EXHIBIT ▇▇.▇▇
AMENDMENT #2
THIS AMENDMENT #2 to Lease ("Amendment #2") is made and entered into this 22nd
day of May, 2002, by and between Oakview Eagan Investors, LLC, a Delaware
limited liability company, as successor in interest to Lutheran Brotherhood, a
Minnesota corporation (hereinafter collectively referred to as the "Lessor") and
SBS Technologies, Inc., Commercial Group, formerly known as Bit 3 Computer
Corporation (hereinafter referred to as the "Lessee") a wholly owned subsidiary
of SBS Technologies, Inc., a New Mexico corporation.
WITNESSETH:
WHEREAS, Lessor and Lessee entered into that certain lease agreement
dated September 5th, 1997 (the "Original Lease"), and as amended by the
Amendment #1 to Lease dated December 23rd, 1997 ("Amendment #1); hereinafter
collectively referred to with the Original Lease as the "Lease") with regard to
the leasing of approximately 39,576 square feet in the building commonly known
as Oakview Business Center I and II located at Oakview Business Center I, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, as more particularly
described in Exhibit "B" to the Lease (hereinafter referred to as the "Demised
Premises"); and
WHEREAS, Lessor and Lessee desire to amend the Lease so as to extend
the Term and amend the monthly installments of Base Rent;
WHEREAS, Lessor and Lessee desire to amend the Lease so as to expand
Lessee's Demised Premises and increase Lessee's proportionate share of Operating
Expenses and Real Estate Taxes as defined in the Lease; and
WHEREAS, it is intended by this Amendment #2 to amend the Lease;
NOW THEREFORE, in consideration of the premises, and of the covenants
and agreements herein undertaken to be kept and performed, it is agreed as
follows:
1. Interpretation of Amendment. This Lease is hereby modified and
supplemented. Wherever there exists a conflict between this Amendment
#2 and the Lease, the provisions of this Amendment #2 shall control.
Unless otherwise indicated, capitalized terms shall be defined in the
manner set forth in the Lease, as amended.
2. Demised Premises. Article 1, Demised Premises, of the Amendment #1 is
hereby deleted and the following is hereby substituted in its place
"The Demised Premises currently is Suite 200 and consists of
approximately 39,576 rentable square feet, which consists of 14,803
rentable square feet of office space and 24,773 rentable square feet of
warehouse space, (hereinafter collectively, the "Original Demised
Premises"). The Original Demised Premises shall be expanded by
approximately 4,075 rentable square feet of office space as depicted on
Exhibit A attached hereto and made a part hereof (the "Additional
Demised Premises"). The total rentable leased area of the Demised
Premises shall be approximately 43,651 rentable square feet, which
consists of 18,878 rentable square feet of office space and 24,773
rentable square feet of warehouse space."
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3. Term. Article 3, Term, of the Amendment #1 is hereby deleted and the
following is hereby substituted in its place "Pursuant to the
provisions of the Lease relating to commencement of the Term thereof,
Lessor and Lessee, for themselves, their heirs, successors and assigns,
intending to be legally bound hereby, agree and stipulate that the
original Term of said Lease shall commence February 1, 1998 and will
expire on January 31, 2003 (the "Original Term"). The Original Term
shall be extended for a period of thirty six (36) months commencing on
February 1, 2003 and will expire on January 31, 2006 or as may be
extended in accordance with Section 4 of this Amendment #2 (the "Lease
Extension Term"), unless the Lease shall sooner terminate as provided
therein. The commencement date of the Additional Demised Premises shall
commence on the earlier to occur of (i) the date Lessee occupies the
Additional Demised Premises or (ii) June 15, 2002 (the Additional
Demised Premises Commencement Date") and will expire on January 31,
2006 ("Additional Demised Premises Lease Term"), unless the Lease shall
sooner terminate as provided therein."
4. Inability to Deliver Possession of Additional Demised Premises. If
Lessor is unable to give possession of the Additional Demised Premises
on the Additional Demised Premises Commencement Date for any reason
other than the result of any act or omission on the part of Lessee, the
Base Rent and Additional Rent reserved and covenanted to be paid for
the Additional Demised Premises shall not commence until the date the
Additional Demised Premises are available for occupancy by Lessee. No
such failure to give possession on the Additional Demised Premises
Commencement Date shall subject Lessor to any liability for failure to
give possession nor shall same affect the validity of this Amendment
#2. Following the Additional Demised Premises Commencement Date, Lessor
shall prepare a commencement date letter (the "Commencement Date
Letter") in the form attached hereto as Exhibit "C" setting forth the
commencement date of the Additional Demised Premises Lease Term, the
expiration date of the Lease Extension Term and the Additional Demised
Premises Lease Term, and confirming Lessee's acceptance of the
Additional Demised Premises and that Lessor has performed all of its
obligations with respect to delivery of the Additional Demised
Premises, except as to any punch list items previously specified in
writing and related to any construction performed by Lessor. Lessee
shall execute and deliver the Commencement Date Letter to Lessor within
ten (10) days after delivery by Lessor.
5. Base Rent. Article 2, Base Rent ,of the Lease is hereby amended to add
the following language: "Notwithstanding anything to the contrary in
the Lease and in lieu of any Base Rent otherwise provided for in the
Lease beginning on the Additional Demised Premises Commencement Date,
Lessee shall pay to Lessor, as monthly Base Rent for the Original
Demised Premises and Additional Demised Premises without any set off or
deduction therefrom, during the Lease Extension Term and the Additional
Demised Premises Lease Term payable, in advance on the first day of
each and every calendar month all at the place and in the manner in the
Lease provided in accordance with the following schedule:
Base Rent Per Monthly
Period Square Foot Per Year Base Rent
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From the Additional Demised Premises
Commencement Date through and
including January 31, 2003 $6.35 $23,098.65
February 1, 2003 through and
including February 28, 2003 $0.00 $ 0.00
March 1, 2003 through and
including January 31, 2004 $6.00 $21,825.50
February 1, 2004 through and
including January 31, 2005 $6.18 $22,480.27
February 1, 2005 through and
including January 31, 2006 $6.37 $23,171.41
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6. Additional Rent. Article 2, Additional Rent, of the Amendment #1 is
hereby deleted and the following is hereby substituted in its place:
"Lessee's proportionate share of Additional Rent as defined in Article
3 of the Lease shall be changed as of the Additional Demised Premises
Commencement Date to Fifty and 99/100 percent (50.99%) for annual Real
Estate Taxes and Twenty Seven and 73/100 percent (27.73%) for annual
aggregate Operating Expenses as defined in the Lease. Notwithstanding
anything to the contrary contained herein or in the Lease until
Additional Demised Premises Commencement Date, Lessee's proportionate
share of Additional Rent as defined in Article 3 of the Lease shall be
Forty Six and 23/100 percent (46.23%) for annual Real Estate Taxes and
Twenty Five and 14/100 percent (25.14%) of annual aggregate Operating
Expenses."
7. Broker. Lessor shall pay the fees and commissions payable to Welsh
Companies, LLC, (the "Broker") in connection with this Amendment #2
pursuant to a separate written agreement between Lessor and Broker.
Except as expressly set forth above, Lessor and Lessee each represent
to the other that it has not dealt with any brokers in connection with
this Amendment #2 . Lessor and Lessee hereby indemnify and hold each
other harmless against any loss, claim, expense or liability with
respect to any commissions or brokerage fees claimed by any party who
claims to have acted through or on behalf of the indemnifying party in
connection with the Amendment #2.
8. Leasehold Improvements. Lessor shall complete the leasehold
improvements to the Additional Demised Premises as set forth in Exhibit
"B", Work Letter, attached hereto and made a part hereof (the
"Leasehold Improvements"). Lessor is under no obligation to make any
structural or other alterations, decorations, additions, or
improvements in or to Additional Demised Premises except as expressly
set forth in Exhibit "B". By taking possession of the Additional
Demised Premises, it shall be conclusive evidence that Lessee has
inspected the Additional Demised Premises (and has sufficient knowledge
and expertise to make such inspection or has caused the Additional
Demised Premises to be inspected on its behalf by one or more persons
with such knowledge and expertise), that Lessee has accepted the
Additional Demised Premises as being in good and satisfactory
condition, suitable for the purposes herein intended and that the same
comply fully with Lessor's covenants and obligations under the Lease
with respect to the construction of Leasehold Improvements, except for
any punch list items agreed to in writing by Lessor and Lessee. Lessee
acknowledges and agrees that Lessor has made no representation or
warranty, express or implied, as to the habitability, suitability,
quality, condition or fitness of the Additional Demised Premises and
Lessee waives, to the extent
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permitted by applicable law, any patent defects in the Additional
Demised Premises and any claims arising therefrom, save and except
those arising from any construction or repair obligations of Lessor
expressly provided for in the Lease.
Notwithstanding anything contained in the immediately preceding two
paragraphs to the contrary, Lessor shall provide a one time additional
lessee improvement allowance of up to Ten Thousand and 00/100 Dollars
($10,000.00) for the completion of leasehold improvements within the
Original Demised Premises (the "Additional Lessee Improvement
Allowance"). Lessor's Additional Lessee Improvement Allowance shall be
available to Lessee through and including December 31, 2002. Lessor
shall pay Lessee within thirty (30) days upon Lessor's receipt of
Lessee's paid invoices, lien waivers, and other documentation
reasonably required by Lessor.
9. Option to Extend. Article 45, Option to Extend, of the Rider to Lease
shall be deemed terminated by Lessor and Lessee with the execution of
this Amendment #2 . Therefore, the Lessee's Option to Extend is null
and void.
10. Governing Laws. This Amendment #2 shall be governed by and construed
in accordance with the laws of the State of
Minnesota.
11. Reference to an Effect on the Lease. Upon the effectiveness of this
Amendment, each reference in the Lease to "the Lease", "hereunder",
"hereof", "herein", or words of like import referring to the Lease
shall mean and be a reference to the Lease as amended hereby.
Except as specifically set forth above, the Lease remains in full force
and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment #2
to Lease as of the day and year first above written.
Lessee: Lessor:
SBS Technologies, Inc., Commercial Group Oakview ▇▇▇▇▇ Investors, LLC
Formerly known as Bit 3 Computer Corporation a Delaware limited liability company
By: UBS Realty Investors LLC,
Its Investment Advisor and Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: CFO Its: Director
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