Exhibit 10.35
SECOND AMENDMENT TO
LEASE AGREEMENT
This Second Amendment to Lease Agreement (the "Amendment") is entered into
effective as of January 15, 2004, by and between I.S. Capital, LLC ("Lessor")
and Mobility Electronics, Inc. ("Lessee").
WHEREAS, Lessor and Lessee entered into that certain Standard Multi-Tenant
Office Lease dated July 17, 2002, as amended by that certain Amendment to Lease
Agreement dated February 1, 2003 (together, the "Lease"), pertaining to the
lease of certain premises (the "Premises") located at 17800 N. Perimeter Drive,
Scottsdale, Arizona 85255 (the "Building"); and
WHEREAS, Lessee desires to lease from Lessor certain other space situated
in the Building, and Lessor has agreed to lease to Lessee such other space, and,
accordingly, Lessor and Lessee desire to further modify the terms and provisions
of the Lease as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Additional Space. For a term commencing on the Effective Date (as
hereinafter defined) and continuing until the expiration of the term of the
Lease (as herein modified), Lessor hereby leases and demises to Lessee, and
Lessee hereby leases from Lessor, an aggregate of 3,797 rentable square feet of
space in the Building (the "Additional Space"), such space consisting of the
following, as more particularly depicted on the floor plan attached hereto as
Exhibit A:
ADDITIONAL SPACE SQUARE FOOTAGE
---------------- --------------
Area I 3,011
NE Stairways 371
NE Elevator 66
Share of Common Area A 295
Share of Common Area B 54
TOTAL ADDITIONAL SPACE 3,797
As of the Effective Date, the Additional Space shall, for all
purposes, be deemed to be included within the term "Premises" as used in the
Lease and shall be subject in all respects to the terms, provisions and
conditions set forth therein.
2. Additional Parking. For a term commencing on the Effective Date (as
hereinafter defined) and continuing until the expiration of the term of the
Lease (as herein modified), Lessee will be entitled to (2) additional reserved,
covered parking spaces.
3. Base Rent. Notwithstanding anything to the contrary in the Lease,
Lessor and Lessee hereby agree that, commencing on the Effective Date and
continuing through and including the Expiration Date (as defined in the Lease),
the base rent applicable to the Additional
Space and including the Additional Parking shall be Eighty-Three Thousand, Five
Hundred Thirty-Four Dollars ($83,534.00) per year, or Six Thousand Nine Hundred
Sixty-One Dollars and Seventeen Cents ($6,961.17) per month. This amount shall
be in addition to the Base Rent and related adjustments to the Base Rent per the
Lease.
4. Security Deposit. Within five (5) days of the execution of this
Amendment, Lessee shall deposit with Lessor the sum of Six Thousand Nine Hundred
Sixty-One Dollars and Seventeen Cents ($6,961.17), which shall be added to the
security deposit previously paid by Lessee pursuant to Section 1.7(b) of the
Lease (the "Security Deposit"). The Security Deposit shall be subject to the
terms and conditions set forth in Section 5 of the Lease.
5. Tenant Improvements. Lessor shall improve the Additional Space in
accordance with the applicable terms and provisions of Exhibit B attached to
this Amendment. Lessor agrees that it shall diligently pursue the completion of
such improvements on or before February 1, 2004, and Lessee covenants to use
good faith efforts to assist Lessor in the pursuit of such completion.
6. Acceptance/Effective Date. Lessee will accept the Additional Space and
commence payment of the Base Rent for the Premises specified in Section 2 above
as of the Effective Date. For purposes hereof, the "Effective Date" shall mean
the first to occur of (a) the date that Lessee first occupies the Additional
Space for its intended purpose or (b) the date that Lessor substantially
completes the improvements contemplated under Section 3 above and tenders the
Additional Space to Lessee.
7. Janitorial Services. Lessee shall be responsible for all arrangements
and payment of the expenses associated with janitorial services for the
Additional Space.
8. Miscellaneous.
a. All terms and conditions of the Lease not expressly modified
by this Amendment shall remain in full force and effect, and,
in the event of any inconsistencies between this Amendment and
the terms of the Lease, the terms set forth in this Amendment
shall govern and control. Except as expressly amended hereby,
the Lease shall remain in full force and effect as of the date
hereof.
b. This Amendment may be executed in one or more counterparts
which shall be construed together as one document.
c. Captions used herein are for convenience only and are not to
be utilized to ascribe any meaning to the contents hereof.
Unless defined differently herein or the context clearly
requires otherwise, all terms used in this Amendment shall
have the meanings ascribed to them under the Lease.
d. This Amendment (i) shall be binding upon and shall inure to
the benefit of each of the parties and their respective
successors, assigns, receivers and
trustees; (ii) may be modified or amended only by a written
agreement executed by each of the parties; and (iii) shall be
govered by and construed in accordance with the laws of the
State of Arizona.
Executed as of the date first written above.
I.S. CAPITAL, LLC MOBILITY ELECTRONICS, INC.
(LESSOR) (LESSEE)
By:____________________________ By:_____________________________
Name:__________________________ Name: Joan W. Brubacher
Title:___________________________ Title: Chief Financial Officer
EXHIBIT A
EXHIBIT B
Lessor shall be responsible for improvements to the Additional Space to
accommodate access to interior office space not included in the Additional
Space. Such improvements shall include, but are not limited to, moving a lobby
wall along with the related electrical adjustments, modifying the front lobby
door as necessitated by moving the wall, and closing off access to the
Additional Space from the interior space not included in the Additional Space.
In addition, Lessor agrees to add a wall and door to close off a portion of the
kitchen area which includes the water heater, for which Lessee agrees to
reimburse Lessor $3,000.00. Lessee agrees to install cabinets in the kitchen
area for which Lessor agrees to reimburse Lessee $2,500.00. These two
reimbursable items may be offset, which results in a net amount due to Lessor by
Lessee of $500.00.