EXHIBIT 10.5
LEASE AGREEMENT
This Lease Agreement is made this 1 day of February, 1997, by and between
Tektronix, Inc., an Oregon corporation having its principal place of business at
26600 S. W. Parkway, Wilsonville, Oregon 97070-1000 ("Landlord"), and Benchmark
Electronics, Inc., a Texas corporation having its place of business at 13250
S.W. Karl Braun Drive (Tektronix Building 02), Howard Vollum Park, near
Beaverton Oregon ("Tenant").
AGREEMENT
1. DESCRIPTION.
1.1 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, 51,950 square feet of space located at 13250 S.W. Karl Braun Drive and
situated on the first and second floors of Building 02, located at the Howard
Vollum Park near Beaverton, Oregon, more particularly described on the attached
EXHIBIT A (the "Premises"), together with the appurtenances thereto and 136
unreserved off-street parking spaces situated as shown on the attached EXHIBIT
B.
1.2 ROAD ACCESS. Road access to the Premises is provided by Landlord's
privately-owned and maintained roadways located within the Howard Vollum Park.
Tenant shall have the right to use these roadways to provide access to the
Premises during the term of this Lease (subject to Landlord's once-a-year road
closure to prevent prescriptive easements). Landlord reserves the right to
relocate the roadways from time to time.
1.3 SECURITY. Tenant shall comply with all security and safety procedures
required by Landlord concerning access to and protection of Landlord's property
as it relates to the Premises.
1.4 QUIET ENJOYMENT. Tenant shall not interfere with other tenants' or
occupant's quiet enjoyment of other leased premises located in Building 02.
2. AUTHORIZED USE. The Premises may be used by Tenant for offices and light
manufacuring and for any other uses incidental thereto not prohibited by law,
ordinance or regulation. Tenant shall at its expense comply promptly with all
applicable statutes, ordinances, rules, regulations, orders and requirements in
effect during the Lease term or any part thereof regulating the use by Tenant of
the Premises. Tenant shall not use or permit the use of the Premises in any
manner that will tend to create waste or a nuisance.
Landlord has a smoke-free workplace policy which prohibits smoking by any
person in any Tektronix building located in the United States. Smoking on
Landlord's property is permitted only outside the building in which the Premises
are located, in areas other than main or visitor entrances. Tenant will comply
with this policy and will maintain a smoke-free environment in the building in
which the Premises are located.
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3. LANDLORD' S WARRANTY. Landlord warrants that it has the lawful right to lease
the Premises to Tenant, that the Premises may be used for the purposes
authorized by Section 2 above, and that Landlord will defend Tenant's right to
quiet enjoyment of the Premises from the claims of all persons arising by or
through Landlord during the Lease term and any renewal thereof.
4. CONDITION OF PREMISES. Tenant has inspected the Premises and accepts them in
their present "AS IS" condition, except Landlord, at its cost, will provide and
enclose a space for Tenant's air compressor equipment in area as shown on
EXHIBIT A. Air compressor equipment will be famished and installed by Tenant and
Landlord will make the required electrical and mechanical hook-ups. Also,
Landlord will provide and install an automatic irrigation system in the lawn
area east of Building 02, as shown on EXHIBIT B. Tenant acknowledges that
Landlord has not made any representation or warranty as to the suitability of
the Premises for the conduct of Tenant's business.
5. PRIOR LEASE AGREEMENT. The prior lease agreement between Landlord and Tenant
dated October 12, 1990, as amended on August 19, 1991, January 31, 1992, January
11, 1993, May 19, 1993, September 13, 1993 and June 17, 1994, is hereby
terminated; provided, however, all of Tenant's obligations under the prior lease
shall survive such termination.
6. TERM OF LEASE-OCCUPANCY. The term of this Lease shall commence on February 1,
1997 and continue until June 30, 2002. Tenant may terminate this Lease upon
twelve (12) months prior written notice to the Landlord at any time during the
term of the Lease. Tenant shall promptly pay for the rent and other obligations
which accrue through the effective date of the Lease termination.
7. BASIC RENT. During the Lease term, Tenant shall pay to Landlord as basic rent
per month the following amount:
a. Twenty Thousand Four Hundred and Nineteen Dollars ($20,419) from
February 1, 1997 to June 30, 1997.
b. Twenty-Two Thousand Three Hundred and Thirty Four ($22,334) Dollars
from July 1, 1997 to June 30, 1999.
c. Twenty-Three Thousand Five Hundred ($23,500) Dollars from July 1,
1999 to June 30, 2000.
d. Twenty-Five Thousand ($25,000) Dollars from July 1, 2000 to June 30,
2002.
The amount of 7b above is based on Tenant paying rent on only one-half of
the second floor space until June 30, 1999, at which time rent is assigned to
the entire second floor space.
Rent shall be payable on the first day of each month in advance at the
address of Landlord first above written or at such other place as Landlord may
indicate by written notice. Rent shall be payable in lawful money of the United
States of America without notice or demand and without any deduction, offset, or
abatement. Tenant shall pay Landlord, upon demand, interest at the rate of
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twelve percent (12%) per annum (but in no event to exceed the maximum rate
permitted by law) on any delinquent rental payment from the date it was due
until it is paid in full. Tenant shall also pay any sales, use, or other like
tax applicable with respect to the rental payments whether imposed on Landlord
or Tenant.
8. SERVICES AND UTILITIES. Services and utilities shall be provided to the
Premises and paid as follows:
PAID BY: PROVIDED BY:
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a. Electricity for Normal Tenant Landlord
Mfg./Office Use
b. Natural Gas* Tenant Landlord
c. Water and Sewer Tenant Landlord
d. Janitorial Services Tenant Tenant
e. Trash Removal** Tenant Tenant
f. Compressed Air*** Tenant Tenant
g. Fire Extinguishers Tenant Tenant
h. Elevator (Maintenance and Permits) Tenant Landlord
* Tenant shall pay Northwest Natural Gas directly for metered natural gas
usage for its area, plus reimburse Landlord a proportionate share of
charges for the natural gas provided on the low pressure gas line based on
square feet of Tenant area occupied in relation to area served in the
building by the system. This area is comprised of 45,547 square feet of
which 24,347 s.f. (53%) is occupied by the Tenant.
** Tenant shall provide and pay for dumpster(s) for its use.
*** Landlord shall provide compressed air to the Tenant for one month,
February 1, 1997 through February 28, 1997 at a rate of $200 per month. As
of March 1, 1997, Landlord will discontinue this service and Tenant shall
provide its own compressed air system and service. Tenant will thereafter
provide compressed air to the adjacent Warehouse Space at no cost to
occupants.
Landlord will provide Tenant an invoice for the services provided to the
Premises by Landlord each month which will be payable within thirty (30) days of
the invoice date. Reimbursement for electricity, natural gas, and water and
sewer shall be based on metered consumption or other mutually agreeable
allocation method.
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Tenant shall reimburse Landlord for any unusual or excessive utility
consumption. Tenant shall reimburse Landlord for the applicable services within
thirty (30) days of its receipt from
Landlord of an invoice for such services.
Landlord shall not be liable for, and Tenant shall not be entitled to, any
reduction of rental by reason of Landlord's failure to furnish any of the
foregoing services when such failure is caused by accident, breakage, repairs,
or any other cause, similar or dissimilar, beyond the reasonable control of
Landlord. Landlord shall not be liable under any circumstances for a loss of or
injury to Tenant's property or business, however occurring, through, in
connection with, or incidental to failure to furnish any of the foregoing.
9. PAYMENT OF TAXES AND ASSESSMENTS. During the lease term, Landlord shall pay
before delinquency all real property taxes and assessments which are assessed or
levied against the land or building of which the Premises are a part.
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. In the event Tenant fails to pay before delinquency any real
or personal property tax, Landlord, at its option, may pay the delinquent tax.
All such delinquent 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 as additional rent.
10. MAINTENANCE AND REPAIR.
10.1 LANDLORD'S OBLIGATIONS. The following shall be the responsibility of
Landlord (except where the maintenance or repair is required as a result of the
negligence of Tenant or its invitees, in which case, it shall be Tenant's
responsibility):
a. All structural repairs and maintenance which may be reasonably
necessary during the term of this Lease, including but not
limited to repairs of the foundation, exterior walls, floor
columns, and roof, and exterior painting.
b. Repair and maintenance of sidewalks, driveways, service areas,
curbs, parking areas, and landscaping.
c. Abatement and removal of asbestos containing materials
encountered during any remodel of the Tenant Lease space, as
necessary to complete the remodel.
d. Maintenance and repair of the mechanical system, when the
repair exceeds $5,000 (on a per occurrence basis).
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10.2 TENANT'S OBLIGATIONS. The following shall be the responsibility of
Tenant except where the repair or damage is due to the failure of
Landlord to perform its repair or maintenance or repair obligations
hereunder:
a. Maintenance and repair of all Tenant's own equipment and
equipment installed by Tenant.
b. Maintenance and repair of all interior walls, ceilings, doors,
windows, floors, and floor coverings of the Premises.
c. Maintenance and repair of plumbing, electrical and exhaust
systems within the Premises.
d. Maintenance and repair of the mechanical systems within the
Premises, except when the repair exceeds $5,000 (on a per
occurrence basis).
e. Replacement of light bulbs and broken glass on the Premises.
f. Any interior remodeling or redecorating. Landlord reserves the
right to approve all designs and to undertake and perform any
construction at Tenant's expense.
Tenant shall perform all other repairs and maintenance which Landlord is
not expressly required hereunder to perform. Landlord, at reasonable times
during normal business hours, may enter the Premises for the purpose of
inspecting, maintaining, and repairing the same. If Tenant fails or refuses to
make repairs which are required by this Section 10.2, Landlord may make the
repairs and charge the actual cost of repairs to Tenant. The cost thereof,
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 due and payable
as additional rent to Landlord upon demand. Except in an emergency creating an
immediate risk of personal injury or property damage, Landlord may not perform
repairs which are the obligation of Tenant and charge Tenant for the resulting
expense unless at least thirty (30) days before work is commenced, Tenant is
given notice in writing outlining the repairs required and Tenant fails within
that time to initiate such repairs in good faith.
11. EXPANSION OPTION. The Tenant shall have the right to lease an additional
3,384 square feet of space on Level 1 of the building as designated on EXHIBIT A
("Expansion Space"). All of the terms of this Lease shall apply to the rental of
the Level 1 Expansion Space except for the terms and conditions below, and the
Level 1 Expansion Space shall be considered part of the Premises when Tenant
properly exercises this option:
a. Beginning February 1, 1997, Tenant shall have a period of one
year until January 31, 1998, to exercise this option,
otherwise this option will expire. Also, the option will
expire if Landlord offers the Expansion Space to a third
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party under Section 12 and Tenant does not exercise its
right to lease the space.
b. Tenant shall provide ninety (90) days prior written notice to
Landlord of its intent to lease Expansion Space.
c. The basic rent for the Expansion space shall be .45(cent) per
square foot per month.
d. The Expansion Space is provided "As-Is." It will be the
responsibility of the Tenant to provide any fencing or
separation as required to demise the space.
12. FIRST RIGHT OF REFUSAL. If Landlord decides to offer approximately 24,000
square feet of space adjacent to the Premises, designated on EXHIBIT A
("Warehouse Space" and "Expansion Space"), or any portion thereof , for lease to
any third party, Landlord will notify Tenant in writing of its intent. Tenant
will have ten (10) days from the date of notification to respond to Landlord in
writing if Tenant intends to match the lease rate received and lease the portion
of the Warehouse Space and Expansion Space for which the offer is tendered. If
Tenant fails to notify Landlord within ten (10) days of its intent to occupy, or
if final agreement concerning the base rental rate and Tenant's improvement
allowance (if any) have not been reached by the parties within 20 days after the
date of Landlord's notice to Tenant, Tenant's rights under this paragraph shall
automatically terminate and Landlord shall be free to lease the Warehouse and
Expansion Space to third parties without further notice to the Tenant. Landlord
shall have the right to occupy the Warehouse Space, and any portion therof, for
its own or any affiliates use at any time without notification to the Tenant.
13. TELEPHONE SERVICE. Tenant shall provide its own telephone service. Landlord
reserves the right to approve all design, location, routing, and installation of
telephone lines within Building 02.
14. TENANT'S COVENANTS. Tenant shall pay the rent at the times and in the manner
aforesaid, and at expiration of the term or any renewal thereof, or upon earlier
termination due to a default of the agreement by the Tenant, shall yield up
peacefully to Landlord the Premises in as good order and repair as when
delivered to Tenant, ordinary wear and tear excepted. Tenant agrees to maintain
the Premises in a clean, attractive, and sanitary condition and not to make any
alterations, improvements, or additions to the Premises without having obtained
Landlord's prior approval, which approval 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 its 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 mechanics'and materialmen's
liens in connection with any alterations, improvements or additions to the
Premises. At the termination of this Lease or any renewal thereof, Tenant shall
remove all trade fixtures, shelving, machinery, and equipment owned or installed
by Tenant, and Tenant agrees to pay for repair of any damage to the Premises
that may be caused by the removal of such trade fixtures, shelving, machinery,
and equipment.
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15. SIGN. Tenant shall have the right to display its name and trademark on signs
on or about the building leased hereunder subject, however, to Landlord's prior
approval of its design and location, as well as the approval of all governmental
agencies having jurisdiction.
16. CASUALTY INSURANCE. During the Lease term, Landlord shall maintain in full
force a policy or policies of fire insurance with extended coverage to the
extent of one hundred percent (100%) of the replacement cost of the building
leased hereunder, subject to a $500,000 deductible. Should the particular use of
the Premises by Tenant cause an increase in Landlord's insurance costs, Tenant
shall pay the amount of the increase as additional rent. Tenant shall obtain and
maintain fire insurance with extended coverage on all of its personal property
located within the Premises at one hundred percent (100%) of replacement value.
17. WAIVER OF SUBROGATION. The parties shall obtain from their respective
insurance carriers waivers of subrogation against the other party, agents,
employees and, as to Tenant, 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 to the
extent such loss or damage is covered by such insurance at the time of the loss
or damage.
18. PUBLIC LIABILITY INSURANCE. During the term of this lease, Tenant shall
obtain, and keep in force for the mutual benefit of Landlord and Tenant,
commercial general liability insurance against claims for bodily injury, death,
and property damage occurring in, on or about the Premises in at least the
following minimum amounts:
Each occurrence: $1,000,000
Tenant shall provide Landlord a certificate of insurance with Landlord named
as an Additional Insured.
19. HOLD HARMLESS AND INDEMNIFY. Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims arising from Tenant's use of the
Premises or from the conduct of its business, or from any activity, work or
things which may be permitted or suffered by Tenant in or about the Premises,
and shall further indemnify, defend and hold Landlord harmless from and against
any and all claims arising from 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, and from any and all costs, attorneys' fees, expenses
and liabilities incurred in the defense of any such claim or action or
proceeding brought thereon. Tenant's obligations under this Section 19 shall
survive the termination of this Lease.
20. DAMAGE AND DESTRUCTION.
20.1 If the building of which the Premises are a part is less than fifty
percent (50%) damaged or destroyed, the property shall be repaired
as follows:
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a. To the extent the damage is covered by Landlord's fire
insurance policy, repairs shall be at the expense of Landlord,
whether or not the damage occurred as a result of negligence
or willful misconduct on the part of Tenant, its employees,
agents, contractors or invitees.
b. To the extent that the damage is not covered by Landlord's
fire insurance policy, repairs shall be at the expense of the
Landlord, unless the damage was the result of the negligence
or willful misconduct of Tenant, its employees, agents,
contractors, or invitees, in which case, Tenant shall have the
obligation to perform such repairs.
c. In any event, 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. Rent shall be abated to the extent the Premises
are untenantable subsequent to the damage and during the
period of repair, except when damage occurs because of the
negligence or willful misconduct of Tenant, its employees,
agents, contractors, or invitees.
20.2 If the building of which the Premises are a part is fifty percent
(50%) or more destroyed, the parties shall proceed as follows:
a. Landlord may elect to terminate the Lease as of the date of
damage or destruction by notice given to Tenant in writing not
more than thirty (30) days following such date. 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 rent or other amounts paid by
Tenant and attributable to the anticipated term subsequent to
termination date.
b. In absence of an election under Subsection a. above, Landlord
shall proceed to restore Premises to substantially the same
form as prior to damage or destruction so as to provide for
Tenant usable space equivalent in quantity and character to
that before damage. 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 not under control of Landlord. To the
extent the damage is covered by Landlord's fire insurance
policy, the restoration shall be at the expense of Landlord,
whether or not the damage occurred as a result of negligence
or willful misconduct on the part of Tenant, its employees,
agents, contractors, or invitees. To the extent the damage is
not covered by Landlord's fire insurance policy, restoration
shall be at the expense of Landlord, unless the damage was the
result of the negligence or willful misconduct of Tenant, its
employees, agents, contractors, or invitees, in which case,
Tenant shall have the obligation to restore.
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c. In either event, rent shall be abated from the date of damage
or destruction, except when the damage or destruction occurs
because of the negligence or willful misconduct of Tenant, its
employees, agents, contractors, or invitees, and Landlord
elects to rebuild.
20.3 With respect to the deductible amount under Landlord's fire
insurance policy and any repairs or restoration required under
Subsections 20.1 or 20.2 above, the repairs or restoration to which
the deductible would apply shall be at the expense of Landlord,
unless the damage was the result of the negligence or willful
misconduct of Tenant, its employees, agents, contractors or
invitees, in which case, Tenant shall have the obligation to repair
or restore.
21. CONDEMNATION.
21.1 If a portion of the Premises is condemned and Subsection 21.2 below
does not apply, the Lease shall continue on the following terms:
a. Landlord shall be entitled to all of the proceeds of
condemnation and Tenant shall have no claim against Landlord
as a result of condemnation.
b. 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
condemnation. Landlord may, but shall not be required to,
perform alterations prior to the actual taking after the
portion to be taken has been finally determined. Rent shall be
abated to the extent Premises are untenantable during period
of alteration and repair.
c. 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
property in anticipation of taking, the rent shall be reduced
commensurately with the reduction in value of the Premises as
an economic unit on account of the partial taking.
d. If a portion of the Landlord's 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 a change in grade of the adjacent
streets, or other activity by a public body not involving a
physical taking of any portion of the land, this shall be
regarded as a partial condemnation to which Subsections a. and
c. apply, and the rent shall be reduced to the extent of
diminution of value of the Premises as though a portion had
been physically taken.
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21.2 If a condemning authority takes all the Premises or a portion
sufficient to render the remaining Premises reasonably unsuitable
for the use which Tenant was then making of the Premises, the Lease
shall terminate as of the date title vests in the condemning
authorities. Landlord shall be entitled to all the proceeds of
condemnation and Tenant shall have no claim against Landlord as a
result of the condemnation and Tenant shall have no claim against
Landlord as a result of the condemnation.
21.3 Sale of all or part of the Premises to a purchaser with power of
eminent domain in the face of a bona fide threat of the exercise of
such power shall be treated as a taking by condemnation.
21.4 Tenant reserves all rights it may have against the condemning
authority in any condemnation action, including but not limited to
damages for damage to Tenant's business or for damage to Tenant's
trade fixtures and removable
personal property.
22. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned nor the Premises
sublet by Tenant without the prior written consent of Landlord; such consent
shall not be unreasonably withheld. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant from its obligations under this
Lease.
23. ASSIGNMENT OF LEASE AS SECURITY. Tenant agrees that if this Lease is
assigned as additional security for any mortgage or deed of trust of Landlord,
and Tenant is furnished with notice thereof, including the name and address of
the mortgagee or trustee, then Tenant shall not terminate this Lease because of
a default by the Landlord without first notifying the mortgagee or trustee,
specifying the default in reasonable detail, and affording the mortgagee or
trustee a reasonable opportunity to make performance on behalf of Landlord.
24. TIME OF ESSENCE. Time is of the essence with respect to Tenant's and
Landlord's performance under this Lease.
25. LANDLORD'S ACCESS. Landlord and its agents shall have the right to enter the
Premises at reasonable times for the purpose of inspecting same, showing same to
prospective tenants, purchasers, or lenders, and making sure alterations,
repairs, improvements, or additions to the Premises as Landlord may deem
necessary or desirable including maintenance and alterations to the building
telephone equipment that is located within the Premises. Landlord may at any
time place on or about the Premises any ordinary "For Sale or Lease" signs
without rebate of rent or liability to Tenant.
26. EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees that Landlord
shall not be liable for injury to Tenant's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Tenant, Tenant's employees, invitees, customers, or any other persons in or
about the Premises; nor shall Landlord be liable for injury to the person of
Tenant, Tenant's employees, agents, or contractors and invitees; whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage,
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obstruction, or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause whatsoever; and
whether said damage or injury results from conditions arising upon the Premises
or from other sources or places and regardless of whether the cause of such
damage or injury or the means of repairing the same is inaccessible to Landlord
or Tenant.
27. LANDLORD'S RIGHT TO CURE DEFAULTS. If Tenant fails to perform any obligation
under this Lease, Landlord shall have the option to do so after thirty (30)
days'prior written notice to Tenant. All of Landlord's expenditures to correct
the default shall be additional rent and shall be reimbursed by Tenant on demand
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 of expenditure by
Landlord until payment by Tenant.
28. DEFAULT. The following shall be events of default:
a. DEFAULT IN RENT. Failure of Tenant to pay any basic rent or
additional rent required hereunder when due and such failure
continues for at least ten (10) days.
b. DEFAULT IN OTHER COVENANTS. Failuxe of Tenant to comply with any
term or condition, or fulfill any obligation of the Lease (other
than payment of basic rent or additional 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
thirty (30) day period, this provision shall be complied with if
Tenant begins correction of the default within the thirty (30) day
period and thereafter proceeds with reasonable diligence and in good
faith to effect the remedy as soon as practicable.
c. INSOLVENCY. An assignment by Tenant for benefit of creditors; filing
by Tenant of a voluntary petition in bankruptcy; an adjudication
that Tenant is bankrupt, or appointment of a receiver of the
properties of Tenant; the filing of any involuntary petition of
bankruptcy and failure of Tenant to secure a dismissal of the
petition within sixty (60) 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 ten (10) days.
d. ABANDONMENT. The abandonment of the Premises by Tenant.
29. 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 may pursue any one or more of the following courses of
action:
a TERMINATION. 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 damages from Tenant for the default. If the
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Lease is terminated, Tenant's liability to Landlord for damages
shall survive such termination, 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.
b. RELETTING. Following re-entry 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 Premises, or to any
tenant which 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.
c. 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 unpaid 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 reasonable efforts could have been,
secured.
(2) The reasonable costs of re-entry and reletting, including
without limitation the 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 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 or 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.
d. 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.
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e. REMEDIES CUMULATIVE. The foregoing remedies shall be in addition to,
and shall not exclude, any other remedy available to Landlord under
applicable law.
30. 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, provided that any
security deposit in the hands of Landlord or the then grantor at the time of
such transfer in which Tenant has an interest shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Landlord shall be
binding on Landlord's successors and assigns only during their respective
periods of ownership.
31. HAZARDOUS MATERIALS. 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 that term is used in the
Resources Conservation and Recovery Act (42 USC 6901 et seq.) and Hazardous
Substances as that term is used in the Comprehensive Environmental Response,
Compensation, and Liability Act (42 USC 9601 et seq.). Tenant warrants and
represents that the only Hazardous Material it intends to use, store, generate,
release, deposit, or emit in connection with its use of the Premises are those
listed on the attached Exhibit E.
Tenant shall not use, store, generate, release, deposit, or emit any
additional Hazardous Material in connection with its use of the Premises, nor
shall Tenant increase the volume or change the manner of use, storage,
generation, release, deposit, or emission of any Hazardous Material that has
previously been approved by Landlord, without prior written notification to
Landlord and Landlord's written approval of the change. Such notification shall
inform Landlord about the proposed change, its environmental significance, the
classification of any additional waste, and precautions to be taken by Tenant
with regard to the additional Hazardous Material or the increase or change in
use, storage, generation, release, or deposit. Landlord reserves the right, in
its sole discretion, to request additional information and to withhold its
approval.
Tenant shall comply with all laws governing the use, storage, generation,
release, deposit, or emission of Hazardous Material in connection with its use
of the Premises.
Tenant shall indemnify, defend (with counsel satisfactory to Landlord),
and hold harmless Landlord, its present and future officers, directors,
employees, contractors, and agents from and against any and all liabilities,
penalties, fines, forfeitures, demands, claims, costs, and expenses incidental
thereto, including the cost of defense, settlement, and reasonable attorneys'
fees, which any or all of them may hereafter suffer, incur, be responsible for,
or pay out as a result of bodily injuries (including death) to any person,
damage (including loss of use) to any property (public or private),
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
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Tenant, its officers, employees, agents, contractors, or invitees. Tenant's
obligations under this Section 31 shall survive any termination of the Lease.
32. EMERGENCY RESPONSE. Tenant shall be required to become familiar with
Landlord's emergency response procedures and notification process effective in
Building 02. A complete description of Tektronix' procedures and evacuation maps
shall be obtained by Tenant from Landlord. These procedures, contact persons,
and maps may be changed from time to time. In the event of an emergency within
Building 02, the following procedures should be followed by Tenant:
32.1 TYPES OF EMERGENCIES AND PROCEDURES TO BE FOLLOWED.
32.1.1 SPRINKLER FLOW ALARM. This alarm is caused by a flow in
the sprinkler system and triggers an alarm with Tektronix
Security. When the alarm is triggered, Tektronix Security
will immediately contact the Fire Department and the
Tektronix Emergency Response Team (the "ER Team"). If the
Tenant determines there is any danger to employees, Tenant
should instruct its employees to evacuate the building
immediately and proceed to a designated assembly point. A
management representative for Tenant should report to the
Building Command Post. If Tenant becomes aware that the
sprinkler flow alarm has been triggered because of a
broken sprinkler head or pipe, Tenant shall call 627-3333
immediately to report the problem.
32.1.2 FIRE CALL-IN. In the event of a fire, Tenant shall call
627-3333 immediately. Tektronix Security will immediately
contact the Fire Department and the ER Team. Tenant shall
follow the evacuation procedures described above.
32.1.3 BUILDING EVACUATION ALARM. Building 02 has an evacuation
alarm system that can be activated by pulling one of the
alarm stations which are located throughout the building.
Anyone activating the alarm should call 627-3333
immediately to report the problem. The evacuation alarm is
also triggered automatically by sprinkler water flow
detectors. The same procedures for evacuating the building
and reporting to the Command Post should be followed as
outlined for the sprinkler flow alarm. The ER Team will
determine the cause of the alarm, take appropriate
actions, and restore the alarm system.
32.1.4 MEDICAL EMERGENCY. In case of a medical emergency, Tenant
should call 911 immediately to report the problem.
32.2 TENANT RESI2ONSIBILITIES. As part of Building 02's emergency plan,
the following actions are expected of Tenant to help protect life,
environment, and property:
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32.2.1 EMERGENCY PLAN. Tenant shall prepare an emergency plan
covering the desired actions of its employees for all
types of emergencies. This plan shall be consistent with
Tektronix emergency plans for Building 02.
32.2.2 MANAGEMENT REPRESENTATIVES. Tenant shall designate
management representatives to report to the Building
Command Post in the event of an emergency. These
individuals shall be knowledgeable of Building 02
emergency procedures and shall have the authority to make
decisions regarding Tenant's operations, property, and
personnel,
32.2.3 BUILDING 02 COMMAND POST. Tenant shall know the location
of the Building 02 Command Post and shall have a
designated management representative report to the Command
Post in an emergency. This is the point of initial
response for the Fire Department, Tektronix ER Team, and
other emergency services.
32.2.4 TRAINING. Tenant shall provide appropriate emergency
procedure training for its employees, including:
a) Informing Tenant's employees, contractors, agents,
etc. of the actions required in all types of
emergencies;
b) Posting emergency numbers, designated assembly areas,
the Building 02 Command Post; and
c) Coordinating emergency system test with Tektronix
Security and Building 02 tenants.
32.3 TEKTRONIX EMERGENCY RESPONSE TEAM. Tektronix has formed the ER Team to
respond to emergencies on the Beaverton campus. The ER Team is currently
comprised of members who are trained for various types of emergencies, building
system operations, incident command, first-aid, and CPR. In an emergency, the ER
Team reports to the emergency Command Post, sets up communications, and takes
whichever actions are deemed appropriate under the circumstances, including
calling in back-up support. Although the ER Team's purpose is to assist in
emergencies, it is not required to respond in all instances or to provide all of
the services outlined above. These services will be provided to Tenant without
charge (except for repair or cleanup of damage resulting from Tenant's actions).
In the event the ER Team responds to an emergency, neither Tektronix nor its
employees will be liable under any circumstances for loss of or injury to
property, however occurring, through or in connection with ER Team activities.
Tektronix and its employees shall not be liable for injury to persons unless the
injury results from Tektronix' gross negligence or willful misconduct. Tenant
will defend, indemnify, and hold Tektronix and its employees harmless from any
and all such excluded claims by employees of Tenant. The ER Team or ER Team
services to Building 02 may also be terminated by Tektronix at any time and for
any reason.
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33. ATTORNEYS' 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 amount 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
reasonable attorneys' fees in addition to costs and disbursements.
34. NOTICES. All notices required or permitted by law or by this Lease to be
given to Tenant or to Landlord shall be given by depositing the same in
registered or certified U.S. mail, postage prepaid and addressed as follows:
For Landlord: The Secretary
Tektronix, Inc.
P.O. Box 1000, M/S 63-LAW
Wilsonville, Oregon 97070-1000
For Tenant: Benchmark Electronics, Inc.
802 West Brazos Park Drive
Clute, Texas 77531
Attention: President
or to such other place as either party at any time may designate by written
notice to the other party.
35. 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 on the terms and conditions of this Lease at one hundred
twenty-five percent (125%) of the then monthly rental rate, in the absence of a
written agreement to the contrary. Landlord may terminate any holdover tenancy
on ten (10) days'prior written notice. Tenant waives any notice which would
otherwise be provided by law with respect to a month-to-month tenancy. All
options and rights of first refusal, if any, shall be deemed terminated and be
of no force and effect during the month-tomonth tenancy.
36. 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.
37. 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.
38. LEGALLY BINDING. This lease shall be binding upon and inure to the benefit
of the parties and their respective heirs, representatives, successors, and
assigns.
39. CHOICE OF LAW. This Lease shall be governed by the laws of the State of
Oregon.
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40. 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 to which they refer.
41. ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto embody the
entire agreement of the parties with regard to the subject matter of this Lease.
This Agreement supersedes all prior communications, representations, or
agreements, verbal or written, between the parties to it and may not be amended
except in a writing signed by the party affected by the change.
42. 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.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed by
their duly authorized officers as of the date first written above.
LANDLORD: TENANT:
TEKTRONIX, INC. BENCHMARK ELECTRONICS, INC.
By: /s/ JOHN P. KARALIS By: /s/ DONALD E. NIGBOR
John P. Karalis Donald E. Nigbor
Title: SENIOR VICE PRESIDENT Title: PRESIDENT
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EXHIBIT LIST
Exhibit A - Premises Description
Exhibit B - Parking Area
Exhibit C - None
Exhibit D - None
Exhibit E - Hazardous Material List
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EXHIBIT A
PREMISES DESCRIPTION
Map of Leased Premises
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EXHIBIT B
PARKING AREA
Map of Parking Area
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EXHIBIT E
HAZARDOUS MATERIAL LIST
Normal materials commonly used in electronics assembly
operations, Solder, Flux, Alcohol, Adhesives, Conformal Coating,
Lubricants and Cleaning Agents.
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