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EXHIBIT 10.2
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is made and entered into to be
effective as of the 29th day of January, 1999 (the "Effective Date"), by and
between MOBILITY ELECTRONICS, INC., a Delaware corporation ("Tenant"), and
MONAGHAN COMPANY, L.L.C., an Arizona limited liability company and COLONIAL
TRUST COMPANY, an Arizona corporation, as successor trustee under the MONAGHAN
IRREVOCABLE CHILDREN'S TRUST created December 17, 1983 (collectively,
"Landlord").
RECITALS
A. Landlord and Tenant, as successor-in-interest to ELECTRONICS ACCESSORY
SPECIALISTS INTERNATIONAL, INC., a Delaware corporation, have heretofore entered
that certain Industrial Modified Gross Lease dated December 20, 1996, and all
riders, addenda and exhibits attached thereto and made a part thereof, as
amended or modified by that certain First Addendum to Exhibit "C" dated December
20, 1996 (as amended, the "Original Lease"), pursuant to which Tenant leased
from Landlord certain premises described as "Unit A" (the "Premises"),
consisting of approximately 38,712 square feet of rentable area (more or less)
within the building having an address at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx (the "Building").
B. Tenant has requested and Landlord has agreed to amend the Original Lease
to, among other things, extend the Term of the Lease (as defined in Article 1.5
of the Original Lease), from January 31, 1999 (the "Original Expiration Date")
to January 31, 2002 (the "Extended Expiration Date"), if not sooner terminated
in accordance with the terms and conditions of the Original Lease, as amended or
modified by this Amendment (the "Lease"), all upon and subject to the terms and
conditions of the Lease.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
Landlord and Tenant do hereby amend the Original Lease and covenant and agree as
follows:
AGREEMENTS:
1. Incorporation of Recitals; Capitalized Terms. The Recitals set forth
above are deemed by the parties to be true and correct and are incorporated
herein by this reference and shall be binding upon Landlord and Tenant the same
as if set forth in full in this paragraph. Capitalized terms in this Amendment
shall have the same meanings given them in the Original Lease unless otherwise
expressly defined in this Amendment. In the event of any conflict between the
terms of the Original Lease and the terms of this Amendment, the terms of this
Amendment shall govern and control.
2. Extension of the Term. The Expiration Date of the Lease (as defined
in Article 1.5, of the Original Lease), is hereby extended from the Original
Expiration Date to the
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Extended Expiration Date (the "Extended Term"), such extension to be upon all of
the terms and conditions of the Lease.
3. Schedule of Annual Rent. Commencing as of the Effective Date, the
amount of the "Base Rent" (as set forth in Article 1.7 of the Original Lease)
shall be amended in accordance with the following schedule of Base Rent:
MONTHLY GROSS MONTHLY BASE
RENT TERM RSF BASE RENT PSF RENT
--------- --- ------------- ------------
Effective Date through the Original
Expiration Date 38,712 $.75 $29,034.00
February 1, 1999 through January 31, 2000 38,712 $.80 $30,969.60
February 1, 2000 through January 31, 2001 38,712 $.85 $32,905.20
February 1, 2001 through the Extended
Expiration Date 38,712 $.90 $34,840.80
The Rent payable by Tenant as set forth in this paragraph shall govern and
control any conflicting terms of the Lease.
4. Condition of Premises. Tenant agrees that the tenant improvement
work, if any, to be done to the Premises under the Lease has been completed and
that Landlord has no further obligation or duty therefor. Tenant hereby
acknowledges and warrants to Landlord that it has had the opportunity to inspect
and familiarize itself with the Premises and has done so and accepts the same in
its current "AS IS, WHERE IS" condition, with all faults. This in no way alters
the Landlord's responsibilities under Section 11.2 of the Original Lease.
5. Security Deposit. Tenant agrees that it shall increase its Security
Deposit with Landlord (as set forth in Article 1.4 of the Original Lease) in
accordance with the following schedule, to be held and applied pursuant to the
terms of the Lease:
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SECURITY DEPOSIT INCREASE SECURITY DEPOSIT
DATE INCREASE AMOUNT TOTAL SECURITY DEPOSIT
------------------------- ---------------- ----------------------
February 1, 1999 $1,571.60 $30,969.60
February 1, 2000 $1,935.60 $32,905.20
February 1, 2001 $1,935.60 $34,840.80
6. Option to Extend. Article 2.5 and Article 5.2 of the Original Lease
are hereby deleted, terminated and of no further force or effect and Tenant
shall have no other right or option to extend the Term of the Lease beyond the
Extended Expiration Date.
7. Option to Expand. Article 26 of the Original Lease is hereby
deleted, terminated and of no further force or effect and Tenant shall have no
other right or option to increase the square footage of the Premises under the
Lease.
8. Right or First Refusal. Article 27 of the Original Lease is hereby
deleted, terminated and of no further force or effect and Tenant shall have no
other right or option of first refusal in connection with any space in the
Building.
9. Brokers. Tenant hereby represents and warrants to Landlord that it
has not dealt with any realtor, broker or agent in connection with this
Amendment. Tenant shall indemnify, protect, defend and hold Landlord harmless
for, from and against any cost, expense, asserted claims, claims, damages,
liabilities, actions or causes of action arising out of or relating to any claim
of brokerage commission or finders fee in which any broker, agent or finder
alleges to have represented Tenant in connection with this Amendment.
10. Notice. Current addresses for the giving of Notice under the Lease
are as follows:
TENANT: Mobility Electronics, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx, CFO
LANDLORD: with a copy to:
Monaghan Company, L.L.C. Xxxxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxx Xxxx 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxx Attn: Xxxxxxx X. Xxxx, Esq.
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11. Validity and Enforcement. Tenant hereby confirms that there are no
defaults under the Original Lease by Landlord and that Landlord is in full
compliance and has complied with all obligations and performances to be
performed or paid on its part. Tenant represents and warrants that the execution
and delivery of this Amendment by Tenant and Tenant's performance under the
Lease: (i) are within Tenant's power; (ii) have been authorized by all requisite
partnership or corporate action of Tenant; (iii) have received all necessary
approvals and consents of Tenant; and (iv) will not violate, conflict with,
result in a breach of or constitute (with notice or lapse of time, or both) a
default under any provision of law, any order or judgment of any court or
governmental authority, the articles of incorporation, by-laws, operating
agreement or other governing instrument of Tenant.
12. Severability. The provisions of this Amendment are severable. As
such, the invalidity, in whole or in part, of any provision of this Amendment
shall not affect the validity or enforceability of any other provision of this
Amendment. If any clause or provision of this Amendment is determined to be
illegal, invalid or unenforceable under any present or future law by the final
judgment of a Court of competent jurisdiction, such clause or provision shall be
ineffective, but the remaining provisions of the Amendment will not be affected
and shall be construed in the broadest manner to effectuate the purposes of this
Amendment. Further, the parties agree to replace any void or unenforceable
provision of this Amendment with a valid and enforceable provision which will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provision.
13. Full Force and Effect. The Lease shall remain in full force and
effect in accordance with its terms and provisions, except as expressly amended
by the terms of this Amendment and except to the extent that the terms of the
Lease, by their very nature as reasonably determined by Landlord, would not
apply in light of this Amendment.
14. Miscellaneous. This Amendment shall be governed by Arizona law and
inures to the benefit of Landlord and its successors and assigns and shall bind
Tenant and its successors and assigns. This Amendment may be executed by the
parties in one or more counterparts. All counterparts shall be valid and binding
on the party or parties executing them and all counterparts together shall
constitute one and the same document for all purposes.
IN WITNESS WHEREOF, the parties have executed this Amendment to be
effective as of the date first set forth above.
LANDLORD: TENANT:
MONAGHAN COMPANY, L.L.C., an MOBILITY ELECTRONICS, INC., a
Arizona limited liability company Delaware corporation
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXXXXX XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx Xxxxxxxxx
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Its: Managing Member Its: CFO
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COLONIAL TRUST COMPANY, an
Arizona corporation, as successor Trustee
under the MONAGHAN IRREVOCABLE
CHILDREN'S TRUST created December 7,
1983
By: /s/ XXXXXXXXXXX X. XXXXX
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Name: Xxxxxxxxxxx X. Xxxxx
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Its: Vice President
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