Exhibit 10.44




 




December 20, 2002




 




 




 




COMMERCIAL LEASE AND DEPOSIT RECEIPT




 




RECEIVED FROM Monterey Pasta

Company, a Delaware Corporation, hereinafter referred to as LESSEE, the sum of

$2,975.00 (Two Thousand Nine Hundred Seventy Five and xx/100 DOLLARS), evidenced

by a company check, as a deposit which upon acceptance of this lease shall

belong to Lessor and shall be applied as follows:




 




	

   


  	

   


  	

  TOTAL


  	

   


  	

  RECEIVED


  	

   


  	

  BALANCE

  DUE PRIOR TO OCCUPANCY


  	

   


  
	

  Rent for the period from 3-1-03 to 3-31-03


  	

   


  	

  $


  	

  1,487.50


  	

   


  	

  $


  	

  1,487.50


  	

   


  	

  $


  	

  -0-


  	

   


  
	

  Security deposit 


  	

   


  	

  $


  	

  1,487.50


  	

   


  	

  $


  	

  1,487.50


  	

   


  	

  $


  	

  -0-


  	

   


  
	

  Other 

  


  	

   


  	

  $


  	

  -0-


  	

   


  	

  $


  	

  -0-


  	

   


  	

  $


  	

  -0-


  	

   


  
	

  TOTAL 


  	

   


  	

  $


  	

  2,975.00


  	

   


  	

  $


  	

  2,975.00


  	

   


  	

  $


  	

  -0-


  	

   


  





 




In the event

that this lease is not accepted by the Lessor within 5 days, the total deposit

received shall be refunded.




 




Lessee hereby

offers to lease from Lessor the premises situated in the City of Salinas County

of Monterey State of California described as 1514 Moffett Street Suite E. Zip

93905




 




upon the following TERMS and

CONDITIONS:




 




1.                                       TERM:  The

term hereof shall commence on:  March 1,

2003  and expire on: February 28, 2006




 




2.                                       RENT:  The

total rent shall be $1,487.50  payable

as follows:  On the first day of each

month, Lessee shall pay a late fee of $100.00 for any payment that is not

received by the fifth of each month. 

All rents shall be paid to Owner or his authorized agent, at the

following address 1518 Moffett Street Suite E. Salinas, CA 93905, or at such

other places as may be designated by Owner from time to time.




 




3.                                       USE:  The

premises are to be used for the operation of General office space and for no

other purpose.  and for no other

purpose, without prior written consent of Lessor.




 




4.                                       USES PROHIBITED: 

Lessee shall not use any portion of the premises for purposes

other than those specified hereinabove, and no use shall be made or permitted

to be made upon the premises, nor acts done, which will increase the existing

rate of insurance upon the property, or cause cancellation of insurance

policies covering said property. Lessee shall not conduct or permit any sale by

auction on the premises.




 




5.                                       ASSIGNMENT AND SUBLETTING:  Lessee shall not assign this lease or sublet any

portion of the premises without prior written consent of the Lessor, which

shall not be unreasonably withheld.  Any

such assignment or subletting without consent shall be void and, at the option

of the Lessor, may terminate this lease.




 




6.                                       ORDINANCES AND STATUTES:  Lessee shall comply with all statutes, ordinances and

requirements of all municipal, state and federal authorities now in force, or

which may hereafter be in force, pertaining to the premises, occasioned by or

affecting the use thereof by Lessee. 

The commencement or pendency of any state or federal court abatement

proceeding affecting the use of the premises shall, at the option of the

Lessor, be deemed a breach hereof.




 




7.                                       MAINTENANCE, REPAIRS, ALTERATIONS:  Lessee acknowledges that the premises are in

good order and repair, unless otherwise indicated herein.  Lessee shall, at his own expense and at all

times, maintain the premises in good and safe condition, including plate glass,

electrical wiring, plumbing and heating installations and any other system or

equipment upon the premises and shall surrender the same, at termination

hereof, in as good condition as received, normal wear and tear excepted.  Lessee shall be responsible for all repairs

required, excepting the roof, exterior walls, structural foundations, and 




See ADDENDUM

#1 which shall be maintained by Lessor.




 




No improvement or alteration of the premises shall be made without the

prior written consent of the Lessor. 

Prior to the commencement of any substantial repair, improvement, or

alteration, Lessee shall give Lessor at least two (2) days written notice in

order that Lessor may post appropriate notices to avoid any liability for

liens.




 




Lessee shall not commit any waste upon the premises, or any nuisance or

act which may disturb the quiet enjoyment of any tenant in the building.




 




ENTRY AND INSPECTION:  Lessee shall permit Lessor or Lessor’s

agents to enter upon the premises at reasonable times and upon reasonable

notice, for the purpose of inspecting the same, and will permit Lessor at any

time within sixty (60) days prior to the expiration of this lease, to place

upon the premises any usual “To Let” or “For Leases and permit persons desiring

to lease the same to inspect the premises thereafter.




 




8.                                       INDEMNIFICATION: 

See ADDENDUM #1




 




9.                                       POSSESSION:  If

Lessor is unable to deliver possession of the premises at the commencement

hereof, Lessor shall not be liable for any damage caused thereby, nor shall

this lease be void or voidable, but Lessee shall not be liable for any rent

until possession is delivered. Lessee may terminate this lease if possession is

not delivered within 30 days of the commencement of the term hereof.




 




10.                                 INSURANCE:  Lessee,

at his expense, shall maintain plate glass and public liability insurance

including bodily injury and property damage insuring Lessee and Lessor with

minimum coverage as follows 1,000,000.00 combined single limits




 




Lessee shall provide Lessor with a Certificate of Insurance showing

Lessor as additional insured.  The

Certificate shall provide for a ten-day written notice to Lessor in the event

of cancellation or material change of coverage.




 




To the maximum extent permitted by insurance policies which may be

owned by Lessor or Lessee, Lessee and Lessor, for the benefit of each other,

waive any and all rights of subrogation which might otherwise exist.




 




11.                                 UTILITIES:  Lessee

agrees that he shall be responsible for the payment of all utilities, including

gas, electricity, and services delivered to the premises.




 




12.                                 SIGNS:  Lessor

reserves the exclusive right to the roof, side and rear walls of the

Premises.  Lessee shall not construct

any projecting sign or awning without the prior written consent of Lessor which

consent shall not be unreasonably withheld.




 




13.                                 ABANDONMENT OF PREMISES:  Lessee shall not vacate or abandon the premises at any

time during the term hereof, and if Lessee shall abandon or vacate the

premises, or be dispossessed by process of law, or otherwise, any personal

property belonging to Lessee left upon the premises shall be deemed to be

abandoned, at the option of Lessor.




 




14.                                 CONDEMNATION:  If

any part of the premises shall be taken or condemned for public use, and a part

thereof remains which is susceptible of occupation hereunder, this lease

shall-as to the part taken, terminate as of the date the condemner acquires

possession, and thereafter Lessee shall be required to pay such proportion of

the rent for the remaining term as the value of the premises remaining bears to

the total value of the premises at the date of condemnation; provided however,

that Lessor may at his option, terminate this lease as of the date the

condemner acquires possession. In the event that the demised premises are

condemned in whole, or that such portion is condemned that the remainder is not

susceptible for use hereunder, this lease shall terminate upon the date upon

which the condemner acquires possession. 

All sums which may be payable on account of any condemnation shall

belong to the Lessor, and Lessee shall not be entitled to any part thereof,

provided however, that Lessee shall be entitled to retain any amount awarded to

him for his trade fixtures or moving expenses.




 




15.                                 TRADE FIXTURES: 

Any and all improvements made to the premises during the term

hereof shall belong to the Lessor, except trade fixtures of the Lessee.  Lessee may, upon termination hereof, remove

all his trade fixtures, but shall repair or pay for all repairs necessary for

damages to the premises occasioned by removal.




 




16.                                 DESTRUCTION OF PREMISES:  In the event of a partial destruction of the premises

during the term hereof, from any cause, Lessor shall forthwith repair the same,

provided that such repairs can be made within sixty (60) days under existing

governmental laws and regulations, but such partial destruction shall not

terminate this lease, except that Lessee shall be entitled to a proportionate

reduction of rent while such repairs are being made, based upon the extent to

which the making of such repairs shall interfere with the business of Lessee on

the premises. If such repairs cannot be made within said sixty (60) days,

Lessor, at his option, may make the same within a reasonable time, this lease

continuing in effect with the rent proportionately abated as aforesaid, and in

the event that Lessor shall not elect to make such repairs which cannot be made

within sixty (60) days, this lease may be terminated at the option of either

party.




 




In the event that the building in which the demised premises may be

situated is destroyed to an extent of not less than one-third of the

replacement costs thereof, Lessor may elect to terminate this lease whether the

demised premises be injured or not. A total destruction of the building in

which the premises may be situated shall terminate this lease.




 




In the event of any dispute between Lessor and Lessee with respect to

the provisions hereof, the matter shall be settled by arbitration in such a

manner as the parties may agree upon, or if they cannot agree, in accordance

with the rules of the American Arbitration Association.




 




17.                                 HAZARDOUS MATERIALS: 

Lessee shall not use, store, or dispose of any hazardous

substances upon the premises, except use and storage of such substances if they

are customarily used in lessee’s business, and such use and storage complies

with all environmental laws. Hazardous substances means any hazardous waste,

substance or toxic materials regulated under any environmental laws or

regulations applicable to the property.




 




1





























 




18.                                 INSOLVENCY:  In the event a receiver is appointed to take over the business of

Lessee, or in the event Lessee makes a general assignment for the benefit of

creditors, or Lessee takes or suffers any action under any insolvency or

bankruptcy act, the same shall constitute breach of this lease by Lessee.




 




19.                                 REMEDIES OF OWNER ON DEFAULT:  In the event of any breach of this lease by

Lessee, Lessor may, at his option, terminate the lease and recover from

Lessee:  (a) the worth at the time of

award of the unpaid rent which was earned at the time of termination; (b) the

worth at the time of award of the amount by which the unpaid rent which would

have been earned after termination until the time of the award exceeds the

amount of such rental loss that the Lessee proves could have been reasonably

avoided; (c) the worth at the time of award of the amount by which the unpaid

rent for the balance of the term aver the time of award exceeds the amount of

such rental loss that Lessee proves could be reasonably avoided; and (d) any

other amount necessary to compensate Lessor for all detriment proximately

caused by Lessee’s failure to perform his obligations under the lease or which

in the ordinary course of things would be likely to result therefrom.




 




Lessor may, in the alternative, continue this lease in effect, as long

as Lessor does not terminate Lessee’s right to possession, and Lessor may

enforce all his rights and remedies under the lease, including the right to

recover the rent as it becomes due under the lease.  If said breach of lease continues, Lessor may, at any time

thereafter, elect to terminate the lease.




 




Nothing contained herein shall be deemed to limit any other rights or

remedies which Lessor may have.




 




20.                                 SECURITY: The security deposit set forth

above, if any, shall secure the performance of the Lessee’s obligations

hereunder.  Lessor may, but shall not be

obligated to apply all or portions of said deposit on account of Lessee’s obligations

hereunder.  Any balance remaining upon

termination shall be resumed to Lessee. 

Lessee shall not have the right to apply the Security Deposit in payment

of the last month’s rent.




 




21.                                 DEPOSIT REFUNDS:  The balance of all deposits shall be refunded within two weeks

from date possession is delivered to Owner or his authorized Agent, together

with a statement showing any charges made against such deposits by Owner.




 




22.                                 ATTORNEY’S FEES:  In case suit should be brought for recovery of the premises, or

for any sum due hereunder, or because of any act which may arise out of the

possession of the premises, by either party, the prevailing party shall be

entitled to all costs incurred in connection with such action, including a

reasonable attorney’s fee.




 




23.                                 WAIVER: 

No failure of Lessor to enforce any term hereof shall be deemed to be a

waiver.




 




24.                                 NOTICES: 

Any notice which either party may or is required to give, shall be given

by mailing the same, postage prepaid, to Lessee at the premises, or Lessor at the

address shown below, or at such other places as may be designated by the

parties from time to time.




 




25.                                 HOLDING OVER:  Any holding over after the expiration of this lease, with the

consent of Lessor, shall be construed as a month-to-month tenancy at a rental

of:  The rent for the last month of the

initial term of the lease, plus ten (10%).




 




26.                                 TIME: 

Time is of the essence of this lease.




 




27.                                 HEIRS, ASSIGNS, SUCCESSORS:  This lease is binding upon and inures to the

benefit of the heirs, assigns and successors in interest to the parties.




 




28.                                 TAX INCREASE:  In the event there is any increase during any year of the term of

this lease in the City, County or State real estate taxes over and above the

amount of such taxes assessed for the tax year during which the term of this

lease commences, whether because of increased rate or valuation, Lessee shall

pay to Lessor upon presentation of paid tax bills an amount equal to 5.24% of

the increase in taxes upon the land and building in which the leased premises are

situated.  In the event that such taxes

are assessed for a tax year extending beyond the term of the lease, the

obligation of Lessee shall be proportionate to the portion of the lease term

included in such year.




 




29.                                 COST OF LIVING INCREASE:  The rent provided for in paragraph 2 shall

be adjusted effective upon the first day of the month immediately following the

expiration of 12 months from date of commencement of the term and upon the

expiration of each 12 months thereafter in accordance with changes in the San

Francisco-Oakland-San Jose Index for All Urban Consumers (1982-84=100)

hereinafter called the “CPI”  The

monthly rent shall be increased to an amount equal to the monthly rent set

forth in paragraph 2 multiplied by a fraction the numerator of which is the CPI

for the second calendar month immediately preceding the adjustment date and the

denominator of which is the CPI for the second calendar month preceding the

commencement of the lease term Provided, however, in no event shall the monthly

rent be less than the amount set forth in paragraph 2.




 




30.                                 LESSOR’S LIABILITY:  The term “Lessor”, as used in this

paragraph, shall mean only the owner of the real property or a Lessee’s

interest in a ground lease of the premises. 

In the event of any transfer of such title or interest, the Lessor named

herein (or the grantor in case of any subsequent transfers) shall be relieved

of all liability related to Lessor’s obligations to be performed after such

transfer.  Provided, however, that any

funds in the hands of Lessor or Grantor at the time of such transfer shall be

delivered to Grantee.  Lessor’s

aforesaid obligations shall be binding upon Lessor’s successors and assigns

only during their respective periods of ownership.




 




31.                                 ESTOPPEL CERTIFICATE:




                                                (a)  Lessee

shall at anytime upon not less than ten (10) days’ prior written notice from

Lessor execute, acknowledge and delivered to Lessor a statement in writing [1]

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), the amount of any security

deposit, and the date to which the rent and other charges are paid in advance,

if any, and [2] 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 conclusively relied upon by any prospective purchaser or encumbrancer to

the Premises.




 




                                                (b)  At

Lessor’ option, Lessee’s failure to deliver such statement within such time

shall be a material breach of this Lease or shall be conclusive upon Lessee [1]

that this Lease is in full force and effect, without modification except as may

be represented by Lessor, [2] that there are no uncured defaults in lessor’s

performance, and [3] that not more than one month’s rent has been paid in

advance or such failure may be considered by Lessor as a default by Lessee

under this Lease.




 




                                                (c)  If

Lessor desires to finance, refinance, or sell the Premises, or any part

thereof, Lessee hereby agrees to deliver to any lender or purchaser designated

by Lessor such financial statements of Lessee as may be reasonably required by

such lender or purchaser.  Such

statements shall include the past three years’ financial statements of

Lessee.  All such financial statements

shall be received by Lessor and such lender or purchaser in confidence and

shall be used only for the purposes herein set forth.




 




32.                                 COMMON AREA EXPENSES:  In the event the demised premises are

situated in a shopping center or in a commercial building in which there are

common areas, Lessee agrees to pay his pro-rata share of maintenance, taxes,

and insurance increases for the common area.




 




33.                                 ADDENDUM: 

An addendum, signed by the parties [X] is attached, [ ] is not attached

hereto.




 




ENTIRE

AGREEMENT:  The

foregoing constitutes the entire agreement between the parties and may be

modified only by a writing signed by both parties.  The following Exhibits, if any, have been made a part of this

lease before the parties’ execution hereof:




 




See ADDENDUM #1 and Exhibit “A”




 




LESSEE UNDERSTANDS THAT THIS IS A PROPOSAL TO

LEASE AND DOES NOT BIND LESSOR UNTIL APPROVED AND ACKNOWLEDGED BY LESSOR.




 




The undersigned Lessee hereby acknowledges receipt of a copy hereof.




 




 




 




	

   


  	

  AGREED

  LESSEE:


  	

   


  	

  AGREED

  LESSOR:


  	

   


  
	

  Monterey

  Pasta Company


  	

   


  	

  Conrad

  Family Trust


  	

   


  
	

  a Delaware

  Corporation


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Steve

  Brinkman


  	

   


  	

   


  	

  By:


  	

  /s/ Jim

  Conrad


  	

   


  
	

   


  	

  Steve

  Brinkman, Chief Financial Officer.


  	

   


  	

   


  	

  Jim Conrad,

  Trustee


  	

   


  
	

  Date:


  	

  01-02-03


  	

   


  	

  Date:


  	

  1-3-03


  	

   


  
	

  Address:


  	

  1528 Moffett

  Street


  	

   


  	

  Address:


  	

  1518 Moffett

  Street


  	

   


  
	

   


  	

  Salinas, CA

  93905


  	

   


  	

   


  	

  Salinas, CA

  93905


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Phone:


  	

  753-6262


  	

   


  	

  Phone:


  	

  422-1722


  	

   


  
	

  Fax:


  	

  755-0684


  	

   


  	

  Fax:


  	

  422-1762


  	

   


  
							





 




2





























 




ADDENDUM # 1




 




THIS ADDENDUM IS ATTACHED TO

AND MADE A PART THE OF THAT CERTAIN LEASE AGREEMENT DATED DECEMBER 20, 2002

WHEREIN MONTEREY PASTA COMPANY IS REFERRED TO AS LESSEE AND THE CONRAD FAMILY

TRUST IS REFERRED TO AS LESSOR FOR THAT REAL PROPERTY COMMONLY KNOWN AS 1514

MOFFETT STREET SUITE E. SALINAS, CALIFORNIA 93905.




 




7.                         MAINTENANCE,

REPAIRS, ALTERATIONS:




 




Lessor at

Lessor’s sole cost and expense shall complete the following improvements in the

demised premises:




 




a. Paint the

entire premises with building standard paint, color by tenant.




b. Install new

carpet with building standard carpet, color to be selected by tenant.




c. Construct

two new offices as shown on Exhibit “A” to include wallpaper on the walls

designated (W) with building standard wallpaper, color to be selected by

tenant, and a glass window 4’x 4’ in the walls designated by (G) the remaining

walls to be painted with standard paint and color as selected in paragraph a.




d. Heating and

Air Conditions in the new offices.




 




8.                         INDEMNIFICATION:




Lessee shall

indemnify and hold Lessor harmless against any and all claims arising from the

negligence of Lessee, its officers, agents, invitees or employees, or arising

from the failure of Tenant to comply with any covenant or agreement required to

be performed herein by Lessee, and shall at Lessee’s own expense defend Lessor

against suits or actions arising from such injury or damage and all appeals

therefrom, and shall satisfy from discharge any judgement or decree that may be

awarded against Lessor in any such proceeding. 

Lessee shall not be required to indemnify, defend or hold Lessor

harmless from or against claims, liability, loss, cost or expenses arising out

of (i) the breach by Lessor or Lessor’s agents, employees, licensees, invitees,

or independent contractors (collectively “Lessor’s Agents”), of any covenant,

representation or warranty under this Lease, or (ii) any negligence or willful

misconduct of Lessor or Lessor’s Agents. 

Lessor shall indemnify and hold Lessee harmless against any and all

claims from the negligence of Lessor  or

Lessor’s Agents or arising from Lessor’s failure to comply with any covenant or

agreement required to be performed by Lessor herein and Lessor shall at Lessor’s

expense, defend Lessee against any actions arising from such injury or damage

and all appeals therefrom and shall satisfy and discharge any judgement or

decree that may be awarded against Lessee in any such proceeding.




 




34.                   PARKING:




 




Lessee shall

be allowed along with the other tenants in the complex the non-exclusive use of

four (4) parking spaces on a first come first serve basis.




 




	

  Agreed

  Lessee:


  	

  Agreed

  Lessor:


  
	

   


  	

   


  	

   


  	

   


  
	

  Monterey

  Pasta Company


  	

  Conrad

  Family Trust


  
	

  a Delaware

  Corporation.


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  By:


  	

   /s/ Steve Brinkman


  	

   


  	

  By:


  	

   /s/ Jim Conrad


  	

   


  
	

   


  	

  Steve

  Brinkman,


  Chief Financial Officer


  	

   


  	

  Jim Conrad,

  Trustee


  
	

   


  	

   


  	

   


  	

   


  
	

  Date:


  	

   1-02-03


  	

  Date:


  	

   1-3-03


  
						





 




3





























 




Exhibit "A"




 




 




[GRAPHIC]




 




 




4