FIFTH AMENDMENT TO LEASE
AGREEMENT
THIS FIFTH
AMENDMENT TO LEASE AGREEMENT (“Fifth Amendment”) is
made as of the 25 th day of August, 2008 (for reference purposes
only), by and between MOUNTAIN VALLEY COMMUNITY CHURCH , a
non-profit corporation, successor-in-interest to I.S. Capital, LLC
(“Lessor”), and iGo, INC. , an Arizona
corporation, formerly known as Mobility Electronics, Inc.
(“Lessee”).
A. Lessor’s
predecessor-in-interest and Lessee (under the prior name of
Mobility Electronics, Inc.) entered into a Standard Multi-Tenant
Office Lease dated July 17, 2002, including the Addendum to
Lease and Second Addendum to Lease of even date, as amended by
First Amendment to Lease Agreement dated effective as of
February 1, 2003, by Second Amendment to Lease Agreement dated
effective as of January 15, 2004, by Third Amendment to Lease
Agreement dated effective as of October 6, 2004, and by Fourth
Amendment to Lease Agreement dated effective as of October 1, 2006
(collectively, the “Lease”), for premises in the
“Perimeter Center” located at 17800 N. Perimeter Drive,
Scottsdale, Arizona 85255.
B. The
defined “Premises” under the Lease includes
approximately 18,682 of space located on the second floor of the
“Building”, suites 200 and 201; approximately 2,056
square feet of space located on the first floor of the Building,
and, as added by the Second Amendment to Lease Agreement
(“Second Amendment”), approximately 3,797 square feet
of space as defined under that Second Amendment (the “Second
Amendment Space”). The total existing Premises as of the date
of this Fifth Amendment is approximately 24,535 square
feet.
C. The
Original Term of the Lease expires on September 30, 2008,
subject to Lessee’s exercise of a five-year extension. Lessee
does not wish to exercise the five-year extension; rather, Lessee
desires to extend the Lease Term for a period of five
(5) years and five (5) months, with additional options to
extend, on the 20,748 square feet only (“20,748 Square
Feet”), excluding the Second Amendment Space, subject to the
terms and conditions of this Fifth Amendment.
D. Lessor is
willing to accommodate Lessee’s requests, subject to the
terms and conditions of this Fifth Amendment.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Lessor and Lessee agree as
follows:
1
1. Lessor and
Lessee acknowledge the accuracy of the Recitals.
2. All
capitalized terms shall have the definition as set forth in the
Lease, unless specifically stated otherwise herein.
3. Section 1.3
of the Lease is hereby amended to extend the Lease Term through
February 28, 2014 as to the 20, 748 Square Feet only,
excluding the Second Amendment Space. The Lease shall expire as to
the Second Amendment Space on September 30, 2008, and Lessee
shall surrender such space in accordance with the terms and
conditions of the Lease. Therefore, effective as of October 1, 2008
(“Effective Date”), the term “Premises”
shall mean the 20,748 Square Feet.
4. As of the
Effective Date, Section 1.5 of the Lease and Paragraph 1
of the Addendum to Lease shall be amended such that Lessee shall
pay Base Rent in accordance with the following schedule, together
with applicable rental tax thereon:
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Months
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PSF
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Monthly Base Rent
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$
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10.00
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$
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17,290.00
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$
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20.00
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$
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34,580.00
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$
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20.50
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$
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35,444.50
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$
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21.00
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$
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36,309.00
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$
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21.50
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$
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37,173.50
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$
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22.00
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$
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38,038.00
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5. As of the
Effective Date, Lessee’s pro rata share of operating expenses
under Section 1.6 shall be 41.48%.
6. As of the
Effective Date, Section 1.9 of the Lease shall be amended to
deleted the Base Year “2003” and substitute therefor
the Base Year “2009.”
7. As of the
Effective Date, Section 4.2 of the Lease shall be amended to
limit the annual increase of Lessee’s Share of controllable
Operating Expenses to a cap (non-cumulative) of five percent (5%)
per annum. The term “controllable” shall exclude
property taxes, building insurance and utilities.
8. Lessor and
Lessee agree that the Security
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