exv10w38






Exhibit 10.38




MISSION PARK




LEASE




by and between




KOLL/INTEREAL BAY AREA,

a California general partnership




(“Landlord”)




and




BROOKS AUTOMATION, INC.,

a Delaware corporation




(“Tenant”)




For the 12,342 SF Premises at

4051 Burton Drive, Santa Clara, CA 95054




 









 





LEASE SUMMARY



	 	 	 	 	 
	Lease Date:
	 	August 8, 2008	 	 
	 
	 	 	 	 
	Landlord:	 	KOLL/INTEREAL BAY AREA,
	 	 	a California general partnership
	 
	 	 	 	 
	Address of Landlord:	 	Pacific Realty Associates, L.P.
	 	 	2000 Wyatt Drive, Suite 7
	 	 	Santa Clara, CA 95054
	 
	 	 	 	 
	Tenant:	 	BROOKS AUTOMATION, INC.,
	 	 	a Delaware corporation
	 
	 	 	 	 
	Address of Tenant:	 	15 Elizabeth Drive
	 	 	Chelmsford, MA 01824
	 	 	Contact: Linda Galligan
	 	 	Telephone: (978) 262-2400
	 
	 	 	 	 
	Premises Address:	 	4051 Burton Drive
	 	 	Santa Clara, CA 95054
	 
	 	 	 	 
	Premises Square Footage:	 	Approximately 12,342 square feet
	 
	 	 	 	 
	Building Address:	 	4001 — 4051 Burton Drive
	 	 	Santa Clara, CA 95054
	 
	 	 	 	 
	Building Square Footage:	 	Approximately 28,837 square feet
	 
	 	 	 	 
	Term:	 	Sixty-two (62) months
	 
	 	 	 	 
	Monthly Rent:
	 	Months of Term	 	Net Monthly Rent

	 
	 	 	 	 
	 
	 	01 — 02	 	$0.00
	 
	 	03 — 14	 	$17,278.80 per month/NNN
	 
	 	15 — 26	 	$17,969.95 per month/NNN
	 
	 	27 — 38	 	$18,688.75 per month/NNN
	 
	 	39 — 50	 	$19,436.30 per month/NNN
	 
	 	51 — 62	 	$20,213.75 per month/NNN
	 
	 	 	 	 
	Estimated Operating Expenses:	 	$5,157.00/month
	 
	 	 	 	 
	Security Deposit:
	 	$25,000.00	 	 
	 
	 	 	 	 
	Tenant’s Percentage:
	 	42.80%	 	 






     (This Lease Summary is for information only and is not part of the Lease. The Lease will
control in case of any conflicts or inconsistencies.)



 









 





LEASE




Table of Contents




	 	 	 	 	 	 	 
	1.
	 	PARTIES	 	 	1	 
	 
	 	 	 	 	 	 
	2.
	 	PREMISES	 	 	1	 
	 
	 	 	 	 	 	 
	3.
	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	4.
	 	LEASE TERM	 	 	3	 
	 
	 	 	 	 	 	 
	5.
	 	RENT	 	 	5	 
	 
	 	 	 	 	 	 
	6.
	 	LATE PAYMENT CHARGES	 	 	6	 
	 
	 	 	 	 	 	 
	7.
	 	SECURITY DEPOSIT	 	 	6	 
	 
	 	 	 	 	 	 
	8.
	 	HOLDING OVER	 	 	7	 
	 
	 	 	 	 	 	 
	9.
	 	TENANT IMPROVEMENTS	 	 	7	 
	 
	 	 	 	 	 	 
	10.
	 	CONDITION OF PREMISES	 	 	7	 
	 
	 	 	 	 	 	 
	11.
	 	USE OF THE PREMISES	 	 	8	 
	 
	 	 	 	 	 	 
	12.
	 	QUIET ENJOYMENT	 	 	11	 
	 
	 	 	 	 	 	 
	13.
	 	ALTERATIONS	 	 	11	 
	 
	 	 	 	 	 	 
	14.
	 	SURRENDER OF THE PREMISES	 	 	11	 
	 
	 	 	 	 	 	 
	15.
	 	PERSONAL PROPERTY TAXES	 	 	12	 
	 
	 	 	 	 	 	 
	16.
	 	UTILITIES AND SERVICES	 	 	12	 
	 
	 	 	 	 	 	 
	17.
	 	REPAIR AND MAINTENANCE	 	 	12	 
	 
	 	 	 	 	 	 
	18.
	 	LIENS	 	 	15	 
	 
	 	 	 	 	 	 
	19.
	 	LANDLORD’S RIGHT TO ENTER THE PREMISES	 	 	15	 






(i)









 






	 	 	 	 	 	 	 
	20.
	 	SIGNS	 	 	15	 
	 
	 	 	 	 	 	 
	21.
	 	INSURANCE	 	 	16	 
	 
	 	 	 	 	 	 
	22.
	 	DAMAGE OR DESTRUCTION	 	 	18	 
	 
	 	 	 	 	 	 
	23.
	 	CONDEMNATION	 	 	19	 
	 
	 	 	 	 	 	 
	24.
	 	ASSIGNMENT AND SUBLETTING	 	 	20	 
	 
	 	 	 	 	 	 
	25.
	 	DEFAULT	 	 	21	 
	 
	 	 	 	 	 	 
	26.
	 	SUBORDINATION	 	 	24	 
	 
	 	 	 	 	 	 
	27.
	 	NOTICES	 	 	25	 
	 
	 	 	 	 	 	 
	28.
	 	ATTORNEYS’ FEES	 	 	25	 
	 
	 	 	 	 	 	 
	29.
	 	ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS	 	 	25	 
	 
	 	 	 	 	 	 
	30.
	 	TRANSFER OF THE BUILDING OR PROJECT BY LANDLORD	 	 	26	 
	 
	 	 	 	 	 	 
	31.
	 	LANDLORD’S RIGHT TO PERFORM TENANT’S COVENANTS	 	 	26	 
	 
	 	 	 	 	 	 
	32.
	 	LIMITATION OF LIABILITY	 	 	26	 
	 
	 	 	 	 	 	 
	33.
	 	MORTGAGEE PROTECTION	 	 	26	 
	 
	 	 	 	 	 	 
	34.
	 	BROKERS	 	 	27	 
	 
	 	 	 	 	 	 
	35.
	 	ACCEPTANCE	 	 	27	 
	 
	 	 	 	 	 	 
	36.
	 	MODIFICATION FOR LENDER	 	 	27	 
	 
	 	 	 	 	 	 
	37.
	 	PARKING	 	 	27	 
	 
	 	 	 	 	 	 
	38.
	 	GENERAL	 	 	27	 






(ii)









 






TABLE OF EXHIBITS




	 	 	 
	EXHIBIT A
	 	The Premises
	 
	 	 
	EXHIBIT B
	 	The Project
	 
	 	 
	EXHIBIT C
	 	Tenant Improvements
	 
	 	 
	EXHIBIT D
	 	Commencement Date Memorandum
	 
	 	 
	EXHIBIT E
	 	Tenant Environmental Questionnaire
	 
	 	 
	EXHIBIT F
	 	Sign Criteria
	 
	 	 
	EXHIBIT G
	 	Electrical Upgrade Drawing







(iii)











 





LEASE




     1. PARTIES. This Lease (“Lease”), dated for reference purposes only August 8, 2008, is entered
into by and between KOLL/INTEREAL BAY AREA, a California general partnership (“Landlord”), whose
address is c/o Pacific Realty Associates, L.P., 2000 Wyatt Drive, Suite 7, Santa Clara, California
95054 and BROOKS AUTOMATION, INC., a Delaware corporation (“Tenant”), whose address is 15 Elizabeth
Drive, Chelmsford, MA 01824.



     2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
premises, consisting of approximately twelve thousand three hundred forty-two (12,342) square feet,
shown in EXHIBIT A (“Premises”), in the building commonly known as 4001 - 4051 Burton Drive
(“Building”), as further defined in Paragraph 3.B., in the City of Santa Clara (“City”), County of
Santa Clara (“County”), California, together with a right in common with other tenants of the
Project to use the Outside Area, as defined in Paragraph 3.I. The Premises are commonly known as
4051 Burton Drive, Santa Clara, California.



     3. DEFINITIONS. The following terms shall have the following meanings in this Lease:



          A. Alterations. Any alterations, additions or improvements made in, on or about the
Building or the Premises after the making of the Tenant Improvements, including, but not limited
to, lighting, heating, ventilating, air conditioning, electrical, partitioning, drapery and
carpentry installations. Alterations shall not include the Tenant Improvements.



          B. Building. The building described in Paragraph 2 consisting of approximately
twenty-eight thousand eight hundred thirty-seven (28,837) square feet.



          C. CC&Rs. Those certain covenants, conditions and restrictions recorded in Book E671,
Page 414, Official Records of Santa Clara County, on July 26, 1979, as amended.



          D. Commencement Date. Commencement Date shall have the definition given it in
Paragraph 4.A.(i).



          E. HVAC. Heating, ventilating and air conditioning.



          F. Interest Rate. Twelve percent (12%) per annum, however, in no event to exceed the
maximum rate of interest permitted by law.



          G. Landlord’s Agents. Landlord’s authorized agents, partners, subsidiaries,
directors, officers, and employees.



          H. Monthly Rent. The rent payable pursuant to Paragraph 5.A., as adjusted from time
to time pursuant to the terms of this Lease.



1









 





          I. Outside Area. All areas and facilities within the Project, exclusive of the
interior of the Building, provided and designated by Landlord for the general use and convenience
of Tenant and other tenants and occupants of the Project, including perimeter roads, sidewalks,
landscaped areas, service areas, and trash disposal facilities, subject to the reasonable rules and
regulations and changes therein from time to time promulgated by Landlord governing the use of the
Outside Area.



          J. Project. The real property shown on EXHIBIT B within which is located the
Building. Landlord reserves the right to construct additional buildings within the Project, in
which event the area of such buildings shall be added to the area of the existing buildings to
determine the total building area of the Project. Landlord further reserves the right to
incorporate into the Project any real property adjacent to the Project and on which one or more
buildings have been constructed.



          K. Real Property Taxes. Any form of assessment, license, fee, rent tax, levy, penalty
(if a result of Tenant’s delinquency), or tax (other than net income, estate, succession,
inheritance transfer or franchise taxes), imposed by any authority having the direct or indirect
power to tax, or by any city, county, state or federal government or any improvement or other
district or division thereof, whether such tax is: (i) determined by the area of the Project or any
part thereof or the rent and other sums payable hereunder by Tenant or by other tenants, including,
but not limited to, any gross income or excise tax levied by any of the foregoing authorities with
respect to receipt of such rent or other sums due under this Lease; (ii) imposed upon any legal or
equitable interest of Landlord in the Project or the Premises or any part thereof; (iii) imposed
upon this transaction or any document to which Tenant is a party creating or transferring any
interest in the Project; (iv) levied or assessed in lieu of, in substitution for, or in addition
to, existing or additional taxes against the Project whether or not now customary or within the
contemplation of the parties; (v) imposed as a special assessment for such purposes as fire
protection, street, sidewalk, road, utility construction and maintenance, refuse removal and for
other governmental services; or (vi) imposed as a result of any transfer of any interest in the
Project by Landlord, or the construction of any improvements thereon or thereto.



          L. Rent. Monthly Rent plus the Additional Rent defined in Paragraph 5.B.



          M. Security Deposit. That amount paid by Tenant pursuant to Paragraph 7.



          N. Sublet. Any transfer, sublet, assignment, license or concession agreement, or
change of ownership of this Lease or the Tenant’s interest in the Lease or in and to all or a
portion of the Premises.



          O. Subrent. Any consideration of any kind received, or to be received, by Tenant from
a subtenant if such sums are related to Tenant’s interest in this Lease or in the Premises.



          P. Subtenant. The person or entity with whom a Sublet agreement is proposed to be or
is made.



2









 





          Q. Tenant Improvements. The improvements to the Premises to be constructed by Tenant
pursuant to EXHIBIT C.



          R. Tenant Improvement Allowance. The cost allowance provided by Landlord for the
construction of the Tenant Improvements as further described in EXHIBIT C.



          S. Tenant’s Percentage. The percentage of the area of the Premises to the area of
the Building. Tenant’s Percentage is agreed to be forty-two and eighty one-hundredths percent
(42.80%) for the purpose of this Lease, until such time as additional buildings are made a part of
the Project and such percentage is adjusted.



          T. Tenant’s Personal Property. Tenant’s trade fixtures, furniture, equipment and
other personal property in the Premises.



          U. Term. The term of this Lease set forth in Paragraph 4.A., as it may be extended by
written agreement between Landlord and Tenant.



     4. LEASE TERM.



          A. Term.



               (i) Term; Commencement Date. The Term of this Lease shall commence on the
Commencement Date (hereafter defined in this Paragraph 4.A.(i)), and shall expire on the last day
of the calendar month which is sixty-two (62) months after the Commencement Date, unless sooner
terminated, subject to extension as provided in Paragraph 4.C. below. The term “Commencement Date”
shall mean the earlier of the following dates: (a) the date on which Landlord completes the
Electrical Upgrade Work (hereafter defined in Paragraph 10), or (b) October 1, 2008, provided,
however, that such October 1, 2008 date shall be subject to being extended one day for every day of
delay in the completion of the Electrical Upgrade Work beyond October 1, 2008.



               (ii) Commencement Date Memorandum. When the actual Commencement Date is determined,
the parties shall execute a Commencement Date Memorandum setting forth such date in the form shown
in EXHIBIT D.



          B. Intentionally Omitted.



          C. Option to Extend Term.



               (i) Option. Provided that Tenant is not in default under this Lease at the time of
exercise of its Extension Option (hereafter defined in this Paragraph 4.C.(i)) and at commencement
of the Extension Term (hereafter defined in this Paragraph 4.C.(i)), Tenant shall have the option
(the “Extension Option”) to extend the initial sixty-two (62) month term of this Lease (the
“Initial Term”) for one (1) period of sixty (60) consecutive months (the “Extension Term”),
commencing at the expiration of the Initial Term. If Tenant exercises the Extension Option, Tenant
shall give unconditional written notice (the “Exercise Notice”) of its exercise to Landlord not
earlier than two hundred seventy (270) days and not later than one hundred eighty



3









 







(180) days prior to the expiration of the Initial Term. Tenant’s failure to give the Exercise
Notice in a timely manner shall be deemed a waiver of Tenant’s Extension Option. The terms,
covenants and conditions applicable to the Extension Term shall be the same terms, covenants and
conditions of this Lease applicable during the Initial Term, except that: (a) Tenant shall not be
entitled to any further option(s) to extend the Term of this Lease beyond the Extension Term; and
(b) the Monthly Rent for the Premises shall be the greater of (i) the Fair Market Rental Value
(hereafter defined in Paragraph 4.C.(ii)) of the Premises, or (ii) the highest Monthly Rent payable
by the Tenant during the Initial Term.



               (ii) Definition of Fair Market Rental Value. For purposes of this Paragraph 4.C.,
“Fair Market Rental Value” of the Premises shall be the rental rate at which tenants lease
comparable space to the Premises as of the commencement of the Extension Term. For this purpose,
“comparable space” shall be space that is: (a) not subleased; (b) not subject to another tenant’s
expansion rights; (c) comparable in age, size, location, and quality to the Premises; (d) leased
for a term comparable to the Extension Term; and (e) located in a building comparable to the
Building. In determining the rental rate of comparable space, the parties shall take into
consideration periodic rent escalations and also take into consideration the following concessions:
(a) rental abatement concessions, if any, being granted to tenants in connection with the
comparable space; and (b) tenant improvements or allowances provided or to be provided for the
comparable space, taking into account the value of the existing improvements in the Premises, based
on the age, quality, and layout of the improvements. Notwithstanding anything to the contrary
herein, the Fair Market Rental Value of the Premises as determined pursuant to this Paragraph 4.C.
shall include annual escalations during the Extension Term.



               (iii) Agreement Regarding Fair Market Rental Value. Landlord and Tenant shall have
thirty (30) days after Landlord receives the Exercise Notice in which to attempt in good faith to
agree on the Fair Market Rental Value of the Premises for the Extension Term. If Landlord and
Tenant agree on the Fair Market Rental Value of the Premises for the Extension Term during such
thirty (30)-day period, they shall immediately execute an amendment to this Lease stating the
Monthly Rent for the Extension Term.



               (iv) Failure of Agreement on Fair Market Rental Value- Arbitration. If Landlord and
Tenant are unable to agree on the Monthly Rent for the Extension Term within the thirty (30)-day
period described in Paragraph 4.C.(iii) above, then within ten (10) days after the expiration of
said thirty (30)-day period, either Landlord or Tenant may refer the matter to arbitration as
provided for in this Paragraph 4.C.(iv). The determination of the arbitrator(s) shall be limited to
the sole issue of whether Landlord’s or Tenant’s submitted Fair Market Rental Value is the closest
to the actual Fair Market Rental Value as determined by the arbitrator(s). The arbitrator(s) must
be a licensed real estate broker(s) who has/have been active in the leasing of commercial
properties in the Santa Clara, California area over the five (5) year period ending on the date of
his/her/their appointment as arbitrator(s). Within thirty (30) days after the date either Landlord
or Tenant has referred to arbitration the determination of Fair Market Rental Value of the Premises
(the “Arbitration Referral Date”), Landlord and Tenant shall each (a) appoint one arbitrator and
notify the other party of the arbitrator’s name and business address, and (b) notify the other
party of their determination of Fair Market Rental Value. Each of Landlord’s and Tenant’s
determination of Fair Market Rental Value shall include annual escalations during the Extension
Term. If each party timely appoints an arbitrator, the two (2)
arbitrators shall, within



4









 







fifteen (15) days after the appointment of the second arbitrator, agree
on and appoint a third arbitrator (who shall be qualified under the same criteria set forth above
for qualification of the initial two (2) arbitrators) and provide notice to Landlord and Tenant of
the arbitrator’s name and business address. Within thirty (30) days after the appointment of the
third arbitrator, the three (3) arbitrators shall decide whether the parties will use Landlord’s or
Tenant’s submitted Fair Market Rental Value and shall notify Landlord and Tenant of their decision.
The decision of the majority of the three (3) arbitrators shall be binding on Landlord and Tenant.
If either Landlord or Tenant fails to appoint an arbitrator within thirty (30) days after the
Arbitration Referral Date, the arbitrator timely appointed by one of them shall reach a decision
and notify Landlord and Tenant of that decision within thirty (30) days after the arbitrator’s
appointment. The arbitrator’s decision shall be binding on Landlord and Tenant. If each party
appoints an arbitrator in a timely manner, but the two (2) arbitrators fail to agree on and appoint
a third arbitrator within the required period, the arbitrators shall be dismissed without delay and
the issue of Fair Market Rental Value shall be submitted to binding arbitration under the
commercial arbitration rules of the American Arbitration Association; provided, however, that in
the event of any inconsistency between such arbitration rules and the terms and conditions of this
Paragraph 4.C.(iv), the terms and conditions of this Paragraph 4.C.(iv) shall govern. If Landlord
and Tenant each fail to appoint an arbitrator in a timely manner, the matter to be decided shall be
submitted without delay to binding arbitration under the commercial arbitration rules of the
American Arbitration Association, subject to the provisions of this Paragraph 4.C.(iv). If only one
of the parties has given notice of its determination of Fair Market Rental Value within thirty (30)
days after the Arbitration Referral Date, then such determination shall be the Fair Market Rental
Value for the Premises for the Extension Term. If Landlord and Tenant both fail to give notice of
their determination of Fair Market Rental value within thirty (30) days after the Arbitration
Referral Date, the determination of Fair Market Rental Value shall be submitted without delay to
binding arbitration under the commercial arbitration rules of the American Arbitration Association,
subject to the provisions of this Paragraph 4.C.(iv). The cost of the arbitration as provided for
in this Paragraph 4.C.(iv) shall be paid by the losing party. After the Monthly Rent for the
Extension Term has been set as provided in this Paragraph 4.C.(iv), the arbitrator(s) shall
immediately notify Landlord and Tenant, and Landlord and Tenant shall immediately execute an
amendment to this Lease stating the Monthly Rent for the Extension Term.



     5. RENT.



          A. Monthly Rent. Tenant shall pay to Landlord, in lawful money of the United States,
for each calendar month of the Term, net monthly rent (“Monthly Rent”) as shown below, in advance,
on the first day of each calendar month, without abatement, deduction, claim, offset, prior notice
or demand:



	 	 	 
	Months of Term	 	Net Monthly Rent
	 
	 	 
	01 - 02
	 	$0.00
	03 - 14
	 	$17,278.80 per month/NNN
	15 - 26
	 	$17,969.95 per month/NNN
	27 - 38
	 	$18,688.75 per month/NNN
	39 - 50
	 	$19,436.30 per month/NNN
	51 - 62
	 	$20,213.75 per month/NNN






5









 






          B. Additional Rent. Additionally, Tenant shall pay, as and with the net Monthly Rent,
Tenant’s Percentage of the estimated monthly Operating Expenses, as adjusted from time to time, and
as more specifically set forth in Paragraph 17.C. Tenant shall deposit with Landlord upon execution
of this Lease the following amounts to be applied toward Rent due for the third (3rd)
month of the Term:



	 	 	 	 	 
	Monthly Rent (net)
	 	$	17,278.80	 
	 
	 	 	 	 
	Tenant’s Percentage of
Operating Expenses
	 	$	5,157.00	 
	 
	 	 	 
	 
	 	 	 	 
	TOTAL
	 	$	22,435.80	 
	 
	 	 	 




All monies (except Monthly Rent) required to be paid by Tenant under this Lease, including, without
limitation, Operating Expenses, shall be deemed Additional Rent.




          C. Prorations. If the Commencement Date is not the first (1st) day of a month, or if
the expiration date of this Lease is not the last day of a month, a prorated installment of Rent
based on a thirty (30) day month shall be paid for the fractional month during which the Lease
commences or expires.



     6. LATE PAYMENT CHARGES. Tenant acknowledges that late payment by Tenant to Landlord of Rent
and other charges provided for under this Lease will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of such costs being extremely difficult or impracticable to fix.
Therefore, if any installment of Rent or any other charge due from Tenant is not received by
Landlord within five (5) days of when due, Tenant shall pay to Landlord an additional sum equal to
five percent (5%) of the amount overdue as a late charge for every month or portion thereof that
the Rent or other charges remain unpaid. The parties agree that this late charge represents a fair
and reasonable estimate of the costs that Landlord will incur by reason of the late payment by
Tenant.



	 	 	 	 	 
	Initials:
	 	 	 	 
	 
	 	 	 	 
	/s/ Illegible

	 	/s/ Illegible
	 	 
	 

	 	 	 	 
	Landlord

	 	Tenant	 	 






     7. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution of this Lease
Twenty-Five Thousand and 00/100ths Dollars ($25,000.00) as security for the full and faithful
performance of every provision of this Lease to be performed by Tenant (the “Security Deposit”). If
Tenant defaults with respect to any provision of this Lease, Landlord may apply all or any part of
the Security Deposit for the payment of any Rent or other sum in default, the repair of such damage to the Premises or the payment of any other amount which Landlord may spend



6









 








or become obligated to spend by reason of Tenant’s default or to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of Tenant’s default to the full extent permitted
by law. If any portion of the Security Deposit is so applied, Tenant shall, within ten (10) days
after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount. If Tenant is not otherwise in default, the Security
Deposit or any balance thereof shall be returned to Tenant within thirty (30) days after the
expiration of the Term.



     8. HOLDING OVER. If Tenant remains in possession of all or any part of the Premises after the
expiration of the Term, with the express or implied consent of Landlord, such tenancy shall be
month-to-month only and shall not constitute a renewal or extension for any further term. Such
month-to-month tenancy shall be terminable by either Landlord or Tenant upon thirty (30) days’
prior written notice by one to the other. If Tenant remains in possession either with or without
Landlord’s consent, Monthly Rent shall be increased to an amount equal to one hundred fifty percent
(150%) of the Monthly Rent payable during the last month of the Term, unless otherwise agreed to by
Landlord and Tenant and any other sums due under this Lease shall be payable in the amount and at
the times specified in this Lease. Such month-to-month tenancy shall be subject to every other
term, condition, and covenant contained herein. If Tenant remains in possession without Landlord’s
consent, Tenant shall indemnify, defend and hold Landlord harmless from all claims, costs and
liabilities including attorneys’ fees and costs, arising from or in connection with Tenant
remaining in possession.



     9. TENANT IMPROVEMENTS. Tenant shall construct the Tenant Improvements pursuant to the terms
of EXHIBIT C.



     10. CONDITION OF PREMISES. Tenant shall take possession of the Premises in its “AS IS”
condition on the Effective Date (hereafter defined), subject to all applicable laws, codes and
ordinances. Landlord represents that it has not received any written notice from any governmental
authorities having jurisdiction over the Project that the Premises are not in compliance with Title
III of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., or California Title
24. Tenant acknowledges that neither Landlord nor Landlord’s Agents have made any representations
or warranties as to the suitability or fitness of the Premises for the conduct of Tenant’s
business, nor has Landlord or Landlord’s Agents agreed to undertake any alterations, additions or
improvements to the Premises. Notwithstanding the foregoing to the contrary, Landlord shall, at
its sole cost and expense, upgrade the existing electrical systems of the Premises and deliver
800amp/480 volt service via a meter that reflects only Tenant’s use of power to an electrical
distribution panel located inside the Premises, all as more fully set out in the electrical
engineering drawings prepared by RK Electric and attached as EXHIBIT G hereto (“Electrical
Upgrade Work”), which drawings are hereby approved by Tenant; (the drawings attached as EXHIBIT
G hereto being referred to as the “Electrical Upgrade Work Drawings”); provided, however, if
Landlord uses the existing electrical power supply for the Building to increase the existing
electrical power service to the Premises to the required 800 amp/480 volt electrical service, then
Landlord may make such changes or other modifications to the Electrical Upgrade Work Drawings as
Landlord determines reasonably necessary to reflect such use of the existing electrical power
supply for the Building. Electrical power pursuant to the Electrical Upgrade Work shall be
provided to the current electrical distribution panel located in what is depicted as “Electrical
Room 121” in the Premises as shown on EXHIBIT G hereto (“Electrical



7









 







Room 121”). Tenant shall be responsible for the temporary hook-up to the HDB Panel within
Electrical Room 121, and Landlord, as part of the Electrical Upgrade Work, shall be responsible for
the permanent hook-up to the HDB Panel within Electrical Room 121 upon the completion of the
Electrical Upgrade Work. Subject to Paragraph 38.N, the Electrical Upgrade Work shall be completed
by October 1, 2008. Subject to reasonable temporary interruption, Landlord will maintain the
existing electrical service to the Premises which the Electrical Upgrade Work is being performed.



     11. USE OF THE PREMISES.



          A. Tenant’s Use. Tenant shall use the Premises solely for (i) light manufacturing,
sales and storage of electronic and semiconductor equipment, and (ii) training and office uses
associated with the uses described in the foregoing clause (i), and shall not use the Premises for
any other purpose without obtaining the prior written consent of Landlord, which consent shall not
be unreasonably withheld. Tenant agrees that the Project is subject and this Lease is subordinate
to the CC&Rs. Tenant acknowledges receipt of a copy of the CC&Rs and further acknowledges that it
has read the CC&Rs and knows the contents thereof. From and after the Effective Date and
throughout the Term, Tenant shall faithfully and timely perform and comply with the CC&Rs and any
modification or amendments thereof, provided such modifications or amendments do not materially
increase Tenant’s obligations or decrease Tenant’s rights under this Lease.



          B. Compliance with Laws. Tenant shall not use the Premises or suffer or permit
anything to be done in or about the Premises or the Project which will in any way conflict with any
law, statute, zoning restriction, ordinance or governmental law, rule, regulation or requirement of
public authorities now in force or which may hereafter be in force, relating to or affecting the
condition, use or occupancy of the Premises or the Project. Tenant shall not commit any public or
private nuisance or any other act or thing which might or would disturb the quiet enjoyment of any
other tenant of the Project or any occupant of nearby property. Tenant shall place no loads upon
the floors, walls or ceilings in excess of the maximum designed load determined by Landlord or
which endanger the structure; nor place any harmful liquids in the drainage systems; nor dump or
store waste materials or refuse or allow such to remain outside the Building proper, except in the
enclosed trash areas provided. Tenant shall not store or permit to be stored or otherwise placed
any other material of any nature whatsoever outside the Building; provided, however, Tenant shall
be permitted to have and use an exterior, enclosed storage area that is constructed as part of the
Tenant Improvements and that has been approved by Landlord as part of the Tenant Improvements
pursuant to the terms of EXHIBIT C hereto.



          C. Emissions. From and after the Effective Date and throughout the Term of this Lease:



               (i) Permit any vehicle on the Project to emit exhaust which is in violation of any
governmental law, rule, regulation or requirement;



               (ii) Discharge, emit or permit to be discharged or emitted, any liquid, solid or gaseous
matter, or any combination thereof, into the atmosphere, the ground or any body of water, which
matter, as reasonably determined by Landlord or any governmental entity with



8









 







jurisdiction, does or may pollute or contaminate the same, or is or may become radioactive, or may
adversely affect (1) the health or safety of persons, whether on the Premises, the Project, or
elsewhere, (2) the condition, use or enjoyment of the Premises or the Project or any other real or
personal property located on the Project or elsewhere, or (3) the Project or any of the
improvements constructed thereon, including buildings, foundations, pipes, utility lines,
landscaping or parking areas;



               (iii) Produce, or permit to be produced, any intense glare, light or heat except within an
enclosed or screened area, and then only in such manner that the glare, light or heat shall not be
discernible from outside the Premises;



               (iv) Create, or permit to be created, any sound pressure level which will interfere with the
quiet enjoyment of any real property outside the Project, or which will create a nuisance or
violate any governmental law, rule, regulation or requirement;



               (v) Create or permit to be created any ground vibration that is discernible outside the
Premises; or



               (vi) Transmit, receive or permit to be transmitted or received, any electromagnetic, microwave
or other radiation which is harmful or hazardous to any person or property in, on or about the
Project or elsewhere.



          D. Hazardous Materials.



               (i) Tenant agrees to complete prior to Lease execution the questionnaire attached to the Lease
as EXHIBIT E (the “Hazardous Materials Questionnaire”). Tenant represents and warrants that
the information completed by Tenant in the Hazardous Materials Questionnaire is true and complete.
Tenant agrees to immediately inform Landlord in writing if any of the information contained in the
Hazardous Materials Questionnaire becomes untrue, inaccurate or incomplete.



               (ii) Tenant shall not cause or permit any Hazardous Materials, to be generated, brought onto,
used, stored, or disposed of in or about the Premises, the Building or any other portion of the
Project, by Tenant or its agents, employees, contractors, subtenants, or invitees (collectively,
“Tenant’s Agents”), except for standard office supplies and standard janitorial supplies which may
be Hazardous Materials but only to the extent that such supplies (and the quantities thereof) are
normally used in connection with general office uses. Any handling, transportation, storage,
treatment, disposal or use of Hazardous Materials by Tenant and Tenant’s Agents in or about the
Premises, shall strictly comply with all applicable Hazardous Materials Laws. Tenant shall
indemnify, defend upon demand with counsel reasonably acceptable to Landlord, and hold harmless
Landlord and Landlord’s partners, agents, employees, contractors, and invitees from and against any
and all liabilities, losses, claims, damages, lost profits, consequential damages, interest,
penalties, fines, monetary sanctions, attorneys’ fees, experts’ fees, court costs, remediation
costs, investigation costs, and other expenses which result from or arise in any manner whatsoever
out of the use, storage, treatment, transportation, release, or disposal of Hazardous Materials on
or about the Premises or the Project by Tenant or Tenant’s Agents.



9









 





               (iii) If the presence of Hazardous Materials in, on, or about the Premises or the Project
caused or permitted by Tenant or Tenant’s Agents results in contamination or deterioration of water
or soil resulting in a level of contamination greater than the levels established as acceptable by
any governmental agency having jurisdiction over such contamination, then Tenant shall promptly
take any and all action necessary to investigate and remediate such contamination if required by
Law or as a condition to the issuance or continuing effectiveness of any governmental approval
which relates to the use of the Premises or any part thereof. Tenant shall further be solely
responsible for, and shall defend, indemnify, and hold Landlord and Landlord’s agents, partners,
subsidiaries, directors, officers, employees, contractors, and invitees harmless from and against,
all claims, costs and liabilities, including attorney’s fees and costs, arising out of or in
connection with any investigation and remediation required hereunder to return the Premises to its
condition existing prior to the appearance of such Hazardous Materials.



               (iv) Landlord and Tenant shall each give written notice to the other as soon as reasonably
practicable of (i) any Hazardous Materials which relates to the Premises, and (ii) any
contamination of the Premises or the Project by Hazardous Materials which constitutes a violation
of any Hazardous Materials Law. Tenant and Tenant’s Agents shall not bring Hazardous Materials of
types or quantities differing from those set forth in the Hazardous Materials Questionnaire without
first obtaining the written permission of the Landlord. At any time during the Lease term, Tenant
shall, within five (5) days after written request therefor received from Landlord, disclose in
writing all Hazardous Materials that are being used by Tenant or Tenant’s Agents on the Premises,
the nature of such use, and the manner of storage and disposal.



               (v) Landlord may cause testing wells to be installed on or about the Outside Area of the
Project, and may cause the ground water to be tested to detect the presence of Hazardous Materials
by the use of such tests as are then customarily used for such purposes, provided that Landlord
shall use diligent efforts to minimize any inconvenience or disruption to Tenant’s business in
connection with such installation. If Tenant so requests, Landlord shall supply Tenant with copies
of such test results. The cost of such tests and of the installation, maintenance, repair and
replacement of such wells shall be paid by Tenant if such tests disclose the existence of facts
which give rise to liability of Tenant pursuant to its indemnity given in Paragraph 11.D(ii) or
(iii).



               (vi) As used herein, the term “Hazardous Material,” means any hazardous or toxic substance,
material or waste which is or becomes regulated by any local governmental authority, the State of
California or the United States Government. The term “Hazardous Material,” includes, without
limitation, petroleum products, asbestos, PCB’s, and any material or substance which is (i) defined
as hazardous or extremely hazardous pursuant to Section 66160 of Title 26 of the California Code of
Regulations, Division 22, (ii) defined as a “hazardous waste” pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C., Section 6901 et seq. (42 U.S.C. Section
6903), or (iii) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C., Section 9601 et seq. (42 U.S.C.
6901). As used herein the term “Hazardous Material Law” shall mean any statute, law, ordinance, or
regulation of any governmental body or agency (including the U.S. Environmental Protection Agency,
the



10









 







California Regional Water Quality Control Board, and the California Department of Health Services)
which regulates the use, storage, release or disposal of any Hazardous Material.



               (vii) The obligations of Landlord and Tenant under this Paragraph 11.D shall survive the
expiration or earlier termination of the Lease term. The rights and obligations of Landlord and
Tenant with respect to issues relating to Hazardous Materials are exclusively established by this
Paragraph 11.D. In the event of any inconsistency between any other part of the Lease and this
Paragraph 11.D, the terms of this Paragraph 11.D shall control.



     12. QUIET ENJOYMENT. Landlord covenants that Tenant, upon performing the terms, conditions and
covenants of this Lease, shall have quiet and peaceful possession of the Premises as against any
person claiming the same by, through or under Landlord.



     13. ALTERATIONS. Tenant shall not make or permit any Alterations in, on or about the Premises,
except for nonstructural Alterations not exceeding Five Thousand Dollars ($5,000.00) in cost per
calendar year, without the prior written consent of Landlord, and according to plans and
specifications approved in writing by Landlord, which consent shall not be unreasonably withheld.
With regard to Alterations not requiring Landlord’s consent, Tenant shall provide Landlord copies
of all plans and specifications therefor prior to the construction thereof. Notwithstanding the
foregoing Tenant shall not, without the prior written consent of Landlord, make any: (i)
Alterations to the structure or exterior of the Building; (ii) Alterations to and penetrations of
the roof of the Building; and (iii) Alterations visible from outside the Premises, to which
Landlord may withhold Landlord’s consent on wholly aesthetic grounds. All Alterations shall be
installed at Tenant’s sole expense, in compliance with all applicable laws and the CC&Rs, by a
licensed contractor, shall be done in a good and workmanlike manner conforming in quality and
design with the Premises existing as of the Commencement Date, and shall not diminish the value of
either the Building or the Premises. All Alterations made by Tenant shall be and become the
property of Landlord upon installation and shall not be deemed Tenant’s Personal Property.
Notwithstanding any other provision of this Lease, Tenant shall be solely responsible for the
maintenance and repair of any and all Alterations made by it to the Premises. Tenant shall give
Landlord written notice of Tenant’s intention to perform work on the Premises, whether or not
Landlord’s consent is required, at least twenty (20) days prior to the commencement of such work to
enable Landlord to post and record a Notice of Nonresponsibility or other notice deemed proper
before the commencement of any such work. Landlord, at Landlord’s option exercisable at the time of
giving its consent to any Alterations if such consent is required, or exercisable at any time prior
to the expiration or earlier termination of the Term if no consent by Landlord is required, may
require Tenant to remove some or all of any Alterations made by Tenant. If Landlord requires
removal of some or all of the Alterations made by Tenant, then Tenant, at Tenant’s sole cost and
expense and prior to the expiration or earlier termination of the Term, shall so remove such
Alterations.



     14. SURRENDER OF THE PREMISES. Upon the expiration or earlier termination of the Term, Tenant
shall surrender the Premises to Landlord in its condition existing as of the completion of the
Tenant Improvements, normal wear and tear and fire or other casualty excepted and Alterations which
Landlord has not required be removed from the Premises upon the expiration or earlier termination
of the Term pursuant to Paragraph 13 also excepted, with all interior walls repaired and repainted
if marked or damaged, all carpets shampooed and cleaned,



11









 







all broken, marred or nonconforming acoustical ceiling tiles replaced, all windows washed, the
plumbing and electrical systems and lighting in good order and repair, including replacement of any
burned out or broken light bulb or ballasts, and all floors cleaned and waxed, all to the
reasonable satisfaction of Landlord. Also prior to the expiration or earlier termination of the
Term, Tenant shall, at its sole cost and expense, remove all Tenant’s Personal Property from the
Premises. Tenant at its sole cost and expense shall repair any damage and perform any restoration
work to the Premises caused by Tenant’s removal of Alterations required to be removed by Tenant and
Tenant’s removal of Tenant’s Personal Property. If Tenant fails to remove the Alterations required
to be removed by Tenant and/or fails to remove Tenant’s Personal Property, and such failure
continues after the expiration or earlier termination of the Term, Landlord may retain such
property and all rights of Tenant with respect to it shall cease, or, with respect to Tenant’s
Personal Property, Landlord may place all or any portion of Tenant’s Personal Property in public
storage for Tenant’s account. Tenant shall be liable to Landlord for costs of removal of any
Alterations required to be removed by Tenant which are not removed by Tenant and removal of any of
Tenant’s Personal Property which are not removed by Tenant, the storage and transportation costs of
same, and the cost of repairing and restoring the Premises, together with interest at the Interest
Rate from the date of expenditure by Landlord. If the Premises are not so surrendered at the
expiration or earlier termination of the Term, Tenant shall indemnify, defend and hold Landlord and
Landlord’s Agents harmless against all claims, costs and liabilities, including attorneys’ fees and
costs, resulting from Tenant’s delay in so surrendering the Premises.



     15. PERSONAL PROPERTY TAXES. Tenant shall pay prior to delinquency all taxes assessed or
levied against Tenant’s Personal Property in, on or about the Premises or elsewhere. When possible,
Tenant shall cause its Personal Property to be assessed and billed separately from the real or
personal property of Landlord.



     16. UTILITIES AND SERVICES. Tenant shall be responsible for and shall pay promptly all charges
for water, gas, electricity, telephone, refuse pickup, janitorial service and all other utilities,
materials and services furnished directly to or used by Tenant in, on or about the Premises from
and after the Effective Date and throughout the Term, together with any taxes thereon. If such
utilities are not separately metered to the Premises, Landlord shall bill Tenant for Tenant’s pro
rata share based on Tenant’s Percentage or other equitable basis as determined by Landlord.
Landlord shall not be liable in damages or otherwise for any failure or interruption of any utility
service or other service furnished to the Premises, except that resulting from the willful
misconduct of Landlord.



     17. REPAIR AND MAINTENANCE.



          A. Landlord’s Obligations. Landlord shall maintain in good order, condition and repair
the foundation and subflooring of the Building, the roof of the Building (including the roof
membrane), exterior walls, interior bearing or structural walls of the Building (excluding,
however, interior wall surfaces), the fire-sprinkler system for the Building, and the HVAC system
for the Building, except for any damage thereto caused by the negligence or willful acts or
omissions of Tenant or of Tenant’s agents, employees or invitees, or by reason of the failure of
Tenant to perform or comply with any terms of this Lease, or caused by Alterations made by Tenant
or by Tenant’s agents, employees or contractors. Landlord also shall maintain the Outside



12









 







Area in good order, condition and repair. Landlord shall at all times have exclusive control of the
Outside Area, including the right to grant easements or other rights of access to third parties,
and may at any time temporarily close any part thereof, exclude and restrain anyone from any part
thereof, except the bona fide customers, employees and invitees of Tenant who use the Outside Area
in accordance with the rules and regulations as Landlord may from time to time promulgate, and may
change the configuration of the Outside Area. In exercising any such rights, Landlord shall make a
reasonable effort to minimize any disruption of Tenant’s business. It is an express condition
precedent to all obligations of Landlord to repair that Tenant shall have notified Landlord of the
need for such repairs. Tenant waives the provisions of Sections 1941 and 1942 of the California
Civil Code and any similar or successor law regarding Tenant’s right to make repairs and deduct the
expenses of such repairs from the Rent due under this Lease.



          B. Tenant’s Obligations. Tenant shall at all times and at its own expense clean, keep
and maintain in good order, condition and repair every part of the Premises which is not within
Landlord’s obligation pursuant to Paragraph 17.A. Tenant’s repair and maintenance obligations shall
include all plumbing and sewage facilities within the Premises, fixtures, interior walls and
ceiling, floors, windows, doors, entrances, plateglass, showcases, skylights, all electrical
facilities and equipment, including lighting fixtures, lamps, fans and any exhaust equipment and
systems, any automatic fire extinguisher equipment within the Premises, electrical motors and all
other appliances and equipment of every kind and nature located in, upon or about the Premises.
Tenant shall also be responsible for all pest control within the Premises.



          C. Reimbursement by Tenant.



               (i) Tenant to Pay Operating Expenses. Tenant shall pay Landlord monthly, as Additional
Rent, Tenant’s Percentage of Operating Expenses; provided, however, and notwithstanding any
provision of this Lease to the contrary, Tenant shall pay Landlord, in accordance with this
Paragraph 17.C., the entire amount (and not just Tenant’s Percentage) of any Operating Expenses
incurred by Landlord which relate solely to the Premises or which are incurred solely for or on
behalf of Tenant.



               (ii) Operating Expenses. As used herein, the term “Operating Expenses” shall mean all
costs and expenses of any kind or nature whatsoever incurred by Landlord in connection with the
ownership, operation, management, maintenance, and repair of the Outside Area and the Building, or
any portions thereof, including, without limitation the following: the cost of annual roof
inspections; all charges, costs, expenses, wages, services, benefits, insurance and payroll taxes
or fees for all parties (including employees, contractors, or affiliates of Landlord) providing
services in connection with the operation, maintenance, repair, supervision and/or security of the
Building and or the Outside Area (provided that Landlord, in its sole and absolute discretion, may,
but shall not be obligated to, provide any security services for the Building or the Outside Area),
including taxes, insurance and benefits relating thereto; the rental cost and overhead of any
office and storage space used to provide such services; cost of all supplies, materials and labor
used in the operation, repair, replacement and maintenance of the Building and the Outside Area;
all cost of repairs and general maintenance of the Building and the Outside Area (excluding repairs
and general maintenance paid for by proceeds of insurance or by Tenant or other third parties); all
cost of repairs and general maintenance of the HVAC system for the Building, including, without limitation, the cost of preventative maintenance



13









 








contracts and other periodic inspections; all cost of resurfacing and restriping of the parking
area of the Project; all cost of painting, sweeping, maintenance and repair of sidewalks,
fountains, curbs and signs, landscape sprinkler systems, planting and landscaping; all cost of
lighting and other utilities; all cost of installing, maintaining, or repairing directional signs
and other markers and bumpers; all cost of maintenance and repair of any fire protection systems,
lighting systems, storm drainage systems, and any other utility system; all cost of garbage, trash,
rubbish and waste removal; all costs with respect to repairs and maintenance of utility facilities
(including pipes and conduits) serving more than one tenant; depreciation on maintenance and
operating machinery and equipment (if owned) and rental paid for such machinery and equipment (if
rented); premiums for commercial liability insurance covering the Project; premiums for all risk or
causes of loss-special form insurance and, at Landlord’s option, earthquake insurance on the
Building; premiums for insurance against loss of rents for a period of twelve (12) months from the
date of the loss; Real Property Taxes; the management fee for the manager of the Building; and all
cost of any capital improvements made to the Building or the Outside Area to reduce operating
costs, to comply with governmental rules and regulations enacted after completion of the Building,
to replace the roof (including the roof membrane) of the Building, to replace the HVAC system for
the Building or any portion thereof, or to resurface the parking areas of the Project. The cost of
any capital improvements, together with interest thereon, shall be amortized over the useful life
of the improvement and only the annual amortized cost of such item shall be included in Operating
Expenses annually.



               (iii) Exclusions from Operating Expenses. Notwithstanding anything to the contrary
contained in this Lease, Operating Expenses shall not include the following: (a) costs expended in
the original construction of the Building and the Project; (b) costs of alterations or improvements
made to the Premises or the premises of other tenants of the Project; (c) depreciation, interest
and principal payments on mortgages, ground rents, and other debt costs, if any; (d) expenses
resulting from the sole negligence of Landlord or its Agents; (e) legal fees, leasing commissions,
advertising expenses and other expenses incurred in connection with the leasing of the Project; (f)
costs for which Landlord is reimbursed by insurance; (g) services provided to other tenants in the
Building or the Project which are not provided to Tenant; (h) fines, penalties, and interest; (i)
costs incurred by Landlord to correct defects in the construction of the Building or the Project;
and (j) costs to repair or maintain the structural parts of the Building, which are agreed for
purposes of this Lease to be the foundation, the subflooring, the roof structure (but not the roof
membrane), the exterior walls, and the interior bearing walls (but not the interior wall surfaces).



               (iv) Monthly Payments. From and after the Commencement Date, Tenant shall pay to
Landlord on the first day of each calendar month of the Term Tenant’s Percentage of the estimated
monthly Operating Expenses incurred by Landlord. The foregoing estimated monthly charges may be
adjusted by Landlord at the end of any calendar quarter on the basis of Landlord’s experience and
reasonably anticipated costs. Any such adjustment shall be effective as of the calendar month next
succeeding receipt by Tenant of written notice of such adjustment. Within one hundred twenty (120)
days following the end of each calendar year Landlord shall furnish Tenant a statement of such
actual expenses (“Actual Expenses”) for the calendar year and the payments made by Tenant with
respect to such period. If Tenant’s payments for the Operating Expenses do not equal the amount of
the Actual Expenses, Tenant shall pay Landlord the deficiency within thirty (30) days after receipt of such statement. If
Tenant’s



14









 







payments exceed the Actual Expenses, Landlord shall offset the excess against the
Operating Expenses thereafter becoming due to Landlord. There shall be appropriate adjustments of
the Operating Expenses as of the Commencement Date and expiration of the Term.



          D. Compliance with Governmental Regulations. Tenant shall, at its cost, comply with,
including the making by Tenant of any Alteration to the Premises, all present and future
regulations, rules, laws, ordinances, and requirements of all governmental authorities (including,
without limitation, state, municipal, County and federal governments and their departments,
bureaus, boards and officials) arising from Tenant’s use or occupancy of the Premises.



     18. LIENS. Tenant shall keep the Building and the Project free from any liens arising out of
any work performed, materials furnished or obligations incurred by or on behalf of Tenant and shall
indemnify, defend and hold Landlord and Landlord’s Agents harmless from all claims, costs and
liabilities, including attorneys’ fees and costs, in connection with or arising out of any such
lien or claim of lien. Tenant shall cause any such lien imposed to be released of record by payment
or posting of a proper bond acceptable to Landlord within ten (10) days after written request by
Landlord. Tenant shall give Landlord written notice of Tenant’s intention to perform work on the
Premises which might result in any claim of lien at least ten (10) days prior to the commencement
of such work to enable Landlord to post and record a Notice of Nonresponsibility. If Tenant fails
to so remove any such lien within the prescribed ten (10) day period, then Landlord may do so at
Tenant’s expense and Tenant shall reimburse Landlord for such amounts upon demand. Such
reimbursement shall include all costs incurred by Landlord including Landlord’s reasonable
attorneys’ fees with interest thereon at the Interest Rate.



     19. LANDLORD’S RIGHT TO ENTER THE PREMISES. Tenant shall permit Landlord and Landlord’s
Agents to enter the Premises at all reasonable times with reasonable notice, except for emergencies
in which case no notice shall be required, to inspect the same, to post Notices of
Nonresponsibility and similar notices, to show the Premises to interested parties such as
prospective lenders, to make necessary repairs, to discharge Tenant’s obligations hereunder when
Tenant has failed to do so within a reasonable time after written notice from Landlord, and at any
reasonable time within one hundred and eighty (180) days prior to the expiration or earlier
termination of the Term, to place upon the Building and the Outside Area ordinary “For Lease” signs
and to show the Premises to prospective tenants. The above rights are subject to reasonable
security regulations of Tenant, and to the requirement that Landlord shall at all times act in a
manner to cause the least possible physical interference with Tenant’s business.



     20. SIGNS. The location, size, design, color and other physical aspects of Tenant’s
identification signage shall comply with the sign criteria for the Project attached as EXHIBIT
F and shall be subject to the Landlord’s written approval prior to installation (which shall
not be unreasonably withheld), the CC&Rs, and any appropriate municipal or other governmental
approvals. The cost of Tenant’s signs, their installation, maintenance and removal expense shall
be Tenant’s sole expense. If Tenant fails to maintain its signs, or, if Tenant fails to remove its
signs upon termination of this Lease, Landlord may do so at Tenant’s expense and Tenant’s
reimbursement to Landlord for such amounts shall be deemed Additional Rent.




15












 





     21. INSURANCE.



          A. Indemnification. Tenant hereby agrees to defend, indemnify and hold harmless
Landlord and Landlord’s Agents from and against any and all claims, damage, loss, liability or
expense including attorneys’ fees and legal costs suffered directly or by reason of any claim, suit
or judgment brought by or in favor of any person or persons for damage, loss or expense due to, but
not limited to, bodily injury and property damage sustained by such person or persons which arises
out of, is occasioned by or in any way attributable to the use or occupancy of the Premises or the
Project or any part thereof and adjacent areas by Tenant, the acts or omissions of the Tenant, its
agents, employees or any contractors brought onto the Premises or the Project by Tenant, except to
the extent caused by the negligence or willful misconduct of Landlord or Landlord’s Agents. Tenant
agrees that the obligations assumed herein shall survive the termination or expiration of this
Lease. The foregoing indemnity shall not apply, however, to any claims, damage, loss, liability or
expense arising out of or in connection with the presence of any Hazardous Materials in, on or
about the Project, which indemnity shall be governed solely by the provisions of Paragraph 11.D.



          B. Tenant’s Insurance. Commencing on the Effective Date and continuing throughout the
Term, Tenant agrees to maintain in full force and effect, at its own expense, for the protection of
Tenant and Landlord, as their interests may appear, policies of insurance issued by a responsible
carrier or carriers acceptable to Landlord which afford the following coverages:



               (i) Commercial general liability insurance in an amount not less than Five Million and
no/l00ths Dollars ($5,000,000.00) combined single limit for both bodily injury and property damage
which includes blanket contractual liability broad form property damage, personal injury, completed
operations and products liability, naming Landlord and Landlord’s Agents as additional insureds.



               (ii) “Special Causes of Loss” form property insurance on the Tenant Improvements and any
Alterations made by Tenant. Such insurance shall be in the full amount of the replacement cost
thereof, as the same may from time to time increase as a result of inflation or otherwise, and
shall be in a form providing coverage comparable to the coverage provide in the standard ISO
“Special Causes of Loss” form. As long as this Lease is in effect, the proceeds from policies of
such insurance shall be used for the repair and replacement of Tenant Improvements and any
Alterations made by Tenant



               (iii) “Special Causes of Loss” form property insurance (including, without limitation,
vandalism, malicious mischief, inflation endorsement, and sprinkler leakage endorsement) on
Tenant’s Personal Property located on or in the Premises. Such insurance shall be in the full
amount of the replacement cost, as the same may from time to time increase as a result of inflation
or otherwise, and shall be in a form providing coverage comparable to the coverage provided in the
standard ISO “Special Causes of Loss” form. As long as this Lease is in effect, the proceeds of
such policy shall be used for the repair and replacement of such items so insured. Landlord shall
have no interest in the insurance proceeds on Tenant’s Personal Property.



          C. Premises Insurance. During the Term Landlord shall maintain “Special Causes of
Loss” form property insurance (including inflation endorsement, sprinkler leakage



16









 







endorsement and, at Landlord’s option, boiler and machinery insurance, earthquake and flood
coverage) on the Building, excluding coverage of all the Tenant Improvements, all Alterations made
by Tenant, and Tenant’s Personal Property located on or in the Premises. Such insurance shall also
include insurance against loss of rents on a “Special Causes of Loss” form basis, including, at
Landlord’s option, earthquake and flood, in an amount equal to the Monthly Rent and Additional
Rent, and any other sums payable under the Lease, for a period of at least twelve (12) months
commencing on the date of loss. Such insurance shall name Landlord and its Agents as named insureds
and include a lender’s loss payable endorsement in favor of Landlord’s lender (Form 438 BFU
Endorsement). If the Project insurance premiums are increased after the Commencement Date, due to
an increase in the value of the Building or its replacement cost, Tenant shall pay Tenant’s
Percentage of such increase within ten (10) days of notice of such increase. If such insurance
premiums are increased due to Tenant’s use of the Premises, improvements installed by Tenant, or
any other cause solely attributable to Tenant, Tenant shall pay the full amount of the increase.



          D. Waiver of Subrogation. Landlord and Tenant each hereby waive all rights of
recovery against the other on account of loss or damage occasioned to such waiving party for its
property or the property of others under its control to the extent that such loss or damage is
insured against under any insurance policies which may be in force at the time of such loss or
damage. Tenant and Landlord shall, upon obtaining policies of insurance required hereunder, give
notice to the insurance carrier that the foregoing mutual waiver of subrogation is contained in
this Lease and Tenant and Landlord shall cause each insurance policy obtained by such party to
provide that the insurance company waives all right of recovery by way of subrogation against
either Landlord or Tenant in connection with any damage covered by such policy.



          E. Increased Coverage. Upon demand, Tenant shall provide Landlord, at Tenant’s
expense, with such increased amount of existing insurance, and such other insurance as Landlord or
Landlord’s lender may reasonably require to afford Landlord and Landlord’s lender adequate
protection.



          F. Co-lnsurer. If, on account of the failure of Tenant to comply with the foregoing
provisions, Landlord is adjudged a co-insurer by its insurance carrier, then, any loss or damage
Landlord shall sustain by reason thereof, including attorneys’ fees and costs, shall be borne by
Tenant and shall be immediately paid by Tenant upon receipt of a bill therefor and evidence of such
loss.



          G. Insurance Requirements. All insurance required to be maintained by Tenant under
this Lease shall be in a form satisfactory to Landlord and shall be carried with companies that
have a general policy holder’s rating of not less than “A” and a financial rating of not less than
Class “X” in the most current edition of Best’s Insurance Reports; shall provide that such
policies shall not be subject to material alteration or cancellation except after at least thirty
(30) days’ prior written notice to Landlord; and shall be primary as to Landlord. The policy or
policies, or duly executed certificates for them, together with satisfactory evidence of payment of
the premium thereon shall be deposited with Landlord prior to the Commencement Date, and upon
renewal of such policies, not less than thirty (30) days prior to the expiration of the term of
such coverage. If Tenant fails to procure and maintain the insurance required hereunder,



17









 







Landlord may, but shall not be required to, order such insurance at Tenant’s expense and Tenant shall
reimburse Landlord. Such reimbursement shall include all costs incurred by Landlord including
Landlord’s reasonable attorneys’ fees, with interest thereon at the Interest Rate.



          H. Landlord’s Disclaimer. Landlord and Landlord’s Agents shall not be liable for any
loss or damage to persons or property resulting from fire, explosion, falling plaster, glass, tile
or sheetrock, steam, gas, electricity, water or rain which may leak from any part of the Building
or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface, or
any other cause whatsoever, unless caused by or due to the sole negligence or willful acts of
Landlord. Tenant shall give prompt written notice to Landlord in case of a casualty, accident or
repair needed in the Premises.



     22. DAMAGE OR DESTRUCTION.



          A. Landlord’s Obligation to Rebuild. If the Premises or the Building is damaged or
destroyed, Landlord shall promptly and diligently repair the same unless either Landlord or Tenant
has the right to terminate this Lease as provided herein and either party has elected to so
terminate .



          B. Right to Terminate. Landlord shall have the right to terminate this Lease in the
event any of the following events occurs:



               (i) Insurance proceeds are not available to pay one hundred percent (100%) of the cost of such
repair, excluding the deductible for the insurance policy under which the insurance proceeds are
payable and for which deductible Tenant shall be responsible to reimburse Landlord as part of the
Operating Expenses;



               (ii) The Premises cannot, with reasonable diligence, be fully repaired by Landlord within one
hundred twenty (120) days after the date of the damage or destruction; or



               (iii) The Premises cannot be safely repaired because of the presence of hazardous factors,
including, but not limited to, earthquake faults, radiation, chemical waste and other similar
dangers.



          If Landlord elects to terminate this Lease, Landlord shall give Tenant written notice of its
election to terminate within thirty (30) days after such damage or destruction, and this Lease
shall terminate fifteen (15) days after the date Tenant receives such notice. If Landlord elects
not to terminate the Lease, subject to Tenant’s termination right set forth below, Landlord shall
promptly commence the process of obtaining necessary permits and approvals and repair of the
Premises or the Building as soon as practicable, and this Lease will continue in full force and
effect. All insurance proceeds from insurance under Paragraph 21, excluding proceeds for under
Tenant’s liability insurance and for Tenant’s Personal Property and under Paragraph 21.C., shall be
disbursed and paid to Landlord. Tenant shall be required to pay to Landlord the amount of any
deductibles payable in connection with any insured casualties, unless the casualty was caused by
the sole negligence or willful misconduct of Landlord.



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          Tenant shall have the right to terminate this Lease, if the Premises cannot, with reasonable
diligence and subject to Tenant delays, be fully repaired within one hundred eighty (180) days from
the date of damage or destruction. The determination of the estimated repair period shall be made
by Landlord in its good faith business judgment within thirty (30) days after such damage or
destruction. Landlord shall deliver written notice of the repair period to Tenant after such
determination has been made and Tenant shall exercise its right to terminate this Lease, if at all,
within ten (10) days of receipt of such notice from Landlord. If this Lease is terminated by either
party as permitted herein, Landlord shall refund to Tenant any prepaid Rent allocable to the period
following the date of the casualty.



          Notwithstanding anything to the contrary herein, in the event of any termination of this Lease
as provided for in this Paragraph 22, all insurance proceeds payable under policies maintained by
Tenant under Paragraph 21.B.(ii) shall be disbursed and paid to Landlord.



          C. Limited Obligation to Repair. Landlord’s obligation, should it elect or be
obligated to repair or rebuild, shall be limited to the Premises or the Building, as the case may
be, as any or all of the same existed immediately prior to the casualty, excluding, however, the
Tenant Improvements and any Alterations made by Tenant.



          D. Abatement of Rent. Rent shall be temporarily abated proportionately during any
period when, by reason of such damage or destruction, Landlord and Tenant reasonably determine that
there is substantial interference with Tenant’s use of the Premises, having regard to the extent to
which Tenant may be required to discontinue Tenant’s use of the Premises. Such abatement shall
commence upon such damage or destruction and end upon substantial completion by Landlord of the
repair or reconstruction which Landlord is obligated or undertakes to do. Tenant shall not be
entitled to any other compensation or damages from Landlord for loss of the use of the Premises,
damage to Tenant’s Personal Property or any inconvenience occasioned by such damage, repair or
restoration. Tenant hereby waives the provisions of Section 1932, Subdivision 2, and Section 1933,
Subdivision 4, of the California Civil Code and the provisions of any similar law hereinafter
enacted.



          E. Damage Near End of Term. Anything herein to the contrary notwithstanding, if the
Premises or the Building is destroyed or damaged during the last twelve (12) months of the Term,
then Landlord or Tenant may, at its option, cancel and terminate this Lease as of the date of the
occurrence of such damage. If neither Landlord nor Tenant elects to so terminate this Lease, the
repair of such damage shall be governed by Paragraphs 22.A. and 22.B.



     23. CONDEMNATION. If title to all of the Premises or Building or so much thereof is taken for
any public or quasi-public use under any statute or by right of eminent domain so that
reconstruction of the Premises or Building will not, in Landlord’s and Tenant’s mutual opinion,
result in the Premises being reasonably suitable for Tenant’s continued occupancy for the uses and
purposes permitted by this Lease, this Lease shall terminate as of the date that possession of the
Premises or Building or part thereof be taken, and Landlord shall refund to Tenant any prepaid Rent
allocable to the period following the date of the taking. A sale by Landlord to any authority
having the power of eminent domain, either under threat of condemnation or while condemnation
proceedings are pending, shall be deemed a taking under the power of eminent domain for all
purposes of this paragraph.



19









 





          If any part of the Premises or Building is taken and the remaining part is reasonably suitable
for Tenant’s continued occupancy for the purposes and uses permitted by this Lease, this Lease
shall, as to the part so taken, terminate as of the date that possession of such part of the
Premises or Building is taken. The Rent and other sums payable hereunder shall be reduced in the
same proportion that Tenant’s use and occupancy of the Premises is reduced. If any portion of the
Outside Area is taken, Tenant’s Rent shall be reduced only if such taking materially interferes
with Tenant’s use of the Outside Area and then only to the extent that the fair market rental value
of the Premises is diminished by such partial taking. If the parties disagree as to the amount of
Rent reduction, the matter shall be resolved by arbitration and such arbitration shall comply with
and be governed by the California Arbitration Act, Sections 1280 through 1294.2 of the California
Code of Civil Procedure. Each party hereby waives the provisions of Section 1265.130 of the
California Code of Civil Procedure allowing either party to petition the Superior Court to
terminate this Lease in the event of a partial taking of the Project or Premises.



          No award for any partial or entire taking shall be apportioned. Tenant assigns to Landlord its
interest in any award which may be made in such taking or condemnation, together with any and all
rights of Tenant arising in or to the same or any part thereof. Nothing contained herein shall be
deemed to give Landlord any interest in or require Tenant to assign to Landlord any separate award
made to Tenant for the taking of Tenant’s Personal Property, for the interruption of Tenant’s
business, or its moving costs.



     24. ASSIGNMENT AND SUBLETTING.



          A. Landlord’s Consent. Tenant shall not enter into a Sublet without Landlord’s prior
written consent, which consent shall not be unreasonably withheld. Any attempted or purported
Sublet without Landlord’s prior written consent shall be void and confer no rights upon any third
person and, at Landlord’s election, shall terminate this Lease. Each Subtenant shall agree in
writing, for the benefit of Landlord, to assume, to be bound by, and to perform the terms,
conditions and covenants of this Lease to be performed by Tenant. Notwithstanding anything
contained herein, Tenant shall not be released from personal liability for the performance of each
term, condition and covenant of this Lease by reason of Landlord’s consent to a Sublet unless
Landlord specifically grants such release in writing.



          B. Information to be Furnished. If Tenant desires at any time to Sublet the Premises
or any portion thereof, it shall first notify Landlord of its desire to do so and shall submit in
writing to Landlord: (i) the name and identity of the proposed Subtenant; (ii) the nature of the
proposed Subtenant’s business to be carried on in the Premises; (iii) the terms and provisions of
the proposed Sublet and a copy of the proposed Sublet form containing a description of the subject
premises; and (iv) such financial information, including financial statements, as Landlord may
reasonably request concerning the proposed Subtenant.



          C. Landlord’s Alternatives. Within thirty (30) days after Landlord’s receipt of the
information specified in Paragraph 24.B., Landlord shall, by written notice to Tenant, elect: (i)
if the proposed Sublet is a sublease, then to terminate this Lease as of the commencement date
stated in the proposed sublease with respect to all or any portion of the



20









 







Premises Tenant proposes
to sublease, or if the proposed Sublet is an assignment of Tenant’s interest in the Lease, then to
terminate this Lease as of the commencement date stated in the proposed assignment; (ii) to consent
to the Sublet by Tenant; or (iii) to refuse its consent to the Sublet. If Landlord proceeds under
Paragraph 24.C.(ii) and consents to the Sublet, Tenant may thereafter enter into a valid Sublet of
the Premises or portion thereof, upon the terms and conditions and with the proposed Subtenant set
forth in the information furnished by Tenant to Landlord pursuant to Paragraph 24.B., subject,
however, at Landlord’s election, to the condition that fifty percent (50%) of any excess of the
Subrent over the Rent required to be paid by Tenant under this Lease, less reasonable attorneys’
fees and leasing commissions paid by Tenant on the Sublease, shall be paid to Landlord.



          D. Proration. For the purposes of determining the excess Subrent payable to Landlord
pursuant to Paragraph 24.C, if a portion of the Premises is Sublet, the pro rata share of the Rent
attributable to such partial area of the Premises shall be determined by Landlord by dividing the
Rent payable by Tenant hereunder by the total square footage of the Premises and multiplying the
resulting quotient (the per square foot rent) by the number of square feet of the Premises which
are Sublet.



          E. Exempt Sublets. Notwithstanding the above, Landlord’s prior written consent shall
not be required for an assignment of this Lease to an Affiliate (hereafter defined in this
Paragraph 24.E.) of Tenant or a corporation into which Tenant merges or consolidates, if Tenant
gives Landlord prior written notice of the name of any such assignee, if the assignee assumes, in
writing, for the benefit of Landlord all of Tenant’s obligations under the Lease, and if the
assignee has a tangible net worth, as evidenced by financial statements delivered to Landlord and
certified by an independent certified public accountant or Tenant’s chief financial officer, equal
to or more than Tenant’s tangible net worth immediately before such assignment. An assignment or
other transfer of this Lease to a purchaser of all or substantially all of the assets of Tenant
shall be deemed a Sublet requiring Landlord’s prior written consent. The term “Affiliate” as used
herein shall mean any partnership, limited liability company, or corporation which directly or
indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with another partnership, limited liability company, or corporation. The term “control,”
as used in the immediately preceding sentence shall mean with respect to a corporation the right to
exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable
to the controlled corporation, and, with respect to any partnership or limited liability company,
the possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of the controlled partnership or limited liability company, as applicable.



          F. Encumbrances. Tenant shall not encumber, hypothecate or transfer as security
(whether by conditional assignment or sublease, or otherwise) this Lease, or any of Tenant’s
rights, duties or obligations hereunder.



     25. DEFAULT.



          A. Tenant’s Default. A default under this Lease by Tenant shall exist if any of the
following occurs:



21









 





               (i) If Tenant fails to pay Rent or any other sum required to be paid hereunder within five (5)
days after the date written notice is given to Tenant of such failure;
provided, however, no notice shall be required to be given to Tenant of any such failures occurring
during the twelve (12) month period following the first such failure; or



               (ii) If Tenant fails to perform any term, covenant or condition of this Lease except those
requiring the payment of money, and Tenant fails to cure such breach within fifteen (15) days after
written notice from Landlord where such breach could reasonably be cured within such fifteen (15)
day period; provided, however, that where such failure could not reasonably be cured within the
fifteen (15) day period, that Tenant shall not be in default if it commences such cure within the
fifteen (15) day period and thereafter diligently prosecutes same to completion, which completion
shall occur not later than sixty (60) days from the date of receipt of written notice from
Landlord; or



               (iii) If Tenant assigns its assets for the benefit of its creditors; or



               (iv) If the sequestration or attachment of or execution on any material part of Tenant’s
Personal Property essential to the conduct of Tenant’s business occurs, and Tenant fails to obtain
a return or release of such Personal Property within thirty (30) days thereafter, or prior to sale
pursuant to such sequestration, attachment or levy, whichever is earlier; or



               (v) If a court makes or enters any decree or order other than under the bankruptcy laws of the
United States adjudging Tenant to be insolvent; or approving as properly filed a petition seeking
reorganization of Tenant; or directing the winding up or liquidation of Tenant and such decree or
order shall have continued for a period of thirty (30) days.



          B. Remedies. Upon a default, Landlord shall have the following remedies, in addition
to all other rights and remedies provided by law or otherwise provided in this Lease, to which
Landlord may resort cumulatively or in the alternative:



               (i) Landlord may continue this Lease in full force and effect, and this Lease shall continue
in full force and effect as long as Landlord does not terminate this Lease, and Landlord shall have
the right to collect Rent when due.



               (ii) Landlord may terminate Tenant’s right to possession of the Premises at any time by giving
written notice to that effect, and relet the Premises or any part thereof. Tenant shall be liable
immediately to Landlord for all costs Landlord incurs in reletting the Premises or any part
thereof, including, without limitation, broker’s commissions, expenses of cleaning and redecorating
the Premises required by the reletting and like costs. Reletting may be for a period shorter or
longer than the remaining term of this Lease. No act by Landlord other than giving written notice
to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the Premises or the
appointment of a receiver on Landlord’s initiative to protect Landlord’s interest under this Lease
shall not constitute a termination of Tenant’s right to possession. On termination, Landlord has
the right to remove all Tenant’s Personal Property and store the same at Tenant’s cost and to
recover from Tenant as damages:



22









 





                    (a) The worth at the time of award of unpaid Rent and other sums due and payable which had
been earned at the time of termination; plus



                    (b) The worth at the time of award of the amount by which the unpaid Rent and other sums due
and payable which would have been payable after termination until the time of award exceeds the
amount of such Rent loss that Tenant prove could have been reasonably avoided; plus



                    (c) The worth at the time of award of the amount by which the unpaid Rent and other sums due
and payable for the balance of the Term after the time of award exceeds the amount of such Rent
loss that Tenant proves could be reasonably avoided; plus



                    (d) Any other amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant’s failure to perform Tenant’s obligations under this Lease, or which, in the ordinary
course of things, would be likely to result therefrom, including, without limitation, any costs or
expenses incurred by Landlord: (i) in retaking possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing, cleaning, altering or rehabilitating the Premises or
any portion thereof, including such acts for reletting to a new tenant or tenants; (iii) for
leasing commissions; or (iv) for any other costs necessary or appropriate to relet the Premises;
plus



                    (e) At Landlord’s election, such other amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by the laws of the State of California.



               The “worth at the time of award” of the amounts referred to in Paragraphs 25.B.(ii)(a) and
25.B.(ii)(b) is computed by allowing interest at the Interest Rate on the unpaid rent and other
sums due and payable from the termination date through the date of award. The “worth at the time of
award” of the amount referred to in Paragraph 25.B.(ii)(c) is computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%). Tenant waives redemption or relief from forfeiture under California Code of Civil
Procedure Sections 1174 and 1179, or under any other present or future law, in the event Tenant is
evicted or Landlord takes possession of the Premises by reason of any default of Tenant hereunder.



               (iii) Landlord may, with or without terminating this Lease, re-enter the Premises and remove
all persons and property from the Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant. No re-entry or taking
possession of the Premises by Landlord pursuant to this paragraph shall be construed as an election
to terminate this Lease unless a written notice of such intention is given to Tenant.



          C. Bankruptcy.



               (i) The commencement of a bankruptcy action or liquidation action or reorganization action or
insolvency action or an assignment of or by Tenant for the benefit of creditors, or any similar
action undertaken by Tenant, or the insolvency of Tenant, shall, at



23









 







Landlord’s option, constitute a
breach of this Lease by Tenant. If the trustee or receiver appointed to serve during a bankruptcy,
liquidation, reorganization, insolvency or similar action elects to
reject Tenant’s unexpired Lease, the trustee or receiver shall notify Landlord in writing of its
election within thirty (30) days after an order for relief in a liquidation action or within thirty
(30) days after the commencement of any action.



               (ii) Within thirty (30) days after court approval of the assumption of this Lease, the trustee
or receiver shall cure (or provide adequate assurance to the reasonable satisfaction of Landlord
that the trustee or receiver shall cure) any and all previous defaults under the unexpired Lease
and shall compensate Landlord for all actual pecuniary loss resulting from Tenant’s breach of this
Lease, including any attorneys’ fees and costs incurred by Landlord as a result of such breach
and/or the bankruptcy proceedings instituted by or against Tenant, and shall provide adequate
assurance of future performance under the Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall not be limited to:
(i) assurance of source and payment of Rent, and other consideration due under this Lease; (ii)
assurance that the assumption or assignment of this Lease will not breach any provision, such as
radius, location, use, or exclusivity provision, in any other lease of space within the Project.



               (iii) Nothing contained in this Paragraph 25.C. shall affect the right of Landlord to refuse
to accept an assignment upon commencement of or in connection with a bankruptcy, liquidation,
reorganization or insolvency action or an assignment of Tenant for the benefit of creditors or
other similar act. Nothing contained in this Lease shall be construed as giving or granting or
creating an equity in the Premises to Tenant. In no event shall the leasehold estate under this
Lease, or any interest therein, be assigned by voluntary or involuntary bankruptcy proceeding
without the prior written consent of Landlord. In no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or reorganization
proceedings.



          D. Landlord’s Default. Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder unless and until it has
failed to perform such obligation within thirty (30) days after receipt of written notice by Tenant
to Landlord specifying the nature of such default; provided, however, that if the nature of
Landlord’s obligation is such that more than thirty (30) days are required for its performance,
then Landlord shall not be deemed to be in default if it shall commence such performance within
such thirty (30) day period and thereafter diligently prosecute the same to completion.



     26. SUBORDINATION. This Lease is subject and subordinate to mortgages and deeds of trust
(collectively “Encumbrances”) which may now affect the Building or the Project, to the CC&Rs and to
all renewals, modifications, consolidations, replacements and extensions thereof; provided,
however, if the holder or holders of any such Encumbrance (“Holder”) shall require that this Lease
be prior and superior thereto, Tenant shall, within seven (7) business days after written request
from Landlord, execute, have acknowledged and deliver any and all reasonable documents or
instruments, which Landlord or Holder deems necessary or desirable for such purposes. Landlord
shall have the right to cause this Lease to be and become and remain subject and subordinate to any
and all Encumbrances which may hereafter be executed covering the Building or the Project or any
renewals, modifications, consolidations, replacements or



24









 







extensions thereof, for the full amount of
all advances made or to be made thereunder and without regard to the time or character of such
advances, together with interest thereon and subject to all
the terms and provisions thereof; provided only, that in the event of termination of any such lease
or upon the foreclosure of any such mortgage or deed of trust, so long as Tenant is not in default,
Holder agrees to recognize Tenant’s rights under this Lease as long as Tenant shall pay the Rent
and observe and perform all the provisions of this Lease to be observed and performed by Tenant.
Within ten (10) days after Landlord’s written request, Tenant shall execute any and all documents
required by Landlord or the Holder to make this Lease subordinate to any lien of the Encumbrance.
If Tenant fails to do so, it shall be deemed that this Lease is subordinated. Notwithstanding
anything to the contrary set forth in this paragraph, Tenant hereby attorns and agrees to attorn to
any entity purchasing or otherwise acquiring the Building or the Project at any sale or other
proceeding or pursuant to the exercise of any other rights, powers or remedies under such
Encumbrance.



     27. NOTICES. Any notice or demand required or desired to be given under this Lease shall be
in writing and shall be personally served or in lieu of personal service may be given by mail. If
given by mail, such notice shall be deemed to have been given when seventy-two (72) hours have
elapsed from the time when such notice was deposited in the United States mail, registered or
certified, and postage prepaid, addressed to the party to be served. At the date of execution of
this Lease, the addresses of Landlord and Tenant are as set forth in Paragraph 1. After the
Commencement Date, the address of Tenant shall be the address of the Premises. Either party may
change its address by giving notice of same in accordance with this paragraph.



     28. ATTORNEYS’ FEES. If either party brings any action or legal proceeding for damages for an
alleged breach of any provision of this Lease, to recover Rent, or other sums due, to terminate the
tenancy of the Premises or to enforce, protect or establish any term, condition or covenant of this
Lease or right of either party, the prevailing party shall be entitled to recover as a part of such
action or proceedings, or in a separate action brought for that purpose, reasonable attorneys’ fees
and costs.



     29. ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS. Tenant shall within seven (7) business days
following written request by Landlord:



          (i) Execute and deliver to Landlord any documents, including estoppel certificates, in the
form prepared by Landlord (a) certifying that this Lease is unmodified and in full force and effect
or, if modified, stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect and the date to which the Rent and other charges are paid in
advance, if any, and (b) acknowledging that there are not, to Tenant’s knowledge, any uncured
defaults on the part of Landlord, or, if there are uncured defaults on the part of the Landlord,
stating the nature of such uncured defaults, and (c) evidencing the status of the Lease as may be
required either by a lender making a loan to Landlord to be secured by deed of trust or mortgage
covering the Building or the Project or a purchaser of the Building or the Project from Landlord.
Tenant’s failure to deliver an estoppel certificate within seven (7) business days after delivery
of Landlord’s written request therefor shall be conclusive upon Tenant (a) that this Lease is in
full force and effect, without modification except as may be



25









 







represented by Landlord, (b) that
there are now no uncured defaults in Landlord’s performance and (c) that no Rent has been paid in
advance.



          (ii) Deliver to Landlord the current financial statements of Tenant, and financial statements
of the two (2) years prior to the current financial statements year, with an opinion of a certified
public accountant, including a balance sheet and profit and loss statement for the most recent
prior year, all prepared in accordance with generally accepted accounting principles consistently
applied; provided, however, if Tenant is required to file public financial statements with the U.S.
Securities and Exchange Commission (“SEC”), then the providing by Tenant to Landlord of all
financial statements filed with the SEC shall fulfill Tenant’s obligations under this Paragraph
29(ii).



     30. TRANSFER OF THE BUILDING OR PROJECT BY LANDLORD. In the event of any conveyance of the
Building or the Project and assignment by Landlord of this Lease, Landlord shall be and is hereby
entirely released from all liability under any and all of its covenants and obligations contained
in or derived from this Lease occurring after the date of such conveyance and assignment and Tenant
agrees to attorn to such transferee provided such transferee assumes Landlord’s obligations under
this Lease arising on or after the date of such conveyance and assignment.



     31. LANDLORD’S RIGHT TO PERFORM TENANT’S COVENANTS. If Tenant shall at any time fail to make
any payment or perform any other act on its part to be made or performed under this Lease, Landlord
may, but shall not be obligated to and without waiving or releasing Tenant from any obligation of
Tenant under this Lease, upon written notice to Tenant, make such payment or perform such other act
to the extent Landlord may deem desirable, and in connection therewith, pay expenses and employ
counsel. All sums so paid by Landlord and all penalties, interest and costs in connection therewith
shall be due and payable by Tenant on the next day after any such payment by Landlord, together
with interest thereon at the Interest Rate from such date to the date of payment by Tenant to
Landlord, plus collection costs and attorneys’ fees. Landlord shall have the same rights and
remedies for the nonpayment thereof as in the case of default in the payment of Rent.



     32. LIMITATION OF LIABILITY. Landlord shall never be personally liable under this Lease;
Tenant shall look solely to Landlord’s interest in the Project for any recovery of damages for any
breach by Landlord of this Lease, or any recovery of any judgment against Landlord. None of the
members comprising Landlord (whether partners, members, shareholders, officers, directors,
trustees, employees, beneficiaries or otherwise) shall ever be personally liable for any such
judgment. There shall be no levy of execution against any assets of Landlord, other than the
Project, or the assets of such members on account of any liability of Landlord hereunder. Tenant
hereby waives any right of recovery or satisfaction of any judgment against Landlord or its
members, except as to Landlord’s interest in the Project as herein specified.



     33. MORTGAGEE PROTECTION. If Landlord defaults under this Lease, Tenant will notify any
beneficiary of a deed of trust or mortgagee of a mortgage covering the Building or the Project for
which Landlord has provided Tenant with a name and address, and offer such beneficiary or mortgagee
a reasonable opportunity to cure the default, including time to obtain



26









 







possession of the Building
or the Project by power of sale or a judicial foreclosure, if such should prove necessary to effect
a cure.



     34. BROKERS. Landlord and Tenant warrant and represent each to the other that it has had no
dealings with any real estate broker or agent in connection with the negotiation of this Lease,
except for Cornish & Carey Commercial (“C&C”) which represents Landlord, Colliers International
(“Colliers”) which also represents Landlord, and Cresa Partners which represents Tenant, and that
it knows of no other real estate broker or agent who is or might be entitled to a commission in
connection with this Lease. Any commission due C&C in connection with the parties entering into
this Lease shall be payable by Landlord to C&C pursuant to a separate written agreement between
Landlord and C&C. Any commission due Colliers in connection with the parties entering into this
Lease shall be payable by Landlord to Colliers pursuant to a separate written agreement between
Landlord and Colliers. Landlord and Tenant agree to indemnify, defend and hold each other and their
respective agents harmless from and against any and all liabilities or expenses, including
attorneys’ fees and costs, arising out of or in connection with claims made by any broker or
individual against the indemnified party for commissions or fees in connection with the execution
of this Lease and resulting from the actions of the indemnifying party.



     35. ACCEPTANCE. This Lease shall only become effective and binding upon full execution hereof
by Landlord and delivery of a signed copy to Tenant. Neither party shall record this Lease nor a
short form memorandum thereof.



     36. MODIFICATION FOR LENDER. If in connection with obtaining financing for the Building or the
Project or any portion thereof, Landlord’s lender shall request reasonable modification to this
Lease as a condition to such financing, Tenant shall not unreasonably withhold, delay or defer its
consent thereto, provided such modifications do not materially adversely affect Tenant’s rights
hereunder.



     37. PARKING. Tenant shall have the right to use up to fifty (50) unreserved parking spaces in
the Project’s parking facilities in common with other tenants of the Project upon terms and
conditions, as may from time to time be established by Landlord. Tenant agrees not to overburden
the parking facilities and agrees to cooperate with Landlord and other tenants in the use of the
parking facilities. Landlord reserves the right in its discretion to determine whether the parking
facilities are becoming crowded and to allocate and assign parking spaces among Tenant and the
other tenants. Tenant shall not park cars, trucks, trailers or other vehicles, or parts thereof,
overnight on the Project.



     38. GENERAL.



          A. Captions. The captions and headings used in this Lease are for the purpose of
convenience only and shall not be construed to limit or extend the meaning of any part of this
Lease.



          B. Executed Copy. Any fully executed copy of this Lease shall be deemed an original
for all purposes.



27









 





          C. Time. Time is of the essence for the performance of each term, condition and
covenant of this Lease.



          D. Separability. If one or more of the provisions contained herein, except for the
payment of Rent, is for any reason held invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision of this Lease, but
this Lease shall be construed as if such invalid, illegal or unenforceable provision had not been
contained herein.



          E. Choice of Law. This Lease shall be construed and enforced in accordance with the
substantive laws of the State of California. The language in all parts of this Lease shall in all
cases be construed as a whole according to its fair meaning and not strictly for or against either
Landlord or Tenant.



          F. Gender; Singular, Plural. When the context of this Lease requires, the neuter
gender includes the masculine, the feminine, a partnership or corporation or joint venture, and the
singular includes the plural.



          G. Binding Effect. The covenants and agreement contained in this Lease shall be
binding on the parties hereto and on their respective heirs, successors and assigns to the extent
this Lease is assignable.



          H. Waiver. The waiver by Landlord or Tenant of any breach of any term, condition or
covenant, of this Lease by the other shall not be deemed to be a waiver of such provision or any
subsequent breach of the same or any other term, condition or covenant of this Lease. The
subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach at the time of acceptance of such payment. No covenant, term or condition of this
Lease shall be deemed to have been waived by Landlord or Tenant unless such waiver is in writing
signed by the waiving party.



          I. Entire Agreement. This Lease is the entire agreement between the parties, and there
are no agreements or representations between the parties except as expressed herein. Except as
otherwise provided herein, no subsequent change or addition to this Lease shall be binding unless
in writing and signed by the parties hereto.



          J. Authority. If Tenant is a corporation or a partnership, each individual executing
this Lease on behalf of said corporation or partnership, as the case may be, represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf of said entity in
accordance with its corporate bylaws, statement of partnership or certificate of limited
partnership, as the case may be, and that this Lease is binding upon said entity in accordance with
its terms. Landlord, at its option, may require a copy of such written authorization to enter into
this Lease.



          K. Exhibits. All exhibits, amendments, riders and addenda attached hereto are hereby
incorporated herein and made a part hereof.



28









 





          L. Rules and Regulations. Landlord shall have the right to establish from time to time
such rules and regulations as Landlord shall deem appropriate for the protection of the Project,
and Tenant agrees to abide by same.



          M. Days of Week. If the date upon which any act is to be performed or notice is to be
delivered under this Lease shall fall upon a Saturday, Sunday or legal holiday, such act or notice
shall be timely if performed or delivered on the next business day.



          N. Force Majeure. The performance of any obligation to be performed by Landlord and
Tenant under this Lease, excluding, however, the obligation to pay Rent or any other sum payable to
Landlord by Tenant, shall be excused for any period during which either party is prevented from
performing such obligation due to causes beyond such parties control, including without limitation,
strikes, lockouts or other labor disturbance or labor dispute, governmental regulation, moratorium,
or other governmental action, civil disturbance, war, war-like operations, invasions, rebellion,
hostilities, sabotage, fires or other casualty, rain, flooding, hailstorms, lightning, earthquake,
or other acts of God (collectively, “force majeure”). Landlord and Tenant each agree to (i) provide
written notice to the other if Landlord or Tenant is unable to perform any obligation imposed upon
such party hereunder within the time period required, if such inability to perform is due to force
majeure. and (ii) use reasonable efforts to mitigate the effects of force majeure on the timely
performance of such obligation.



[No Further Text On This Page]




29









 








     This Lease is effective as of the date the last signatory necessary to execute the Lease shall
have executed this Lease (“Effective Date”).



	 	 	 	 	 	 	 	 	 	 	 	 	 
	TENANT	 	 	 	LANDLORD	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BROOKS AUTOMATION, INC.,
a Delaware corporation	 	 	 	KOLL/INTEREAL BAY AREA,

a California general partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Martin S. Headley	 	 	 	By:	 	Washcop Limited Partnership,
	 

	 	 	 	 	 	 	 	 	 	 	 	 
		 	 	 	 	 		 	a Delaware limited partnership
		Its: 	EVP AND CFO	 	 	 	Its:	 	General Partner
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
		 	 	 	 	 	By:		Pacific Resources Associates, L.LC.,
	By:	 	 	 	 	 	 	 	a Delaware limited liability company	 	
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Its:	 	General Partner	 	
		Its:
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	/s/ Illegible
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Date:                          , 2008	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Its:	 	COO
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Date:                          , 2008	 	 







30









 








THE PREMISES








EXHIBIT A





 









 








THE PROJECT








EXHIBIT B




 











 





TENANT IMPROVEMENTS




          Landlord and Tenant hereby agree as follows with regard to the Tenant Improvements:


I. Tenant Improvements: Tenant shall be solely responsible for the planning, construction
and completion of any interior tenant improvements in and to the Premises (“Tenant Improvements”)
in accordance with the following terms and conditions:




          A. The Tenant Improvements shall include only those improvements within the interior portions
of the Premises which are depicted or described in the Construction Documents (hereafter defined in
Paragraph I.D.). The Tenant Improvements shall specifically not include any of Tenant’s personal
property or trade fixtures.



          B. The Tenant Improvements may include:



               (i) Partitioning, doors, floor coverings, finishes, ceilings, wall coverings and painting,
millwork and similar items;



               (ii) Electrical wiring, lighting fixtures, outlets and switches, and other electrical work;



               (iii) Duct work, terminal boxes, defusers and accessories required for the completion of the
HVAC systems serving the Premises, including the cost of meter and key control for after-hour air
conditioning;



               (iv) Any additional Tenant requirements including, but not limited to odor control, special
HVAC, noise or vibration control or other special systems;



               (v) All fire and life safety control systems such as fire walls, sprinklers, halon, fire
alarms, including piping, wiring and accessories; and



               (vi) All plumbing, fixtures, pipes, and accessories.



          As part of the Tenant Improvements, Tenant will install a transformer, a low distribution
board, and a high distribution board (collectively, the “Electrical Equipment”). Landlord agrees
that the location of the Electrical Equipment shall be in Electrical Room 121 as shown on
EXHIBIT G.



          C. If required by Landlord, Tenant shall retain an architect approved by Landlord
(“Architect”) to prepare preliminary working architectural and engineering plans and specifications
(“Preliminary Plans and Specifications”) for the Tenant Improvements. Tenant shall deliver the
Preliminary Plans and Specifications to Landlord by the date which is thirty (30) days after the
date of this Lease. The Preliminary Plans and Specifications shall be in sufficient detail to show
locations, types and requirements for all heat loads, people loads, floor loads,



EXHIBIT C




Page 1 of 6









 







power and plumbing, regular and special HVAC needs, telephone communications, telephone and
electrical outlets, lighting, lighting fixtures and related power, and electrical and telephone
switches. Landlord shall reasonably approve or disapprove the Preliminary Plans and Specifications
within ten (10) days after Landlord receives the Preliminary Plans and Specifications and, if
disapproved, Landlord shall return the Preliminary Plans and Specifications to Tenant, who shall
make all necessary revisions within ten (10) days after Tenant’s receipt thereof. This procedure
shall be repeated until Landlord approves the Preliminary Plans and Specifications. The approved
Preliminary Plans and Specifications, as modified, shall be deemed the “Approved Preliminary Plans
and Specifications”.




          D. After the Approved Preliminary Plans and Specifications are approved by Landlord, Tenant
shall cause the Architect to prepare in twenty (20) days following Landlord’s approval of the
Approved Preliminary Plans and Specifications the final working architectural and engineering plans
and specifications (“Final Plans and Specifications”) for the Tenant Improvements. Tenant shall
then deliver the Final Plans and Specifications to Landlord. Landlord shall reasonably approve or
disapprove the Final Plans and Specifications within ten (10) days after Landlord receives the
Final Plans and Specifications and, if disapproved, Landlord shall return the Final Plans and
Specifications to Tenant who shall make all necessary revisions within ten (10) days after Tenant’s
receipt thereof. This procedure shall be repeated until Landlord approves the Final Plans and
Specifications. The approved Final Plans and Specifications, as they may be amended later with the
consent of the Landlord, shall be deemed the “Construction Documents”.



          E. All deliveries of the Preliminary Plans and Specifications, the Approved Preliminary Plans
and Specifications, the Final Plans and Specifications, and the Construction Documents shall be
delivered by messenger service, by personal hand delivery or by overnight parcel service. While
Landlord has the right to approve the Preliminary Plans and Specifications, the Approved
Preliminary Plans and Specifications, the Final Plans and Specifications, and the Construction
Documents, Landlord’s interest in doing so is to protect the Premises, the Building and Landlord’s
interests. Accordingly, Tenant shall not rely upon Landlord’s approvals and Landlord shall not be
the guarantor of, nor responsible for, the correctness or accuracy of the Preliminary Plans and
Specifications, the Approved Preliminary Plans and Specifications, the Final Plans and
Specifications, and the Construction Documents, or the compliance thereof with applicable laws, and
Landlord shall incur no liability of any kind by reason of granting such approvals.



          F. The Construction Documents shall provide that the Tenant Improvements to be constructed in
accordance therewith must be at least equal in quality to Landlord’s “building standard” work for
the Building and shall consist of improvements which are generic in nature.



          G. Tenant at its sole cost and expense shall obtain all governmental approvals of the
Construction Documents to the full extent necessary for the issuance of a building permit for the
Tenant Improvements based upon such Construction Documents. Tenant at its sole cost and expense
shall also cause to be obtained all other necessary approvals and permits from all governmental
agencies having jurisdiction or authority for the construction and installation of the
Tenant Improvements in accordance with the approved Construction Documents. Tenant at its



EXHIBIT C




Page 2 of 6









 







sole cost and expense shall undertake all steps necessary to insure that the construction of the Tenant
Improvements are accomplished in strict compliance with all statutes, laws, ordinances, rules, and
regulations applicable to the construction of the Tenant Improvements and the requirements and
standards of any insurance underwriting board, inspection bureau or insurance carrier insuring the
Building.




          H. Tenant shall be solely responsible for the construction, installation and completion of the
Tenant Improvements in accordance with the Construction Documents approved by Landlord and is
solely responsible for the payment of all amounts when payable in connection therewith without any
cost or expense to Landlord except for Landlord’s obligation to contribute the Tenant Improvement
Allowance (hereafter defined in Paragraph I.O. below). Tenant shall diligently proceed with the
construction, installation and completion of the Tenant Improvements in accordance with the
Construction Documents and the completion schedule reasonably approved by Landlord. No material
changes shall be made to the Construction Documents and the completion schedule approved by
Landlord without Landlord’s prior written consent, which consent shall not be unreasonably
withheld. Tenant at its sole cost and expense shall employ a licensed contractor approved by
Landlord (“Contractor”) to construct the Tenant Improvements in accordance with the Construction
Documents. The construction contracts between Tenant and the Contractor and between the Contractor
and subcontractors shall be subject to Landlord’s prior written approval, which approval shall not
be unreasonably withheld. Proof that the Contractor is licensed in California, is bonded as
required under California law and has the insurance required by Landlord, shall be provided to
Landlord at the time that Tenant requests approval of the Contractor from Landlord. Tenant shall
comply with or cause the Contractor to comply with all other terms and provisions of this Paragraph
I.H. The name of all major subcontractors hired by the Contractor, together with proof that they
are licensed in California, are bonded as required under California law, and have insurance
typically carried by reputable subcontractors in the State of California, shall be provided to
Landlord as each separate subcontractor is hired.



          I. Prior to the commencement of the construction and installation of the Tenant Improvements,
Tenant shall provide the following to the Landlord, all of which shall be to the Landlord’s
reasonable satisfaction:



               (i) An estimated budget and cost breakdown for the Tenant Improvements;



               (ii) Estimated completion schedule for the Tenant Improvements; and



               (iii) Copies of all required approvals and permits from governmental agencies having
jurisdiction or authority for the construction and installation of the Tenant Improvements.



          J. Landlord shall at all reasonable times have a right to inspect the Tenant Improvements
(provided Landlord does not materially interfere with the work being performed by Contractor or its
subcontractors) and Tenant shall immediately cease work upon written notice from the Landlord if
the Tenant Improvements are not in compliance with the Construction
Documents approved by Landlord. If Landlord gives notice of faulty construction or any other



EXHIBIT C




Page 3 of 6









 







deviation from the Construction Documents, Tenant shall cause Contractor to promptly make
corrections. However, neither the privilege herein granted to Landlord to make such inspections,
nor the making of such inspections by Landlord, shall operate as a waiver of any rights of Landlord
to require good and workmanlike construction and improvements constructed in accordance with the
Construction Documents.




          K. Tenant shall pay and discharge promptly and fully all claims for labor done and materials
and services furnished in connection with the Tenant Improvements. The Tenant Improvements shall
not be commenced until five (5) days after Landlord has received notice from Tenant stating the
date the construction of the Tenant Improvements is to commence so that Landlord can post and
record any appropriate notice of non-responsibility. No materials, equipment or fixtures shall be
delivered to or installed upon the Premises pursuant to any agreement by which another party has a
security interest or rights to remove or repossess such items, without the prior written consent of
Landlord.



          L. Tenant acknowledges and agrees that the agreements and covenants of Tenant in Paragraph
21.A. of the Lease shall be fully applicable to Tenant’s construction of the Tenant Improvements.



          M. Before construction begins on the Tenant Improvements, Tenant shall deliver to Landlord a
certificate of insurance providing evidence that damage to, or destruction of, the Tenant
Improvements during construction will be covered by a policy of builder’s all-risk insurance
maintained by Tenant, at its sole costs, and in an amount approved by Landlord. In addition,
during the construction of the Tenant Improvements, Tenant shall maintain, at its sole cost, the
insurance specified in Section 21.B. of the Lease.



          N. Upon completion of the Tenant Improvements, Tenant shall deliver to Landlord the following,
all of which shall be to the Landlord’s reasonable satisfaction:



               (i) Any certificates required for occupancy, including a permanent and complete Certificate of
Occupancy issued by the City;



               (ii) A Certificate of Completion signed by the Architect who prepared the Construction
Documents, reasonably approved by the Landlord;



               (iii) A cost breakdown itemizing all expenses for the Tenant Improvements, together with
invoices and receipts for the same or other evidence of payment;



               (iv) Final and unconditional mechanic’s lien waivers for all the Tenant Improvements; and



               (v) A Notice of Completion for execution by Landlord, which certificate once executed by
Landlord shall be recorded by Tenant in the official records of Santa Clara County.



          O. Landlord shall provide to Tenant an allowance for the design, preparation, planning,
installation and construction of the Tenant Improvements in an amount up to but not



EXHIBIT C




Page 4 of 6









 







exceeding the product of Five and 00/100ths Dollars ($5.00) multiplied by the square footage of the Premises,
such amount being Sixty-One Thousand Seven Hundred Ten and 00/100ths Dollars ($61,710.00) (“Base
Tenant Improvement Allowance”). If the actual cost of planning and constructing the Tenant
Improvements is less than the Base Tenant Improvement Allowance, the Base Tenant Improvement
Allowance shall automatically be reduced to the amount of such actual costs, Tenant shall not be
entitled at any time to the unused portion of the Base Tenant Improvement Allowance, and no
adjustments shall be made to the Monthly Rent or any other amounts payable by Tenant to Landlord
under this Lease. Notwithstanding anything to the contrary herein, in no event shall the Tenant
Improvement Allowance or any part thereof be used for the payment of the cost of any data and/or
networking cabling, security systems, warehouse caging, or server room improvements for or to the
Premises.




               If the Base Tenant Improvement Allowance is insufficient to pay for the cost of planning and
constructing the Tenant Improvements, as such cost is shown in the final pricing for the Tenant
Improvements as approved by Landlord, then, upon Landlord’s receipt of a written request from
Tenant, Landlord shall make available an additional allowance of up to, but not exceeding, Ten and
00/100ths Dollars ($10.00) per square foot of the Premises for a total of One Hundred Twenty-Three
Thousand Four Hundred Twenty and 00/100ths Dollars ($123,420.00) for the planning and construction
of the Tenant Improvements (the “Additional Tenant Improvement Allowance”). The Additional Tenant
Improvement Allowance (or if the entire Additional Tenant Improvement Allowance is not contributed
by Landlord, then such portion of the Additional Tenant Improvement Allowance that is contributed),
together with interest thereon at the rate of eleven percent (11%) per annum, compounded monthly,
shall be amortized on a straight line basis over sixty (60) months beginning on the third month of
the Term, and such monthly amortized amount (the “Monthly Additional TI Allowance Payment”) shall
be added to the Monthly Rent amounts due under the Lease for each month of the Term commencing with
the third (3rd) month and ending on the sixty-second (62nd) month, as said
Monthly Rent amounts are set forth in the Monthly Rent schedule set forth in Paragraph 5.A. of the
Lease. Once Landlord has determined the increases in Monthly Rent as described in the immediately
preceding sentence, Landlord and Tenant shall, immediately following such determination, execute an
amendment to this Lease stating such increased Monthly Rent.



               The term “Tenant Improvement Allowance” as used in this EXHIBIT C and in the Lease
shall mean: (a) only the Base Tenant Improvement Allowance if only the Base Tenant Improvement
Allowance is contributed by Landlord; or (b) the Base Tenant Improvement Allowance and the
Additional Tenant Improvement Allowance (or portion thereof) if both such allowances are
contributed by Landlord.



               Landlord shall pay the Tenant Improvement Allowance within thirty (30) days after completion
of all of the Tenant Improvements and after satisfaction of the following conditions precedent:
(a) delivery of all documents and the occurrence of all other matters described in Paragraph I.N.
of this EXHIBIT C; (b) within a reasonable time following completion of Tenant
Improvements, completion by Landlord or Landlord’s agents of any inspections of the work completed
and materials and supplies used as deemed reasonably necessary by Landlord; (c) Tenant opening for
business at the Premises; and (d) satisfaction of
any and all other conditions which may be reasonably imposed by Landlord. Notwithstanding the
foregoing to the contrary, Landlord shall not be obligated to pay the Tenant Improvement



EXHIBIT C




Page 5 of 6









 







Allowance
or portion thereof, if on the date Tenant is entitled to receive the Tenant Improvement Allowance
or portion thereof, a default by Tenant exists under the Lease. Subject to the satisfaction of all
conditions to the payment of the Tenant Improvement Allowance or portion thereof provided for in
this Paragraph I.O., the Tenant Improvement Allowance or portion thereof shall be paid to Tenant
upon Tenant curing any such default within the time period provided for in the Lease, if any.




               Notwithstanding the foregoing or any other provision of this Lease to the contrary, all
conditions to the payment of the Tenant Improvement Allowance shall be satisfied by no later than
the date which is one hundred and eighty (180) days after the Commencement Date. In the event that
all conditions to the payment of the Tenant Improvement Allowance have not been satisfied by said
date, then Landlord shall have no obligation to pay all or any portion of the Tenant Improvement
Allowance to Tenant.



          P. Notwithstanding anything to the contrary in this Lease, Tenant, upon the expiration of the
Term or earlier termination of this Lease shall, at Tenant’s sole cost and expense, remove the
Tenant Improvements; provided, however, Tenant shall not be obligated to remove the Tenant
Improvements or any portion thereof if Landlord elects that the same remain with and be surrendered
with the Premises, in which case no compensation shall be payable by Landlord to Tenant for such
Tenant Improvements or portion thereof that shall be surrendered with the Premises.



EXHIBIT C





Page 6 of 6









 








COMMENCEMENT DATE MEMORANDUM




	 	 	 
	 
	 	 
	LANDLORD:

	 	KOLL/INTEREAL BAY AREA, a California limited partnership
	 
	 	 
	TENANT:

	 	BROOKS AUTOMATION, INC., a Delaware corporation
	 
	 	 
	LEASE DATE:

	 	August 8, 2008
	 
	 	 
	PREMISES:

	 	4051 Burton Drive

Santa Clara, California






          Pursuant to Paragraph 4.A. of the above referenced Lease, the Commencement
Date is hereby established as                     , 2008.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TENANT	 	 	 	LANDLORD	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BROOKS AUTOMATION, INC.,

a Delaware corporation	 	 	 	KOLL/INTEREAL BAY AREA,

a California general partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Martin S. Headley	 	 	 	By:	 	Washcop Limited Partnership,	 	 
	 	 	 	 	 	 	 	 	a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Its:

	 	EVP AND CFO
	 	 	 	Its:
	 	General
	 	Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	 	 	 	 	By:	 	Pacific Resources Associates, L.LC.,	 	 
	 	 	 	 	 	 	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Its:

	 	 	 	 	 	Its:
	 	General
	 	Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Its:	 	 	 	 





EXHIBIT D





 











 





TENANT ENVIRONMENTAL QUESTIONNAIRE



The purpose of this form is to obtain information regarding the use or proposed use of hazardous
materials at the premises. Prospective tenants should answer the questions in light of their
proposed operations at the premises. Existing tenants should answer the questions as they relate
to ongoing operations at the premises and should update any information previously submitted. If
additional space is needed to answer the questions, you may attach separate sheets of paper to this
form.



Your cooperation in this matter is appreciated.





	1.	 	GENERAL INFORMATION
	 
	 	 	Name of Responding Company:


	 
	 	 	 


Check the Applicable Status:
	 
	 	 	                     Prospective Tenant                                 Existing Tenant                
	 
	 	 	Mailing
Address:

	 
	 	 	 


 


Contact Person and Title:







Telephone Number: (               )


	 
	 	 	
Address of Leased Premises:



 


Length of Lease Term:


	 
	 	 	Describe the proposed operations to take place on the premises, including principal products
manufactured or services to be conducted. Existing tenants should describe any proposed
changes to ongoing operations.

	 
	 	 	 


 


 


 







	2.	 	STORAGE OF HAZARDOUS MATERIALS






	 	2.1	 	Will any hazardous materials be used or stored on-site?
	 
	 	 	 	Wastes                      Yes                                 No           

	 
	 	 	 	Chemical Products                      Yes                                 No           
	 
	 	2.2	 	Attach a list of any hazardous materials to be used or stored, the quantities
that will be on-site at any given time, and the location and method of storage (e.g.,
55-gallon drums on concrete pad).






	3.	 	STORAGE TANKS AND SUMPS






	 	3.1	 	Is any above or below ground storage of gasoline, diesel or other hazardous
substances in tanks or sumps proposed or currently conducted at the premises?
	 
	 	 	 	Yes                                 No           





EXHIBIT E




Page 1 of 6









 









	 	 	 	If yes, describe the materials to be stored, and the type, size and construction of
the sump or tank. Attach copies of any permits obtained for the storage of such
substances.


 


 


 


 

	 
	 	3.2	 	Have any of the tanks or sumps been inspected or tested for leakage?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, attach the results.
	 
	 	3.3	 	Have any spills or leaks occurred from such tanks or sumps?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, describe.


 


 


 

	 
	 	3.4	 	Were any regulatory agencies notified of the spill or leak?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, attach copies of any spill reports filed, any clearance letters or other
correspondence from regulatory agencies relating to the spill or leak.
	 
	 	3.5	 	Have any underground storage tanks or sumps been taken out of service or
removed?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If yes, attach copies of any closure permits and clearance obtained from regulatory
agencies relating to closure and removal of such tanks.






	4.	 	SPILLS






	 	4.1	 	During the past year, have any spills occurred at the premises?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If yes, please describe the location of the spill.

	 
	 	 	 	 


 


 

	 
	 	4.2	 	Were any agencies notified in connection with such spills?
	 
	 	 	 	Yes                                No           





EXHIBIT E




Page 2 of 6









 









	 	 	 	If yes, attach copies of any spill reports or other correspondence
with regulatory agencies.






	 	4.3	 	Were any clean-up actions undertaken in connection with the spills?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	Attach copies of any clearance letters obtained from any regulatory agencies
involved and the results of any final soil or groundwater sampling done upon
completion of the clean-up work.






	5.	 	WASTE MANAGEMENT






	 	5.1	 	Has your company been issued an EPA Hazardous Waste Generator I.D. Number?
	 
	 	 	 	Yes                                No           
	 
	 	5.2	 	Has your company filed a biennial report as a hazardous waste generator?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, attach a copy of the most recent report filed.
	 
	 	5.3	 	Attach a list of the hazardous wastes, if any, generated or to be generated at
the premises, its hazard class and the quantity generated on a monthly basis.
	 
	 	5.4	 	Describe the method(s) of disposal for each waste. Indicate where and how often
disposal will take place.
	 
	 	 	 	           On-site treatment or recovery
	 
	 	 	 	 

	 
	 	 	 	           Discharged to sewer
	 
	 	 	 	 

	 
	 	 	 	           Transported and Disposal of off-site
	 
	 	 	 	 

	 
	 	 	 	           Incinerator
	 
	 	 	 	 

	 
	 	5.5	 	Indicate the name of the person(s) responsible for maintaining copies of
hazardous waste manifests completed for off-site shipments of hazardous waste.

	 
	 	 	 	 


 






EXHIBIT E




Page 3 of 6









 









	 	5.6	 	Is any treatment of processing of hazardous wastes currently conducted or
proposed to be conducted at the premises:
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If yes, please describe any existing or proposed treatment
methods.
	 
	 	 	 	 


 


 

	 
	 	5.7	 	Attach copies of any hazardous waste permits or licenses issued to your company
with respect to its operations at the premises.






	6.	 	WASTEWATER TREATMENT/DISCHARGE






	 	6.1	 	Do you discharge wastewater to:
	 
	 	 	 	           storm drain?                                     sewer?
	 
	 	 	 	           surface water?            no industrial discharge
	 
	 	6.2	 	Is your wastewater treated before discharge?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If yes, describe the type of treatment conducted.

	 
	 	 	 	 


 


 

	 
	 	6.3	 	Attach copies of any wastewater discharge permits issued to your company with
respect to its operations at the premises.





7. AIR DISCHARGES





	 	7.1	 	Do you have any filtration systems or stacks that discharge into the air?
	 
	 	 	 	Yes                                No           
	 
	 	7.2	 	Do you operate any of the following types of equipment or any other equipment
requiring an air emissions permit?
	 
	 	 	 	                               Spray booth
	 
	 	 	 	                               Dip tank
	 
	 	 	 	                               Drying oven
	 
	 	 	 	                               Incinerator
	 
	 	 	 	                               Other (please describe)
                                              
                                  
	 
	 	 	 	                               No equipment requiring air permits





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	 	7.3	 	Are air emissions from your operations monitored?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, indicate the frequency of monitoring and a description of
the monitoring results.

	 
	 	 	 	 


 

	 
	 	7.4	 	Attach copies of any air emissions permits pertaining to your operations at the
premises.






	8.	 	HAZARDOUS MATERIALS DISCLOSURES






	 	8.1	 	Does your company handle hazardous materials in a quantity equal to or
exceeding an aggregate of 500 pounds, 55 gallons, or 200 cubic feet per month?
	 
	 	 	 	Yes                                No           
	 
	 	8.2	 	Has your company prepared a hazardous materials management plan pursuant to any
applicable requirements of a local fire department or governmental agency
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, attach a copy of the business plan.
	 
	 	8.3	 	Has your company adopted any voluntary environmental, health or safety program?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, attach a copy of the program.






	9.	 	ENFORCEMENT ACTIONS, COMPLAINTS






	 	9.1	 	Has your company ever been subject to any agency enforcement actions,
administrative orders, or consent decrees?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, describe the actions and any continuing compliance
obligations imposed as a result of these actions.

	 
	 	 	 	 


 

	 
	 	9.2	 	Has your company ever received requests for information, notice or demand
letters, or any other inquiries regarding its operations?





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	 	 	 	Yes                                No           
	 
	 	9.3	 	Have there ever been, or are there now pending, any lawsuits against the
company regarding any environmental or health and safety concerns?
	 
	 	 	 	Yes                                No           
	 
	 	9.4	 	Has an environmental audit ever been conducted at your company’s current
facility?
	 
	 	 	 	Yes                                No           
	 
	 	 	 	If so, identify who conducted the audit and when it was conducted.

	 
	 	 	 	 


 


 


 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

Company	 	 
	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 	 	 





EXHIBIT E





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MISSION PARK SIGN CRITERIA




BUSINESS IDENTIFICATION SIGNS





	1.	 	Each tenant shall be permitted to use only those business identification signs provided by
Landlord. No other business identification signs shall be permitted to be erected or attached
to exterior building surfaces, planter walls or other on-site or off-site improvements.






	2.	 	No alterations of any sort shall be permitted to be made to business identification signs
other than those described below.






	3.	 	All tenant signing shall require specific approval by Landlord.






	4.	 	All lettering surfaces shall be provided with and shall remain a uniform black finish on a
metal face. Business identification signing shall be by either of the following methods:






	 	(a)	 	Painted on or die-cut-vinyl letter affixed to the lettering surface; or
	 
	 	(b)	 	Lettering cut out of metal lettering surface backed by translucent acrylic
material, and internally illuminated. Internally illuminated signs shall require
specific approval of Landlord. Costs of adapting sign to internal illumination shall be
borne by the tenant. Upon termination of tenancy, all lettering surfaces shall be
returned to their original non-illumination configuration.






	5.	 	Lettering may be of any lettering style but shall be white in color; no other colors will be
permitted. Logos consisting of symbols or letters not spelling an entire word may be permitted
to be a single color other than white provided that a narrow white background surrounds the
logo. No logo shall exceed 25% of the designated lettering surface.






	6.	 	The lettering area, defined as the rectangular area which fully encloses all letters or
symbols, that identifies the tenant business shall not exceed 80% of the designated lettering
surface.






	7.	 	Signing shall be limited to the display of the name and/or symbol of the tenant business. No
messages or advertising of any kind including, but not limited to, advertising of products,
services or job openings shall be permitted.





INFORMATIONAL AND VEHICULAR CONTROL SIGNS





	1.	 	All informational and vehicular control signs shall be of uniform design using Matthews
Architectural Division’s Post & Panel Assembly I System or sign system of equal design which
is specifically approved in writing by Landlord. Both posts and panels shall have a durable
black finish. All lettering shall be Helvetica Medium white in color. Red and yellow may be
used for stop and yield signs respectively.





EXHIBIT F




 









 









	2.	 	No informational or vehicular control signs shall have a panel which exceeds 5 square feet in
area per side.






	3.	 	No business name, symbol or advertising of any sort shall be permitted on any informational
or vehicular control sign.






	4.	 	No informational or vehicular control sign shall exceed a height of 4 feet above the
underlying grade.






	5.	 	No informational or vehicular control sign shall be located so as to reduce the flow of
vehicles or pedestrians.






	6.	 	No informational or vehicular control signs shall be internally illuminated or
illuminated from the ground.





EXHIBIT F