EXHIBIT 10.12
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made as of this 29th day of February
2000, by and between MILLIKAN PROPERTIES, LLC, an Oregon limited liability
company, having its principal place of business at 1701 SE Columbia River Drive,
Vancouver, Washington 98661 ("Landlord"), and BENCHMARK ELECTRONICS, INC., a
Texas corporation, having its principal place of business at 3000 Technology
Drive, Angleton, Texas 77515 ("Tenant").
RECITALS
WHEREAS, Landlord owns Lot 7 in the Tektronix Business Park in Beaverton,
Oregon (the "Land"), on which is situated an approximately 76,947 square foot
building (the "Building"). (The Land and the Building, together with all
appurtenances thereto, are collectively referred to as the "Property"); and
WHEREAS, pursuant to that certain Lease Agreement dated February 1, 1997
between Tenant and Landlord's predecessor in interest (the "Existing Lease"),
Tenant currently occupies and uses the portion of the Property consisting of
approximately 51,950 square feet of space in the Building, and 136 unreserved
parking spaces, as more specifically described in the Existing Lease; and
WHEREAS, Tenant wishes to expand its leasehold interest to include that
portion of the Building on the Property which it does not currently lease and to
enter into a new ten-year lease (with two five-year renewal options) with
Landlord for the entire Building.
NOW, THEREFORE, in consideration of the premises and conditions herein
contained, the parties agree as follows:
AGREEMENT
1. DEMISE OF PREMISES.
a. DEMISE. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the Property, including approximately 70,647 square feet
of space on the first floor of the Building and approximately 6,300 square feet
of space on the second floor of the Building (collectively, the "Premises"). The
Premises are located at 3725 SW Hocken Avenue and are depicted in Exhibits A-1
and A-2, which are incorporated herein by reference. The Premises shall include
all appurtenances thereto and the right to use all off-street parking spaces in
the parking lot on the Land, as shown on Exhibit A-2. In addition, Landlord
shall provide Tenant with 35 parking spaces on Lot 8 in Tektronix Business Park,
in an area designated by Landlord. In the event Landlord requires such parking
spaces as a result of changes to the occupancy of the buildings on Lot 8,
Landlord shall have the right to expand the current parking lot on the Premises
by an additional 35 spaces (as Landlord's sole cost and expense and without
reimbursement by Tenant) and substitute such parking for the parking on Lot 8.
b. TERM OF LEASE. The term of this Lease shall commence on the
Effective Date (defined in Section 2) and shall continue for a period of 10
years thereafter, unless sooner terminated pursuant to any other provision
hereof (the "Initial Term"). Landlord hereby grants to Tenant the right and
option to extend the Initial Term for two (2) successive renewal terms of five
(5) years each (each a "Renewal Term") for an aggregate additional ten (10)
years, to begin upon the expiration of the Initial Term or the preceding Renewal
Term, as applicable. Tenant's exercise of each such option shall be accomplished
by delivering to Landlord written notice of Tenant's election to renew no later
than twelve
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(12) months prior to the expiration of the preceding term; provided, however,
that Landlord shall advise Tenant in writing of the renewal option fifteen (15)
months prior to the expiration of the preceding Initial Term and any Renewal
Term. All of the other terms, provisions and covenants of this Lease shall apply
to the Renewal Terms, including the rental adjustment set forth in Section 4(a).
c. AUTHORIZED USE. Tenant represents that it intends to use the
Premises as a electronics manufacturing facility. Tenant, as well as any
permitted assignee or sublessee, shall be allowed to use the Premises for any
other purpose that (i) is legal, (ii) is not morally offensive, (iii) is in full
compliance with all applicable and governing zoning, business and use codes as
evidenced by the proper permits and certificates of occupancy, and (iv) will not
put excessive loads on the electrical, mechanical, plumbing or other operating
systems within the Building. Tenant shall provide Landlord with at least fifteen
(15) days' advance written notice of any proposed change in use of the Premises.
In addition, Tenant shall not store any items outside of the Premises except
when shipping or receiving product at the loading dock serving the Building and
except for storage of items used in the operation of Tenant's business at the
Property provided that they are stored in an organized manner which complies
with all applicable governmental regulations.
2. DELIVERY OF ADDITIONAL SPACE. Following Tektronix, Inc's surrender of
its space in the Building, containing approximately 24,997 square feet (the
"Expansion Space"), Landlord shall deliver vacant, broom-clean possession of the
Expansion Space to Tenant upon not less than five (5) business days' prior
written notice to Tenant. The date on which Landlord so delivers the Expansion
Space to Tenant is referred to as the "Effective Date." Landlord anticipates
that the Effective Date will occur on or about June 1, 2000. Subject to the
foregoing, Tenant shall accept the Expansion Space in its "as-is" condition.
3. LANDLORD'S WARRANTY. Landlord warrants that it has lawful right to
lease the Premises to Tenant, and that Landlord will defend Tenant's right to
quiet enjoyment of the Premises from the claims of all persons arising by,
through or under Landlord during the Lease term.
4. RENT.
a. BASE RENT. Tenant shall pay to Landlord as Base Rent the sum of
$39,938.50 per month, subject to increase as hereinafter provided. Base Rent
shall be payable on the first day of each month (in advance and without demand)
and shall be deemed delinquent if not paid on or before the tenth day of each
month. Base Rent and additional rent for the first and last months of the Lease
term shall be prorated on a daily basis. Effective on and as of each three-year
anniversary of the Effective Date within the Initial Term and any renewal term,
the Base Rent last payable hereunder shall increase by seven and one-half
percent (7 1/2%).
b. ADDITIONAL RENT. In addition to the Base Rent, Tenant shall be
responsible for (i) Real Property Taxes (as described Section 8), (ii) Utilities
(as described in Section 7), (iii) Insurance Premiums (as described in Section
11, (iv) and Maintenance Expenses (as described in Section 6(b)). The Real
Property Taxes, Utilities, Insurance Premiums and Maintenance Expenses are
collectively referred to as "Additional Rent". Tenant shall pay Additional Rent
directly to the service providers as more specifically set forth herein.
Therefore, (I) beginning on the thirty-seventh (37th) month following the
Effective Date, the Base Rent will increase from $39,938.50 per month to
$42,933.89 and (ii) similar 7-1/2 percent increases will occur at the beginning
of the 73rd, 109th (and if Tenant elects to exercise its option for one or both
Renewal Terms, on the 145th, 181st and 217th month) month following the
Effective Date.
c. INTEREST. All amounts of money payable by Tenant to Landlord
hereunder, if not paid when due, after expiration of any applicable grace
period, shall bear interest from the due date until
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paid at the rate of twelve percent (12%) per annum, but not in any event more
than the maximum legal rate.
d. MANNER OF PAYMENT. All payments due from Tenant to Landlord shall
be made to Landlord without deduction or offset in lawful money of the United
States of America at Landlord's address for notices, or to such other person or
at such other place as Landlord may designate in writing to Tenant from time to
time. Subject to the limitation as set forth in Section 20(d), Tenant shall have
the right to offset any Base Rent owed to Landlord any amounts expended to cure
any default by Landlord hereunder if Landlord fails to pay such amounts within
ten (10) days' after Tenant's written demand therefor.
5. COMPLIANCE WITH LAWS, INDEMNITY.
a. COMPLIANCE WITH LAWS. Tenant shall promptly comply with all laws,
statutes, ordinances and governmental rules, regulations and requirements
(collectively "Laws") now in force or which may hereafter be in force, with the
requirements of any board of fire underwriters (or other similar body now or
hereafter constituted) or of any insurance underwriters or inspectors, and with
any directive issued pursuant to any law by any public officer or officers,
insofar as any thereof relate to Tenant's use or occupancy of the Premises.
Tenant shall bear the cost and expense of complying with any such Laws,
requirements or directives unless such costs and expenses are specifically
allocated to Landlord elsewhere in this Lease.
b. TENANT INDEMNITY. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all claims, losses, liabilities or
expenses (collectively, "Losses") arising from (i) Tenant's use of the Premises
or from the conduct of its business on or about the Premises, or from any
activity, work or things which may be permitted or suffered by Tenant in or
about the Premises, (ii) any breach or default in the performance of any
obligation on Tenant's part to be performed under the provisions of this Lease
or arising from any act or omission of Tenant or any of its agents, contractors,
employees, or invitees, (iii) contamination or other adverse effects on the
environment, or any violation or alleged violation of any statute, ordinance,
order, rule, or regulation of any governmental entity or agency to the extent
caused by, arising out of, or connected with the presence of any Hazardous
Material on the Premises, which Hazardous Material is on the Premises as a
result of the act or omission of Tenant, its officers, employees, agents,
contractors, or invitees occurring during the term of this Lease or the term of
the Existing Lease; and (iv) from any and all costs, attorneys' fees and
expenses incurred in the defense of any action or proceeding brought thereon.
Tenant's obligations under this subsection (b) shall survive termination of this
Lease.
c. LANDLORD INDEMNITY. Landlord shall indemnify, defend and hold
Tenant harmless from and against any and all Losses arising from (i) the use of
the Premises by Landlord; (ii) contamination (as a Hazardous Material or
otherwise) of the Premises caused or permitted by Landlord or existing prior to
Tenant's occupancy of the Building or any asbestos in the Premises except for
the asbestos containing materials described in that certain Asbestos Survey
Report dated August 1996 prepared by PBS Environmental, a copy of which has been
provided to Tenant; (iii) any breach or default in the performance of any
obligation on Landlord's part to be performed under the provisions of this Lease
or arising from any act or omission of Landlord or any of its agents, officers,
contractors, employees, or invitees (including any misrepresentation or breach
of warranty by Landlord); and (iv) from any and all costs, attorneys' fees and
expenses incurred in the defense of any action or proceeding brought thereon.
Landlord's obligations under this subsection (c) shall survive termination of
this Lease. Notwithstanding anything to the contrary herein contained, in the
event the roof contains any asbestos, Landlord shall be responsible for all
necessary removal, remediation and other costs in accordance with Section 6(a).
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6. IMPROVEMENTS; REPAIRS AND MAINTENANCE.
a. LANDLORD'S OBLIGATIONS. Landlord shall, at its sole cost and
expense and without reimbursement by Tenant, make the repairs and replacements
described in Exhibit B hereto. In addition, Landlord (at its sole cost and
expense) shall be responsible for repairing and replacing, as necessary, the
structure, foundation and roof of the Building in good order and for performing
ordinary maintenance of the parking lot and landscaping of the Property
(excluding snow and ice removal). Landlord represents and warrants that any such
repairs will be done in a professional manner and will comply with all
applicable federal, state and local Laws.
b. TENANT'S OBLIGATIONS. Except as provided in subsection (a) above,
Tenant shall, at its sole cost and expense, keep the entire Property in good
condition and state of repair. Without limiting the generality of the foregoing,
Tenant shall be responsible for (i) all maintenance, repairs and replacements to
the Building (other than the structure, foundation or roof), (ii) all
maintenance, repairs and replacements to the electrical, plumbing, HVAC and
other mechanical systems serving the Building and common areas on the Property,
(iii) all maintenance, repairs and replacements to the common areas on the
Property, including snow and ice removal, except that Landlord shall be
responsible for ordinary maintenance of the parking lot and landscaping of the
Property. Throughout the Lease term, Tenant shall keep in force third-party
maintenance agreements as described in the attached Exhibit C. Tenant represents
and warrants that any repairs and replacements made by Tenant will comply with
all applicable federal, state and local Laws.
c. TENANT IMPROVEMENTS AND ALLOWANCES. Following delivery of the
Expansion Space, Tenant shall, except as provided in subsection (a) above, be
solely responsible for promptly improving the Expansion Space (and Tenant's
existing space) to make the Building suitable for Tenant's purposes, in
compliance with all applicable Laws, building codes and requirements of public
authorities (including those of the Fire Marshall). All of such improvements
shall be at Tenant's sole cost and expense subject to the construction
allowances of Landlord hereinafter provided. All improvements to the Premises
shall be (i) made pursuant to plans and specifications prepared by Tenant's
architect and approved by Landlord in advance, which approval shall not be
unreasonably withheld, conditioned or delayed, and (iii) of first-class
materials and workmanship. Once approved, the plans and specifications shall be
attached to this Lease as Exhibit D. Landlord shall provide Tenant with an
allowance of $700,000.00 for such improvements. In addition, in the event
governmental authorities require Tenant to make seismic upgrades to the
Building, Landlord shall reimburse Tenant for all reasonable cost incurred by
Tenant in making such upgrades. Tenant shall use its commercially reasonable
efforts to avoid triggering any seismic upgrade requirements in connection with
its improvements to the Building. Landlord shall disburse such allowances as
work progresses upon receipt of written disbursement requests describing the
work for which the payment is being requested, accompanied by paid invoices and
appropriate lien waivers. Landlord may retain 10% from each disbursement
request. Landlord shall pay the retainage to Tenant upon receipt of a copy of a
certificate of occupancy with respect to the Expansion Space (if one is required
before occupancy) and copies of final lien waivers from all subcontractors and
suppliers.
7. SERVICES AND UTILITIES. Services and utilities shall be provided to the
Premises and paid as follows:
PAID BY: PROVIDED BY:
-------- ------------
a. Electricity Tenant Tenant
b. Natural Gas Tenant Tenant
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c. Water and Sewer Tenant Tenant
d. Janitorial Services and Trash Removal Tenant Tenant
e. Telephone Service Tenant Tenant
Landlord shall not be liable for, and Tenant shall not be entitled to, any
reduction of rental by reason of Tenant's inability to obtain (or failure of)
any of the foregoing services unless Landlord intentionally or negligently
caused such failure/inability to obtain.
8. PAYMENT OF TAXES AND ASSESSMENTS.
a. PROPERTY TAXES. As used herein, "property taxes" means real
property taxes and assessments and any newly created charge or fee relating to
the ownership or use of the Property or any fee imposed in lieu of real property
taxes. During the Lease term, Tenant shall pay, at least fifteen (15) days prior
to the date due, all property taxes which are assessed or levied against the
Property. Upon Landlord's request, Tenant shall furnish Landlord with
satisfactory evidence of payment of such taxes. Tenant shall have the right to
contest, in appropriate proceedings and in good faith, at its own expense, the
amount of any property tax, so long as Landlord's interest in the Property is
not jeopardized thereby.
b. TENANT'S PROPERTY. Tenant shall pay before delinquency all real
and personal property taxes on Tenant's inventory, fixtures, equipment and other
personal property in or about the Premises.
c. LANDLORD'S RIGHT TO CURE. In the event Tenant fails to pay when
due any real or personal property tax, Landlord at its option may pay the past
due tax. All such past due taxes paid by Landlord, together with interest at the
rate of twelve percent (12%) per annum (but in no event to exceed the maximum
rate permitted by law), shall become immediately due and payable by Tenant to
Landlord.
9. TENANT'S COVENANTS. Tenant shall pay all rent when due, and at
expiration or termination of the term hereof, shall yield up peacefully to
Landlord the Premises in as good order and repair as when delivered to Tenant,
damage by fire and extended coverage perils, ordinary wear and tear, war, riot,
public disaster, act of any governmental authority and other damage for which
Tenant is not responsible, and Tenant's permitted improvements hereunder,
excepted. Tenant agrees to maintain the Premises in a clean, attractive and
sanitary condition, to replace all glass broken or damaged during the term of
this Lease with glass of the same quality as that broken or damaged, and not to
make any alterations, improvements, or additions to the Premises (other than
those specifically set forth on Exhibit D) without having obtained Landlord's
prior written consent, which consent shall not be unreasonably withheld. As a
condition to giving such consent, Landlord may require that Tenant remove any
such alterations, improvements or additions at the termination of the Lease and
to restore the Premises to their original condition. Any permanent improvements
made to the Premises shall become part of the real property at Landlord's
option. Tenant shall keep the Premises free from all construction liens in
connection with any alterations, improvements or additions to the Premises. At
the termination of this Lease, Tenant shall remove all trade fixtures and any
and all machinery, equipment and other items of personal property installed by
Tenant in the Premises or located in the Premises or elsewhere on the Land, and
surrender the Premises to Landlord broom-clean. Tenant agrees promptly to
repair, at its expense, damage to the Premises that may be caused by the removal
of such trade fixtures and personal property.
10. SIGNS. Tenant shall have the right to display its name and trademark
on signs on the Building leased hereunder and on any monuments on the Land,
subject however to Landlord's prior approval of design and location (which
approval shall not be unreasonably withheld), as well as the approval of all
governmental agencies having jurisdiction.
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11. INSURANCE/WAIVER OF SUBROGATION.
a. CASUALTY. During the term of this Lease, Landlord shall obtain
and maintain from a financially responsible insurance company a policy of
insurance covering loss of or damage to the Property in the full amount of its
replacement value. Such policy shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
earthquake, liability, malicious mischief, special extended perils (all risk),
sprinkler leakage and rental interruption. Tenant shall reimburse Landlord for
the cost of such insurance within thirty (30) days after Landlord provides
Tenant with an invoice for such insurance. Tenant shall be liable for the
payment of any deductible amount under such insurance policies maintained
pursuant to this subsection (a) in an amount not to exceed Ten Thousand Dollars
($10,000); provided, however, that Landlord shall be obligated to reimburse
Tenant for such deductible in the event any claim resulted from Landlord's
intentional conduct or negligence. Tenant shall bear the expense of any
insurance insuring the property of the Tenant on the Premises against casualty
risks, but shall not be required to insure.
b. LIABILITY. Tenant shall at its sole expense obtain from a
financially responsible insurance company, and keep in force throughout the term
hereof for the mutual benefit of Landlord and Tenant, a policy of commercial
general liability insurance (sometimes known as broad form comprehensive general
liability insurance) insuring Tenant against liability for bodily injury,
property damage (including loss of use of property) and personal injury arising
out of the operation, use or occupancy of the Premises. Tenant shall name
Landlord as an additional insured under such policy. The initial amount of such
insurance shall be Two Million Dollars ($2,000,000) per occurrence. At
Landlord's request, Tenant shall provide Landlord a certificate of insurance.
Tenant shall be responsible for any deductible under such insurance. Tenant's
liability insurance shall be primary, not contributing with or in excess of any
liability coverage maintained by Landlord.
c. WAIVER OF SUBROGATION. The parties shall obtain from their
respective insurance carriers waivers of subrogation against the other party,
agents, employees and invitees. Neither party shall be liable to the other for
any loss or damage caused by fire or any of the risks enumerated in a standard
fire insurance policy with an extended coverage endorsement if such insurance
was obtainable at the time of such loss or damage.
12. DAMAGE AND DESTRUCTION.
a. If the Premises are partly damaged (i.e., less than fifty percent
(50%) of the Premises is untenantable as a result of such damage and less than
fifty percent (50%) of Tenant's operations are materially impaired) and Landlord
does not elect to terminate the Lease pursuant to subsection (b) below, the
Premises shall be repaired as follows:
(1) If the damage is caused by a risk which would be covered
by a standard property/casualty insurance policy with an endorsement for
extended coverage or which is actually covered by insurance maintained by
Landlord, repairs shall be at the expense of the Landlord whether or not the
damage occurred as the result of fault on the part of Tenant, its employees,
agents, contractors or invitees.
(2) If the damage occurred from a risk which would not be
covered by insurance of the kind described in subsection (1) above and, in
addition, such damage in fact was not covered by other insurance maintained by
Landlord (an "Uninsured Loss"), repairs shall be at the expense of the Landlord.
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(3) All repairs shall be accomplished with all reasonable
dispatch subject to interruptions and delays from labor disputes and matters
beyond the control of the party responsible; provided, however, that in the
event the Premises cannot be repaired within 150 days from the date of casualty
(subject to force majeure), Tenant shall have the right to terminate this Lease
without penalty. Base Rent and Additional Rent shall be abated to the extent the
Premises are untenantable subsequent to the damage and during the period of
repair. In addition, if as a result of such casualty Tenant cannot use at least
sixty (60%) of its manufacturing facilities in the Building, then Base Rent and
Additional Rent shall abate completely unless and to the extent Tenant
nevertheless continues to occupy and conduct business from the Premises.
b. If the insurance proceeds received by Landlord are not sufficient
to pay the entire cost of repair, if the Premises are fifty percent (50%) or
more destroyed or if the cause of the damage is not covered by the insurance
policy which Landlord maintains under Section 11(a), Landlord may elect either
to (i) repair the damage as soon as reasonably possible, but in no event later
than 150 days after the occurrence of such damage, in which case this Lease
shall remain in full force and effect, or (ii) terminate this Lease as of the
date the damage occurred. Landlord shall notify Tenant within thirty (30) days
after receipt of notice of the occurrence of the damage whether Landlord elects
to repair the damage or terminate the Lease. If Landlord elects to terminate the
Lease, Tenant may elect to continue this Lease in full force and effect, in
which case Tenant shall repair the damage to the Premises. Tenant shall pay the
cost of such repairs, except that upon satisfactory completion of such repairs,
Landlord shall deliver to Tenant any insurance proceeds received by Landlord for
the damage repaired by Tenant. Tenant shall give Landlord written notice of such
election within ten (10) days after receiving Landlord's termination notice.
c. If the Premises is destroyed or damaged and Landlord or Tenant
repairs or restores the Premises pursuant to the provisions of this Section,
Base Rent and Additional Rent payable during the period of such damage, repair
and/or restoration shall be reduced according to the degree, if any, to which
Tenant's use of the Premises is impaired. In addition, if as a result of such
casualty Tenant cannot use at least sixty (60%) of its manufacturing facilities
in the Building, then Base Rent and Additional Rent shall abate completely
unless and to the extent Tenant nevertheless continues to occupy and conduct
business from the Premises.
d. Notwithstanding anything to the contrary herein provided, if (i)
the damage to the Premises occurs during the last six (6) months of the Lease
term, (ii) such damage will require more than thirty (30) days to repair and
(iii) the estimated cost of repair shall exceed ten percent (10%) of the
monetary value of the portion of the Premises, either Landlord or Tenant may
elect to terminate this Lease without penalty as of the date the damage
occurred, regardless of the sufficiency of any insurance proceeds. The party
electing to terminate this Lease shall give written notification to the other
party of such election within thirty (30) days after Tenant's notice to Landlord
of the occurrence of the damage.
e. With respect to any deductible amount under Landlord's insurance
and any repairs or restoration required of Landlord under this Section, the
repairs or restoration to which the deductible would apply shall be at the
expense of Tenant, unless the damage was the result of the fault of Landlord,
its employees, agents, contractors or invitees, in which case Landlord shall be
responsible for the amount of the deductible.
13. CONDEMNATION. If all or any portion of the Premises is taken under the
power of eminent domain or sold under the threat of that power (collectively
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty percent (20%) of the floor area of the Building in which the
Premises is located, or which is located on the Premises, is taken, either
Landlord or Tenant may terminate this Lease as of the
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date the condemning authority takes title or possession, by delivering written
notice to the other within ten (10) days after receipt of written notice of such
taking (or in the absence of such notice, within ten (10) days after the
condemning authority takes title or possession). If neither Landlord nor Tenant
terminates this Lease, this Lease shall remain in effect as to the portion of
the Premises not taken, except that the Base Rent and Additional Rent shall be
reduced in proportion to the reduction in the floor area of the Premises. Any
Condemnation award or payment shall be distributed in the following order: (a)
first, to any ground lessor, mortgagee or beneficiary under a deed of trust
encumbering the Premises, the amount of its interest in the Premises; (b)
second, to Tenant, only the amount of any award specifically designated for loss
of or damage to Tenant's trade fixtures or removable personal property, moving
expenses, unamortized capital expenses made pursuant to this Lease (less any
improvement allowances paid by Landlord hereunder), and increased rents; and (c)
third, to Landlord, the remainder of such award, whether as compensation for
reduction in the value of the leasehold, the taking of the fee, or otherwise. If
this Lease is not terminated, Landlord shall repair (at its expense) any damage
to the Premises caused by the Condemnation, except that Landlord shall not be
obligated to repair any damage for which Tenant has been reimbursed by the
condemning authority. If the severance damages received by Landlord are not
sufficient to pay for such repair, Landlord shall have the right to either
terminate this Lease or make such repair at Landlord's expense.
14. ASSIGNMENT AND SUBLETTING. Tenant shall have the right to sublet or
assign its interest in the Premises upon the written consent of the Landlord,
which shall not be unreasonably withheld. Tenant's request for consent to any
such transfer shall set forth in writing the details of the proposed transfer,
including the name, business and financial condition of the prospective
transferee, financial details of the proposed transfer (e.g., the term of and
the rent and security deposit payable under any proposed assignment or
sublease), and any other information Landlord deems relevant. Landlord shall be
required to consent to such sublet or assignment so long as (i) Tenant agrees to
remain financially responsible for the payment of rent and all of its other
obligations under this Lease, (ii) the proposed subtenant or assignee intends to
use the Premises in a manner permitted under this Lease, and (iii) the proposed
subtenant or assignee does not pose a threat to the integrity of the Premises.
15. SUBORDINATION, ESTOPPEL CERTIFICATES.
a. SUBORDINATION. This Lease shall be subject and subordinated at
all times to the lien of any mortgage or deed of trust now or hereafter placed
on or against the Premises or on or against Landlord's interest or estate
therein, all without the necessity of having further instruments executed on the
part of Tenant to effectuate such subordination. Notwithstanding the foregoing,
in the event of a foreclosure of any such mortgage or deed of trust or of any
other action or proceeding for the enforcement thereof, or of any sale
thereunder, this Lease will not be barred, terminated, cut off or foreclosed nor
will the rights and possession of Tenant hereunder be disturbed if Tenant shall
not then be in default in the payment of rent or otherwise be in default under
the terms of this Lease, and Tenant shall attorn to the purchaser at such
foreclosure, sale or other action or proceeding. Tenant agrees to execute and
deliver promptly such further instruments evidencing such subordination of this
Lease to the lien of any such mortgage or deed of trust as may reasonably be
required by Landlord's lender. Tenant's covenant to subordinate this Lease is
conditioned upon each such senior instrument containing the commitments
specified in the second sentence of this subsection (a).
b. ESTOPPEL CERTIFICATE. From time to time, but on not less than ten
(10) days' prior notice by Landlord, Tenant will execute, acknowledge and
deliver to Landlord a certificate, using a form provided by Landlord or its
lender, certifying (1) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each such
modification), (2) the date, if any, to which Base Rent and other sums payable
hereunder have been paid, (3) that no notice has been received by Tenant of any
default which
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has not been cured, except as to defaults specified in such certificate, and (4)
such other matters as may be reasonably requested by Landlord or its lender. Any
such certificate may be relied upon by any prospective purchaser, mortgagee or
beneficiary under any deed of trust of the Property or any part thereof
16. ASSIGNMENT OF LEASE AS SECURITY. Tenant agrees that if this Lease is
assigned as additional security for any mortgage or deed of trust of the
Landlord, and the Tenant is furnished with notice thereof, including the name
and address of the mortgagee or beneficiary, then the Tenant shall not terminate
this Lease because of a default by the Landlord, without first notifying the
mortgagee or beneficiary, specifying the default in reasonable detail and
affording the mortgagee or beneficiary a reasonable opportunity (not to exceed
thirty (30) days) to make performance on behalf of Landlord.
17. TENANT DEFAULT. The following shall be events of default by Tenant:
a. DEFAULT IN RENT. Failure of Tenant to pay any Rent or Other
Charges required hereunder when due and such failure continues for at least ten
(10) days after receipt of written notice from Landlord specifying such failure.
b. DEFAULT 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) within thirty (30) days after receipt of written notice from Landlord
specifying the nature of the default with reasonable particularity. If the
default is of such a nature that it cannot be completely remedied within the
30-day period, this provision shall be complied with if Tenant begins correction
of the default within the 30-day period and thereafter proceeds with reasonable
diligence and in good faith to effect the remedy as soon as practicable.
c. INSOLVENCY. If Tenant makes a general assignment or general
arrangement for the benefit of creditors; (ii) if a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against Tenant
and is not dismissed within thirty (30) days; (iii) if a trustee or receiver is
appointed to take possession of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease and possession is not
restored to Tenant within thirty (30) days; or (iv) if substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease is
subjected to attachment, execution or other judicial seizure which is not
discharged within thirty (30) days.
18. LANDLORD'S DEFAULT. The following shall be events of default by
Landlord:
a. DEFAULT IN COVENANTS. Failure of Landlord to comply with any term
or condition or fulfill any obligation of the Lease within thirty (30) days
after receipt of written notice from Tenant specifying the nature of the default
with reasonable particularity. If the default is of such a nature that it cannot
be completely remedied within the 30-day period, this provision shall be
complied with if Landlord begins correction of the default within the 30-day
period and thereafter proceeds with reasonable diligence and in good faith to
effect the remedy as soon as practicable.
b. INSOLVENCY. If Landlord makes a general assignment or general
arrangement for the benefit of creditors; (ii) if a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against
Landlord and is not dismissed within thirty (30) days; (iii) if a trustee or
receiver is appointed to take possession of substantially all of Landlord's
assets located at the Premises or of Landlord's interest in this Lease and
possession is not restored to Landlord within thirty (30) days; or (iv) if
substantially all of Landlord's assets located at the Premises or of Landlord's
interest in this Lease is subjected to attachment, execution or other judicial
seizure which is not discharged within thirty (30) days.
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19. REMEDIES OF LANDLORD FOR BREACH BY TENANT. Upon the occurrence of an
event of default, Landlord, at its option and in addition to any other rights
and remedies it may have at law, in equity, under this Lease or otherwise, may
pursue any one or more of the following courses of action:
a. RIGHT TO CURE. Landlord may enter the Premises, if necessary, and
cure said default at the expense of Tenant and the cost thereof shall be deemed
additional rent, bear interest as provided in Section 4(c), and be paid by
Tenant upon written demand of Landlord.
b. TERMINATION. Provided that the default in question was material
and that Tenant was provided with an additional 30-day period to cure the
default within such period, the Lease may be terminated at the option of
Landlord by notice in writing to Tenant. If the Lease is not terminated by
election of Landlord or otherwise, Landlord shall be entitled to recover actual
direct damages from Tenant for the default; provided, however, that Landlord
shall use commercially reasonable efforts to mitigate its damages. If the Lease
is terminated, Tenant's liability to Landlord for damages shall survive such
termination, and Landlord may re-enter, take possession of the Premises and
remove any persons or property by any means allowed by law and without liability
for damages.
c. RELETTING. Following re-entry or abandonment, Landlord may relet
the Premises, and in that connection, may prepare the Premises for reletting.
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 reasonable
rent-free occupancy or other rent concession. Landlord shall use commercially
reasonable efforts to mitigate its damages.
d. DAMAGES. In the event of termination on default, Landlord shall
be entitled to recover immediately without waiting until the due date of any
future Rent or the date fixed for expiration of the Lease term, the following
amounts as damages:
(1) All Base Rent and Additional Rent (together with interest
at the rate of twelve percent (12%) per annum (but in no event to exceed the
maximum rate permitted by law) from the date due until the date paid) accruing
from the date due until the earlier of the date of trial or award or until the
date a new tenant has been, or with the exercise of commercially reasonable
efforts could have been, secured.
(2) The reasonable costs of re-entry and reletting, including
without limitation the actual cost of any clean-up, refurbishing, removal of
Tenant's property and fixtures, or any other expense occasioned by Tenant's
failure to quit the Premises upon termination and to leave them in the required
condition, any necessary remodeling costs, reasonable attorney fees, court
costs, broker commissions, and advertising costs.
(3) Any excess of the value of rent and all of Tenant's 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 to the
date the Premises are relet and 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.
(4) Landlord's damages shall be reduced to the extent they
could have been mitigated through the exercise of commercially reasonable
efforts and to the extent, if any, that they are
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duplicative. Landlord shall not be entitled to any consequential, incidental or
special damages except to the extent, if any, that they are specifically
provided above in this Section 19(d).
20. REMEDIES OF TENANT FOR BREACH BY LANDLORD. Upon the occurrence of an
event of default, Tenant, at its option and in addition to any other rights and
remedies it may have at law, in equity, under this Lease or otherwise, may
pursue any one or more of the following courses of action:
a. TERMINATE THE LEASE. Provided that the default in question was
material and that Landlord was provided with an additional 30-day period to cure
the default, and Landlord failed to cure the default within such additional
30-day period, Tenant shall have the option of terminating the Lease. In such
case, it shall immediately surrender possession of the Premises to Landlord and
shall be entitled to recover from Landlord all actual direct damages incurred by
Tenant by reason of Landlord's default, including (1) the difference between the
rent Tenant would have paid under the Lease and the rent Tenant is obligated to
pay under any lease entered to replace this Lease; (2) all expenses incurred in
vacating the premises, searching for a new facility, entering into a new lease,
and moving into a new facility; and (3) any other amount necessary to compensate
Tenant for all the actual direct damages proximately caused by Landlord's
failure to perform its obligations under the Lease or which the ordinary course
of things would be likely to result therefrom; provided, however, that Tenant
shall be obligated to use it commercially reasonable efforts to mitigate its
damages and Tenant shall not be entitled to any consequential, incidental or
special damages, except to the extent, if any, that they are specifically
provided above in this Section 20(a).
b. MAINTAIN ITS RIGHT TO POSSESSION. Tenant shall have the option of
maintaining its right to possession. In such case, this Lease shall continue in
effect and Tenant shall have the right to remedy any Landlord default and deduct
the cost of remedying any such default from any Base Rent due Landlord hereunder
if Landlord fails to pay such cost within ten (10) days after written demand
therefor.
c. OTHER REMEDIES. Tenant shall have the right to pursue any other
remedy now or hereafter available to Landlord under the laws or judicial
decisions of the state in which the Premises is located. Tenant shall have the
right to remedy any Landlord default and deduct the cost of remedying any such
default from any Base Rent due Landlord hereunder if Landlord fails to pay such
costs within ten (10) days after written demand therefor.
d. OFFSET LIMITATION. In no event shall Tenant offset more
than fifty percent (50%) of the Base Rent due to Landlord for each month.
21. ATTORNEY'S FEES. In the event any suit, action or proceeding is
brought by either party to establish, obtain or enforce any right under this
Lease or for recovery of any amounts due hereunder or for breach of any
covenant, term or condition hereof or for any matter in any way arising from the
execution of this Lease, the prevailing party in such suit, action or
proceeding, including an appeal to an appellate court arising therefrom, shall
be entitled to recover its reasonable attorney's fees in addition to costs and
disbursements.
22. NOTICES. All notices, demands, consents or other communications
required or permitted by law or by this Lease to be given to Tenant or to
Landlord shall be given by personal delivery (including by reputable overnight
delivery service) or by depositing the same in registered or certified U.S.
mail, postage prepaid and addressed as follows:
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For Landlord: For Tenant:
1701 SE Columbia River Drive 3750 SW Hocken Avenue
Vancouver, Washington 98661 Beaverton, Oregon 97005
Attention: James E. John Attention: Plant Manager
With a copy to:
3000 Technology Drive
Angleton, Texas 77515
Attention: Legal Department
or to such other place as either party at any time may designate by written
notice to the other party.
23. HOLDING OVER. In the event the Tenant holds over after the termination
of this Lease or any renewal thereof, thereafter the tenancy shall be from month
to month at the same monthly rental rate, in the absence of a written agreement
to the contrary.
24. BENEFITS CUMULATIVE. Each and every one of the rights, remedies, and
benefits provided by this Lease shall be cumulative and shall not be exclusive
of any other of said rights, remedies and benefits allowed by law.
25. WAIVERS. Waiver by either party of strict performance of any provision
of this Lease shall not be a waiver of or prejudice the party's right to require
strict performance of the same provision in the future.
26. LEGALLY BINDING. This Lease shall be binding upon and inure to the
benefit of the parties and their respective heirs, representatives, successor
and permitted assigns.
27. CHOICE OF LAW. This Lease shall be governed by the law of the State of
Oregon.
28. SECTION HEADINGS. Section headings are inserted in this Lease for
convenience only and are not to be construed as restricting the meaning of the
section or subsection to which they refer.
29. REAL ESTATE COMMISSION. Landlord and Tenant each represent to the
other that no finder, broker, or agent has been involved in this transaction.
Each party agrees to defend, hold harmless, and indemnify the other party from
and against any and all claims, demands, and payments of any such fee or
commission by persons claiming by, through, or under such party.
30. HAZARDOUS MATERIALS
a. For purposes of this Lease, Hazardous Material means any material
or substance which may pose a present or future threat to human health or the
environment, including hazardous waste as the term is used in the Resource,
Conservation, and Recovery Act (42 USC 6901 et seq.) and Hazardous Substances as
that term is used in the Comprehensive Environmental Response and Liability Act
(42 USC 9601 et seq.).
b. Landlord makes no representation or warranty, express or implied,
with respect to the environmental condition of the Premises. Tenant acknowledges
that portions of the Premises may contain asbestos and that tenants at the
Premises and in the vicinity thereof, use or have used Hazardous
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Materials in the conduct of their business. Landlord's liability to remedy any
Hazardous Materials found on the Premises is limited to that set forth in
Section 5(c) herein.
c. Landlord acknowledges Tenant's need (i) to use and generate
certain Hazardous Material on the Premises in the ordinary course of its
business and (ii) to store and treat certain Hazardous Material on the Premises.
The Hazardous Materials Tenant intends to use are described in Exhibit "E"
hereto. The parties acknowledge that Tenant has previously delivered to Landlord
the MSDS sheets for all Hazardous Materials Tenant has used in its current
operations.
d. Tenant shall be fully and completely responsible for all damage
to the Premises caused by any of Tenant's waste and by-product generation,
production, use, storage, treatment or disposal of Hazardous Material on the
Premises.
e. Tenant shall comply with all ongoing environmental and
governmental monitoring and reporting requirements and provide Landlord with a
copy of each and every report related to these matters at the same times as such
are issued to the authorities governing the hazardous materials compliance. As
soon as a contamination problem is identified, Tenant will (i) give written
notice to Landlord and (ii) move to immediately correct the problem. Tenant
shall be obligated to take all steps reasonably necessary to assure that
Hazardous Materials do not leak onto, or penetrate into, the Building slab or
floor, or otherwise contaminate the Premises. If required by law, idle materials
or chemicals shall be stored in fully contained enclosures specifically designed
to contain the materials being stored. These measures shall be taken at Tenant's
expense. Tenant will be required to immediately report any environmental
incident to Landlord.
31. ACCESS. Landlord, and its agents and authorized representatives
(including without limitation surveyors, engineers, environmental consultants,
and contractors, and those of Landlord's current and prospective lenders), may
enter the Premises to (1) inspect the same; (2) exhibit the same to prospective
purchasers, mortgagees or tenants; (3) determine whether Tenant is complying
with all its obligations hereunder; (4) supply any service to be provided by
Landlord to Tenant hereunder; (5) post notices of nonresponsibility; (6) post
"to Lease" signs of reasonable size upon the Premises during the last 365 days
of the term hereof; and (7) make repairs required of Landlord under the terms
hereof or repairs to any adjoining space or utility services or make repairs,
alterations or additions to any other portion of the Building; provided,
however, that all such work shall be done as promptly as reasonable possible and
so as to cause as little interference to Tenant as reasonably possible. Landlord
shall give Tenant at least seventy-two (72) hours prior written notice to
establish a mutually acceptable appointment time of such entry, except in the
case of an emergency. In the event of an emergency, Landlord shall have the
right to use any and all means which Landlord may deem proper to open the doors
to the Premises to obtain entry to the Premises. Tenant may require Landlord and
its invitees to sign a non-disclosure agreement related to Tenant's customers
and products
32. LANDLORD'S LIABILITY. The term "Landlord" as used herein shall mean
only the owner or owners at the time in question of the fee title of the Land on
which the Premises are situated. In the event of any transfer of such title,
Landlord 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 with respect to Landlord's obligations thereafter to be performed.
Notwithstanding any provision of this Lease to the contrary, the liability of
Landlord under this Lease will be limited to Landlord's interest in the
Property, and any judgement against Landlord or Landlord's owners will be
enforceable solely against Landlord's interest in the Property, except that such
limitation shall not apply if and to the extent Landlord is liable to Tenant
under clause (ii) of Section 5(c) hereof dealing with Hazardous Materials.
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33. INTEGRATION. There are no oral agreements between Landlord and Tenant
affecting this Lease. This Lease supersedes and cancels any and all previous
negotiations, arrangements, agreements and understandings, if any, between
Landlord and Tenant with respect to the subject matter of this Lease.
34. AMENDMENT. This Lease may not be amended or modified except by the
written agreement of the parties. This Lease may not be amended or modified
orally.
35. CONSTRUCTION AND INTERPRETATION. The use in this Lease of the words
"including", "such as", and words of similar import following any general
statement, term, or matter shall not be construed to limit such statement, term,
or other matter in any manner, whether or not the language of non-limitation
(such as "without limitation" or "but not limited to") is used in connection
therewith, but rather shall be deemed to refer to all other items or matters
that could reasonably fall within the scope of the general statement, term, or
matter. All provisions of this Lease have been negotiated at arm's length and
this Lease shall not be construed for or against any party by reason of the
authorship or alleged authorship of any provision hereof. If any provision of
this Lease shall be determined to be illegal or unenforceable, such
determination shall not affect any other provision of this Lease and all such
other provisions shall remain in full force and effect.
36. TIME OF ESSENCE. Time is of the essence with respect to each of
Tenant's and Landlord's performance under this Lease.
37. EXPANSION OF BUILDING. With Landlord's prior written consent, which
shall not be unreasonably withheld, Tenant may, at its sole cost and expense,
construct an addition to the Building upon receipt of all necessary governmental
approvals and permits. Tenant shall be responsible for all governmental
conditions and requirements imposed as a result of such expansion, including any
off-site work. Any such expansion shall be (i) pursuant to plans and
specifications prepared by a licensed architect and approved by Landlord, which
approval shall not be unreasonably withheld, (ii) of first-class materials and
workmanship, and (iii) the property of Landlord at the end of the Lease term
without compensation to Tenant. Tenant shall not be required to pay any rent for
any additional space created as a result of its expansion of the Building under
this Section 37. Tenant shall be solely responsible for all maintenance and
repair of any addition it chooses to construct, which it shall maintain in good
condition.
38. TERMINATION OF EXISTING LEASE. On and as of the Effective Date, the
Existing Lease shall terminate and be of no further force and effect except for
any accrued payment obligations and for any indemnity obligations which by their
terms survive termination of the Existing Lease.
IN WITNESS WHEREOF, the Parties have executed this lease as of the date
first written above.
LANDLORD: TENANT:
MILLIKAN PROPERTIES, LLC BENCHMARK ELECTRONICS, INC.
By:/S/ JAMES E. JOHN By:/S/ GAYLA DELLY
Name: James E. John Name: Gayla Delly
Title: President Title: Treasurer
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EXHIBIT LIST
Exhibit A-1 Premises Location
Exhibit A-2 Premises Location
Exhibit B Landlord Repairs/Replacements/Tenant Improvements
Exhibit C Maintenance Agreements
Exhibit D Approved Tenant Work
Exhibit E Hazardous Materials
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