EXHIBIT 10.8
LEASE AGREEMENT
BETWEEN
ELITE INSTRUMENTS, INC.,
a Nevada corporation
and
BATTERY EXPRESS, INC.,
a California corporation,
dba 1-800 BATTERIES
TABLE OF CONTENTS
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Page No.
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1. BASIC LEASE TERMS...................................... 1
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2. PREMISES: TITLE........................................ 3
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3. TERM, COMMENCEMENT DATE AND EXTENSION.................. 3
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4. USE OF PREMISES........................................ 3
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5. RENT: TRIPLE NET LEASE................................. 4
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6. SECURITY DEPOSIT....................................... 5
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7. POSSESSION............................................. 6
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8. ACCEPTANCE AND INSPECTION.............................. 6
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9. OCCUPANCY.............................................. 7
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10. QUIET ENJOYMENT........................................ 7
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11. INSURANCE.............................................. 7
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12. TENANT'S PERSONAL PROPERTY............................. 8
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13. INDEMNIFICATION........................................ 8
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14. ALTERATIONS, DECORATIONS, ADDITIONS AND IMPROVEMENTS... 9
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15. MAINTENANCE OF PREMISES................................ 9
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16. SURRENDER OF PREMISES.................................. 9
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17. FREE FROM LINENS....................................... 10
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18. UTILITIES.............................................. 10
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19. ENTRY BY LANDLORD...................................... 10
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20. TAXES.................................................. 10
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21. ASSIGNMENT AND SUBLETTING.............................. 11
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22. DEFAULT................................................ 11
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23. SURRENDER.............................................. 13
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24. TRANSFERS BY LANDLORD.................................. 13
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25. ESTOPPEL CERTIFICATES.................................. 13
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26. SUBORDINATION.......................................... 14
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27. HOLDING OVER........................................... 14
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28. MISCELLANEOUS.......................................... 14
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29. EMISSIONS: STORAGE, USE AND DISPOSAL OF WASTE.......... 17
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30. SIGNAGE................................................ 20
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31. MAINTENANCE AND REPAIR................................. 20
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32. DESTRUCTION............................................ 21
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33. CONDEMNATION........................................... 21
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34. ENTRY ON PREMISES...................................... 22
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35. AMERICANS WITH DISABILITIES............................ 23
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EXHIBITS:
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Property Description............................................. A
Memorandum of Lease.............................................. B
Repairs And Timetable............................................ C
Agency Disclosure................................................ D
Sign Design...................................................... E
LEASE AGREEMENT
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THIS LEASE AGREEMENT (this "Lease") is made and entered into as of the
______ day of ________________________, 1997, by and among ELITE INSTRUMENTS,
INC., a Nevada corporation ("Landlord"), and BATTERY EXPRESS, INC., a California
corporation, dba 1-800 BATTERIES ("Tenant").
R E C I T A L S
- - - - - - - -
A. Landlord is the fee owner of that certain improved real property
located in the City of Reno, County of Washoe, State of Nevada, described with
particularity on Exhibit A attached hereto, whose street address is 2301 Robb
Drive, Reno, Nevada (the "Property").
B. Landlord is the owner of all buildings, structures, parking areas and
other improvements constructed on the Property (collectively, the
"Improvements").
C. Except as otherwise provided in this Lease, Landlord is the owner of
the fixtures and other items of personal property located on or attached to the
Improvements on the Property (collectively, "Personal Property").
D. As used in this Lease, the term "Premises" collectively denotes the
Property consisting of approximately EIGHTEEN THOUSAND ONE HUNDRED TWENTY
(18,120) square feet of ground floor space, the Improvements, the Personal
Property and all rights, title and interests of Landlord, if any, in and to all
streets, alleys, easements, rights-of-way in or to all streets, and any other
interest of Landlord in, on, across, in front of, abutting or adjoining the
Property.
E. Under the terms and provisions set forth in this Lease, Landlord
desires hereby to lease to Tenant, and Tenant desires hereby to lease from
Landlord, the Premises.
F. This Lease is entered into inasmuch as Tenant is willing to lease the
Premises from Landlord under the terms and provisions contained in this Lease.
A G R E E M E N T
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NOW, THEREFORE, as consideration for the recitals stated above and the
mutual covenants, agreements, representations and warranties contained in this
Lease, as well as for other good and valuable consideration the receipt and
sufficiency of which hereby are acknowledged, Landlord and Tenant hereby agree
as follows:
1. BASIC LEASE TERMS.
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1.1 DATE OF LEASE: _______________________________
1.2 TENANT: Battery Express, Inc., a California corporation, dba 1-800 Batteries.
Trade Name: 1-800 Batteries.
Address (Leased Premises): 2301 Robb Drive, Reno, Nevada.
Address (For Notices): Same. (Prior to Commencement Date:
14388 Union Street, San Jose, CA 95124)
1.3 LANDLORD: Elite Instruments, Inc., a Nevada corporation.
Address (For Notices): 16 Barcelona, Irvine, California 92714.
1.4 TENANT'S USE OF PREMISES: Office and distribution center.
1.5 PREMISES AREA: 18,120 Rentable Square Feet.
1.6 PARCEL: APN 204-010-19, as more particularly described on Exhibit "A".
1.7 TERM OF LEASE: Commencement: 6/15/97
Expiration: 9/15/2002
Number of Months: 63, subject to termination and
extension as specified in Section 3.
1.8 BASE MONTHLY RENT: $11,415,60
1.9 FIXED RENT ADJUSTMENT (Primary Term Only):
Effective Date of
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Fixed Rent Increase New Fixed Rent
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September 15, 1999 $12,321.60
September 15, 2001 $13,046.60
1.10 PREPAID FIXED RENT: $11,415.60
1.11 SECURITY DEPOSIT: $22,831.20
1.12 BROKER(S):
Landlord:
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Duane J. Sanchez, Coldwell Banker Commercial
Plummer & Associates
209 E. Moana Lane, Suite 2, Reno, Nevada 89509
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Tenant:
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D. Troy Miller, RPL Group Limited
6151 Lakeside Drive, Suite 1000, Reno, Nevada 89511
1.13 CC&Rs: The Premises are subject to a declaration of covenants,
conditions and restrictions (CC&R's). Tenant agrees to comply with all
provisions of the CC&Rs, at Tenant's sole cost and expense. To Landlord's
knowledge, there are no assessments due and unpaid against the Premises pursuant
to the CC&R's.
1.14 MEMORANDUM OF LEASE: This Lease shall not be recorded, but a
Memorandum of Lease in a form substantially similar to Exhibit "B" shall be
recorded against the Premises in the office of the Recorder of Washoe County,
Nevada on or before the Commencement Date of the Lease.
1.15 ADDENDUM: The attached Addendum is a part of this Lease. Any
conflicts in the terms of the Addendum with the remaining terms of the Lease
shall be governed by the terms of the Addendum.
2. PREMISES: TITLE. Under the terms, conditions and covenants set
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forth in this Lease, Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the Premises. Landlord covenants and warrants that Landlord has
the full right and lawful authority to enter into this Lease for the full term
of this Lease and that Landlord has fee title to the Premises, free and clear of
all occupancies and tenancies.
3. TERM, COMMENCEMENT DATE AND EXTENSION.
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3.1 The term of this Lease (the "Term") shall commence on June 15,
1997 (the "Commencement Date") and expire on the earlier of September 15, 2002
or the closing of Tenant's purchase of the Premises pursuant to Tenant's
exercise of Tenant's Option to Purchase. If this Lease has not been terminated
as provided in the preceding sentence, Tenant shall have the right to extend the
Term of this Lease from September 16, 2002 to September 15, 2007 provided:
Tenant delivers notice of its election to extend the Term not later than January
2, 2002, in which event all terms and conditions of this Lease shall remain in
full force and effect, except that the Fixed Rent shall increase as specified in
Subsection 3.2 below.
3.2 If the Lease Term is extended as provided in Subsection 3.1
above, the Fixed Rent shall be increased annually, commencing September 16, 2002
and continuing with subsequent increases on January 1st of each year thereafter.
4. USE OF PREMISES.
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4.1 Subject to the terms of Subsection 4.2 of this Lease, Tenant may
use the Premises for any lawful purpose consistent with Subsection 1.4.
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4.2 Tenant shall not use the Premises or permit anything to be done
in or about the Premises that in any way will conflict with any law, statute,
zoning ordinance, regulation or requirement of duly constituted public
authorities that now are in force or hereafter may be in force or any Board of
Fire Underwriters requirements or other similar body now or hereafter
constituted, relating to or affecting the condition, use or occupancy of the
Premises.
5. RENT: TRIPLE NET LEASE.
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5.1 From the Commencement Date and continuing throughout the Term,
Tenant covenants and agrees to pay Landlord at the address of Landlord set forth
in Subsection 30.1 of this Lease, or as such other address as may be specified
in a notice given to Landlord or Tenant, the Fixed Rent (or "Rent") as specified
in Subsection 1.8 per month, in advance, on or before the 15th day of each month
during the Term, from the date of execution hereof. Rent for any partial month
shall be prorated at the rate of 1/28th, 1/29th, 1/30th or 1/31st of the monthly
rent per day, as the case may be, depending on the number of days in the month
for which such proration is required. The Tenant shall pay the first month's
Fixed Rent on or before June 15, 1997, and Landlord shall waive the payment of
the Fixed Rent for the period of July 15, 1997 through October 14, 1997.
5.2 Any failure on the part of Tenant to make any rent payment when
due and to cure such failure within the time and in the manner required by the
terms of Subsection 22.2 of this Lease shall constitute an Event of Default
under this Lease. If any check given to Landlord by Tenant is returned by the
bank for insufficient funds, Tenant shall pay Landlord the amount of any bank
charge actually levied against Landlord as a result of Tenant's returned check
and any returned check of Landlord, plus a TEN PERCENT (10%) penalty.
5.3 The Fixed Rent shall be in addition to and over and above all of
the payments to be made by Tenant as provided in this Lease. The Fixed Rent may
not be reduced below the initial Fixed Rent set forth in Subsection 5.1 of this
Lease. Any rent paid after the first twenty-five (25) business days of any
month during the Term shall include a TEN PERCENT (10%) penalty based on the
amount of such late payment. Landlord and Tenant agree that such a late charge
represents a reasonable estimate of the actual costs and expenses that Landlord
would incur because of Tenant's failure to pay timely all amounts required under
this Lease, the exact amount of which would be difficult or impracticable to
ascertain.
5.4 From the Commencement Date and continuing throughout the Term,
except as expressly set forth, however, it is the purpose and intention of
Landlord and Tenant (a) that the Fixed Rent shall be absolutely net to Landlord
without any abatement, deduction, counterclaim, set-off or offset whatsoever,
except as otherwise specifically provided in this Lease; (b) that all costs,
expenses and charges of every kind and nature incidental to Tenant's occupancy
and use of the Premises, which may arise or become due and payable during or
after (but attributable to a period falling within) the Term, including, without
limitation, all costs described in Subsections 5.5, 5.6 and 5.7 of this Lease,
shall be paid by Tenant to the appropriate third parties, and that Landlord
shall be
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indemnified and defended by Tenant against and held harmless by Tenant from the
same; and (c) that Tenant shall be solely responsible for the payment of real
property taxes (but only as pro-rated for the period of the Term) assessed
against the Premises as provided for in Section 20 of this Lease.
5.5 All of the amounts in addition to all payments of the Rents
referred to above in Section 5 that are payable by Tenant under this Lease,
including, without limitation, all payments for utilities, which include,
without limitation, electricity, gas, garbage collection, sewer and water
service; all payments for janitorial services, providing for basic office
maintenance and cleaning; all payments for cable television and alarm servicing
relating to the Premises; all payments for telephone services at the Premises;
all payments for property insurance, property maintenance, landscaping, HVAC
services and fire protection services; and every payment for any other sum,
cost, expense or deposit that Tenant in any of the provisions of this Lease
assumes or agrees to pay and/or deposit, including, without limitation, those
referred to in Section 18 of this Lease, shall constitute Rent under this Lease
and shall be payable without any abatement, deduction, counterclaim, set-off or
offset whatsoever, and, in the event of Tenant's failure to pay the same to
appropriate third parties, Landlord (in addition to all of Landlord's other
rights and remedies) shall have all of the rights and remedies provided for in
this Lease, in equity of by law in case of non-payment of Rent.
5.6 Tenant shall reimburse Landlord upon demand for all reasonable
costs and expenses, including, without limitation, all reasonable attorneys'
fees and disbursements, paid or incurred by Landlord in curing any Event of
Default under this Lease or arising out of any indemnity and/or hold-harmless
agreement given or made in this Lease by Tenant to Landlord.
5.7 Tenant shall not violate any provisions of the CC&Rs for the
Premises. Tenant shall pay when due all regular and special assessments and all
other financial obligations of any kind attributable to the Premises imposed by
the CC&Rs, except for obligations existing prior to the Commencement Date.
Landlord assigns to Tenant during the term of this Lease all voting rights and
other rights and benefits conferred by the CC&Rs arising from the Premises.
6. SECURITY DEPOSIT. On or before the Commencement Date, Tenant shall
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deposit with Landlord the Security Deposit specified in Subsection 1.11 as
security for Tenant's full and faithful performance of every term, provision,
covenant and condition of this Lease (the"Security Deposit"). The Security
Deposit is not considered by the parties hereto to be liquidated damages, and
Tenant's responsibility under this Lease extends beyond the amount of the
Security Deposit. If Tenant breaches any of the terms and conditions of this
Lease, Landlord may use, apply or retain the whole or any part of the Security
Deposit for payment of any or all of the following specific purposes:
(a) Defaults in the payment of any monetary obligation or charge
imposed on Tenant under the Lease;
(b) Repairs for damages to the Premises caused by Tenant or Tenant's
guests or invitees; or
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(c) Costs for replacing keys to the Premises furnished by Landlord to
Tenant and lost by Tenant.
If Landlord uses all or any portion of the Security Deposit during the Term
for the purposes specified above, Tenant shall within three (3) business days of
written demand of Landlord pay Landlord the amount necessary to restore the
amount of the Security Deposit to its original amount. Upon the termination of
this Lease, the Security Deposit or any remaining portion of it, together with a
written accounting of any monies applied from it to unpaid obligations, damage
or lost keys, shall be forwarded to Tenant no later than FOURTEEN (14) days
after Tenant has surrendered possession of the Premises to Landlord by returning
to Landlord the keys to the Premises or after the closing of Tenant's purchase
of the Premises pursuant to Tenant's exercise of Tenant's Option to Purchase.
Landlord shall not be liable for the payment of any interest to Tenant on the
Security Deposit held by Landlord.
7. POSSESSION. Landlord shall deliver possession of the Premises to
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Tenant on the Commencement Date. After execution hereof and prior to the
Commencement Date, however, Tenant shall have access to the Property in order to
install tenant improvements, carpeting, painting, telephones and other
renovations needed for Tenant's occupancy, provided that Tenant does not
commence operation of Tenant's business or otherwise occupy the Property before
June 15, 1997. All renovations and tenant improvements made before the
Commencement Date on the Property must be approved in writing by Landlord prior
to performance of the work, said approval not to be unreasonable withheld. Such
early access shall be on the terms and conditions of this Lease, except the
obligation to pay rent.
8. ACCEPTANCE AND INSPECTION.
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8.1 Except as otherwise provided in this Lease, Tenant hereby
declares that Tenant is leasing the Premises solely in reliance on Tenant's own
investigation. Tenant further declares that Tenant is aware of all zoning
regulations, other governmental requirements, including, without limitation,
laws regulating the site and physical condition of the Premises, and other
matters affecting the use and condition of the Premises, and Tenant agrees to
lease the Premises in the condition they are in on the Commencement Date on a
"where is," "as is" basis. By taking possession of the Premises, Tenant accepts
and acknowledges the Premises as being in good and sanitary order, condition and
repair. Tenant acknowledges that Landlord has NOT agreed to undertake any
modification, alteration or improvement of the Premises except as may be
expressly provided for elsewhere in this Lease, and Landlord shall not be
required to paint the exterior trim. Subject to the terms and provisions of this
Section 8, the taking of possession of the Premises by Tenant shall establish
conclusively that the Premises were at such time in satisfactory condition.
8.2 Notwithstanding the terms and provisions of Subsection 8.1 of
this Lease, Landlord shall perform all the following obligations:
(a) On or before July 15, 1997, Landlord shall have brought the
Premises
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into broom clean good and working order and condition, including the replacement
of any broken windows, removal of temporary walls and general cleaning.
(b) The parties of their representatives have conducted a walk
through inspection of the Premises to identify any aspects of the Premises
requiring repair in order for the Premises to be in good and working order and
condition. The list of repairs and timetable attached as Exhibit "C" is an
agreed description of work to be performed by Landlord. For sixty (60) days
after the Commencement Date, Tenant shall have the right to identify other
repairs of deficiencies which existed as of the Commencement Date for Landlord
to repair. Landlord shall repair, at Landlord's sole cost and expense, all
reasonable items identified by Tenant as provided in this Subsection in order to
bring the Premises into good and working order. Landlord shall perform all said
repairs as soon as possible, without any delay which could reasonably be
avoided, provided that Landlord shall have a minimum of thirty (30) days from
the date items are identified to perform repairs.
8.3 If Landlord is delayed in the commencement or completion of any
of Landlord's obligations under Subsection 8.2 above by an act or omission of
Tenant or by labor disputes, fire, acts of God, weather delays, unusual delay in
deliveries, unavoidable casualties or other causes beyond the Landlord's
reasonable control, or by delay authorized by Tenant, then the time to commence
and/or complete any such obligation shall be extended for such reasonable time
as said delay has caused.
9. OCCUPANCY. During the Term, only Tenant and Tenant's employees and
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invitees shall be permitted to occupy and use the Premises without the prior
written consent of Landlord.
10. QUIET ENJOYMENT. Landlord covenants that Landlord has the right to
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make and enter into this Lease and that Tenant, upon performing the terms,
conditions and covenants of this Lease, shall have quiet and peaceful possession
of the Premises as against any person claiming the same by, through or under
Landlord.
11. INSURANCE.
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11.1 All-Risk Coverage. Tenant shall, at its sole expense, obtain and
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keep in force from the Commencement Date, and during the Term of this Lease,
"all-risk" coverage insurance naming Landlord and Tenant as their interests may
appear and such other parties as Landlord or Tenant may designate as additional
insureds, in the customary form in the City of Reno for buildings and
improvements of similar character, on all buildings and improvements now or
after this date located on the Premises. The amount of insurance will be
designated by Landlord no more frequently than once every twelve (12) months;
will be set forth on an "agreed amount endorsement" to the policy of insurance;
will not be less than the agreed rules of the American Arbitration Association
if Landlord and Tenant do not agree with regard to the value.
11.2 Commercial General Liability. Tenant will, at its sole expense,
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obtain and
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keep in force during the term of this Lease commercial general liability
insurance with a combined single imit of not less than $3,000,000 for injury to
or death of any one person, for injury to or death of any number of persons in
one occurrence, and for damage to property, insuring against any and all
liability of Tenant, including without limitation coverage for contractual
liability, broad form property damage, host liquor liability, and non-owned
automobile liability, with respect to the Premises or arising out of
maintenance, use or occupance of the Premises. Such insurance will insure the
performance by Tenant of the indemnity agreement as to liability for injury to
or death of persons and damage to property set forth in Section 13 of this
Lease. Such insurance will be noncontributing with any insurance that may be
carried by Landlord and will contain a provision that Landlord, although named
as an additional insured, will nevertheless be entitled to recover under the
policy for any loss, injury, or damage to Landlord, its agents, and employees,
or the property of such persons. The limits and coverage of all such insurance
will be adjusted by agreement of Landlord and Tenant during every third Lease
year during the term of this Lease in conformity with the then prevailing custom
of insuring liability in the City of Reno, and any disagreement regarding such
adjustment will be submitted to arbitration in accordance with the applicable
rules of the American Arbitration Association.
11.3 Other Matter. All insurance required in this paragraph and all
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renewals of it will be issued by companies authorized to transact business in
the State of Nevada and rated at least A Class X by Best's Insurance Reports
(property liability) or approved by Landlord. The "all risk" coverage insurance
will be payable to Landlord, Tenant, and any lender as their interests may
appear. The "all-risk" coverage insurance will be carried in the joint names of
Tenant, Landlord, and such other parties having an interest in the Premises as
Landlord and Tenant may designate and Landlord and such other parties shall be
named as additional insured on the liability policy. All insurance policies
will be subject to approval by Landlord and any lender as to form and substance;
will expressly provide that such policies will not be canceled or reduced
without thirty (30) days' prior written notice to Landlord and any lender, in
the case of "all-risk" coverage insurance, and to Landlord, in the case of
general liability insurance; will, to the extent obtainable, provide that no act
or omission of Tenant that would otherwise result in forfeiture or reduction of
the insurance will affect or limit the obligation of the insurance company to
pay the amount of any loss sustained; and will, to the extent obtainable,
contain a waiver by the insurer of its rights of subrogation against Landlord.
Upon issuance, each insurance policy or a duplicate or certificate of such
policy will be delivered to Landlord and any lender whom Landlord designates.
Tenant may satisfy its obligation under this paragraph by appropriate
endorsements of its blanket insurance policies. Since the Tenant is in complete
control of the Premises, and a broad indemnification of the Landlord is
appropriate, contractual liability coverage shall be obtained by the Tenant.
11.4 Failure to Procure Insurance. If Tenant fails to procure and
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maintain the insurance required under this Lease, then Landlord may, but shall
not be required to, order such insurance at Tenant's expense, and Tenant's
reimbursement to Landlord for such amounts shall be deemed additional Rent.
Such reimbursement shall include all sums disbursed, incurred or deposited by
Landlord, including Landlord's costs, expenses and reasonable attorney's fees,
together with interest thereon at TEN PERCENT (10%) per annum.
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11.5 Waiver of Coverage. Landlord and Tenant each hereby waives all
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rights of recovery against the other on account of loss and damage occasioned to
such waiving party for Tenant's property or the property of others under
Tenant's control to the extent that such loss or damage is insured against under
any insurance policy that may be in force at the time of such loss or damage.
Tenant and Landlord shall, upon obtaining policies of insurance required under
this Lease, give notice to the insurance carrier that the foregoing mutual
waiver of subrogation is contained in this Lease, and Tenant and Landlord shall
cause each insurance policy obtained by such party to provide that the insurance
company waives all right of recovery by way of subrogation against either
Landlord or Tenant in connection with any damage covered by such policy.
12. TENANT'S PERSONAL PROPERTY. Tenant's personal property is NOT insured
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by Landlord. Tenant shall purchase what is commonly known as "renter's
insurance" to protect Tenant's personal property with such amounts of insurance
coverage deemed by Tenant in Tenant's sole and absolute discretion to be
necessary or appropriate.
13. INDEMNIFICATION. Tenant shall defend (with attorneys reasonably
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acceptable to Landlord), indemnify and hold Landlord and Landlord's officers,
agents, successors and assigns harmless from and against all damages, losses,
liabilities, judgments, costs or expenses, including, without limitation,
attorneys' fees and legal costs, suffered directly or by reason of any claim,
suit or judgment brought by or in favor of any person or persons for damage,
loss or expense due to, but not limited to, bodily injury, death and/or property
damage sustained by such person or persons that arises out of, is occasioned by
or in any way is attributable to the use or occupancy of the Premises or any
part thereof and adjacent areas by Tenant or the acts or omissions of Tenant,
Tenant's agents, employees, guests or any contractor or other invitee brought
onto the Premises by Tenant, except to the extent caused by the negligence or
misconduct of Landlord or Landlord's agents, successors and assigns. Tenant
agrees that Tenant's indemnification obligations under this Lease shall survive
this Lease.
14. ALTERATIONS, DECORATIONS, ADDITIONS AND IMPROVEMENTS. During the Term,
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Tenant shall make no alterations, decorations, additions or improvements to the
Premises without the prior written consent of Landlord. Decoration includes,
without limitation, painting, wallpapering, fixturing, carpeting, drywalling,
hanging of murals, tile and posters and hanging of plants or other object from
the ceilings. All alterations, decorations, additions or improvements consented
to by Landlord shall be installed at Tenant's sole cost and expense in
compliance with all applicable laws. With the exception of furniture and trade
fixtures, all such alterations, decorations, additions and improvements,
including, without limitations, heating, lighting, electrical, air conditioning,
partitioning, drapery and carpentry installations made by Tenant, which become
an integral part of Premises or are affixed to the Premises so that they cannot
be removed without material damage to the Premises, shall be and become the
property of Landlord upon installation and shall not be deemed trade fixtures;
provided, however, that Tenant shall return the Premises to an undamaged and
broom-clean condition before the termination of the Lease. Tenant agrees that
all furnishings, trade fixtures and equipment removed shall be removed in such
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a manner that the Premises are returned to an undamaged condition before the
termination of this Lease.
15. MAINTENANCE OF PREMISES. Tenant, Tenant's sole cost and expense,
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shall maintain the Premises in good condition and repair, to the level of
condition and repair existing as of the Commencement Date. Tenant agrees to
maintain the Premises as improved, including all landscaping, furniture and
furnishings, appliances and fixtures, in a safe, orderly, broom-clean and
sanitary condition at all times and otherwise to comply with any city or county
ordinance or state or federal law applicable to Tenant's occupancy of the
Premises. Tenant shall not commit waste or nuisance on or around the Premises
and shall not disturb, annoy, endanger or interfere with neighbors or other
tenants. Tenant shall be responsible for any damage caused by Tenant's
negligence or misuse of the Premises and the damage caused by the negligence or
misuse by Tenant's guests or invitees. Landlord acknowledges that most of the
landscaping is dead. Tenant shall not be obligated to install new landscaping,
only to maintain landscaping in its existing condition.
16. SURRENDER OF PREMISES. Upon the expiration or earlier termination of
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the Term, Tenant shall surrender the Premises to Landlord in an undamaged and
broom-clean condition, and Tenant shall remove all of Tenant's personal
property, trade fixtures and equipment from the Premises. All such property not
so removed shall be deemed abandoned by Tenant. If Tenant fails to remove any
trade fixture, equipment or other personal property, and such failure continues
after the termination of this Lease, Landlord may retain such property, and all
rights of Tenant with respect to such property shall cease, or Landlord may
place such property in public storage for Tenant's account. Tenant shall be
liable to Landlord for the costs of removal of any such trade fixture,
improvement or equipment of or installed by Tenant, the transportation and
storage costs of the same and the cost of returning the Premises to an undamaged
and broom-clean condition, together with interest at TEN PERCENT (10%) per annum
on all such expenses from the date of expenditure by Landlord. If the Premises
are not surrendered at the termination of this Lease, Tenant shall indemnify
Landlord against all loss or liability resulting from dely by Tenant in so
surrendering the Premises, including, without limitation, all of Landlord's
liability for all claims made by any succeeding tenant or losses to Landlord due
to lost opportunities to lease the Premises to succeeding tenants.
17. FREE FROM LIENS. Tenant hereby indemnifies and agrees to hold
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Landlord free and harmless from all liens, claims and demands arising out of any
work performed or materials supplied in, on or about the Premises by or on
behalf of Tenant, Tenant's agents, employees or contractors. Tenant shall cause
any such lien imposed to be released of record by payment or posting of adequate
cash or of a proper bond within THIRTY (30) days after Tenant's actual notice of
imposition of the lien or upon written request by Landlord.
18. UTILITIES. Tenant shall be responsible for and shall pay promptly,
---------
as the same become due and payable, all charges for water, sewer, gas,
electricity, telephone, cable TV, refuse pickup, janitorial service and all
other utilities, materials and services furnished directly to or used
10
by Tenant in, on or about the Premises during the Term, together with all taxes
thereon. Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility service or other service furnished to the Premises,
except that resulting from the negligence or willful misconduct of Landlord or
Landlord's agents, employees or invitees and not contributed to by the
negligence or misconduct of Tenant or Tenant's agents, employees or invitees. No
such failure or interruption shall entitle Tenant to terminate this Lease or
withhold rent or other sums due under this Lease.
19. ENTRY BY LANDLORD. Tenant shall permit Landlord and Landlord's agents
-----------------
to enter into and upon the Premises at all reasonable times during the Term for
the purpose of inspecting the Premises, for the purpose of making repairs and
for the purpose of showing the Premises to any prospective purchaser or tenant,
without any rebate of Rent and without any liability to Tenant for any loss of
occupation or quiet enjoyment of the Premises thereby occasioned. In an
emergency or when Tenant has abandoned or surrendered the Premises, Landlord or
Landlord's agents may enter the Premises at any time without securing prior
permission from Tenant.
20. TAXES.
-----
20.1 As pro-rated for the period of the Term only, Tenant shall pay
all real property taxes, as set forth on the county tax assessor's tax statement
for the Premises.
20.2 Tenant shall pay before delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in, on or about the Premises or elsewhere. When
possible, Tenant shall cause Tenant's trade fixtures, furnishings, equipment and
all other personal property to be assessed and billed separately from the real
or personal property of Landlord. Notwithstanding any other provision of this
Lease, Tenant shall have the right to contest in good faith any tax or
assessment that Tenant believes unreasonable or otherwise not applicable with
the appropriate governmental authority. Failure of Tenant to pay any of the
charges required to be paid under this Section 20 shall continue an Event of
Default under this Lease in like manner as failure to pay rental when due.
21. ASSIGNMENT AND SUBLETTING.
-------------------------
21.1 Tenant shall not have the power to transfer, sublet, assign,
enter into license or concession agreements, change ownership, mortgage or
hypothecate this Lease or Tenant's interest in this Lease or in and to the
Premises without the prior written consent of Landlord, which consent Landlord
shall be given in Landlord's sole discretion, subject to the following
conditions:
(a) Landlord, in Landlord's sole discretion, must approve the
financial strength and credibility of the subtenant or
assignee; and
(b) Any and all sums paid in consideration for the sublease or
assignment in excess of Rent required hereunder shall be
paid directly to
11
Landlord, and shall be Landlord's property.
Any attempted or purported transfer of this Lease or Tenant's interest
in this Lease or in and to the Premises without Landlord's prior written consent
shall be void and confer no rights upon any third person and at Landlord's
election shall constitute an Event of Default under this Lease.
21.2 Each assignment, sublease or other act set out in Subsection
21.1 of this Lease, or similar act, to which Landlord has consented shall be by
instrument in writing in form satisfactory to Landlord and shall be executed by
all parties to the transaction. Each assignee shall agree in writing, for the
benefit of Landlord, to assume, to be bound by and to perform the terms,
conditions and covenants of this Lease to be performed by Tenant.
Notwithstanding anything contained in this Lease, Tenant shall not be released
from personal liability for the performance of each term, condition and covenant
of this Lease unless Landlord specifically consents to such release or executes
a Novation in writing. ONE (1) executed copy of such written instrument shall be
delivered to Landlord.
21.3 Consent by Landlord to any such assignment or subletting shall
not be deemed a consent to any subsequent assignment or subletting.
22. DEFAULT.
-------
22.1 Upon the occurrence of an "Event of Default" (as defined in this
Lease), Landlord shall have the following remedies in addition to all other
rights and remedies provided by law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
(a) Landlord can continue this Lease in full force and effect,
and this Lease will continue in effect as long as Landlord does not terminate
Tenant's right to possession, and Landlord shall have the right to collect Rent
when due. During the period in which Tenant is in default, Landlord can enter
the Premises and relet them, or any part of them, to third parties for Tenant's
account. Tenant shall be liable immediately to Landlord for all costs that
Landlord incurs in reletting the Premises, including, without limitation,
broker's commissions, expenses of remodeling the Premises required by the
reletting and all other similar costs. Reletting can be for a period shorter or
longer than the remaining period of the Term. Tenant shall pay to Landlord the
Rent and other sums due under this Lease on the dates on which the rent and such
other sums are due, less the rent and other sums Landlord receives from any
reletting. No act by Landlord allowed by this Section 22 shall terminate this
Lease unless Landlord notifies Tenant in writing that Landlord elects to
terminate this Lease.
(b) Landlord can terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises or the appointment of a receiver on
12
Landlord's initiative to protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession. On termination,
Landlord has the right to remove all personal property of Tenant and store such
property at Tenant's costs and to recover from Tenant as damages:
(1) The worth at the time of award of unpaid Rent and other
sums due and payable that had been earned at the time of termination; plus
(2) The worth at the time of award of the amount by which
the unpaid Rent and other sums due and payable that would have been payable
after termination until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; plus
(3) The worth at the time of award of the amount by which
the unpaid Rent and other sums due and payable for the balance of the term after
the time of award exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided; plus
(4) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which in the ordinary course of things would be
likely to result therefrom, including, without limitation, (a) all costs or
expenses incurred by Landlord (i) in retaking possession of the Premises,
including reasonable attorney's fees therefor, (ii) in maintaining or preserving
the Premises after such default and (iii) in preparing the Premises for
reletting to a new tenant; (b) leasing commissions; and (c) all other costs
necessary or appropriate to relet the Premises.
The "worth at the time of award" of the amounts referred to in
Subsections 22.1(b)(1) and 22.1(b)(2) of this Section is computed by allowing
interest at the rate of TEN PERCENT (10%) per annum on the unpaid rent and other
sums due and payable from the termination date through the date of award. The
"worth at the time of award" of the amount referred to in Subsection 22.1(b)(3)
of this Section is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus ONE PERCENT
(1%).
22.2 At the option of Landlord, a breach of this Lease shall exist if
any of the following events (severally, an "Event of Default," and collectively,
"Events of Default") (or any other Event of Default referenced elsewhere in this
Lease) occurs:
(a) Tenant has failed to pay any monetary obligation or charge
imposed under this Lease within TEN (10) days of when due, unless said failure
is the first failure within a period of one (1) year, in which event Landlord
shall give Tenant written notice of the failure and an Event of Default shall
occur only if Tenant does not cure within five (5) days of receipt of the
notice;
(b) Tenant has failed to perform any term, covenant or condition
of this Lease except those requiring the payment of money, and Tenant has failed
to cure such breach within
13
THIRTY (30) days after written notice from Landlord where such breach could
reasonably be cured within such THIRTY (30) day period; provided, however, that
where such failure could not reasonably be cured within such THIRTY (30) day
period Tenant shall not be in default unless Tenant has failed promptly to
commence and thereafter continue to make diligent and reasonable efforts to cure
such failure as soon as practicable; or
(c) Tenant has assigned Tenant's assets for the benefit of
Tenant's creditors; or
(d) A court has made or entered any decree or order other than
under the bankruptcy laws of the United States:
(1) appointing a receiver, trustee or assignee of Tenant in
bankruptcy or insolvency or for Tenant's property; or
(2) directing the winding up or liquidation of Tenant; and
such decree or order has continued for a period of THIRTY (30) days.
23. SURRENDER. No act or conduct of Landlord, whether consisting of the
---------
acceptance of the keys to the Premises or otherwise, shall be deemed to be
constitute an acceptance of the surrender of the Premises by Tenant before the
expiration of the Term, and such acceptance by Landlord of surrender by Tenant
shall only flow from and must be evidenced by a written acknowledgment of
acceptance of surrender signed by Landlord. The surrender of this Lease by
Tenant, voluntarily or otherwise, shall not work a merger but shall operate as
an assignment to Landlord of all existing subleases, or Landlord may, at
Landlord's option, terminate any or all of such subleases by notifying
sublessees of Landlord's election to do so within FIVE (5) days after such
surrender.
24. TRANSFERS BY LANDLORD. Landlord may voluntarily convey the Premises
---------------------
or assign or transfer Landlord's interest in this Lease or any underlying lease
without the prior consent of Tenant. In the event of such conveyance,
assignment or transfer, Landlord shall take reasonable precautions to ensure
that with respect to Tenant's Security Deposit Landlord's assignee or transferee
shall comply with the terms and provisions of Section 6 of this Lease.
25. ESTOPPEL CERTIFICATES. Each of the parties to this Lease shall,
---------------------
without charge, at any time and from time to time, within TEN (10) days after
receipt from the other party of written request therefor, deliver a duly
executed and acknowledged certificate to the other party hereto or any other
person, firm or corporation designated by the requesting party, certifying: (a)
that this Lease is unmodified and in full force and effect, or if there has been
any modification, that this Lease is in full force and effect as modified, and
stating any such modification; (b) whether or not there is then existing any
claim of default under this Lease and, if so, specifying the nature thereof; and
(c) the dates to which the Rent and other charges payable under this Lease by
Tenant have been paid. If Tenant fails to complete and execute the certificate
within the time provided for in this
14
Lease, a purchaser or lender shall be entitled to rely on a certificate or
statement submitted by Landlord.
26. SUBORDINATION. This Lease is subject and subordinate to all mortgage
-------------
and deeds of trust that now affect the Premises and to all renewals,
modifications, consolidations, replacements and extensions thereof; provided,
however, that if the holder or holders of any such mortgage or deed of trust
advises Landlord that they desire or require this Lease to be prior and superior
thereto, upon written request of Landlord to Tenant, Tenant agrees to promptly
execute, acknowledge and deliver all documents or instruments that Landlord or
such lessor, holder or holders deem reasonably necessary or desirable for the
purposes thereof, so long as such documents and instruments impose no material
obligations on Tenant not imposed on Tenant by this Lease.
27. HOLDING OVER. Except as specified in this Section, any holding over
------------
after the expiration of the Term, without the consent of Landlord, shall be
construed to be tenancy from month to month, at the rate of $1.50 per square
foot of ground space, and shall otherwise be under the terms and conditions in
this Lease specified, so far as applicable and any holding over after the
expiration of the Term, with the consent of Landlord, shall be construed to be a
tenancy from month to month, at the rate of $1.50 per square foot of ground
floor space, and shall otherwise be under the terms and conditions in this Lease
specified, so far as applicable.
28. MISCELLANEOUS.
-------------
28.1 Notice. Any notice or communication required or permitted under
------
this Lease shall be in writing and shall be deemed to have been received by the
party to whom such notice or communication is addressed (a) upon delivery, if
delivered personally, or (b) one (1) business day after deposited, prepaid, in a
Federal Express or similar depository for expedited overnight delivery or (d)
TEN (10) business days after deposited in the United States mail, registered or
certified, postage prepaid, return receipt requested, addressed as follows:
If to Landlord: ELITE INSTRUMENTS, INC.
Attn: Sam Pu, President
16 Barcelona
Irvine, California 92714
or to such other person or address as Landlord from time to time may provide in
writing to Tenant.
After Commencement Date: Before Commencement Date:
------------------------ -------------------------
If to Tenant: 1-800 BATTERIES 1-800 BATTERIES
Attn: Chief Executive Officer Attn: CEO
2301 Robb Drive 14388 Union Street
Reno, Nevada 89523 San Jose, California 95124
15
or to such other person or address as Tenant from time to time may provide in
writing to Landlord.
28.2 Invalidity. If any term or provision of this Lease or the
----------
application thereof to any person or circumstance is held, to any extent,
invalid or unenforceable, then the remainder of this Lease, or the application
of such term or provision to persons whose circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby.
28.3 Successors and Assigns. The terms, conditions and covenants of
----------------------
this Lease shall be binding on and inure to the benefit of each of the parties
hereto and their heirs, personal representatives, successors, executors,
administrators and permitted assigns, and all of such terms, conditions and
covenants shall run with the land. Where more than one party are lessors under
this Lease, the term "Landlord" whenever used in this Lease shall be deemed to
include all of such lessors jointly and severally.
28.4 Exhibits. All Exhibits referred to in this Lease are attached to
--------
this Lease and are incorporated in this Lease by reference.
28.5 Authority to Execute. The undersigned parties hereto hereby
--------------------
warrant that they have the proper authority and are empowered to execute this
Lease.
28.6 Governing Law. The validity, construction, interpretation and
-------------
enforceability of this Lease shall be determined and governed by the laws of the
State of Nevada. Notwithstanding the foregoing, if any law or set of laws of
the State of Nevada requires or otherwise dictates that the laws of another
state or jurisdiction be applied in any proceeding involving this Lease, then
such law or laws of the State of Nevada shall be superseded by this Subsection
28.6, and the remaining laws of the State of Nevada nonetheless shall be applied
in such proceeding.
28.7 Arbitration. All disputes arising in connection with this Lease
-----------
shall be exclusively and finally settled by binding arbitration in Washoe
County, Nevada in accordance with the rules of the American Arbitration
Association then existing. Judgment upon the award rendered in the arbitration
may be entered in any court having jurisdiction thereover. Upon the application
of either party to this Lease, and whether or not an arbitration proceeding has
yet been initiated, all courts having jurisdiction hereby are authorized
pursuant hereto (a) to issue and enforce in any lawful manner such temporary
restraining orders, preliminary injunctions and other interim measures of relief
as may be necessary to prevent harm to the interests of a party to this Lease or
as otherwise may be appropriate pending the conclusion of arbitration
proceedings pursuant to this Lease and (b) to enter and enforce in any lawful
manner such judgments for permanent equitable relief as may be necessary to
prevent harm to the interests of a party to this Lease or as otherwise may be
appropriate following the issuance of arbitral awards pursuant to this Lease.
28.8 Waiver. No failure on the part of either party to this Lease to
------
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof or as a waiver of any other right, power or remedy
hereunder or of the performance of any obligation of
16
either party to this Lease; and no single or partial exercise by either party to
this Lease of any right, power or remedy hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
Landlord's acceptance of rent after a default under this Lease by Tenant shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to pay the
particular rental or other sum so accepted, regardless of Landlord's knowledge
of such preceding breach at the time of acceptance of such payment. No covenant,
term or condition of this Lease shall be deemed to have been waived by Landlord
unless such waiver is in writing and signed by Landlord.
28.9 Modification. The terms and provisions of this Lease shall not
------------
be extended, varied, changed, modified, amended or supplemented other than by an
agreement in writing signed by the parties hereto.
28.10 No Strict Construction. The language used in this Lease shall be
----------------------
deemed to be the language chosen by the parties hereto in order to express their
mutual intent, and no rule of strict construction shall be applied against
either party to this Lease.
28.11 Headings and Captions. The captions and headings used in this
---------------------
Lease are for the convenience of reference only and do not constitute a part of
this Lease and shall not be deemed to limit, characterize or in any way affect
any term or provision of this Lease, and all terms and provisions of this Lease
shall be enforced and construed as if no captions or headings appeared in this
Lease.
28.12 Expenses. Except as otherwise provided herein, the parties
--------
hereto shall bear the expenses respectively incurred by each of them in
connection with the execution and delivery of this Lease and the consummation of
the transactions contemplated hereby.
28.13 Further Assurances. Each party to this Lease shall execute and
------------------
deliver such instruments and take such other actions as the other party to this
Lease reasonably may require in order to carry out the intents and purposes of
this Lease.
28.14 Non-Exclusivity. The rights, remedies, powers and privileges
---------------
provided in this Lease are cumulative and not exclusive and shall be in addition
to all rights, remedies, powers and privileges granted by law, rule, regulation
or instrument.
28.15 No Third Parties Benefitted. This Lease is made and entered into
---------------------------
for the sole protection and benefit of the parties hereto and their successors
and permitted assigns, and no other person or persons shall have any right of
action under this Lease.
28.16 Reliance on Legal Counsel and Other Advisors. Each party to this
--------------------------------------------
Lease has consulted such legal, financial, technical and other experts that it
has deemed necessary or desirable before entering into this Lease. Each party
to this Lease represents and warrants that it has read, knows, understands and
agrees with all of the terms and provisions of this Lease. Neither party to
17
this Lease has relied on any oral representation of the other party to this
Lease in entering into this Lease. All discussions, estimates and projections
developed by any party to this Lease during the course of negotiating the terms
and conditions of this Lease were developed by way of illustration only and,
unless specifically contained in this Lease or in one or more of its Exhibits or
Schedules, are not binding on or enforceable against the other party to this
Lease in law or in equity.
28.17 Attorneys' Fees. If Landlord brings suit for the possession of
---------------
the Premises, for the recovery of any sum due under this Lease or because of the
breach of any other covenant contained in this Lease, or if Tenant or Landlord
brings any action for any relief, declaratory or otherwise, arising out of this
Lease, then the non-prevailing party in any such suit shall pay court costs and
reasonable attorneys' fees, which shall be deemed to have accrued on the
commencement of such action and shall be enforceable whether or not such action
is prosecuted to judgment. Such attorneys' fees and costs shall not be limited
to any court fee schedule but rather shall be awarded on the basis of all fees
and costs reasonably incurred in good faith. Such attorneys' fees and costs
shall be paid by the non-prevailing party in addition to all other relief to
which the prevailing party may be entitled.
28.18 Entire Lease. This Lease contains the entire agreement between
------------
Landlord and Tenant with respect to the Premises, and no other agreement
hereafter made shall be effective to change, modify or discharge this Lease in
whole or in part unless such agreement is in writing and signed by the party
against whom enforcement of the change, modification or discharge is sought.
28.19 Brokers. Landlord is represented in this transaction by Duane
-------
L. Sanchez of Coldwell Banker Plummer & Associates and Tenant is represented by
D. Troy Miller of RPL Group Limited. Broker commissions shall be paid by
Landlord pursuant to the provisions of a separate agreement. Except as specified
in this Section, the parties represent to each other that they have not used the
services of any real estate broker or person who may claim a commission or
finder's fee with respect to this transaction, and each agrees to indemnify,
defend and hold the other harmless from broker compensation claims or finder's
fees arising from allegations of an agreement with the indemnifying party. Any
agency disclosure form is attached as Exhibit "D".
28.20 Airport Noise Notice. Tenant acknowledges that the Premises are
--------------------
located near Reno-Cannon International Airport. As a consequence, Tenant
agrees noise normally associated with aviation is to be expected. Tenant, as a
material part of the consideration under this Lease, hereby waives all claims
against Landlord for property damages or personal injuries from any cause
arising at any time due to the noise associated with Reno-Cannon International
Airport. Tenant agrees to defend, indemnify and hold Landlord, its officers,
agents and employees, harmless from and on account of any claim, demands,
obligations or liabilities of Tenant's employees and agents of any kind or
nature, including, but without limitation, attorney's fees and costs of defense
for damage or injury to any person or property arising or in any way connected
with the noise occurring on the Premises associated with Reno-Cannon
International Airport.
28.21 Counterpart Execution. This Lease may be executed
---------------------
simultaneously in two
18
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same original. Such counterpart
execution may occur via telex or facsimile machine, provided that executed
original counterparts of this Lease shall be delivered to the parties to this
Lease within FOURTEEN (14) days after the date of execution of this Lease.
29. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE:
---------------------------------------------
29.1 Emissions. Tenant, its agents, employees, licensees and invitees
---------
shall not:
a) Permit any vehicle on the Premises to emit exhaust which is
in violation of any governmental law, rule, regulation or
requirement;
b) Discharge or emit any liquid, solid or gaseous matter, or
any combination thereof, into the atmosphere, the ground or
any body of water which matter, as reasonable determined by
Lessor or any governmental entity, does, or may, pollute or
contaminate same, or is, or may become, radioactive or does,
or may, adversely affect the: (a) health or safety or
persons, wherever located, whether on the Premises or
anywhere else; (b) condition, use or enjoyment of the
Premises or any other real or personal property, whether on
the Premises or anywhere else; or (c) Premises or any of the
improvements thereto or thereon including buildings,
foundations, pipes, utility lines, landscaping or parking
areas;
c) Produce, or permit to be produced, any intense glare, light
or heat except within an enclosed or screened area and then
only in such manner that the glare, light or hear shall not
be discernible from outside the Premises;
d) Create, or permit to be created, any sound pressure level
which will interfere with quiet enjoyment of any real
property outside the Premises, or which will create a
nuisance or violate any governmental law, rule, regulation
or requirement.
e) Create, or permit to be created, any ground vibration that
is discernible outside the Premises.
f) Transmit, receive or permit to be transmitted or received,
any electromagnetic, microwave or other radiation which is
harmful or hazardous to any person or property in, or about
the Premises, or anywhere else.
29.2 Storage and Use.
---------------
19
a) Storage. Subject to the uses permitted and prohibited to
-------
Tenant under this Lease, Tenant shall store in appropriate
leak proof containers all solid, liquid or gaseous matter,
or any combination thereof, which matter, if discharged or
emitted into the atmosphere, the ground or any body of
water, does or may: (a) pollute or contaminate the same; or
(b) adversely affect the: (i) health or safety of persons,
whether on the Premises or anywhere else; (ii) condition,
use or enjoyment of the Premises or any real or personal
property, whether on the Premises or anywhere else; or (iii)
Premises or any of the improvements thereto or thereon.
b) Use. In addition, without Landlord's prior written consent,
---
Tenant shall not use, store or permit to remain on the
Premises any solid, liquid or gaseous matter which is, or
may become radioactive. If Landlord does give its consent,
Tenant shall store the materials in such a manner that no
radioactivity will be detectable outside a designated
storage area and Tenant shall use the materials in such a
manner that: (a) no real or personal property outside the
designated storage area shall become contaminated thereby;
and (b) there are and shall be no adverse effects on the:
(i) health or safety of persons, whether on the Premises or
anywhere else; (ii) condition, use or enjoyment of the
Premises or any real or personal property thereon or
therein; or (iii) Premises or any of the improvements
thereto or thereon.
29.3 Disposal of Waste.
-----------------
a) Refuse Disposal. Tenant shall not keep any trash, garbage,
---------------
waste or other refuse on the Premises except in sanitary
containers and shall regularly and frequently remove same
from the Premises. Tenant shall keep all incinerators,
containers or other equipment used for storage or disposal
of such materials in a clean and sanitary condition.
b) Sewage Disposal. Tenant shall properly dispose of all
---------------
sanitary sewage and shall not use the sewage disposal
system: (a) for the disposal of anything except sanitary
sewage; or (b) excess of the lesser amount: (i) reasonably
contemplated by the uses permitted under this Lease; or (ii)
permitted by any governmental entity. Tenant shall keep the
sewage disposal system free of all obstructions and in good
operating condition.
c) Disposal of Other Waste. Tenant shall properly dispose of
-----------------------
all other waster or other matter delivered to, stored upon,
used on, or removed
20
from, the Premises by Tenant in such a manner that it does
not, and will not, adversely affect: (a) health or safety or
persons, wherever located, whether on the Premises or
elsewhere; (b) condition, use or enjoyment of the Premises
or any other real or personal property, wherever located,
whether on the Premises or anywhere else; or (c) Premises or
any of the improvements thereto or thereon including
buildings, foundations, pipes, utility lines, landscaping or
parking areas.
29.4 Information. Tenant shall provide Landlord with any and all
-----------
information regarding hazardous or toxic materials used by Tenant in the
Premises, including copies of all filings and reports to governmental entities
at the time they are originated, and any other information requested by
Landlord. In the event of any accident, spill or other incident involving
hazardous or toxic matter, Tenant shall immediately report the same to Landlord
and supply Landlord with all information and reports with respect to the same.
All information described herein shall be provided to Landlord regardless of any
claim by Tenant that it is confidential or privileged.
29.5 Compliance with Law. Notwithstanding any other provision in this
-------------------
Lease to the contrary, Tenant shall comply with all laws, statutes, ordinances,
regulations, rules and other governmental requirements in complying with its
obligations under this Lease, and in particular, relating to the storage, use
and disposal of hazardous or toxic matter by Tenant.
29.6 Indemnification. Tenant shall defend, indemnify and hold
---------------
Landlord harmless from any loss, claim, liability or expense, including
attorneys' fees and costs, arising out of or in connection with its failure to
observe or comply with the provisions of this Lease.
29.7 Hazardous Materials Defined. In this Lease, "hazardous
---------------------------
materials" includes substances defined as "hazardous substances," "hazardous
materials," or "toxic substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. #9601, et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C. #1801, et seq.; the
Resource Conservation and Recovery Act, 42 U.S.C. #6901, et seq.; and those
substances defined as hazardous, toxic, hazardous wastes, toxic wastes, or as
hazardous or toxic substances by any law or statute now in effect in the State
of Nevada; and in the regulations adopted and publications promulgated pursuant
to those laws (all collectively "hazardous substance laws").
30. SIGNAGE: Tenant shall place no window covering (e.g., shades, blinds,
-------
curtains, drapes, screens, or tinting materials), stickers, signs, lettering,
banners or advertising or display material on or near exterior windows or doors
if such materials are visible from the exterior of the Premises, without
Landlord's prior written consent. Similarly, Tenant may not install any alarm
boxes, foil protection tape or other security equipment on the Premises without
Landlord's prior written consent. Any material violating this provision may be
destroyed by Landlord without compensation to Tenant.
21
Except for signs that are located inside the building and are not
visible from outside the building, no signs will be placed at any place on the
Premises without the prior written consent of Landlord as to their size, design,
color, location, content, illumination, composition, materials and mobility.
All signs shall be maintained by Tenant in good condition during the term of
this Lease. Tenant shall remove all signs at the end of this Lease and repair
and restore any damage caused by their installation or removal; provided Tenant
first confers with Landlord regarding sign removal and Landlord, in Landlord's
sole discretion, designates any portion of the signage which Tenant shall not
remove. Landlord hereby approves of Tenant's installation of the sign described
in Exhibit "E" hereto, subject to approval of an appropriate sign permit by the
City of Reno.
31. MAINTENANCE AND REPAIR:
----------------------
31.1 Tenant Obligations. Except for structural repairs as stated in
------------------
Section 31.2 below, Tenant agrees at its own cost and expense to repair,
replace, and maintain in good and tenable condition, normal wear and tear
excepted, the Premises and every part thereof, and including without limitation
all plumbing, heating, air conditioning, ventilating, electrical, lighting
facilities and equipment within the Premises. Repair and maintenance of all
glass, both exterior and interior, shall be the responsibility of Tenant, and
any glass broken shall be promptly replaced by Tenant with glass of same kind,
size, and quality. Janitorial or security services, if utilized, shall be at
the cost and expense of Tenant. Maintenance and irrigation of landscaping shall
be the responsibility of Tenant (excluding replanting of dead or dying trees,
shrubs and turf existing as of the Commencement Date) as well as cutting,
pruning, aeration and fertilizing. Cleaning and snow removal of outside areas
of the Premises shall also be Tenant's responsibility, as well as painting of
exterior trim and cleaning of exterior walls, walkways, parking and other areas.
31.2 Landlord Obligations. Landlord shall be solely responsible for
--------------------
any structural maintenance and repair and all roof repairs of the Premises,
except that Landlord shall not be required to make repairs necessitated by
reason of the negligence of Tenant or by reason of failure of Tenant to perform
or observe any conditions or agreements contained in this Lease, or caused by
alterations, additions, or improvements made by Tenant. Parking lot repair and
maintenance (excluding cleaning and snow removal) as well as repair and
maintenance of all underground utilities and irrigation lines shall be the
responsibility of Landlord. Landlord, however, shall not be liable to Tenant
for failure to make repairs unless Tenant has previously notified Landlord, in
writing, of the need for such repairs and Landlord has failed to commence and
complete such repairs within a reasonable period of time.
31.3 Tenant Performance of Landlord's Obligations. If Landlord
--------------------------------------------
refuses or neglects to make needed repairs or to maintain properly the Premises,
Tenant shall have the right upon giving Landlord reasonable prior written notice
of its election to do so to make such repairs or perform such maintenance on
behalf of and for the account of Landlord. In this event such work shall be
paid for by Tenant and charged back to Landlord as a deduction from rent after
Landlord's receipt of a bill therefor.
22
31.4 Landlord Performance of Tenant's Obligations. If Tenant refuses
--------------------------------------------
or neglects to make needed repairs or maintain properly the Premises as required
herein in a manner reasonably satisfactory to Landlord, Landlord shall have the
right upon giving Tenant reasonable prior written notice of its election to do
so to enter upon the Premises in order to make such repairs or perform such
maintenance on behalf of and for the account of Tenant. In this event the work
shall be paid for by Tenant as additional rent promptly upon receipt of a bill
therefor.
32. DESTRUCTION. If during the term, the Premises is more than 33%
-----------
destroyed from any cause, Landlord may, in its sole discretion, terminate this
Lease by delivery of notice to Tenant within 30 days of such event without
compensation to Tenant. If in Landlord's estimation, the Premises cannot be
restored within 90 days following such destruction, the Landlord shall notify
Tenant and Tenant may terminate this Lease by delivery of notice to Landlord
within 30 days of receipt of Landlord's notice. If Landlord or Tenant does not
terminate this Lease, then Landlord shall commence to restore the Premises in
compliance with then existing laws and shall complete such restoration with due
diligence. In such event, this Lease shall remain in full force and effect, but
there shall be an abatement of rent between the date of destruction and the date
of completion of restoration, based on the extent to which destruction
interferes with Tenant's use of the Premises.
33. CONDEMNATION.
------------
33.1 Definitions. The following definitions shall apply: (1)
-----------
"Condemnation" means (a) the exercise of any governmental power of eminent
domain, whether by legal proceeding or otherwise by condemnor and (b) the
voluntary sale or transfer by Landlord to any condemnor either under threat of
condemnation or while legal proceedings for condemnation are proceeding; (2)
"Date of Taking" means the date the condemnor has right to possession of the
property being condemned; (3) "Award" means all compensation, sums or anything
of value awarded, paid or received on a total or partial condemnation; and (4)
"Condemnor" means any public or quasi-public authority, or private corporate or
individual, having power of condemnation.
33.2 Obligations to be Governed by Lease. If during the term of the
-----------------------------------
Lease there is any taking of all or any part of the Premises or the Project, the
rights and obligations of the parties shall be determined pursuant to this
Lease.
33.3 Total or Partial Taking. If the Premises are totally taken by
-----------------------
condemnation, this Lease shall terminate on the date of taking. If any portion
of the Premises is taken by condemnation, this Lease shall remain in effect,
except that Tenant can elect to terminate this Lease if the remaining portion of
the Premises is rendered unsuitable for Tenant's continued use of Premises. If
Tenant elects to terminate this Lease, Tenant must exercise its right to
terminate by giving notice to Landlord within 30 days after the nature and
extent of the taking have been finally determined. If Tenant elects to
terminate this Lease, Tenant shall also notify Landlord of the date of
termination, which date shall not be earlier than 30 days nor later than 90 days
after Tenant has notified Landlord of its election to terminate; except that
this Lease shall terminate on the date of taking if the date of taking falls on
a date before the date of termination as designated by Tenant.
23
If any portion of the Premises is taken by condemnation and this Lease remains
in full force and effect, on the date of taking the rent shall be reduced by an
amount in the same ratio as the total number of square feet in the Premises
taken bears to the total number of square feet in the Premises immediately
before the date of taking.
34. ENTRY ON PREMISES. Landlord and its authorized representatives shall
-----------------
have the right to enter the Premises at all reasonable times for any of the
following purposes: (a) to determine whether the Premises are in good condition
and whether Tenant is complying with its obligations under this Lease; (b) to do
any necessary maintenance and to make any restoration to the Premises or the
Project that Landlord has the right or obligation to perform; (c) to post "for
sale" signs or to post "for Rent" or "for Lease" signs during the last nine (9)
months of the Term, or during any period while Tenant is in default; (d) to show
the Premises to prospective brokers, agents, buyers, Tenants or persons
interested in leasing or purchasing the Premises, at any time during the Term;
or (e) to repair, maintain or improve the Project and to erect scaffolding and
protective barricades around and about the Premises (but not so as to prevent
entry to the Premises) and to do any other act or thing necessary for the safety
or preservation of the Premises or the Project. Landlord shall not be liable in
any manner for any inconvenience, disturbance, loss of business, nuisance or
other damage arising out of Landlord's entry onto the Premises as provided in
this Section. Tenant shall not be entitled to an abatement or reduction of rent
of Landlord exercises any rights reserved in this Section. Landlord shall
conduct his activities on the Premises as provided herein in a manner that will
cause the least inconvenience, annoyance or disturbance to Tenant. For each of
these purposes, Landlord shall at all times have and retain a key with which to
unlock all the doors in, upon and about the Premises, excluding Tenant's vaults
and safes. Tenant shall not alter any lock or install a new or additional lock
or bolt on any door of the Premises without prior written consent of Landlord.
If Landlord gives its consent, Tenant shall furnish Landlord with a key for any
such lock.
35. AMERICANS WITH DISABILITIES. Upon commencement of the Lease, Landlord
---------------------------
warrants and represents that the Premises shall be in compliance with ADA
Requirements existing at that time.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date first written above.
"LANDLORD" "TENANT"
ELITE INSTRUMENTS, INC., BATTERY EXPRESS, INC.,
a Nevada corporation a California corporation
dba 1-800 BATTERIES
By: /s/ Sam Pu By: /s/ Ken Hawk
----------------------------- ---------------------------------------
Sam Pu, President Ken Hawk, Chief Executive Officer
24
STATE OF NEVADA )
)ss.
COUNTY OF WASHOE )
This instrument was acknowledged before me on June 13, 1997 by SAM PU as
President of ELITE INSTRUMENTS, INC., a Nevada corporation.
[Notarial Seal of Debbie J. Wiltgen
State of Nevada, Appointment Recorded Notary: /s/ Debbie J. Wiltgen
in Washoe County. No. 93-0795-2 ----------------------
Expires Oct. 26, 2000]
STATE OF NEVADA )
)ss.
COUNTY OF WASHOE )
This instrument was acknowledged before me on 6-5-97 by KEN HAWK as Chief
Executive Officer of BATTERY EXPRESS, INC., a California corporation, dba 1-800
BATTERIES.
[Notarial Seal of Vicky Lynn Beattie
State of Nevada, Appointment Recorded Notary: /s/ Vicky Lynn Beattie
in Washoe County. ----------------------
Expires Sept. 24, 1998]
25
FIRST ADDENDUM TO LEASE
-----------------------
THIS FIRST ADDENDUM TO LEASE (this "Addendum") is made by and between ELITE
INSTRUMENTS, INC., a Nevada corporation ("Landlord"), and BATTERY EXPRESS, INC.,
a California corporation, dba 1-800 BATTERIES ("Tenant"), to be a part of that
certain Lease of even date herewith between Landlord and Tenant (the "Lease")
concerning approximately 18,120 square feet of space, located at 2301 Robb
Drive, Reno, Nevada (the "Premises"). Landlord and Tenant agree that,
notwithstanding anything to the contrary in the Lease, the Lease is hereby
modified and supplemented as set forth below.
1. Rent Adjustment. Commencing September 16, 2002 and continuing on January 1
---------------
of each year thereafter (each such day, a "Rent Adjustment Date"), the Fixed
Rent shall be adjusted to equal the product of the Fixed Rent in effect for the
calendar month immediately preceding the Rent Adjustment Date multiplied by a
fraction, the numerator of which is the CPI published for the month immediately
preceding the Rent Adjustment Date in question and the denominator of which is
the CPI published for August 2002 (with respect to the first rent adjustment) or
the immediately preceding Rent Adjustment Date (with respect to each other rent
adjustment); provided, however, that any such increase in Fixed Rent on a Rent
Adjustment Date shall not be less than two and one-half percent (2.5%) nor
greater than five percent (5%) of the Fixed Rent due for the immediately
preceding period. As used herein, "CPI" shall mean the Consumer Price Index,
for All Urban Consumers, Subgroup "All Items", for San Francisco (Base Year
1982-84 = 100), which is currently being published by the United States
Department of Labor, Bureau of Labor Statistics ("USDL"). If, however, the CPI
is changed so that the base year is altered from that used as of the
Commencement Date, then the CPI shall be converted in accordance with the
conversion factor
1
published by the USDL, to obtain the same results that would have been obtained
had the base year not be changed. If no conversion factor is available or if the
CPI is otherwise revised or discontinued for any reason, there shall be
substituted in lieu thereof the most nearly comparable official price index of
the United States Government to obtain substantially the same result as would
have been obtained had the original CPI not been revised or discontinued.
2. Waiver of Coverage. Notwithstanding anything to the contrary herein, the
------------------
parties hereto release each other and their respective agents, employees,
successors, assignees and subtenants from all liability for injury to any person
or damage to any property that is caused by or results from a risk which is
actually insured against, which is required to be insured against under the
Lease, without regard to the negligence or willful misconduct of the entity so
released. All of Landlord's and Tenant's repair and indemnity obligations under
the Lease shall be subject to the waiver in this paragraph.
3. Alterations. Tenant may construct nonstructural alterations, additions and
-----------
improvements ("Alternations") in the Premises without Landlord's prior approval,
if the cost of any such work does not exceed Five Thousand Dollars ($5,000.00).
Upon request, Landlord shall advise Tenant in writing whether it reserves the
right to require Tenant to remove any Alterations upon termination of the Lease.
All Alternations, trade fixtures and personal property installed in the Premises
at Tenant's expense ("Tenant's Property") shall at all times remain Tenant's
property. Except for Alterations which cannot be removed without structural
injury to the Premises, at any time Tenant may remove Tenant's Property,
provided Tenant repairs all damage caused by such removal. Landlord shall have
no lien or other interest whatsoever in any item of Tenant's Property.
2
4. Surrender of Premises. Tenant's obligations with respect to the surrender
---------------------
of the Premises shall be fulfilled if Tenant surrenders possession of the
Premises in the condition existing at the Commencement Date, ordinary wear and
tear, casualties (which are addressed in Sections 32 and 33 of the Lease)
Hazardous Materials (other than those released or emitted by Tenant), and
Alterations which Landlord states may be surrendered at the termination of the
Lease, excepted.
5. Entry. Landlord shall not enter the Premises, except in the case of
-----
emergency, except upon one (1) business day's notice. Any entry by Landlord in
the Premises shall comply with all of Tenant's reasonable security measures and
shall not impair Tenant's use of the Premises more than reasonably necessary.
6. Assignment and Subletting. Tenant may, without Landlord's prior written
-------------------------
consent and without being subject to the provisions of Section 21.1 of the
Lease, sublet the Premises or assign the Lease to (a) a subsidiary, affiliate,
division or corporation controlling, controlled by or under common control with
Tenant; (b) a successor corporation related to Tenant by merger, consolidation,
nonbankruptcy reorganization, or governmental action; or (c) a purchaser of
substantially all corporate assets of Tenant. A sale or transfer of Tenant's
capital stock shall not be deemed an assignment, subletting or any other
transfer of the Lease of the Premises. Tenant shall not be required to pay to
Landlord any "excess" rent under an assignment or sublease until after deducting
therefrom the costs to Tenant to effectuate the assignment or sublease.
7. Subordination. Prior to the Commencement Date, Landlord shall obtain from
-------------
any lenders or ground lessors of the Premises a written agreement in form
subject to Tenant's approval, providing for recognition of Tenant's interests
under the Lease in the event of a foreclosure of the lender's security interest
or termination of the ground lease. Further, as a condition to Tenant's
3
obligation to subordinate its leasehold interest to a ground lease or instrument
of security, Landlord shall obtain from any such ground lessors or lenders a
written recognition agreement in a form subject to Tenant's approval, providing
that Tenant's rights of occupancy shall not be disturbed and Tenant shall
receive all rights provided for under the Lease in the event of a termination of
the ground lease or a foreclosure of the loan.
8. Emissions: Wastes. To the best knowledge of Landlord, (a) no Hazardous
-----------------
Material is present on the Premises or the soil, surface water or groundwater
thereof; (b) no underground storage tanks are present on the Premises; and (c)
no action, proceeding or claim is pending or threatened regarding the Premises
concerning any Hazardous Material.
9. Approvals. Whenever the Lease requires an approval, consent, designation,
---------
determination or judgment by either Landlord or Tenant, such approval, consent,
designation, determination or judgment and any conditions imposed thereby shall
be reasonable and shall not be unreasonably withheld or delayed and, in
exercising any right or remedy hereunder, each party shall act reasonably and in
good faith.
10. Indemnification. Landlord shall not be released or indemnified from any
---------------
losses, damages, liabilities, judgments, claims, costs or expenses arising from
the negligence or willful misconduct of Landlord or its agents, contractors,
licensees or invitees, Landlord's violation of any law, order or regulation, or
a breach of Landlord's obligations or representations under the Lease.
11. Maintenance Of Premises. Tenant shall not be required to cause the
-----------------------
Premises to comply with any laws, rules or regulations including the Americans
With Disabilities Act, requiring capital improvements in the Premises unless the
compliance with any of the foregoing is necessitated either solely due to
Tenant's particular use of the Premises, or due to a proposed renovation,
alteration or
4
repair of Tenant. Landlord shall perform and construct, and Tenant shall have no
responsibility to perform or construct, any repair, maintenance or improvements:
(a) occasioned by fire or other casualty or by the exercise of the power of
eminent domain (which is addressed in Sections 32 and 33 of the Lease); (b)
described in Section 31.2 of the Lease; and (c) which could be treated as a
"capital expenditure" under generally accepted accounting principles.
Notwithstanding the foregoing, Tenant shall pay for the cost of the improvements
described in the first sentence of this paragraph and Subsection (c) of the
second sentence of this paragraph as follows: (i) the cost of such improvements
shall be amortized over the useful life of the improvements in accordance with
generally accepted accounting principles and Landlord shall inform Tenant of the
monthly amortization payment required to so amortize such costs; and (ii) Tenant
shall pay such amortization payment for each month after such improvements is
completed at the same time the Fixed Rent is due until the first to occur of the
expiration of the Term and the end of the term over which such costs were
amortized.
10. Effect Of Addendum. All terms with initial capital letters used herein as
------------------
defined terms shall have the meanings ascribed to them in the Lease unless
specifically defined herein.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date first written above.
"LANDLORD" "TENANT"
ELITE INSTRUMENTS, INC., BATTERY EXPRESS, INC.,
a Nevada corporation a California corporation,
dba 1-800 BATTERIES
By: /s/ Sam Pu By:
----------------------------- -----------------------------------
Sam Pu, President Ken Hawk, Chief Executive Officer
5
When Recorded, Return To:
- ------------------------
Elite Instruments, Inc.
c/o Robert M. Sader, Esq.
462 Court Street
Reno, Nevada 89501
MEMORANDUM OF LEASE
-------------------
NOTICE IS HEREBY GIVEN that the undersigned parties have entered into a
Lease Agreement of even date herewith whereby the real property located in
Washoe County, Nevada, more particularly described on Exhibit "A" attached
hereto, has been leased for a term commencing June 15, 1997 and ending September
15, 2002, with the right to extend the lease term from September 16, 2002 to
September 15, 2007.
DATED this 5th day of June, 1997.
LANDLORD/LESSOR: TENANT/LESSEE:
- --------------- -------------
ELITE INSTRUMENTS, INC., BATTERY EXPRESS, INC.,
a Nevada corporation a California corporation,
dba 1-800 BATTERIES
By: /s/ Sam Pu By: /s/ Ken Hawk
-------------------------- ------------------------------
Sam Pu, Ken Hawk,
President Chief Executive Officer
EXHIBIT "B"
6
STATE OF NEVADA )
)ss.
COUNTY OF WASHOE )
This instrument was acknowledged before me on June 13, 1997 by SAM PU as
President of ELITE INSTRUMENTS, INC., a Nevada corporation.
[Notarial Seal of Debbie J. Wiltgen
State of Nevada, Appointment Recorded Notary: /s/ Debbie J. Wiltgen
in Washoe County. ----------------------
Expires Oct. 26, 2000]
STATE OF NEVADA )
)ss.
COUNTY OF WASHOE )
This instrument was acknowledged before me on 6-5-97, 1997 by KEN HAWK as
Chief Executive Officer of BATTERY EXPRESS, INC., a California corporation, dba
1-800 BATTERIES.
[Notarial Seal of Vicky Lynn Beattie
State of Nevada, Appointment Recorded Notary: /s/ Vicky Lynn Beattie
in Washoe County. ----------------------
Expires Sept. 24, 1998]
EXHIBIT "B"
7
SCHEDULE A
----------
DESCRIPTION OF REAL PROPERTY
----------------------------
ASSESSOR'S PARCEL NO. 204-010-19
- --------------------------------
PARCEL 1 OF PARCEL MAP NO. 1848 FOR R.J.B. DEVELOPMENT CO., ACCORDING TO THE MAP
THEREOF, FILED IN THE OFFICE OF THE COUNTY RECORDER OF WASHOE COUNTY, STATE OF
NEVADA, ON JUNE 14, 1985, AS FILE NO. 1003823, OFFICIAL RECORDS.
EXHIBIT "A"
8
SCHEDULE A
----------
DESCRIPTION OF REAL PROPERTY
----------------------------
ASSESSOR'S PARCEL NO. 204-010-19
- --------------------------------
PARCEL 1 OF PARCEL MAP NO. 1848 FOR R.J.B. DEVELOPMENT CO., ACCORDING TO THE MAP
THEREOF, FILED IN THE OFFICE OF THE COUNTY RECORDER OF WASHOE COUNTY, STATE OF
NEVADA, ON JUNE 14, 1985, AS FILE NO. 1003823, OFFICIAL RECORDS.
EXHIBIT "A"
OF EXHIBIT "B"
9
LEASE AMENDMENT
This Agreement is made and entered into this 15th day of January, 1999, by
and between Dermody Family Limited Partnership II, a Washington limited
partnership, and Guila Gail Turville, (hereinafter referred to collectively as
"Landlord"), and Battery Express, Inc., a California corporation dba 1-800-
BATTERIES, (hereinafter referred to as "Tenant").
W I T N E S S E T H:
--------------------
WHEREAS, Landlord (by Assignment) and Tenant, entered into a Lease dated
June 5, 1997, for the premises located at 2301 Robb Drive, Reno, Nevada; and
WHEREAS, Landlord and Tenant desire to amend the above-mentioned Lease;
NOW, THEREFORE, said Lease is hereby amended so that the monthly rent
payments, which are currently due and payable in advance on the 15th of each
month, shall become due and payable in advance on the 1st day of each month
beginning February 1, 1999. The rent for the period from January 15, 1999,
through February 28, 1999, which represents one and one half months of rent due
in the amount of SEVENTEEN THOUSAND ONE HUNDRED TWENTY THREE AND 40/100 DOLLARS
($17,123.40), shall be due and payable on February 1, 1999. Thereafter,
beginning March 1, 1999, the monthly rent due shall revert back to its original
rate of ELEVEN THOUSAND FOUR HUNDRED FIFTEEN AND 60/100 DOLLARS ($11,415.60).
Any partial month at the end of the Lease term will be pro-rated.
All other terms and conditions of the above-mentioned Lease shall remain
unchanged and in full force and effect throughout the term of the Lease.
Dermody Family Limited Partnership II, Battery Express, Inc.,
a Washington limited partnership a California corporation
by: Dermody Family LLC II, a Washington LLC dba 1-800-BATTERIES
its: General Partner
by: /s/ John A. Dermody by: /s/ Lou Borrego
- ---------------------------------------- ------------------------------
John A. Dermody, its Member Signature
/s/ Guila Gail Turville its: CFO
- ---------------------------------------- ----------------------------
Guila Gail Turville Title