EXHIBIT 10.6
[LETTERHEAD OF WENBERG REALTY COMPANY APPEARS HERE]
This Lease, made at SAN FRANCISCO, CALIFORNIA this 4TH day of APRIL, 1995, by
and between PLEASANT HILL INDUSTRIAL PARK ASSOCIATES A CALIFORNIA
LIMITED PARTNERSHIP
PARTIES and TUTSYSTEMS, INC.
hereinafter called respectively Lessor and Lessee, without regard
to number or gender,
PURPOSE WITNESSETH: That Lessor hereby leases to Lessee, and Lessee
hires from Lessor, for the purpose of conducting therein the
development, sales and distribution of electronic products and
related uses and for no other purpose, those certain premises
with the appurtenances, situated in the City of Pleasant Hill
PREMISES County of Contra Costa, State of California, and more
particularly described as follows, to-wit
Approximately 11,170 square feet more commonly known and
designated as 2495 Estand Way, Pleasant Hill, California.
TERM The term shall be for THREE (3)---------------------------
years commencing on the 1st day of JUNE , 1995, and ending on the
31st day of MAY , 19 98, at the following rent in lawful money of
the United States of America, which Lessee agrees to pay to
Lessor, without deduction or offset, at such place or places as
may be designated from time to time by Lessor, in installments as
follows:
RENT
The sum of NINE THOUSAND ONE HUNDRED TWENTY-SEVEN AND 50/100
($9,127.50) DOLLARS on the first day of June, 1995 and the
further sum of NINE THOUSAND ONE HUNDRED TWENTY-SEVEN AND 50/L00
($9,127.50) DOLLARS on the first day of each and every month
thereafter to and including the first day of November, 1996;
thereafter the sum of NINE THOUSAND NINE HUNDRED SEVENTY-NINE AND
40/100 ($9,979.40) DOLLARS on the first day of December, 1996 and
the further sum of NINE THOUSAND NINE HUNDRED SEVENTY-NINE AND
40/100 ($9,979.40) DOLLARS on the first day of each and every,
month thereafter to and including the first day of May, 1998.
LEASE All rent payments should be made payable to LOWENBERG
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CORPORATION.
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It is further mutually agreed between the parties as follows:
POSSESSION 1. If Lessor, for any reason whatsoever, cannot deliver
possession of the said premises to Lessee at the commence of
the said term. as hereinbefore specified, this lease shall not be
void or voidable, nor shall Lessor be liable Lessee for any loss
or damage resulting therefrom; but in that event there shall be a
proportionate deduction of recovering the period between the
commencement of the said term and the time when Lessor can
deliver possession.
WASTE 2. Lessee shall not commit, or suffer to be committed, any
ALTERATIONS waste upon the said premises, or any nuisance, or other act or
thing which may disturb the quiet enjoyment of any other tenant
in the building in which the demised premises may be located.
Lessee shall not make, or suffer to be made, any alterations of
the said premises, or any part thereon without the written
consent of Lessor first had and obtained, and any additions to,
or alterations of, the stud premises except movable furniture and
trade fixtures, shall become at once a part of the realty and
belong to Lessor.
ABANDONMENT 3. Lessee shall not vacate or abandon the premises at any
time during the term; and if Lessee shall abandon, vacate or
surrender said premises, or be dispossessed by process of law, or
otherwise, any personal property belonging to Lessor and left on
the premises shall be deemed to be abandoned, at the option of
Lessor, except such property as may be under a security agreement
with Lessor.
USES 4. Lessee shall not use, or permit said premises, or any
PROHIBITED part thereof, to be used, for any purpose or purposes other than
the purpose or purposes for which the said premises are hereby
leased; and no use shall be made or permitted to made of the said
premises, nor acts done, which will increase the existing rate of
insurance upon the building in which said premises may be
located, or cause a cancellation of any insurance policy covering
said building, or any part there nor shall Lessee sell, or permit
to be kept, used, or sold, in or about said premises, any article
which may be prohibited the standard form of fire insurance
policies. Lessee shall, at his sole cost and expense, comply with
any and all requirements, pertaining to said premises, of any
insurance organization or company, necessary for the maintenance
reasonable fire and public liability insurance, covering said
building and appurtenances.
FREE 5. Lessee shall keep the demised premises and the property
FROM LIENS in which the demised premises are situated, free from: any liens
arising out of any work performed, materials furnished, or
obligations incurred by Lessee.
COMPLIANCE 6. Lessee shall, at his sole cost and expense, comply with
WITH all of the requirements of all Municipal, State and Federal
GOVERNMENTAL authorities now in force, or which may hereafter be in force,
REGULATIONS pertaining to the said premises, and shall faithfully observe
in the use of the premises all Municipal ordinances and State and
Federal statutes now in force or which may hereafter in force.
The judgment of any court of competent jurisdiction, or the
admission of Lessee in any action or proceed against Lessee.
whether Lessor be a party thereto or not, that Lessee has
violated any such ordinance or statute in the of the premises,
shall be conclusive of that fact as between Lessor and Lessee.
INDEMNIFICA- 7. Lessee, as a material part of the consideration to be
TION OF rendered to Lessor, hereby waives all claims against Lessor for
LESSOR damages to goods, wares, merchandise and other personal property,
in, upon or about said premises and for injures to persons in or
about said premises, from any cause arising at any time, and
Lessee will hold Lessor exempt and harm from any damage or injury
to any person, or to the goods, wares, merchandise and other
personal property of any per arising from the use of the premises
by Lessee, or from the failure of Lessee to keep the premises in
good condition repair, as herein provided.
UTILITIES 8. Lessee shall pay for all water, gas, heat, light, power,
telephone service, sewer service charge and all other services:
supplied to the said premises, together with any taxes thereon.
ENTRY BY 9. Lessee shall permit Lessor and his agents to enter into
LESSOR and upon said premises at all reasonable times for the pose of
inspecting the same or for the purpose of maintaining the
building in which said premises are situated, or for purpose of
making repairs, alterations or additions to any other portion of
said building, including the erection maintenance of such
scaffolding, canopies, fences and props as may be required, or
for the purpose of posting notice non-liability for alterations,
additions, or repairs, or for the purpose of placing upon the
property in which the premises are located any usual or ordinary
for sale signs, without any rebate of rent and without any
liability to Lessee for any loss of occupation or quiet enjoyment
of the premises thereby occasioned; and shall permit Lessor, at
any within thirty days prior to the expiration of this lease, to
place upon said premises any usual or ordinary "to signs.
DESTRUCTION 10. In the event of a partial destruction of the said
OF premises during the said term. from any cause. Lessor forthwith
PREMISES repair the same. provided such repairs can be made within sixty
(60)days under the laws and regulations State, Federal, County or
Municipal authorities, but such partial destruction shall in no
wise annul or void this lease except that Lessee shall be
entitled to a proportionate deduction of rent while such repairs
are being made, such proportionate deduction to be based upon the
extent to which the making of such repairs shall interfere with
the business carried on by Lessee in the said premises. If such
repairs cannot be made in sixty (60) days, Lessor may, at his
option, same within a reasonable time, this lease continuing in
full force and effect and the rent to be proportionately rebate
aforesaid in this paragraph provided. In the event that Lessor
does not so elect to make such repairs which cannot made in sixty
(60) days, or such repairs cannot be made under such laws and
regulations, this lease may be terminate the option of either
party. In the event that the building in which the demised
premises may. be situated be destroy the extent of not less than
33 1/3% of the replacement cost thereof, Lessor may elect to
terminate this lease, whether demised premises be injured or not.
A total destruction of the building in which the said premises
may be situated terminate this lease. Lessee waives any right to
terminate this lease as a result of any statutory provision now
or here in effect pertaining to the damage or destruction of the
demised premises or the building of which the demised premises
are a portion except as expressly provided herein.
ASSIGNMENT 11. Lessee may assign this lease or any interest therein and
AND may also sublet the whole of said premises, provide written
SUBLETTING consent of Lessor to any such assignment or subletting is first
obtained by Lessee. If, during the term of this Lessee requests
the written consent of Lessor to any such assignment or
subletting, Lessor's consent thereto shall unreasonably be
withheld. A consent to one assignment or subletting shall not be
deemed to be a consent to any subsequent assignment or
subletting, and any such subsequent assignment or subletting
without Lessor's consent shall be and shall, at Lessor's option,
terminate this lease. This lease shall not, nor any interest
therein, be assignable the interest of Lessee by operation of law
without the written consent of Lessor, but such shall not
unreasonably be withheld. In the event that the demised premises
are assigned or subleased at a rental consideration in excess of
the then current rent, then all of such excess shall be paid to
the lessor as additional rent thereunder.
INSOLVENCY 12. In addition to any and all rights or remedies of Lessor
OR hereunder or as provided by law, the term of this Lease may be
BANKRUPTCY ended at the option of Lessor and Lessor, at its option, may
reenter and take possession of the demised premise and remove all
persons therefrom and, upon the exercise of such option by
Lessor, Lessee shall have no further claim in or to the demised
premises, and the Lease Agreement and any interest in or to the
demised premises shall no longer be an asset of the Lessee or any
successor in interest, if any one or more of the following events
occur:
(a) Lessee admits in writing its inability to pay its debts
as they come due;
(b) Lessee makes, to its unsecured creditors generally, an
offer of settlement, extension or composition;
(c) Lessee makes an assignment for the benefit of creditors;
(d) Lessee files any petition or action for relief under the
provisions of any bankruptcy, reorganization, insolvency or
moratorium law, or any other law or laws for the relief of, or
relating to, debtors;
(e) Lessee is the subject of an involuntary petition or
similar action for relief under any bankruptcy, reorganization
insolvency, or moratorium law, or any other law or laws for the
relief of, or relating to, debtors;
(f) A receiver or trustee is appointed, with or without
Lessee's consent, to take possession of all or part of the assets
or properties of Lessee.
In the event that any one or more of the preceding events
shall occur, failure by Lessor to assert immediately its right to
reenter and take possession of the demised premises or to
exercise any other rights or remedies granted to Lessor by law,
or hereunder shall not constitute a waiver of any such right or
remedy nor shall Lessor be estopped to assert, at a late time,
any such right or remedy.
DEFAULT 13. In the event of any breach of this lease by Lessee, then
Lessor, besides other rights and remedies he may have shall have
the immediate right of re-entry and may remove all persons and
property from the premises. If Lessor`s right (re-entry is
exercised following abandonment of the premises by Lessee, then
Lessor may consider any personal property belonging to Lessee and
left on the premises to also have been abandoned, in which case
Lessor may dispose of all such personal property in any manner
Lessor shall deem proper and is hereby relieved of all liability
for doing so.
If Lessee breaches this lease and abandons the property
before the end of the term, or if Lessee's right to possession
terminated by Lessor because of a breach of the lease, then in
either such case, Lessor may recover from Lessee a damages
suffered by Lessor, as the result of Lessee's failure to perform
his obligations hereunder, including, but not, restricted to, the
worth at the time of the award by the court having jurisdiction
thereof of the amount by which the re then unpaid hereunder for
the balance of the lease term exceeds the amount of such rental
loss for the same period which Lessee proves could be reasonably
avoided by Lessor, and in such case, Lessor, prior to the award,
may relet the premises for the purpose of mitigating damages
suffered by Lessor because of Lessee s failure to perform his
obligation hereunder; provided, however, that even though Lessee
has abandoned the premises raises following such breach, this
lease shall nevertheless continue in full force and effect for as
long as Lessor does not terminate Lessee's right of possession,
or until such termination, Lessor may enforce all his rights and
remedies under this lease, including the right to recover the
rent from Lessee as it becomes due hereunder.
REPAIRS 14. Lessee shall, at his sole cost, keep and maintain said
premises and appurtenances and every part thereof (excepting
exterior walls and roofs which Lessor agrees to repair),
including glazing, silks adjacent to said premise parking areas,
driveways, lighting standards, landscaping and Striping. any
store front and the interior of the premises in good and sanitary
order, condition and repair, hereby waiving the benefits of any
statute now or hereafter in effect which would otherwise afford
Lessee. the right to make repairs at Lessor's expense or to
terminate this lease because Lessor s failure to keep the
premises in good order, condition and repair. By entry hereunder,
Lessee accepts the premises as being in good and sanitary order,
condition and repair and agrees on the last day of said term. or
sooner termination of this lease, to surrender unto Lessor all
and singular said premises with said appurtenances in the same
condition when received, reasonable use and wear thereof and
damage by fire. act of God or by the elements excepted, and
remove all of Lessee's signs from said premises.
ADVERTISE- 15. Lessee shall not conduct or permit to be conducted any
MENTS AND sale by auction on said premises. Lessee shall not place permit
SIGNS to be placed any projecting sign, marquee or awning on the front
of the said premises without the written consent of Lessor;
Lessee, upon request of Lessor, shall immediately remove any sign
or decoration which Lessee has placed permitted to be placed in,
on, or about the front of the premises and which, in the opinion
of Lessor, is objectionable offensive, and if Lessee fails so to
do, Lessor may enter upon said premises and remove the same.
Lessor has reserved to exclusive right to the two exterior
sidewalls, rear wall and roof of said premises, and Lessee shall
not place or permit to be placed upon the said sidewalls, rear
wall or roof, any sign, advertisement or notice without the
written consent of Lessor.
SURRENDER 16. The voluntary or other surrender of this lease by
OF LEASE Lessee, or a mutual cancellation thereof, shall not work merger,
and shall, at the option of the Lessor, terminate all or any
existing subleases or subtenancies, or may, at the option of
Lessor. operate as an assignment to him of any or all such
subleases or subtenancies.
CONDEMNATION 17. If any part of the demised premises shall be taken or
condemned for a public or quasi-public use, and a part thereof
remains which is susceptible of occupation hereunder, this lease
shall, as to the part so taken, terminate as of the date title
shall vest in the condemnor, and the rent payable hereunder shall
be adjusted so that the Lessee shall be required to pay for the
remainder of the term only such portion of such rent as the value
of the part remaining after condemnation bears to the value of
the entire premises at the date of condemnation; but in such
event Lessor shall have the option to terminate this lease as of
the date when title to the part so condemned vests in the
condemnor. If all of
demised premises, or such part thereof be taken or condemned so
that there does not remain a portion susceptible for occupation
hereunder, this lease shall thereupon terminate. If a part or all
of the demised premises be taken or co condemned, all
compensation awarded upon such condemnation or taking shall go to
the Lessor and the Lessee shall ha no claim thereto, and the
Lessee hereby irrevocably assigns and transfers to the Lessor any
right to compensation damages to which the Lessee may become
entitled during the term hereof by reason of the condemnation of
all or a part of the demised premises.
ATTORNEY'S 18. In case suit is brought by either party because of the
FEES breach of any term, covenant or condition herein contained the
prevailing party shall be entitled to recover against the other
party a reasonable attorney's fee to be fixed by the court
ARBITRATION 19. In the event of a dispute between Lessor and Lessee
relative to the provisions of this lease, the matter shall
determined by competent and disinterested arbitrators, one of
whom shall be selected and paid by Lessor and c selected and paid
by Lessee. Each party shall notify the other party the name and
address of the arbitrator so select within 15 days after a
written request for arbitration has been given by one party to
the other. In the event these two c not agree within 30 days
after their appointment, the arbitrators shall select a competent
and disinterested party as ~ third arbitrator, the expense to be
borne equally by Lessor and Lessee. In the event these two do not
so select a third arbitrator within the next 15 days. then the
third arbitrator shall be appointed by the President of the
Chamber of Commerce of San Francisco, State of California, upon
the request of either party. The decision of any two of the three
arbitrators so chosen shall be final and conclusive on the
parties hereto. The decision of the arbitrators shall be in
writing and a copy thereof shall be given to Lessor and Lessee
within 90 days after the date of the request for arbitration.
SECURITY 20. Lessee shall deposit with Lessor upon execution hereof
DEPOSIT the sum of $10,223.25 to be transferred from existing deposits on
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2446 and 2450 Estand Way, Pleasant Hill, CA (Lease dated 7/26
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Extensions dated ($10,223.25) Dollars as security for Lessee's
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faithful performance of Lessee's obligations hereunder, Lessee
fails to pay rent or other charges due hereunder, or otherwise
defaults with respect to any provision of this lea Lessor may
use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default, for the payment
of any other sum to which Lessor may become obligated by reason
of Lessee's default, or to compensation Lessor for any loss or
damage which Lessor may suffer thereby. If Lessor so uses or
applies all or any portion of such deposit. Lessee shall within
ten (10) days after written demand therefor, deposit cash with
Lessor in an amount sufficient to restore said deposit to the
full amount hereinabove stated and Lessee's failure to do so
shall be a breach of this Lessee and Lessor may at its option
terminate this lease. Lessor shall not be required to keep said
deposit separate from general accounts. If Lessee performs all of
Lessee's obligations hereunder, said deposit or so much thereof
as had theretofore been applied by Lessor, shall be returned
without payment of interest or other increment for its use, to
Lessor (or, at Lessors option, to the last assignee, if any, of
Lessee's interest hereunder) within fifteen (15) days after the
expiration of the term thereof, or after Lessee has vacated the
premises, whichever is later.
TAXES AND 21. In the event that in any tax year during the term of
ASSESSMENTS this lease the amount of the Municipal, State or County Federal
Estate taxes including the amount of any general or special
assessments, or levies or charges made by any municipal political
subdivision for local improvements shall exceed the amount of
such taxes including such general or special assessments, levies
or charges for the fiscal year 1994 - 1995, the Lessee shall pay
to the Lessor for such year upon demand an amount equal to 12 %
of the total increase in such taxes, assessments, levies and
charges upon whole of the land and building upon and within which
the leased premises are situate, whether such increase is caused
increased or added rate or increased assessed valuation or by
increase in, or by reason of any new, general or special
assessment. It is understood that, if the right to pay any
assessments in installments is given to Lessor then for the poses
of this paragraph it shall be deemed that the same are paid in
such installments regardless of whether or not Lessor may pay the
same in one sum or in any larger amounts than the installment
basis.
It is agreed that any increase in taxes caused by an
increase in assessed valuation due to work done in the demised
premises by Lessee or by work done in any other parts of the
building by Lessor or any other tenant in the building s not be
included in computing the amount of increase in taxes to be paid
by Lessee under the preceding paragraph of Paragraph 21, but
shall be computed separately in the following manner:
1. Any increase in taxes caused by an increase in assessed
valuation due to the work done by Lessee in the demised premises
at any time during said term shall be borne entirely by Lessee.
2. If there is any increase in taxes caused by work done in
any other parts of the building by Lessor or by any of tenant in
the building, the Lessee shall not be responsible for any portion
of such increase in taxes.
The amount of Lessee's obligation under this paragraph for
the year in which this lease terminates shall be prorated. in the
proportion that the period this lease is in effect during the tax
year in which this lease terminates bears to the tax year.
Lessee also shall pay, before delinquency, any and all taxes
levied or assessed and which become payable during term hereof
upon Lessee's equipment, furniture, fixtures and other personal
property located in the premises: In a tion to rental and other
charges to be paid by Lessee hereunder, Lessee shall reimburse to
Lessor, upon demand, any all taxes payable by Lessor (other than
net income taxes) whether or not now customary or within the
contemplation the parties hereto; (a) upon, allocable to, or
measured by or on the rental patentable hereunder, including,
without limitation, any gross income tax or excise tax levied by
the State, any political subdivision thereof, or Federal
Government respect to the receipt of such rental: or (b) upon or
with respect to the possession, leasing, operation, management
maintenance, alteration, repair, use or occupancy by Lessee of
the premises or any portion thereof; or (c) upon or measured by
the value of Lessee's equipment, furniture, fixtures and other
personal property located in the premises or by the cost or
value of any leasehold improvements located in the premises; or
(d) upon this transaction or any document to which Lessee is a
party creating or transferring an interest or an estate in the
premises; or (e) any tax or charge made by any authority having
jurisdiction upon any automobile parking facilities used by
Lessee and any sewer tax, water control tax or Environmental
Quality Control charge.
ADJUSTMENT 22. The monthly rental in the amount of $9,979.40, set forth
IN RENT above shall be increased on JUNE 1, 1998
in the same proportion that the Consumer Price Index figure
published by the United States Department of Labor Bureau of
Labor Statistics, all items retail for San Francisco-Oakland for
the month prior to the adjustment month bears to the Consumer
Price Index figure for the month prior to the month in which
lease commences (1967 = 100) hereinafter called "basic index
figure, provided, however, that in no event shall the monthly
rental for any such period be less than the monthly rental being
paid by Lessee immediately prior to such adjustment.
If prior to the effective date of any rental adjustment the
Bureau of Labor Statistics should revise or change the methods or
basic data used in calculating the said index, in such a way as
to affect the direct comparabiluty of such revised or changed
index, with the original index used herein, then the Bureau shall
be requested to furnish a conversion factor designed to adjust to
the new basis, the said original index.
If said Consumer Price Index, as now constituted, compiled
and published shall cease to be compiled and publish during the
term hereof, then the Bureau of Labor Statistics shall be
requested to furnish a statement conveying the basis index figure
to a figure that would be comparable in another index published
by the Bureau of Labor Statistics and such other index shall be
used in computing the rental increase provided above.
If no such conversion or other index is available, then the
said rental increase shall be determined by arbitration the
manner provided in Paragraph 19 hereof.
INSURANCE 23. Lessee agrees during the full term of this lease to
carry comprehensive bodily injury insurance covering the demised
premises, its appurtenances and ways immediately adjoining,
including any parking areas and driveways that may be used by
Lessee, in a single limit of $1,000,000 for injury or death to
any number of persons in any one occurrence, property damage
insurance in the amount of $100,000.00 and plate glass insurance
in Companies satisfactory to the Lessor, in the joint names of
the Lessor and Lessee, and to pay the premiums therefor and to
deliver said policies or certificates thereof, unto the Lessor,
and the failure of the Lessee either to effect said insurance in
the names here called for or to pay the premiums therefor or to
deliver said policies, or certificates, thereof, unto the Lessor
shall permit the Lessor to effect said insurance and to pay the
requisite premiums therefor, which premiums shall be repayable un
him with the next installment of rental, and failure to repay the
same shall carry with it the same consequence as failure to pay
any installment of rental. Each insurer mentioned in this
paragraph shall agree, by endorsement upon the policy or policies
issued by it, or by independent instrument furnished to the
Lessor, that it will give the Lessor 30 days written notice
before the policy or policies in question shall be altered or
cancelled.
NOTICE 24. Whenever it is required that any notice be given
hereunder, the same shall be sufficiently served by depositing
the same in the United States Mail, postage prepaid, and
addressed to the addresses set forth below:
To Lessor at: 44 Montgomery Street
San Francisco, California 94104
To Lessee at: 2495 Estand Way
Pleasant Hill, CA 94522
or to such other addresses as a party may designate by written
notice to the other party in the manner herein provided.
LESSOR'S 25. The term "Lessor", as used in this Paragraph, shall mean
LIABILITY only the owner or owners at the time in question of the fee title
or its interest in a ground lease of the Premises, and in the
event of any transfer of such title or interest, Lessor herein
named (and in case of any subsequent transfers the then grantor)
shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be
performed, provided that any funds in the hands Lessor or the
then grantor at the time of such transfer, in which Lessee has an
interest, shall be delivered to the grant. The obligations
contained in this Lease to be performed by Lessor shall be
binding on Lessor's Successors and assigns only during their
respective periods of ownership.
WAIVER 26. The waiver by Lessor of any breach of any term, covenant
or condition herein contained shall not be deemed be a waiver of
Such term. covenant or condition or any subsequent breach of the
same or any other term, covenant condition therein contained. The
subsequent acceptance of rent hereunder by Lessor shall not be
deemed to be a wavier of any preceding breach by Lessee of any
term, covenant or condition of this lease, other than the failure
of Lessee to ??? the particular rental so accepted, regardless of
Lessors knowledge of such preceding breach at the time of
acceptance such rent.
HOLD OVER 27. Any holding over after the expiration of the said term,
with the consent of Lessor, shall be construed to be a tenancy
from month to month, at a rental in the amount of the last
monthly rental plus all other charges payable hereunder, and
shall otherwise be on the terms and conditions herein specified,
so far as applicable.
SUCCESSORS 28. The covenants and conditions herein contained shall,
subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of all
of the parties hereto; and all of the parties hereto shall be
jointly and severally liable hereunder.
TIME 29. Time is of the essence of this lease.
CAPTIONS 30. The captions in the margins of this lease are for
convenience only and are not a part of this lease and do not in
any way limit or amplify the terms and provisions of this lease.
SUBORDINATION 31. The Lessee covenants that this lease is and at all times
shall be subject and subordinate to the lien of any mortgage or
deed of trust now existing or which the Lessor or any subsequent
owner of the demised premises shall make covering said demised
premises or the building of which said premiums are a part, and
to any and all advances made or to be made under or upon said
mortgage or deed of trust, and to the interest thereon.
Notwithstanding such subordination Lessee's right to quiet
possession of the premises shall not be disturbed if Lessee is
not in default hereunder and so long as Lessee shall pay the rent
and observe and perform all of the provisions of this lease.
ESTOPPEL 32. Lessee shall at any time and from time to time upon not
CERTIFICATE less than ten (10) days prior written notice from Lessor execute,
acknowledge and deliver to Lessor a statement in writing (i)
certifying that this Lease is unmodified and in full force and
effect (or, if modified stating the nature of such modification
and certifying that this Lease as so modified, is in full force
and effect) and the dates to which the rental and other charges
are paid in advance, if any, and (ii) acknowledging that there
are not, to Lessee's knowledge, any uncured defaults on the part
of Lessor hereunder, or specifying such defaults if any are
claimed. Any such statement may be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the real
property of which the premises are a part. Lessee s failure to
deliver such statement within such time shall be conclusive upon
Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that
there are no uncured defaults in Lessor's performance, and (iii)
that not more than one month's rental has been paid in advance
SPECIAL 33. Special provisions of this Lease numbered --------34
PROVISIONS ---------through ----------40--------are attached hereto and are
made a part hereof.
34. All base rent, additional rent and all other sums which may
from time to time become due and payable by Lessee to Lessor
under any of the provisions of this Lease shall bear interest
from and after the due date thereof at the greater of ten percent
(10%), or the maximum rate of interest permitted by law.
35. During the full term of this Lease, Lessee shall carry, at
its expense, insurance against loss and damage by fire with an
"All Risk" endorsement for the full insurable value of Lessee's s
merchandise, trade fixtures, furnishings, operating equipment and
personal property, including wall coverings, carpeting and
drapes, if installed by Lessee.
IN WITNESS WHEREOF, the parties hereto have executed this lease
the day and year first above written.
LESSORS LESSEES
PLEASANT HILL INDUSTRIAL PARK TUTSYSTEMS, INC.
ASSOCIATES, A CALIFORNIA LIMITED
PARTNERSHIP BY:/S/ MICHAEL SULLIVAN, V.P.
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LOWENBERG HOLDINGS, GENERAL PARTNER
WILLIAM J. LOWENBERG, ITS PRESIDENT
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- -------------------------------------- --------------------------------
This lease has been prepared for submission to your attorney for his
approval. No representation or recommendation is made by Lowenberg Realty
Company, or its agents or employees as to the legal sufficiency, legal effect,
or tax consequences of this lease or the transaction relating thereto.
36. Lessee warrants that it shall not make any use of the
Premises which may cause contamination of the building and
improvements, the soil or ground water and hereby indemnifies and
agrees to hold Lessor harmless from any claim for damages arising
from any contamination caused by Lessee's use Of the Premises
including, but not limited to, damage to Lessor's property, the
property of any third party or personal injury to any person, and
any attorneys' fees in connection with any actions which may
arise from any contamination caused by, Lessee or Lessee's
agents. The indemnification given hereunder shall be continuing
and shall survive the termination of the Lease term.
37. Provided Lessee has satisfactorily performed all terms and
conditions of this Lease, Lessee shall have the option to extend
this Lease for one additional consecutive two-year term, at a
rental to be based on the Consumer Price Index and in accordance
with Paragraph 22 of the herein Lease.
Lessee to provide Lessor written notice of its intention to
exercise this option on or before 90 days prior to the expiration
of the initial term of this Lease.
38. If Lessee does not exercise the option to renew as per
Paragraph 37 of this Lease, then Lessee shall pay and deliver to
Lessor on or before the last day of this Lease a check in the
amount of $10,000 for unamortized tenant improvements.
39. Lessor agrees to grant to Lessee a First Right of Refusal on
approximately 5000 square feet currently vacant (adjacent to
their existing space).
Lessee agrees to take this space on an "as is" basis, at a rate
of 65c per square foot per month.
If Lessee, within 3 calendar days after receipt of Lessor's
notice, indicates in writing its agreement to lease the spaces
the space shall be included within the premises and leased to
the. Lessee pursuant to the provisions of this Lease. However,
the rent payable under this lease shall be increased by the
amount of rent attributed to the additional space leased by
Lessee. The parties shall immediately execute an amendment to he
Lease stating the addition of the expansion space, to the
premises.
If the Lessee does not indicate within three calendar days its
agreement to lease the additional space, Lessor thereafter shall
have the right to lease the space to a third party, and this
option to expand premises shall be of no further force and
effect.
40. Each Option granted to Lessee in this Lease is personal to
Lessee and may not be exercised or be assigned voluntarily or
involuntarily, by or to any person or entity other than Lessee.
-7-
EXTENSION OF LEASE
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This EXTENSION OF LEASE made this 3rd day of March, 1998, by and between
PLEASANT HILL INDUSTRIAL PARK ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP,
LESSOR, AND TUTSYSTEMS, INC., LESSEE herein after respectively called "Lessor"
and "Lessee".
WITNESSETH
1. On April 4, 1995 a Lease was executed and on November 11, 1998 an Amendment
to Lease was executed by and between PLEASANT HILL INDUSTRIAL PARK
ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP, Lessor, and TUTSYSTEMS, INC.,
Lessee, for those certain premises commonly known and desigated as 2495
Estand Way, Pleasant Hill, CA.
2. The parties do hereby agree to:
a. Extend the term of the Lease three years from June 1, 1998 to May 31,
2001.
b. The monthly rental shall be payable as follows to LOWENBERG
CORPORATION: The sum of SEVENTEEN THOUSAND TWO HUNDRED SEVENTY-FOUR AND
80/100 ($17,274.80) DOLLARS commencing on the first day of June, 1998
and continuing on the first day of each and every month thereafter to
and including the first day of November, 1999; thereafter, the sum of
EIGHTEEN THOUSAND FOUR HUNDRED ELEVEN AND 30/100 ($18,411.30) DOLLARS
commencing the first day of December 1999 and continuing on the first
day of each and every month thereafter to and including the first day
of May 2001. As additional rent Lessee agrees to pay $200 per month for
water.
c. Provided Lessee has satisfactorily performed all terms and conditions
of this Lease, Lessee shall have the option to extend this Lease for
one additional consecutive two (2) year term at a rental rate to be
negotiated. Lessee to provide Lessor written notice of its intention to
exercise this option on or before 120 days prior to the expiration of
the initial term of this Lease.
d. Each Option granted to Lessee in this Lease are personal to Lessee and
may not be exercised or be assigned voluntarily or involuntarily, by or
to any person or entity other than Lessee.
3. All other terms and conditions of the above Lease shall remain the same.
IN WITNESS WHEREOF, the undersigned "Lessor" and "Lessee" have executed these
presents the day and year first above mentioned.
Lessor: PLEASANT HILL INDUSTRIAL PARK LESSEE: TUTSYSTEMS, INC.
ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP
By /s/William J. Lowenberg By /s/ Nelson B. Caldwell
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LOWENBERG HOLDINGS, GENERAL PARTNER
WILLIAM J. LOWENBERG, ITS PRESIDENT
AMENDMENT TO LEASE
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This AMENDMENT TO LEASE made this 11th day of November, 1996, by and between
PLEASANT HILL INDUSTRIAL PARK ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP,
LESSOR, AND TUTSYSTEMS, INC., LESSEE herein after respectively called "Lessor"
and Lessee".
WITNESSETH
1. On April 4, 1995 a Lease was executed by and between PLEASANT HILL
INDUSTRIAL PARK ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP, lessor, and
TUTSYSTEMS, INC., lessee, for those certain premises commonly known and
designated as 2495 Estand Way, Pleasant Hill, CA.
2. The parties do hereby agree to:
a. Increase the rentable square footage by 10,560 square feet as Lessee
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agrees to lease the adjacent space to the north of their current unit
in addition to 2495 Estand Way, Pleasant Hill, California. The new
total square footage commencing January 1, 1997 is 22,730 square foot.
b. The monthly rental shall be payable as follows to LOWENBERG
CORPORATION: The sum of SIXTEEN THOUSAND FIVE HUNDRED SEVENTY-NINE AND
40/100 Dollars ($16,579.40) DOLLARS commencing on the first day of
January, 1997 and continuing on the first day of each and every month
thereafter to and including the first day of May, 1998. As additional
rent Lessee agrees to pay $150 per month for water.
c. Lessee shall deposit with Lessor upon execution hereof the sum of Six
Thousand Three Hundred Fifty-Six and 15/100 ($6,356.15) Dollars
payable to Lowenberg Corporation as additional security deposit making
a new total of $16,579.40.
d. The Lessor, at its sole cost and expense shall complete the demolition
in the expansion space and deliver the space in shell condition. Also
the Lessor shall provide two five-ton HVAC units as per plans dated
October 25, 1996 by Craig Hudson. These units were specified as per
Title 24.
e. Provided Lessee has satisfactorily performed all terms and conditions
of this Lease, Lessee shall have the option to extend this Lease for
one additional consecutive 18 month term at a rental rate of 76c per
square foot per month. Lessee to provide Lessor written notice of its
intention to exercise this option on or before 120 days prior to the
expiration of the initial term of this Lease.
f. Paragraphs 8, 14 and 21 of the Lease dated April 4, 1995 shall be
amended to reflect this increase in square footage by increasing
Lessee's percentage of occupancy and prorate share to 22.7% of all
expenses outlined in the paragraphs above.
3. Lessor and Lessee further agree to delete Paragraphs 22, 37, and 39 of the
Lease dated April 4, 1995. It is further understood and agreed that
Paragraph 38 of said Lease now applies solely to Paragraph 2e of this
Amendment to Lease.
4. All other terms and conditions of the above Lease shall remain the same.
IN WITNESS WHEREOF, the undersigned "Lessor" and "Lessee" have executed these
presents the day and year first above mentioned.
LESSOR: PLEASANT HILL INDUSTRIAL PARK LESSEE: TUTSYSTEMS, INC.
ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP
BY /s/ [SIGNATURE ILLEGIBLE]^^ BY /S/ Sean Laskey
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LOWENBERG HOLDINGS, GENERAL PARTNER SEAN LASKEY
WILLIAM J. LOWENBERG, ITS PRESIDENT DIRECTOR OF OPERATIONS