**EXHIBIT 10.1**

 

**FIFTH AMENDMENT TO LEASE AGREEMENT**

 

**THIS FIFTH AMENDMENT TO LEASE AGREEMENT (**this “**FifthAmendment**”) is made as of the 27th day of May, 2004 byand between **4900 WEST 78th STREETLLC**, a Delaware limited liability company (“**Landlord**”), and **AUGUST TECHNOLOGY CORPORATION**, a Minnesota corporation (“**Tenant**”).

 

A.                                   West 78th Street BloomingtonAssociates LLC, a Delaware limited liability company (“**Original Landlord**”), and Tenant enteredinto that certain Lease Agreement dated October 18, 1999 (the “**Original Lease**”) as amended by (i) thatcertain First Amendment to Lease Agreement dated March 31, 2000 (the “**First Amendment**”), (ii) that certain SecondAmendment to Lease Agreement dated July 25, 2000 (the “**Second Amendment**”), (iii) that certainThird Amendment to Lease Agreement dated June 18, 2001 (the “**Third Amendment**”), and (iv) that certainFourth Amendment to Lease Agreement dated February 28, 2003 (the “**Fourth Amendment**”) (the Original Lease asamended by the First Amendment, the Second Amendment, the Third Amendment andthe Fourth Amendment is referred herein as the “**Lease**”), demising approximately 78,437 square feet of spacecomprised of the “**Initial Premises**”,the “**First Expansion Premises**,”the “**Second Expansion Premises**”and the “**Third Expansion Premises**”(collectively, the “**Existing Premises**”)in the building located at 4900 W. 78th Street in Bloomington,Minnesota (the “**Building**”).

 

B.                                     Landlord has succeeded to the right, titleand interest, and has assumed the obligations, of Original Landlord as landlordunder the Lease, and Landlord and Tenant desire to make certain changes to theLease as provided herein.

 

**NOW, THEREFORE**, in consideration of the mutual covenants contained herein and othergood and valuable consideration the receipt and sufficiency of which are herebyacknowledged, Landlord and Tenant hereby amend the Lease as follows:

 

1.                                       **Recitals**.  Theforegoing recitals are incorporated herein as if fully restated herein.

 

2.                                       **Definitions**. Each capitalized term used as a defined term in this Fifth Amendment butnot otherwise defined in this Fifth Amendment shall have the same meaningascribed to such term in the Lease.  Theforegoing notwithstanding, for purposes of the defined term “**Project**,” Landlord and Tenant agree thatthe real property underlying the Building and being contiguous thereto shall bedeemed to include Outlots A, D and G, West 78th Street Addition,Hennepin County, Minnesota. Additionally, effective January 1, 2004, Landlord and Tenant agreethat the term “**Expanded Project Area**”(as first defined in Section 10(e) of the Third Amendment), shall bedeemed to mean those portions of Outlot F and Lot 2, Block 1, West 78thStreet Addition on which landscaping (which landscaping area shall not beexpanded or modified in a manner that would materially increase OperatingCosts) and bituminous parking surfaces are being maintained by Landlord, and subject to the provisions ofSection 10(e) of the Third Amendment, that Tenant is obligated to pay itsProportionate Share of Operating Costs with respect to such Expanded ProjectArea.

 

3.                                       **HVAC Replacement**. Pursuant to the terms of paragraph 9(c) of the Third Amendment, OriginalLandlord, at Original Landlord’s sole cost and expense, was to perform the HVACWork in accordance with the HVAC Requirements (as both terms are defined insaid paragraph 9(c)).  Notwithstandingthe foregoing, as of the date hereof, Original Landlord has not performed theHVAC Requirements.  Therefore, Landlordand Tenant acknowledge and agree that, in lieu of Landlord’s performance of theHVAC Requirements, Landlord shall contribute up to Sixty Five Thousand andNo/100 Dollars ($65,000.00) (“**HVAC CreditAllowance**”) toward the cost and expense of Tenant’s removal, repairand replacement of HVAC units in the Third Expansion Premises, includingwithout limitation, all design and duct work relating thereto (“**Tenant’s HVAC Work**”).  Such contribution by Landlord willconstitute full payment and performance of Landlord’s obligations under saidparagraph 9(c) and there are no other outstanding obligations of Landlord as ofthe date hereof with respect to tenant improvements to be performed or paid forby Landlord.  In the event Tenantdesires Landlord to make any such contribution, Tenant shall submit a requesttherefor, together with supporting documentation reasonably acceptable toLandlord regarding the Tenant’s HVAC Work for which Tenant is requestingcontribution or payment (including such customary items as invoices forpayment, lien waivers and the like), and Landlord shall make the requested

 

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contribution to Tenant (or direct payment as the case may be) withinfifteen (15) days after Landlord’s receipt of Tenant’s request and suchsupporting documentation; in the event Landlord fails to make such contributionor payment as provided herein, Tenant may deduct and offset the amount thereofagainst the next ensuing monthly installment(s) of Base Rent.  To the extent Tenant does not use the entireHVAC Credit Allowance toward Tenant’s HVAC Work on or before the expiration ofthe Initial Term of the Lease, Tenant shall have no further right to the HVACCredit Allowance or any remaining portion thereof.

 

4.                                       **Real Estate Taxes**. Effective as of January 1, 2004, Landlord and Tenant agree that forpurposes of determining the amount of real estate taxes and annual installmentsof special assessments payable with respect to the Project to be included inOperating Costs during the Initial Term and any Renewal Terms, the total amountof real estate taxes, and annual installments of special assessments payabletherewith, payable in each calendar year during said Initial Term and anyRenewal Terms, with respect to each of the following lots and tax parcels inthe plat of West 78th Street Addition, Hennepin County, Minnesota,multiplied by the Applicable Percentage set forth opposite each such lot andtax parcel, shall be used:

 
| **Lot and Tax Parcel** |   | **Applicable  Percentage** | ** ** |
|------------------------|--------|----------------------------|------------|
|                   |   |                       |       |
| Outlot A               |   | 95                         | %          |
| Outlot D               |   | 100                        | %          |
| Outlot F               |   | 100                        | %          |
| Outlot G               |   | 77                         | %          |
| Lot 2, Block 1         |   | 40                         | %          |

 

Noportion of the real estate taxes and installments of special assessmentspayable with respect to Outlots B, C and E, West 78th StreetAddition, Hennepin County, Minnesota shall be included in Operating Costs.  Notwithstanding any other provision of theLease or this Fifth Amendment to the contrary, all other Operating Costs underthe Lease shall be allocated to Tenant in accordance with the terms of theLease.

 

5.                                   **Parking**. Landlord agrees that during the Term of the Lease, it shall not reducethe number of parking spaces within the Project without Tenant’s prior writtenconsent.

 

6.                                   **No Offer**. Submission of this instrument for examination or negotiation shall notbind Landlord or Tenant, and no obligation on the part of Landlord or Tenantshall arise until this instrument is signed and delivered by Landlord andTenant.

 

7.                                   **Lease in Full Force andEffect**.  Except as herein provided, all of the termsand provisions of the Lease shall remain in full force and effect.

 

8.                                   **Counterpart Execution**. This Fifth Amendment may be executed in any number of counterpartoriginals, and when combined into one single agreement in possession of bothLandlord and Tenant, shall constitute an original agreement.

 

**IN WITNESS WHEREOF**, the parties hereto have caused this Fifth Amendment to LeaseAgreement to be duly executed and delivered as of the day and year firstwritten above.

 
| **LANDLORD:**                                                                      | **TENANT:**                            |
|------------------------------------------------------------------------------------|----------------------------------------|
|                                                                               |                                   |
| **4900 WEST 78TH STREET LLC**                                                      | **AUGUST TECHNOLOGY CORPORATION** |
|                                                                               |                                   |
| By **Interstate Partners LLC**, a Delaware limited  liability company, its Manager |                                   |
|                                                                               |                                   |
|                                                                               |                                   |
| By:                                                                                | /s/  Gregory S. Miller            |   | By: | /s/  David L. Klenk |   |
|                                                                               | Gregory  S. Miller, President          |   | Its  President |   |
|                                                                                    |                                        |  |  |  |  |

 

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