Oregon-Portland-8715 NE Columbia Boulevard Lease - Pente Investments LLC and YoCream International Inc.
COMMERCIAL LEASE
Date: _________________, 2003
Between: PENTE INVESTMENTS, LLC (Landlord)
an Oregon Limited Liability Company
1300 S.W. Sixth, Suite 300
Portland, Oregon 97201
And: Yocream International, Inc. (Tenant)
an Oregon Corporation
5858 N.E. 87th
Portland, Oregon 97220
Landlord leases to Tenant and Tenant leases from Landlord the following
described property (the Premises) on the terms and conditions stated below:
Land and improvements (including all personal property situated thereon
for use in connection therewith) located at 8715 N.E. Columbia Blvd,
Portland, Oregon 97220 and legally described as Lot 1, Block 3, A.P.
INDUSTRIAL PARK, City of Portland, Multnomah County, Oregon.
Section 1. Occupancy
1.1 Original Term. The term of this lease shall be for a period of
fifteen (15) years commencing October 1, 2003, and continuing through September
30, 2018, unless sooner terminated as hereinafter provided.
1.2 Possession. Tenants right to possession and obligations under the
lease shall commence on October 1, 2003, or as soon thereafter as the Premises
are acquired by Landlord pursuant to the existing purchase and sale agreement
between Landlord and the current owner of the Premises. If Landlord is not
able to give Tenant possession of the Premises on or before December 1, 2003,
either party may rescind this lease by notice in writing to the other party
given at any time thereafter prior to the date on which possession is tendered
by Landlord.
Section 2. Rent
2.1 Base Rent. During the lease term, Tenant shall pay to Landlord as
base rent the following sums:
First through Third Year. . . . . . $ 12,848.00 per month
Fourth through Sixth Year . . . . . . 14,040.00 per month
Seventh through Ninth Year. . . . . . 15,342.00 per month
Tenth through Twelfth Year. . . . . . 16,765.00 per month
Twelfth through Fifteenth Year . . . 18,320.00 per month
For purposes of this Section 2.1, the term Year shall mean that period
between October 1 through September 30 of the following year for each year
during the term stated in Section 1.1.
Rent shall be payable on the first day of each month in advance at such place
as may be designated by Landlord except that rent for the first month and last
month has been paid upon the execution of this lease, and Landlord acknowledges
receipt of this sum.
2.2 Security Deposit. To secure Tenants compliance with all terms of
this lease, Tenant has paid Landlord the sum of $20,000.00 as a deposit. The
deposit shall be a debt from Landlord to Tenant, refundable within 30 days
after expiration of this lease term or other termination not caused by Tenants
default. Landlord may commingle the deposit with its funds and Tenant shall
not be entitled to interest on the deposit. Landlord shall have the right to
offset against the deposit any sums owing from Tenant to Landlord and not paid
when due, any damages caused by Tenants default, the cost of curing any default
by Tenant should Landlord elect to do so, and the cost of performing any repair
or cleanup that is Tenants responsibility under this lease. Offset against the
deposit shall not be an exclusive remedy in any of the above cases, but may be
invoked by Landlord, at its option, in addition to any other remedy provided by
law or this lease for Tenants nonperformance. Landlord shall give notice to
Tenant each time an offset is claimed against the deposit, and, unless the
lease is terminated, Tenant shall within 10 days after such notice deposit with
Landlord a sum equal to the amount of the offset so that the total deposit
amount, net of offset, shall remain constant throughout the lease term.
2.3 Additional Rent. All taxes, insurance costs, utility charges that
Tenant is required to pay by this lease, and any other sum that Tenant is
required to pay to Landlord or third parties shall be additional rent.
Section 3. Use of the Premises.
3.1 Permitted Use. The Premises shall be used for manufacture and
storage of food products and for no other purpose without the consent of
Landlord, which consent shall not be withheld unreasonably.
3.2 Restrictions on Use. In connection with the use of the Premises,
Tenant shall:
(1) Conform to all applicable laws and regulations of any public
authority affecting the premises and the use, and correct at Tenants own
expense any failure of compliance created through Tenants fault or
by reason of Tenants use.
(2) Refrain from any activity that would make it impossible to
insure the Premises against casualty, would increase the insurance rate, or
would prevent Landlord from taking advantage of any ruling of the Oregon
Insurance Rating Bureau, or its successor, allowing Landlord to obtain reduced
premium rates for long-term fire insurance policies, unless Tenant pays the
additional cost of the insurance.
(3) Refrain from any use that would be reasonably offensive to
other tenants or owners or users of neighboring premises or that would tend to
create a nuisance or damage the reputation of the premises.
(4) Refrain from loading the electrical system or floors beyond
the point considered safe by a competent engineer or architect selected by
Landlord.
(5) Refrain from making any marks on or attaching any sign,
insignia, antenna, aerial, or other device to the exterior or interior walls,
windows, or roof of the premises without the written consent of Landlord.
(6) Tenant shall not cause or permit any Hazardous Substance to
be spilled, leaked, disposed of, or otherwise released on or under the
Premises. Tenant may use or otherwise handle on the Premises only those
Hazardous Substances typically used or sold in the prudent and safe operation
of the business specified in Section 3.1. Tenant may store such Hazardous
Substances on the Premises only in quantities necessary to satisfy Tenants
reasonably anticipated needs. Tenant shall comply with all Environmental Laws
and exercise reasonable care in the use, handling, and storage of Hazardous
Substances and shall take all practicable measures to minimize the quantity and
toxicity of Hazardous Substances used, handled or stored on the Premises. Upon
the expiration or termination of this Lease, Tenant shall remove all Hazardous
Substances from the Premises. The term Environmental Law shall mean any
federal, state, or local statute, regulation, or ordinance or any judicial or
other governmental order pertaining to the protection of health, safety or the
environment. The term Hazardous Substance shall mean any hazardous, toxic,
infectious or radioactive substance, waste, and material as defined or listed
by any Environmental Law and shall include, without limitation, petroleum oil
and its fractions.
Section 4. Repairs and Maintenance.
4.1 Landlords Obligation. Landlord shall be under no obligation to
make or perform any repairs, maintenance, replacements, alterations, or
improvements on the Premises as the parties intend this to be a triple net
lease.
4.2 Tenants Obligations. All repairs and maintenance of the premises
shall be the responsibility of Tenant including and without limitation the
following:
(1) Repairs and maintenance of the roof and gutters, exterior
walls (including painting), bearing walls, structural members, floor slabs, and
foundation.
(2) Repair and maintenance of sidewalks, driveways, curbs and
parking areas.
(3) Repair and maintenance of exterior water, sewage, gas, and
electrical services.
(4) Repair and maintenance of the heating and air conditioning
system.
(5) Repair and maintenance of interior walls, ceilings, doors,
windows, and related hardware, light fixtures, switches, and wiring and
plumbing.
(6) Any repairs necessitated by the negligence of Tenant, its
agents, employees, and invitees.
(7) Any repairs or alterations required under Tenants obligation
to comply with laws and regulations as set forth in Section 3.2(1).
(8) All other repairs and maintenance to the premises.
4.3 Reimbursement for Repairs Assumed. If Tenant fails or refuses to
make repairs that are required by this Section 4, Landlord may make the repairs
and charge the actual costs of repairs to Tenant. Such expenditures by
Landlord shall be reimbursed by Tenant on demand together with interest at the
rate of 10% per annum from the date of expenditure by Landlord. Except in an
emergency creating an immediate risk of personal injury or property damage,
Landlord may not perform repairs which are the obligation of the Tenant and
charge the Tenant for the resulting expense unless written notice is given to
Tenant at least 10 days before work is commenced outlining with reasonable
particularity the repairs required and Tenant fails within that time to
initiate such repairs in good faith.
4.4 Inspection of Premises. Landlord shall have the right to inspect
the Premises at any reasonable time or times for any lawful purpose. Landlord
shall use reasonable efforts to provide notice prior to any inspection
authorized by this Section 4.4.
Section 5. Alterations
5.1 Alterations Prohibited. Tenant shall make no improvements to or
alterations on (alterations) the Premises of any kind without first obtaining
Landlords written consent except as permitted in this Section 5.1 below.
Tenant is permitted to undertake nonstructural alterations not to exceed $2,500
in cumulative costs during the term of this Lease. All alterations shall be
made in a good and workmanlike manner, and in compliance with applicable laws
and building codes. As used herein, alterations includes the installation of
computer and telecommunications wiring, cables, and conduit. Tenant may make
improvements or alterations to fixtures and equipment owned by Tenant without
Landlords consent, provided such improvements or alterations do not alter the
Premises.
5.2 Ownership and Removal of Alterations. All improvements and
alterations performed on the Premises by either Landlord or Tenant shall be the
property of Landlord when installed unless the applicable Landlords consent
specifically provides otherwise. Improvements and alterations installed by
Tenant shall, at Landlords option, be removed by Tenant and the premises
restored unless the applicable Landlords consent specifically provides
otherwise.
Section 6. Insurance
6.1 Insurance Required. Tenant shall keep the Premises insured at
Tenants expense against fire and other risks covered by a standard fire
insurance policy with an endorsement for extended coverage. Such insurance
shall name Landlord as an additional insured and contain a loss payable clause
in favor of the Landlord. Certificates evidencing such insurance and bearing
endorsements requiring 30 days written notice to Landlord prior to any change
or cancellation shall be furnished to Landlord prior to Tenants occupancy of
the Premises and upon request of Landlord thereafter.
Section 7. Taxes; Utilities
7.1 Property Taxes. Tenant shall pay as due all taxes on its personal
property located on the Premises. Tenant shall pay as due all real property
taxes, personal property taxes and special assessments levied against the
Premises. As used herein, real property taxes, personal property taxes and
special assessments includes any fee or charge relating to the ownership, use,
or rental of the Premises, other than taxes on the net income of Landlord.
7.2 Special Assessments. If an assessment for a public improvement is
made against the Premises, Landlord may elect to cause such assessment to be
paid in installments, in which case all of the installments payable with
respect to the lease term shall be treated the same as general real property
taxes for purposes of Section 7.1. Tenant shall also have the right to make
the election described above provided that this Lease is within the last three
(3) years of its term and Tenant has not renewed or extended the Lease.
7.3 Contest of Taxes. Tenant shall be permitted to contest the amount
of any tax or assessment as long as such contest is conducted in a manner that
does not cause any risk that Landlords interest in the Premises will be
foreclosed for nonpayment.
7.4 Proration of Taxes. Tenants share of real property taxes and
assessments for the years in which this lease commences or terminates shall be
prorated based on the portion of the tax year that this lease is in effect.
7.5 New Charges or Fees. If a new charge or fee relating to the
ownership or use of the Premises or the receipt of rental therefrom or in lieu
of property taxes is assessed or imposed, then, to the extent permitted by law,
Tenant shall pay such charge or fee. Tenant, however, shall have no obligation
to pay any income, profits, or franchise tax levied on the net income derived
by Landlord from this lease.
7.6 Payment of Utilities Charges. Tenant shall pay when due all charges
for services and utilities incurred in connection with the use, occupancy,
operation, and maintenance of the Premises, including (but not limited to)
charges for fuel, water, gas, electricity, sewage disposal, power,
refrigeration, air conditioning, telephone, and janitorial services.
Section 8. Damage and Destruction
8.1 Partial Damage. If the Premises are partly damaged and Section 8.2
does not apply, the Premises shall be repaired by Landlord using the casualty
insurance proceeds. Repairs shall be accomplished with all reasonable dispatch
subject to interruptions and delays from labor disputes and matters beyond the
control of Landlord.
8.2 Destruction. If the Premises are destroyed or damaged such that the
cost of repair exceeds 25% of the value of the structure before the damage,
Landlord may elect to terminate the lease as of the date of the damage or
destruction by notice given to the Tenant in writing not more than 45 days
following the date of damage. In such event all rights and Obligations of the
parties shall cease as of the date of termination, and Tenant shall be entitled
to the reimbursement of any prepaid amounts paid by Tenant and attributable to
the anticipated term. If Landlord elects not to terminate, Landlord shall
proceed to restore the Premises with available insurance proceeds to
substantially the same form as prior to the damage or destruction.
Work shall be commenced as soon as reasonably possible and thereafter shall
proceed without interruption except for work stoppages on account of labor
disputes and matters beyond Landlords reasonable control.
8.3 Rent Abatement. Rent shall be abated during the repair of any
damage to the extent the premises are untenantable, except that there shall be
no rent abatement where the damage occurred as the result of the fault of
Tenant.
Section 9. Eminent Domain
9.1 Partial Taking. If a portion of the Premises is condemned and
Section 9.2 does not apply, the lease shall continue on the following terms:
(1) Landlord shall be entitled to all of the proceeds of
condemnation, and Tenant shall have no claim against Landlord as a result of
the condemnation.
(2) Landlord shall proceed as soon as reasonably possible to make
such repairs and alterations to the Premises as are necessary to restore the
remaining Premises to a condition as comparable as reasonably practicable to
that existing at the time of the condemnation.
(3) After the date on which title vests in the condemning
authority or an earlier date on which alterations or repairs are commenced by
Landlord to restore the balance of the Premises in anticipation of taking, the
rent shall be reduced in proportion to the reduction in value of the Premises
as an economic unit on account of the partial taking. If the parties are
unable to agree on the amount of the reduction of rent, the amount shall be
determined by arbitration in the manner provided in Section 17.
(4) If a portion of Landlords property not included in the
Premises is taken, and severance damages are awarded on account of the
Premises, or an award is made for detriment to the Premises as a result of
activity by a public body not involving a physical taking of any
portion of the Premises, this shall be regarded as a partial condemnation to
which Sections 9.1(1) and 9.1(3) apply, and the rent shall be reduced to the
extent of reduction in rental value of the Premises as though a portion had
been physically taken.
(5) Tenant shall have the right to seek its own remedy against the
condemning authority for claims it may have due to the partial taking.
9.2 Total Taking. If a condemning authority takes all of the Premises
or a portion sufficient to render the remaining premises reasonably unsuitable
for the use that Tenant was then making of the premises, the lease shall
terminate as of the date the title vests in the condemning authorities.
Landlord shall be entitled to all of the proceeds of condemnation other than an
award made to Tenant for the value of Tenants leasehold interest in the
Premises, and Tenant shall have no claim against Landlord as a result of the
condemnation.
9.3 Sale in Lieu of Condemnation. Sale of all or part of the premises
to a purchaser with the power of eminent domain in the face of a threat or
probability of the exercise of the power shall be treated for the purposes of
this Section 9 as a taking by condemnation.
Section 10. Liability and Indemnity
10.1 Liens.
(1) Except with respect to activities for which Landlord is
responsible, Tenant shall pay as due all claims for work done on and for
services rendered or material furnished to the Premises, and shall keep the
Premises free from any liens. If Tenant fails to pay any such claims or to
discharge any lien, Landlord may do so and collect the cost as additional rent.
Any amount so added shall bear interest at the rate of 10% per annum from the
date expended by Landlord and shall be payable on demand. Such action by
Landlord shall not constitute a waiver of any right or remedy which Landlord
may have on account of Tenants default.
(2) Tenant may withhold payment of any claim in connection with a
good-faith dispute over the obligation to pay, as long as Landlords property
interests are not jeopardized. If a lien is filed as a result of nonpayment,
Tenant shall, within 10 days after knowledge of the filing, secure the
discharge of the lien or deposit with Landlord cash or sufficient corporate
surety bond or other surety satisfactory to Landlord in an amount sufficient
to discharge the lien plus any costs, attorney fees, and other charges that
could accrue as a result of a foreclosure or sale under the lien.
10.2 Indemnification. Tenant shall indemnify and defend Landlord from
any claim, loss, or liability arising out of or related to any activity of
Tenant on the Premises or any condition of the Premises in the possession or
under the control of Tenant including any such claim, loss, or liability that
may be caused or contributed to in whole or in part by Landlords own
negligence or failure to effect any repair or maintenance required by this
lease. Landlord shall have no liability to Tenant for any injury, loss, or
damage caused by third parties, or by any condition of the Premises.
10.3 Liability Insurance. Before going into possession of the Premises,
Tenant shall procure and thereafter during the term of the lease shall continue
to carry the following insurance at Tenants cost: comprehensive commercial
general liability policy (occurrence version) in a responsible company with
coverage for bodily injury and property damage liability, personal and
advertising injury liability, and medical payment with a combined single limit
of $1,000,000.00. Such insurance shall cover all risks arising directly or
indirectly out of Tenants activities on or any condition of the premises
whether or not related to an occurrence caused or contributed to by Landlords
negligence. Such insurance shall protect Tenant against the claims of Landlord
on account of the obligations assumed by Tenant under Section 10.2, and shall
name Landlord as an additional insured. Certificates evidencing such insurance
and bearing endorsements requiring 10 days written notice to Landlord prior to
any change or cancellation shall be furnished to Landlord prior to Tenants
occupancy of the Premises and upon request of Landlord thereafter.
Section 11. Quiet Enjoyment; Mortgage Priority
11.1 Landlords Warranty. Landlord warrants that it is the owner of the
Premises and has the right to lease them free of all encumbrances except those
set forth herein. Subject to these exceptions Landlord will defend Tenants
right to quiet enjoyment of the Premises from the lawful claims of all persons
during the lease term.
11.2 Mortgage Priority
11.2.1 Mortgage To Key Bank of Oregon. The Premises are subject
to a real estate mortgage given to Key Bank of Oregon, as mortgagee. This
lease is conditioned upon its approval by the mortgagee and upon agreement by
the mortgagee that the rights of Tenant under the lease will be recognized so
that in the event of foreclosure of the mortgage this lease will remain in
effect according to its terms and Tenants possession will not be disturbed as
long as Tenant is in compliance with this lease.
11.2.2 Other Encumbrances. This lease is and shall be prior to
any mortgage or deed of trust (Encumbrance) recorded after the date of this
lease and affecting the Premises. However, if any lender holding such an
Encumbrance requires that this lease be subordinate to the Encumbrance, then
Tenant agrees that the lease shall be subordinate to the Encumbrance if the
holder thereof agrees in writing with Tenant that as long as Tenant performs
its obligations under this lease no foreclosure, deed given in lieu of
foreclosure, or sale pursuant to the terms of the Encumbrance, or other steps
or procedures taken under the Encumbrance shall affect Tenants rights under
this lease. If the foregoing condition is met, Tenant shall execute the
written agreement and any other documents required by the holder of the
Encumbrance to accomplish the purposes of this paragraph. If the premises are
sold as a result of foreclosure of any Encumbrance thereon, or otherwise
transferred by Landlord or any successor, Tenant shall attar to the purchaser
or transferee.
11.3 Estoppels Certificate. Either party will, within 20 days after
notice from the other execute and deliver to the other party a certificate
stating whether or not this lease has been modified and is in full force and
effect and specifying any modifications or alleged breaches by the other party.
The certificate shall also state the amount of money of any security deposit or
prepaid rent. Failure to deliver the certificate within the specified time
shall be conclusive upon the party from whom the certificate was requested that
the lease is in full force and effect and has not been modified except as
represented in the notice requesting the certificate.
Section 12. Assignment and Subletting
12.1 Landlords Consent Required. No part of the premises may be
assigned, mortgaged, or subleased, nor may a right of use of any portion of the
property be conferred on any third person by any other means, without the prior
written consent of Landlord. This provision shall apply to all transfers by
operation of law. No consent in one instance shall prevent the provision from
applying to a subsequent instance.
12.2 Tenant Affiliate. Notwithstanding the provisions of Section 12.1
of this Lease, Tenant may assign or sublet the Premises, or any portion
thereof, without Landlords consent, to any corporation which controls, is
controlled by, or is under common control with Tenant, or to any corporation
resulting from the merger or consolidation with Tenant, or to any person or
entity which acquires substantially all the assets of Tenant as a going concern
of the business that is being conducted on the Premises, provided that said
assignee assumes, in full, the obligations of Tenant under this Lease. Any
such assignment shall not, in any way, affect or limit the liability of the
Tenant under the terms of this Lease even if after such assignment or
subletting the terms of this Lease are materially changed or altered without
the consent of Tenant, the consent of whom shall not be necessary.
Section 13. Default
The following shall be events of default:
13.1 Defaults in Rent. Failure of Tenant to pay any rent or other
charge within five (5) days after it is due.
13.2 Defaults in Other Covenants. Failure of Tenant to comply with any
term or condition or fulfill any obligation of the lease, (other than the
payment of rent or other charges), within 20 days after written notice by
Landlord specifying the default. If the default is of such a nature that it
cannot be completely remedied within the 20-day period, this provision shall be
complied with if Tenant begins correction of the default within the 20-day
period and thereafter proceeds with reasonable diligence and in good faith to
effect the remedy as soon as practicable.
13.3 Insolvency. Insolvency of Tenant; an assignment by Tenant for the
benefit of creditors; the filing by Tenant of a voluntary petition in
bankruptcy; an adjudication that Tenant is bankrupt or the appointment of a
receiver of the properties of Tenant; the filing of an involuntary petition of
bankruptcy and failure of Tenant to secure a dismissal of the petition within
30 days after filing; attachment of or the levying of execution on the
leasehold interest and failure of Tenant to secure discharge of the attachment
or release of the levy of execution within 10 days shall constitute a default.
If Tenant consists of two or more individuals or business entities, the events
of default specified in this Section 13.3 shall apply to each individual unless
within 10 days after an event of default occurs, the remaining individuals
produce evidence satisfactory to Landlord that they have unconditionally
acquired the interest of the one causing the default.
13.4 Abandonment. Failure of Tenant for 7 days or more to occupy the
Premises for one or more of the purposes permitted under this lease, unless
such failure is excused under other provisions of this lease.
Section 14. Remedies on Default
14.1 Termination. In the event of a default the lease may be terminated
at the option of Landlord by written notice to Tenant. Whether or not the
lease is terminated by the election of Landlord or otherwise, Landlord shall be
entitled to recover damages from Tenant for the default, and Landlord may
reenter, take possession of the premises and remove any persons or property by
legal action or by self-help with the use of reasonable force and without
liability for damages and without having accepted a surrender.
14.2 Reletting. Following reentry or abandonment, Landlord may relet
the Premises and in that connection may make any suitable alterations or
refurbish the Premises, or both, or change the character or use of the
Premises, but Landlord shall not be required to relet for any use or purpose
other than that specified in the lease or which Landlord may reasonably
consider injurious to the Premises, or to any tenant that Landlord may
reasonably consider objectionable. Landlord may relet all or part of the
Premises, alone or in conjunction with other properties, for a term longer or
shorter than the term of this lease, upon any reasonable terms and conditions,
including the granting of some rent-free occupancy or other rent concession.
14.3 Damages. In the event of termination or retaking of possession
following default, Landlord shall be entitled to recover immediately, without
waiting until the due date of any future rent or until the date fixed for
expiration of the lease term, the following amounts as damages:
(1) The loss of rental from the date of default until a new tenant
is secured and paying out.
(2) The reasonable costs of reentry and reletting including
without limitation the cost of any cleanup, refurbishing, removal of Tenants
property and fixtures, costs incurred under Section 14.5, or any other expenses
occasioned by Tenants default including but not limited to, any remodeling or
repair costs, attorney fees, court costs, broker commissions, and advertising
costs.
(3) Any excess of the value of the rent and all of Tenants other
obligations under this lease over the reasonable expected return from the
premises for the period commencing on the earlier of the date of trial or the
date the premises are relet, continuing through the end of the term. The
present value of future amounts will be computed using a discount rate equal to
the prime loan rate of major Oregon banks in effect on the date of trial.
14.4 Right to Sue More than Once. Landlord may sue periodically to
recover damages during the period corresponding to the remainder of the lease
term, and no action for damages shall bar a later action for damages
subsequently accruing.
14.5 Landlords Right To Cure Defaults. If Tenant fails to perform any
obligation under this lease, Landlord shall have the option to do so after 30
days written notice to Tenant. All of Landlords expenditures to correct the
default shall be reimbursed by Tenant on demand with interest at the rate of
10% annum from the date of expenditure by Landlord. Such action by
Landlord shall not waive any other remedies available to Landlord because of
the default.
14.6 Remedies Cumulative. The foregoing remedies shall be in addition
to and shall not exclude any other remedy available to Landlord under
applicable law.
Section 15. Surrender at Expiration
15.1 Condition of Premises. Upon expiration of the lease term or
earlier termination on account of default, Tenant shall deliver all keys to
Landlord and surrender the Premises in first-class condition and broom clean.
Alterations constructed by Tenant with permission from Landlord shall not be
removed or restored to the original condition unless the terms of permission
for the alteration so require. Depreciation and wear from ordinary use for the
purpose for which the Premises were let need not be restored, except however,
all repair and maintenance for which Tenant is responsible shall be completed
to the latest practical date prior to such surrender.
15.2 Fixtures.
(1) All fixtures placed upon the Premises during the term, other
than Tenants trade fixtures, shall, at Landlords option, become the property
of Landlord. Whether a fixture is a trade fixture shall be determined at the
time of installation by agreement between the Landlord and Tenant. Fixtures
installed in the absence of such agreement are deemed to be the property of
the Landlord at its option. If Landlord so elects, Tenant shall remove any or
all fixtures that would otherwise remain the property of Landlord and shall
repair any physical damage resulting from the removal. If Tenant fails to
remove such fixtures, Landlord may do so and charge the cost to Tenant with
interest at the legal rate from the date of expenditure.
(2) Prior to expiration or other termination of the lease term
Tenant shall remove all furnishings, furniture, and trade fixtures that remain
its property. If Tenant fails to do so, this shall be an abandonment of the
property, and Landlord may retain the property and all rights of Tenant with
respect to it shall cease or, by notice in writing given to Tenant within 20
days after removal was required, Landlord may elect to hold Tenant to its
obligation of removal. If Landlord elects to require Tenant to remove,
Landlord may effect a removal and place the property in public storage for
Tenants account. Tenant shall be liable to Landlord for the cost of removal,
transportation to storage, and storage, with interest at the legal rate on all
such expenses from the date of expenditure by Landlord.
15.3 Holdover.
(1) If Tenant does not vacate the Premises at the time required,
Landlord shall have the option to treat Tenant as a tenant from month to month,
subject to all of the provisions of this lease except the provisions for term
and renewal and at a rental rate equal to 150 percent of the rent last paid by
Tenant during the term or to eject Tenant from the Premises and recover damages
caused by wrongful holdover. Failure of Tenant to remove fixtures, furniture,
furnishings, or trade fixtures that Tenant is required to remove under this
lease shall constitute a failure to vacate to which this section shall apply if
the property not removed will substantially interfere with occupancy of the
Premises by another tenant or with occupancy by Landlord for any purpose
including preparation for a new tenant.
(2) If a month-to-month tenancy results from a holdover by Tenant
under this Section 15.3, the tenancy shall be terminable at the end of any
monthly rental period on written notice from Landlord given not less than 10
days prior to the termination date which shall be specified in the notice.
Tenant waives any notice that would otherwise be provided by law with respect
to a month-to-month tenancy.
Section 16. Miscellaneous
16.1 Non-waiver. Waiver by either party of strict performance of any
provision of this lease shall not be a waiver of or prejudice the partys right
to require strict performance of the same provision in the future or of any
other provision.
16.2 Attorney Fees. If suit or action is instituted in connection with
any controversy arising out of this lease, the prevailing party shall be
entitled to recover in addition to costs such sum as the court may adjudge
reasonable as attorney fees at trial, on petition for review, and on appeal.
16.3 Notices. Any notice required or permitted under this lease shall be
given when actually delivered or 48 hours after deposited in the United States
mail as certified mail addressed to the address first given in this lease or to
such other address as may be specified from time to time by either of the
parties in writing.
16.4 Succession. Subject to the above-stated limitations on transfer of
Tenants interest, this lease shall be binding on and inure to the benefit of
the parties and their respective successors and assigns.
16.5 Recordation. Neither this lease nor memorandum thereof shall be
recorded without the written consent of Landlord.
16.6 Entry for Inspection. Landlord shall have the right to enter upon
the Premises at any time upon prior reasonable notice to Tenant to determine
Tenants compliance with this Lease, or to show the Premises to any prospective
tenant or purchaser, and in addition shall have the right, at any time during
the last six months of the term of this lease, to place and maintain
upon the Premises, notices for leasing or selling of the Premises.
16.7 Interest on Rent and Other Charges. Any rent or other payment
required of Tenant by this lease shall, if not paid within 10 days after it is
due, bear interest at the rate of 10% per annum (but not in any event at a rate
greater than the maximum rate of interest permitted by law) from the due date
until paid. In addition, if Tenant fails to make any rent or other payment
required by this lease to be paid to Landlord within five days after it is due,
Landlord may elect to impose a late change of five cents per dollar of the
overdue payment to reimburse Landlord for the costs of collecting the overdue
payment. Tenant shall pay the late charge upon demand by Landlord. Landlord
may levy and collect a late charge in addition to all other remedies available
for Tenants default, and collection of a late charge shall not waive the
Breach caused by the late payment.
16.8 Prorating of Rent. In the event of commencement or termination of
this lease at a time other than the beginning or end of one of the specified
rental periods, then the rent shall be prorated as of the date of commencement
or termination and in the event of termination for reasons other than default,
all prepaid rent shall be refunded to Tenant or paid on its account.
16.9 Brokers Fees. There are no brokers fees or finders fees payable
in connection with this Lease. Each party against whom brokers and finders
fees are claimed shall hold the other party harmless for any portion of such
fees.
16.10 Incorporation of Prior Agreements; Amendments. This Lease
contains all agreements of the Landlord and Tenant with respect to any matter
mentioned herein and all other agreements are superseded. No prior agreement
or understanding pertaining to any such matter shall be effective. This Lease
may be modified in writing only, signed by the parties in interest
at the time of the modification.
16.11 Facsimile Transmissions. Facsimile transmission of any signed
original document, and retransmission, shall be the same as delivery of an
original. At the request of either party, the parties will confirm facsimile
transmitted signatures by signing an original document.
16.12 Counterpart Execution. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
Section 17. Arbitration
17.1 Disputes to Be Arbitrated. If any dispute arises between the
parties as to a matter which this lease says should be arbitrated, either party
may request arbitration and appoint an arbitrator. The other party shall also
choose an arbitrator and the two arbitrators shall choose a third. If the
choice of the second or third arbitrator is not made within 10 days of the
choosing of the prior arbitrator, then either party may apply to the presiding
judge of the judicial district where the premises are located to appoint the
required arbitrator.
17.2 Procedure for Arbitration. The arbitrator shall proceed according
to the Oregon statutes governing arbitration, and the award of the arbitrators
shall have the effect therein provided. The arbitration shall take place in
the county where the leased premises are located. Costs of the arbitration
shall be shared equally by the parties, but each party shall pay its own
Attorney fees incurred in connection with the arbitration.
LANDLORD:
PENTE INVESTMENTS, LLC
By: __________________________________
Harry M. Hanna, Member
TENANT:
YOCREAM INTERNATIONAL, INC.
By: _______________________________
John N. Hanna, CEO