This Industrial Lease Agreement involves
Title: COMMERCIAL LEASE BETWEEN PENTE INVESTMENTS YOCRE
Governing Law: Oregon Date: 1/30/2004
Industry: Food Processing
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
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,
(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
(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
4.2 Tenants Obligations. All repairs and maintenance of the premises
shall be the responsibility of Tenant including and without limitation the
(1) Repairs and maintenance of the roof and gutters, exterior
walls (including painting), bearing walls, structural members, floor slabs, and
(2) Repair and maintenance of sidewalks, driveways, curbs and
(3) Repair and maintenance of exterior water, sewage, gas, and
(4) Repair and maintenance of the heating and air conditioning
(5) Repair and maintenance of interior walls, ceilings, doors,
windows, and related hardware, light fixtures, switches, and wiring and
(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
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
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
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
(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
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