EXHIBIT 10.15
CE FACILITY LEASE
This Lease Agreement (this "Lease") is made this 23rd day of
February,1998, by and between Lockheed Xxxxxx Corporation, a Maryland
corporation ("Landlord"), and Benchmark Electronics, Inc., a Texas corporation
("Tenant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord is the owner of the real property and an office building
consisting of approximately 250,000 square feet, located within the Xxxx
Technical Park in Hillsborough County, New Hampshire, commonly known as Building
#2, 00 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 (the "Premises"), a map of which
is attached hereto as Exhibit A;
WHEREAS, pursuant to the terms of the Purchase Agreement between Landlord
and Tenant dated as of January 22, 1998 (together with all Exhibits, Schedules
and Attachments thereto, the "Purchase Agreement"), Tenant has agreed to lease
the Premises from Landlord on the terms and conditions set forth in this Lease;
and
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties contained herein and contained in the Purchase Agreement, the
parties agree as follows:
ARTICLE I
TERM
Section 1.01 Term. The term (the "Prime Term") of this Lease shall
commence on the date hereof (the "Commencement Date") and shall continue for a
period of two years thereafter (the "Expiration Date").
Section 1.02 ADDITIONAL TERM. In the event that Tenant shall desire to
extend this Lease at the end of the Prime Term, Tenant shall be permitted to
extend this Lease for one additional term for a period of up to four years
following the expiration of the Prime Term (the "Additional Term"). Tenant shall
provide Landlord written notice of the intent to lease the Premises for the
Additional Term at least 90 days before the expiration of the Prime Term. Upon
receipt of such written notice by Landlord, Landlord and Tenant shall negotiate
in good faith a lease for the Premises for the Additional Term on terms and
conditions consistent with the general market for the lease of commercial
facilities of the type, location and size of the Premises at that time (the
"General Market Rate"). Notwithstanding the foregoing, in the event that despite
such good faith negotiations Landlord and Tenant are unable
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to agree on the General Market Rate for the Additional Term, the General Market
Rate shall be determined in accordance with the provisions of Section 1.03
below.
Section 1.03. APPRAISAL.
(a) In the event that Landlord and Tenant cannot agree on the General
Market Rate within 60 days of the Expiration Date, then either party may invoke
its right to appraisal as set forth in this Section 1.03.
(b) To invoke its right to appraisal, the invoking party (the "Invoking
Party") shall send written notice to the other party (the "Non-Invoking Party")
stating that it is invoking its right to appraisal and naming an appraiser with
substantial experience in commercial real estate matters in the general area in
which the CE Facility is located, who shall be a member of the Appraisal
Institute or some other comparable organization. Within 10 days after such
notice, the Non-Invoking Party shall name an appraiser who is also so qualified
and shall provide the Invoking Party with written notice of the same. Within 10
days thereafter, the two appraisers so selected (the "First Appraisers") shall
select a third appraiser (the "Outside Appraiser").
(c) The appraisers (the First Appraisers and the Outside Appraiser) shall
attempt to determine the General Market Rate for the Premises. In making such
determination, the appraisers shall take into account that the Additional Rent
set forth in Section 3.02 of this Lease shall continue without interruption. In
the event that the First Appraisers are unable to determine a single General
Market Rate within 20 days after the date the Outside Appraiser was selected,
each of the First Appraisers shall set his or her own General Market Rate. In
the event that the General Market Rate determined by either of the First
Appraisers is within 10% (a "Close Appraisal") of the General Market Rate
established by the Outside Appraiser (the "Outside Appraisal"), the average of
the Close Appraisal or the Close Appraisals, as the case may be, and the Outside
Appraisal shall be the General Market Rate. In the event that neither appraisal
by the First Appraisers is a Close Appraisal, the General Market Rate shall be
(i) the Outside Appra.isal if it falls between the other two appraisals, (ii)
the average of the Outside Appraisal and the lower of the other two appraisals
if the outside Appraisal is lower than both of the other two appraisals, and
(iii) the average of the Outside Appraisal and the higher of the other two
appraisals if the Outside Appraisal is higher than both of the other two
appraisals. The General Market Rate so determined shall be conclusive and
binding upon the parties.
(d) Each party shall bear all of the costs and expenses of the appraiser
selected by it and the parties shall share equally the costs of the outside
Appraiser.
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ARTICLE II
THE PREMISES
Section 2.01 USE OF PREMISES. Tenant may use and occupy the Premises
during the term of this Lease for offices or light manufacturing and for no
other purposes except with the prior written consent of Landlord, provided that
any such use of the Premises shall at all times comply in all material respects
with all applicable laws and regulations, including zoning and land use laws and
regulations.
Section 2.02 ACCESS, UTILITIES, AND PARKING. Landlord shall provide Tenant
with adequate rights (i) of ingress and egress from a publicly dedicated road to
the Premises and (ii) to public utilities in order to operate the Premises in
the manner currently being utilized. Additionally, Tenant shall be entitled to
the use of the parking lots located within the Premises sufficient to
accommodate (i) those employees that work for Lockheed Commercial Electronics
Company immediately prior to the Commencement Date and (ii) a reasonable number
of additional employees that may be employed by Tenant at the Premises in the
future.
Section 2.03 SERVICES PROVIDED BY LANDLORD. Landlord shall provide Tenant
electric power, water, sewer, fire protection (consisting only of sprinklers,
fire extinguishers and smoke detectors), outside maintenance services (including
plowing for the roads and parking lots of the Premises) for the Premises, in the
manner that these services have been supplied to Lockheed Commercial Electronics
Company by Landlord prior to the execution of this Lease. Tenant shall reimburse
Landlord for expenses incurred in providing these services pursuant to the terms
of Section 3.02.
Section 2.04 SERVICES NOT PROVIDED BY LANDLORD. Tenant, at its own
expense, shall be responsible for plant engineering services (including, but not
limited to, procuring heating and air conditioning maintenance and repair,
ordinary interior repair, maintenance and security for the Premises), janitorial
services, trash removal and interior window washing for the Premises.
ARTICLE III
RENT
Section 3.01 BASE RENT. Tenant shall pay Landlord $382,000 per year as
rent for the Premises during the Prime Term in equal, consecutive, monthly
installments of $31,834 (the "Prime Term Rent"). The first monthly payment of
the Prime Term Rent shall be due and payable on the Commencement Date. Each
subsequent payment of the Prime Term Rent shall be due and payable on the same
calendar day of each month for the term of this Lease. In the event any such
Prime Term Rent shall not have been paid by the close of business on the fifth
calendar day following the due date
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for such Prime Term Rent, Tenant shall pay to Landlord a late fee equal to 5% of
the overdue amount.
Section 3.02 ADDITIONAL RENT. Tenant shall pay as additional rent the
costs associated with real property taxes, casualty and liability insurance
policies, and the services provided by Landlord pursuant to Section 2.03 for the
Premises (the "Additional Rent"). The Additional Rent shall be pro rated based
on Tenant's percentage occupancy of the Premises. Tenant acknowledges that for
the purposes of this Lease, Tenant shall be deemed to occupy 74% of the Premises
for so long as a portion of the Premises is subleased pursuant to that certain
sublease between Tenant (as Sublessor) and Xxxxxxx, a Lockheed Xxxxxx Company
("Xxxxxxx") and a division of Landlord (as Sublessee) dated of even date
herewith (the "Sublease"). If at any time during the term of this Lease Xxxxxxx
ceases to occupy a portion of the Premises pursuant to the Sublease, then Tenant
shall be deemed to occupy 100% of the Premises for the purposes of calculating
the Additional Rent pursuant to this Section 3.02. Notwithstanding any provision
of this Section 3.02 to the contrary, Tenant shall also pay as Additional Rent
89% of the cost of electric power for the Premises during the term of this Lease
on the condition that Xxxxxxx occupies a portion of the Premises under the
Sublease. In the event Xxxxxxx does not occupy a portion of the Premises,
pursuant to the Sublease, at any time during the term of this Lease, then Tenant
shall pay 100% of the cost of electric power for the Premises. The provisions of
the preceding sentence shall be altered by agreement of the parties, if
accomplishing the foregoing presents unreasonable difficulties under, or is
otherwise required by, applicable State of New Hampshire utilities laws. Any
such Additional Rent shall be due and payable within 10 days of receipt by
Tenant of a written request for payment thereof and reasonable documentation
regarding such Additional Rent.
ARTICLE IV
SIGNS
Section 4.01 SIGNS. Tenant shall have the right, at its expense, to
maintain within or on the exterior of the Building, or at its entrance to the
Premises, such signs, directories or marquees as shall serve to identify Tenant
and to direct guests to Tenant's place of business. Such signs, directories, or
marquees shall be subject to Landlord's approval, which shall not be
unreasonably withheld. Landlord agrees to identify Tenant prominently, at
Tenant's expense, by a sign located at the entrance to the Premises as soon as
reasonably practicable after the Commencement Date, such sign to be of a design
mutually approved by Landlord and Tenant and subject to compliance with local
zoning ordinances.
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ARTICLE V
TRANSFER AND SUBLETTING
Section 5.01 TRANSFER AND SUBLETTING. Tenant shall not sublet, assign,
transfer, vacate or in any manner dispose of the premises or any part thereof
for all or any part of the term of this Lease, other than pursuant to the
Xxxxxxx Sublease, without the prior written consent of Landlord. Notwithstanding
the above, Tenant may assign this Lease to Lockheed Commercial Electronics
company its successors and assigns, without first obtaining the prior written
consent of Landlord. In the event Tenant assigns this Lease to Lockheed
Commercial Electronics Company, Tenant shall remain at all times liable for any
amounts owed to Landlord pursuant to this Lease.
ARTICLE VI
SURRENDER OF PREMISES
Section 6.01 SURRENDER OF PREMISES. On the Expiration Date, Tenant shall
peaceably surrender the Premises in its current condition, reasonable wear and
tear excepted, and ensure that the Premises are broom clean. Prior to the
Expiration Date, Tenant shall remove from the Premises all Hazardous Substances
(as defined in Section 13.01) used within, in, or as part of its business that
were placed in or on the Premises on or after the Closing Date. However, nothing
in this Lease shall require either Landlord or Tenant to remove asbestos
containing building materials present upon the Premises prior to the
Commencement Date. Any personal property left upon the Premises on the
Expiration Date shall be deemed to be abandoned by Tenant.
ARTICLE VII
SALE OF PREMISES
Section 7.01 COOPERATION BETWEEN PARTIES. Tenant acknowledges that
Landlord may actively market the Premises for sale to a third party at any time
during the Prime Term or tine Additional Term of this Lease.
ARTICLE VIII
IMPROVEMENTS TO PREMISES
Section 8.01 ALTERATIONS AND ADDITIONS. Tenant shall not make any
alterations, additions, or improvements over $25,000 to the Premises without the
prior written consent of Landlord. In no event shall any structural change or
any change or modification to the structure of the Premises' heating,
electrical, or plumbing services be undertaken by Tenant or an employee or agent
of Tenant Without Landlord's prior written consent. Any approved alterations,
additions, or improvements, shall. be done in accordance with the applicable
county, city and State laws and
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ordinances and building and zoning rules and regulations. Tenant hereby
expressly assumes full responsibility for all damages and for injuries which may
result to any person or property by reason of or resulting from said
alterations, additions, or improvements, and shall hold Landlord harmless with
respect thereto, except with respect to those injuries and damages arising out
of Landlord's fault or negligence. On the Expiration Date, all alterations,
additions, and improvements to the Premises shall become the property of
Landlord.
Section 8.02 APPROVAL OF LANDLORD REQUIRED. No such alterations, additions
or improvements over $25,000 may be commenced in the Premises, until Tenant has
prepared or had prepared plans and specifications for the work and obtained
Landlord's written approval therefor.
Section 8.03 PAYMENT BY TENANT. Tenant shall pay, when due, any and all
sums of money that may be due for any labor services, materials, supplies or
equipment alleged to have been furnished or to be furnished to or for Tenant in,
on, or about the Premises and which may be secured by any mechanics, material or
other liens against the Premises or of Landlord's interest therein, and Tenant
shall cause each such lien to be fully discharged and released at the time the
performance of any obligation secured by any such lien matures or becomes due.
Landlord reserves the right at any or all times to alter the Premises or add
thereto so long as it does not have an adverse effect on Tenant's right to quiet
enjoyment of the Premises.
ARTICLE IX
LIABILITY
Section 9.01 LIABILITY. Landlord in no event shall be liable for, and
Tenant shall indemnify and hold harmless Landlord from, any damage or injury to
Tenant or any agent or employee of Tenant including, without limitation,
business invitees and contract laborers, or to any person or persons coming upon
the Premises in connection with the occupancy by Tenant of the Premises, or to
any goods, chattels or other property of Tenant, or any other person or persons
which may during the term of this Lease be located in the Premises, unless
Landlord was responsible for such injury through Landlord's own negligence or
intentional act. Landlord shall not be liable for, and Tenant shall indemnify
and hold harmless Landlord from, any damage to Tenant's personal property and to
personal property of others in Tenant's possession or under Tenant's care and
control located within the Premises whether such damage is caused or contributed
to by fire, water, rain, snow, breakage of pipes, Acts of God, leakage, or in
the event that such damage is due to the fault or negligence of Tenant, its
agents or employees, business invitees, and contract laborers, unless Landlord
was responsible for such damage through Landlord's own negligence or intentional
act. Tenant shall carry insurance to cover damage by fire or other casualty to
Tenant's personal property.
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ARTICLE X
INSPECTION
Section 10.01 LANDLORD'S INSPECTION. Upon prior notice, Landlord and
persons designated by Landlord have the right to enter the Premises at
reasonable hours to examine the same and to do such work as Landlord is
obligated to do under the terms of this Lease, or to do such work as Landlord
shall deem necessary for the safety or preservation of the Premises; provided
however, that the same shall not interfere unreasonably with the conduct of
Tenant's business.
Section 10.02 OUIET ENJOYMENT. Subject to the terms of this Lease,
Landlord covenants that if Tenant pays the rent pursuant to Section 3.01 and the
Additional Rent, performs all of its obligations provided for hereunder and
observes all of the other provisions hereof, Tenant shall at all times during
the Prime Term peaceably and quietly have, hold and enjoy the Premises, without
any interruption or disturbance from Landlord.
ARTICLE XI
INDEMNIFICATION
Section 11.01 INDEMNIFICATION. Tenant shall defend and indemnify Landlord
and agrees to hold Landlord harmless from any injury, cost or damage to Landlord
or Landlord's agents or employees and from any and all liability for injury to
third persons or damage to the property of third persons, including expenses,
and reasonable counsel fees occurring by reason of any negligent or unlawful
acts or omissions of Tenant, Tenant's agents, consultants, contract laborers and
invitees or employees.
Section 11.02. ENVIRONMENTAL INDEMNIFICATION. Tenant shall defend and
indemnify Landlord and agrees to hold Landlord harmless from any and all Damages
(as defined below) arising during or after the term of this Lease from or in
connection with the use, storage, generation, disposal, discharge, release or
emission of Hazardous Substances (as defined in Section 13.01) in, on or about
the Premises by Tenant, Tenant's agents, employees, contractors or invitees.
This indemnification shall expressly include, without limitation, any and all
such Damages due to any Remedial Action (as defined below), and shall survive
indefinitely after the expiration or termination of this Lease.
For the purposes of this Section 11.02, "Damages" means all demands,
claims, actions or causes of action, assessments, losses, damages, costs,
expenses, liabilities, judgments, awards, fines, sanctions, penalties, charges
and amounts paid in settlement, including, without limitation, reasonable costs,
fees and expenses of attorneys, experts, accountants, appraisers, consultants,
witnesses, investigators and any other agents or representatives of such person
(with such amounts to be determined net of any
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resulting tax benefit and net of any refund or reimbursement of any portion of
such amounts, including, without limitation, reimbursement by way of insurance,
third party indemnification or the inclusion of any portion of such amounts as a
cost under Government Contracts), but specifically excluding (i) any costs
incurred by or allocated to Landlord with respect to time spent by employees of
Landlord or any of its affiliates, (ii) any consequential, exemplary or punitive
damages and (iii) the decrease in the value of any asset to the extent that such
valuation is based on a use of such asset other than its use as of the
commencement Date.
For the purposes of this section 11.02, "Remedial Action(s)" means the
investigation, clean-up or remediation of contamination or environmental
degradation or damage caused by, related to or arising from the generation, use,
handling, treatment, storage, transportation, disposal, discharge, release, or
emission of Hazardous Substances, including, without limitation, investigations,
response and remedial actions under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, corrective action under the
Resource Conservation and Recovery Act of 1976, as amended, and clean-up
requirements under similar state Environmental Laws (as defined in Section
13.01).
ARTICLE XII
MAINTENANCE
Section 12.01 MAINTENANCE OF PREMISES. Tenant agrees to maintain the
Premises, including the heating and electrical systems for the Premises, in
substantially the same condition as they are on the Commencement Date,
reasonable wear and tear, and damage by fire and other casualty excepted,
acknowledging that the Premises are now in good condition. Tenant shall not
permit the Premises to be overloaded, damaged, stripped or defaced, nor suffer
any waste.
ARTICLE XIII
ENVIRONMENTAL SAFETY
Section 13.01 HAZARDOUS SUBSTANCES. Tenant shall not cause or permit any
Hazardous Substances (as defined below) to be used, stored, generated or
disposed of in, on or about the Premises by Tenant, its agents, employees,
contractors or invitees, except for such Hazardous Substances as are normally
utilized in an office or light manufacturing environment. Any such Hazardous
Substances permitted on the Premises as hereinabove provided, and all containers
therefor, shall be used, kept, stored and disposed of in a manner that complies
with all Environmental Laws. Tenant shall not discharge, release or emit
Hazardous Substances on or about the Premises so as to pollute or contaminate
air, soil (including
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sediment and subsurface soil), or water (including groundwater). Any testing,
control, or treatment of discharges, releases or emissions of Hazardous
Substances required as a result of Tenant's use and occupancy of the Premises
shall be solely the responsibility of Tenant, and costs incurred by Landlord in
effecting any such tests, controls, or treatment shall be reimbursed by Tenant
to Landlord upon demand as Additional Rent. Landlord reserves the right to enter
upon the Premises at any time throughout the term of this Lease to assure
compliance with this Section 13.01.
For the purposes of this Section 13.01 and Sections 6.01 and 11.02,
"Hazardous Substances" means substances defined as "hazardous substances,"
"hazardous materials," "hazardous wastes," "pollutants," or "contaminants," and
any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous
substance, waste, or material, including, without limitation, asbestos and
petroleum, its derivatives, by-products and other hydrocarbons, in each case as
regulated under any Environmental Law.
For the purposes of this Section 13.01 and Section 11.02, "Environmental
Laws" means any and all past, present or future federal, state, local and
foreign statutes, laws, regulations, ordinances, judgments, orders, codes,
injunctions, judicial decisions, permits or governmental restrictions or
agreements with an governmental authorit which relate to the environment, human
health and safety, or to pollutants, contaminants, wastes or chemicals or any
toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous
substances, wastes or materials or which impose liability for or standards of
conduct concerning the manufacture, processing, generation, distribution, use;
treatment, storage, disposal, cleanup, transport or handling of Hazardous
Substances including, the Resource Conservation and Recovery Act of 1976, as
amended, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, the Superfund Amendment and Reauthorization Act of
1984, as amended, the Toxic Substances Control Act, as amended, any other
so-called "Superfund" or "Superlien" law, and the Occupational Safety and Health
Act of 1970, as amended.
ARTICLE XIV
BREACH
Section 14.01 BREACH OR DEFAULT BY TENANT. Any breach by Tenant of any
conditions of this Lease, other than payment of the rent pursuant to Section
3.01, may be cured by Landlord for the account of and at the expense of Tenant,
and any sums so advanced shall be paid to Landlord 14 days after Landlord
provides Tenant of notice thereof. Further, if Tenant shall fail to pay the rent
pursuant to Section 3.01 or the Additional Rent within 14 days after being due
and receiving a written demand therefor, Landlord shall have the right to
recover the rent owed (together with any applicable late fee) and to reenter and
take possession of the
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Premises and cancel and annul the remainder of this Lease. If Tenant defaults in
any condition or covenant of the Lease or in performing the same, and fails to
correct such default within 14 days of receiving the written notice of Landlord
thereof, Landlord may, at its option, terminate this Lease; provided that such
default is a default that by its nature is curable within such 14- day period.
Section 14.02 BREACH OR DEFAULT BY LANDLORD. If Landlord defaults in any
condition or covenant of the Lease or in performing the same, and fails to
correct such default within 14 days of receiving written notice of Tenant
thereof, Tenant may, at its option, terminate this Lease on the condition that
such default is by its nature curable within such 14-day period.
ARTICLE XV
TAXES
Section 15.01 REALTY TAXES. Landlord shall pay all real property taxes
which have been or may be assessed by any lawful authority against the Premises.
Tenant shall reimburse Landlord for the real property taxes related to the
Premises as Additional Rent as provided for in Section 3.02.
Section 15.02 PERSONAL PROPERTY TAXES. Tenant shall be liable for the
payment of all taxes levied against any of Tenant's personal property or trade
fixtures placed in, on, or about the Premises, including, without limitation,
the shelves, counters, vaults, vault doors, wall safes, partitions, machinery,
and electrical or electronic equipment. If Landlord is required to pay any of
such taxes, Tenant upon demand shall promptly reimburse Landlord therefor.
ARTICLE XVI
INSURANCE
Section 16.01 LIABILITY INSURANCE. From the Commencement Date until the
expiration of this Lease, Tenant shall carry and xxxx.xx full force and effect
at all times for the protection of Landlord and Tenant, comprehensive general
liability insurance for bodily injury, death' and damage to the property of
others, including Tenant's legal liability for damage to the Premises and
blanket contractual liability, with respect to all business conducted from the
Premises and the use and occupancy thereof, including the activities, operations
and work conducted or performed by Tenant, by any other person on behalf of
Tenant, by those for whom Tenant is in law responsible, and by any other person
on the Premises and/or accessing the recreational facilities, with minimum
limits of coverage of at least $1,000,000 for each occurrence of property damage
and bodily injury with an aggregate of $3,000,000. Notwithstanding the
foregoing, Landlord shall have the right to require Tenant to increase the
minimum
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limits of coverage set forth above, from time to time, to the standard limits of
coverage required for comparable property in the Hudson, New Hampshire area.
Section 16.02 FIRE AND CASUALTY INSURANCE. Tenant shall obtain and
maintain in full force and effect at all times insurance policies against fire,
theft, vandalism, malicious mischief, leakage and such additional perils as now
are or hereafter may be included in a standard extended coverage endorsement
from time to time in general use in the Hudson, New Hampshire area, insuring all
of the improvements comprising the Premises, as well as Tenant's improvements in
the Premises, in an amount equal to not less than the full replacement value
thereof.
Section 16.03 POLICY REQUIREMENTS. All insurance policies carried by
Tenant pursuant to this Article XVI, and any other insurance policies carried by
Tenant with respect to the Premises, shall: (i) be designated as "Primary" and
be issued in form acceptable to Landlord by good and solvent insurance companies
licensed to do business in the State of New Hampshire and reasonably
satisfactory to Landlord; (ii) name Landlord and any other parties in interest,
from time to time designated by notice from Landlord to Tenant, as an additional
insured; (iii) provide for at least 30 days prior written notice to Landlord of
any cancellation or material alteration of such policy or of any defaults
thereunder; (iv) contain an express waiver of any right of subrogation by the
insurance company against Landlord and Landlord's employees and agents; (v)
contain an automatic increase in insurance endorsement providing appropriate
inflation protection; and (vi) have such other form and content as Landlord may
reasonably require. On the commencement Date, Tenant shall provide Landlord with
a Certificate of Insurance reciting the foregoing as evidence of such coverage.
ARTICLE XVII
BANKRUPTCY, WAIVER OR DEFAULT
Section 17.01 BANKRUPTCY, WAIVER OR DEFAULT. In the event Tenant files a
voluntary petition in bankruptcy, makes assignment for the benefit of creditors,
or is adjudged a bankrupt, or if a receiver, trustee or custodian is appointed
for Tenant by any court, or if Tenant files any petition for relief under any
section of the bankruptcy laws of the United States now in force or hereafter
enacted, or if Tenant takes advantage of any insolvency act, or if the interest
of Tenant shall be sold under any execution or other legal process issued out of
any court, or if Tenant shall abandon or vacate the Premises during the term of
this Lease, or if Tenant shall breach any promise or covenant herein, then in
any such event it shall be lawful for Landlord at any time thereafter, at its
option upon 10 days written notice to Tenant, to re-enter said premises and
again have possession thereof and occupy the same as if this Lease had not been
made, and thereupon this Lease shall cease and become null and void.
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ARTICLE XVIII
SUBORDINATION
Section 18.01 SUBORDINATION. This Lease shall be subject and subordinate
to any and all mortgages, deeds of trust and other instruments in the nature of
a mortgage, now or at any time hereafter recorded, other than the Mortgage and
Promissory Note dated July 28, 1982 between Hi-Tension Realty Corporation,
Mortgagor, and Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx,
Mortgagees, which Landlord has represented and does represent to Tenant is
invalid, and Tenant shall, when requested, promptly execute and deliver such
written instruments as shall be necessary to show the subordination of this
Lease to said mortgages, deeds of trust or other such instruments in the nature
of a mortgage. Notwithstanding anything in this Lease to the contrary, a
condition precedent to the effectiveness of the subordination described in this
paragraph, shall be that the holder of any mortgage, ground lease or other
security instrument to which this Lease is to be subordinated or to whom Tenant
is to attorn, shall agree pursuant to a written agreement (hereinafter referred
to as a "Non-Disturbance Agreement") delivered to Tenant, that (i) so long as
Tenant is not in default under this Lease (beyond any period given to Tenant
hereunder to cure such default), Tenant's use and occupancy of the Premises and
its rights under this Lease shall not be disturbed or affected by the
termination of such ground or underlying lease prior to the expiration or
termination of this Lease or by any foreclosure or other action (or by the
delivery or acceptance of a deed or other conveyance or transfer in lieu
thereof) which may be instituted or undertaken in order to enforce any right or
remedy available to the holder of such instrument, (ii) Tenant shall not be
named as a party defendant in any foreclosure, summary or any other action
commenced by any such ground or underlying lessor or secured party, and (iii)
any party succeeding to the interest of Landlord as a result of any such
enforcement action or otherwise shall be bound to Tenant, and Tenant shall be
bound to it, under all of the terms, covenants and conditions of this Lease with
the same force and effect as if such party were the original Landlord under this
Lease. Landlord covenants and agrees that it will obtain and deliver to Tenant a
Non-Disturbance Agreement in accordance with the foregoing provisions from the
then holder(s) of any mortgage, deed of trust, ground lease or other security
instrument affecting the Premises on or before the date the Premises are ready
for occupancy, failing which tenant may, at its option, terminate this Lease
whereupon any prepaid rent or other prepaid charges or deposits paid by Tenant
to Landlord shall be immediately refunded.
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ARTICLE XIX
MISCELLANEOUS
Section 19.01 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including telecopy or similar writing)
and shall be given:
if to Landlord:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President and
Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President and
General Counsel
Facsimile: (000) 000-0000
and
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
if to Tenant:
Benchmark Electronics, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
Attention: President and Chief
Executive Officer
Telecopy: (000) 000-0000
with a copy to:
Bracewell & Xxxxxxxxx, L.L.P.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
or to such addresses or telecopy numbers and with such other copies, as such
party may hereafter specify for the purpose of notice to the other parties. Each
such notice, request or other
V-13
communication shall be effective (I) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section 19.01 and evidence
of receipt is received or (ii) if given by any other means, upon delivery or
refusal of delivery at the address specified in this Section 19.01.
Section 19.02 EMINENT DOMAIN. If the whole or any part of the Premises
shall be taken by public authority under the power of eminent domain, then the
term of this Lease shall cease on the part so taken from the day that possession
of that part shall be required for any purpose by said public authority, and the
rent and the Additional Rent shall be paid up to that day, and if such portion
of the Premises are so taken as to, in Tenant's opinion, destroy the usefulness
of the Premises for the purpose for which the Premises were leased, then, from
that day, Tenant shall have the right either to terminate this Lease and declare
the same null and void, or to continue in the possession of the remainder of the
same under the terms herein provided, except that the rent shall be reduced in
proportion to the amount of the Premises taken based on the value of the portion
taken to the value of the remaining part. All damages awarded for such taking
shall belong to and be the property of Landlord, including such damages as shall
be awarded as compensation for diminution in value to the leasehold, provided,
however, that Landlord shall not be entitled to any portion of the award made to
Tenant for Tenant's furnishings or Tenant's business relocation expenses.
Section 19.03 DESTRUCTION OF PREMISES. If, during the term of this Lease,
the Premises are totally or partially destroyed from any cause, rendering the
Premises totally or partially inaccessible or unusable, Landlord shall restore
the destruction if the restoration can be made under the existing laws and can
be completed within 120 working days after the destruction. Such destruction
shall not terminate the Lease. During the period that the Premises are being
restored Tenant shall neither pay nor owe the rent pursuant to either Section
3.01 or the Additional Rent to Landlord. If the restoration cannot be made
within 120 days, then within 10 days after such destruction Tenant or Landlord
can terminate this Lease immediately by giving written notice and neither party
shall have any further obligation to the other with respect to this Lease.
Section 19.04 ENTIRE AGREEMENT. Except as otherwise expressly contemplated
by the Purchase Agreement, this Lease and the Purchase Agreement contain all
representations, understandings, agreements and commitments of Landlord and
Tenant. The Lease between Lockheed Xxxxxxx, Inc. and CE dated September 26,
1987, as amended and any other written or oral statements or promises of any
type whatsoever shall be null and void and of no effect whatsoever in the
interpretation of this Lease.
Section 19.05 APPLICABLE LAW; JURISDICTION. This Lease shall be construed
in accordance with the laws of the State of New Hampshire without reference to
the conflicts of laws principles
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thereof. The forum for any disputes arising hereunder shall be a court of
competent jurisdiction sitting in the State of New Hampshire, and by executing
this Lease, Landlord and Tenant consent to such jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed on the date first above written.
LANDLORD:
LOCKHEED XXXXXX CORPORATION
By:__________________________(SEAL)
Name:
Title:
TENANT:
BENCHMARK ELECTRONICS, INC.
By:___________________________(SEAL)
Name:
Title:
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[PICTURE OF LAYOUT OF PROPERTY]
