

 

11.      Effect of Amendment.  Except as specifically amended hereby, allof the terms and conditions of the Lease shall be and remain in full force andeffect.

 

12.      Incorporation ofRecitals.  The Recitals and Sections1, 2, 3, 4, 5, 6, 7, 8, and 10 set forth above in this Amendment are herebyincorporated into the Lease by this reference.

 

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IN WITNESS WHEREOF, the parties have executed this Amendment to beeffective as of the date and year hereinabove first written.

 
|                                  | TENANT:                                              |
|---------------------------------------|------------------------------------------------------|
|                                  |                                                 |
| LANDLORD:                             | InVision  Technologies, Inc.  a Delaware corporation |
|                                  |                                                 |
| DMV Sub 4,  LLC                       |                                                 |
| a Delaware  limited liability company | By:                                                  | /s/ Ross  Mulholland |   |
|                                  |                                                 |
|                                  | By:                                                  | DMV  Investors, LLC, | Name: | Ross  Mulholland |   |   |
|                                  |                                                 | a Delaware  limited liability |   |   |
|                                  |                                                 | company, its  sole member | Its: | CFO |   |   |
|                                  |                                                 |   |   |   |   |   |
|                                  |                                                 |   |   |   |   |   |
|                                  |                                                 | By: | Lend Lease  Real Estate  Investments, Inc., a Delaware  corporation, its manager |   |
|                                  |                                                 |   |   |
|                                  |                                                 |   |   |
|                                  | By:                                                  | /s/ Peggy A.  Toppin |   |   |
|                                  | Its:                                                 | Peggy A. Toppin  Vice President |   |   |
|                                       |                                                      |  |  |  |  |  |  |  |  |  |  |

 

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