exv10w40






Exhibit 10.40




[Net Lease]




LEASE AGREEMENT




     THIS LEASE AGREEMENT is made this 30th day of Sept, 2010, between
CATELLUS OPERATING LIMITED PARTNERSHIP (“Landlord”), and the Tenant named below.



	 	 	 

	Tenant:

	 	Brooks Automation, Inc.
	 
	 	 
	Tenant’s
Representative,
Address, and
Telephone:

	 	Bruce MacGibbon

18870 NE Riverside Parkway
	 
	 	 
	 

	 	Gresham, OR 97230 

(503) 465-6071
	 
	 	 
	Premises:

	 	That portion of the Building, containing approximately 165,000
rentable square feet, as determined by Landlord, as shown on
Exhibit A.

	 
	 	 
	Project:

	 	Southshore Corporate Park
	 
	 	 
	Building:

	 	Southshore Corporate Park Building A 

18550-18870 NE Riverside Pkwy.
	 
	 	 
	 

	 	Gresham, OR 97230
	 
	 	 
	Tenant’s
Proportionate Share
of Project:

	 	36.83% 
	 
	 	 
	Tenant’s
Proportionate Share
of Building:

	 	100.00% 
	 
	 	 
	Lease Term:

	 	Beginning on the Commencement Date
and ending on the last day of
the 63rd full calendar month thereafter.

	 
	 	 
	Commencement Date:

	 	January 1, 2011






	 	 	 

	Initial Monthly Base Rent:

	 	See Addendum 1






	 	 	 	 	 	 	 

	Initial Estimated Monthly 
Operating Expense Payments:
	 	1. Utilities:
	 	 	——	 
	(estimates only and subject to
adjustment to
actual costs and
expenses according
to the provisions
of this Lease)

	 	
2. Common Area Charges:	 	$	7,431.40

	 
	 	

3. Taxes:	 	

$	

10,965.20	 
	
	 	
4. Insurance:	 	

$	

1,161.33	 
	 	 	
5. Others:          Mgt. Fee	 	

$	

2,813.21	 






	 	 	 

	Initial Estimated Monthly 
Operating Expense
Payments:

	 	$22,371.14 
	 
	 	 
	Initial Monthly Base Rent and 

Operating Expense
Payments:

	 	$86,721.14 






	 	 	 

	Security Deposit:

	 	$53,147.00 
	 
	 	 
	Broker:

	 	None
	 
	 	 
	Addenda:

	 	1. Base Rent Adjustments 2. HVAC Maintenance Contract 3. Sign
Specifications 4. Move Out Conditions 5. One Renewal Option at
Market
	 
	 	 
	Exhibits:

	 	A. Site Plan






     1. Granting Clause. In consideration of the obligation of Tenant to pay rent as herein
provided and in consideration of the other terms, covenants, and conditions hereof, Landlord
leases to Tenant, and Tenant takes from Landlord, the Premises, to have and to hold for the Lease
Term, subject to the terms, covenants and conditions of this Lease.



     2. Acceptance of Premises. Tenant shall accept the Premises in its condition as of the
Commencement Date, subject to all applicable laws, ordinances, regulations, covenants and
restrictions. Landlord has made no representation or warranty as to the suitability of the
Premises for the conduct of Tenant’s business, and Tenant waives any implied warranty that the
Premises are suitable for Tenant’s intended purposes. Except as



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provided in Paragraph 10, in no event shall Landlord have any obligation for any defects in the
Premises or any limitation on its use. The taking of possession of the Premises shall be conclusive
evidence that Tenant accepts the Premises and that the Premises were in good condition at the time
possession was taken except for items that are Landlord’s responsibility under Paragraph 10 and any
punchlist items agreed to in writing by Landlord and Tenant.




     3. Use. The Premises shall be used only for the purpose of receiving, storing, shipping and
selling (but limited to wholesale sales) products, materials and merchandise made and/or
distributed by Tenant and for such other lawful purposes as may be incidental thereto; provided,
however, with Landlord’s prior written consent, Tenant may also use the Premises for light
manufacturing. Tenant shall not conduct or give notice of any auction, liquidation, or going out
of business sale on the Premises. Tenant will use the Premises in a careful, safe and proper
manner and will not commit waste, overload the floor or structure of the Premises or subject the
Premises to use that would damage the Premises. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise, or vibrations to emanate from the Premises, or take any
other action that would constitute a nuisance or would disturb, unreasonably interfere with, or
endanger Landlord or any tenants of the Project. Outside storage, including without limitation,
storage of trucks and other vehicles, is prohibited without Landlord’s prior written consent.
Tenant, at its sole expense, shall use and occupy the Premises in compliance with all laws,
including, without limitation, the Americans With Disabilities Act, orders, judgments, ordinances,
regulations, codes, directives, permits, licenses, covenants and restrictions now or hereafter
applicable to the Premises (collectively, “Legal Requirements”). The Premises shall not be used as
a place of public accommodation under the Americans With Disabilities Act or similar state
statutes or local ordinances or any regulations promulgated thereunder, all as may be amended from
time to time. Tenant shall, at its expense, make any alterations or modifications, within or
without the Premises, that are required by Legal Requirements related to Tenant’s use or
occupation of the Premises. Tenant will not use or permit the Premises to be used for any purpose
or in any manner that would void Tenant’s or Landlord’s insurance, increase the insurance risk, or
cause the disallowance of any sprinkler credits. If any increase in the cost of any insurance on
the Premises or the Project is caused by Tenant’s use or occupation of the Premises, or because
Tenant vacates the Premises, then Tenant shall pay the amount of such increase to Landlord. Any
occupation of the Premises by Tenant prior to the Commencement Date shall be subject to all
obligations of Tenant under this Lease.



     4. Base Rent. Tenant shall pay Base Rent in the amount set forth above. The first month’s
Base Rent and the first monthly installment of estimated Operating Expenses (as hereafter defined)
shall be due and payable on the date hereof. Landlord shall credit the security deposit currently
held by Landlord under the Lease dated July 20, 2000 between Synetics Solutions, Inc. and Catellus
Development Corporation (the “Prior Lease”) against the Security Deposit in accordance with the
provisions of Paragraph 5 below. Tenant promises to pay to Landlord in advance, without demand,
deduction or set-off, monthly installments of Base Rent on or before the first day of each
calendar month succeeding the Commencement Date. Payments of Base Rent for any fractional calendar
month shall be prorated. All payments required to be made by Tenant to Landlord hereunder (or to
such other party as Landlord may from time to time specify in writing) shall be made by Electronic
Fund Transfer (“EFT”) of immediately available federal funds before 11:00 a.m., Eastern Time, at
such place, within the continental United States, as Landlord may from time to time designate to
Tenant in writing. The obligation of Tenant to pay Base Rent and other sums to Landlord and the
obligations of Landlord under this Lease are independent obligations. Tenant shall have no right
at any time to abate, reduce, or set-off any rent due hereunder except as may be expressly
provided in this Lease. If Tenant is delinquent in any monthly installment of Base Rent or of
estimated Operating Expenses for more than 5 days, Tenant shall pay to Landlord on demand a late
charge equal to 5 percent of such delinquent sum. The provision for such late charge shall be in
addition to all of Landlord’s other rights and remedies hereunder or at law and shall not be
construed as a penalty.



     5. Security Deposit. The Security Deposit shall be held by Landlord as security for the
performance of Tenant’s obligations under this Lease. The Security Deposit is not an advance
rental deposit or a measure of Landlord’s damages in case of Tenant’s default. Upon each
occurrence of an Event of Default (hereinafter defined), Landlord may use all or part of the
Security Deposit to pay delinquent payments due under this Lease, and the cost of any damage,
injury, expense or liability caused by such Event of Default, without prejudice to any other
remedy provided herein or provided by law. Tenant shall pay Landlord on demand the amount that
will restore the Security Deposit to its original amount. Landlord’s obligation respecting the
Security Deposit is that of a debtor, not a trustee; no interest shall accrue thereon. The
Security Deposit shall be the property of Landlord, but shall be paid to Tenant when Tenant’s
obligations under this Lease have been completely fulfilled. Landlord shall be released from any
obligation with respect to the Security Deposit upon transfer of this Lease and the Premises to a
person or entity assuming Landlord’s obligations under this Paragraph 5.



          Landlord and Tenant hereby acknowledge that Landlord currently holds a certain security
deposit in the amount of $53,147 (“Other Security Deposit”) with respect to the Premises under the
Prior Lease, and upon the Commencement Date of this Lease, the Other Security Deposit, or portion
thereof as described herein, shall be transferred by Landlord and shall become the Security
Deposit under this Lease, except as otherwise provided for herein. Notwithstanding the foregoing,
prior to the Commencement Date of this Lease, Landlord and Tenant shall perform a walkthrough of
the Premises for purposes of inspecting the Premises for any damages which are Tenant’s
responsibility to repair, at Tenant’s sole cost and expense, under the Other Lease as agreed upon
by the parties during such inspection of the Premises. Landlord shall require that such damages
shall be cured by Tenant prior to the Commencement Date of this Lease. If Tenant fails to perform
such repairs prior to the Commencement Date as agreed upon by the parties during such inspection
of the Premises, then Landlord shall repair such damage and deduct the costs thereof from the
Other Security Deposit. The difference between the remaining balance of the Other Security Deposit
and the amount of the Security Deposit as set forth on the first page of the Lease shall be paid
by Tenant to Landlord upon demand so that the Security Deposit under this Lease equals the amount
as set forth on the first page of the Lease.




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     6. Operating Expense Payments. During each month of the Lease Term, on the same date that Base
Rent is due, Tenant shall pay Landlord an amount equal to 1/12 of the annual cost, as estimated by
Landlord from time to time, of Tenant’s Proportionate Share (hereinafter defined) of Operating
Expenses for the Project. Payments thereof for any fractional calendar month shall be prorated. The
term “Operating Expenses” means all costs and expenses incurred by Landlord with respect to the
ownership, maintenance, and operation of the Project including, but not limited to costs of: Taxes
(hereinafter defined) and fees payable to tax consultants and attorneys for consultation and
contesting taxes; insurance; utilities; maintenance, repair and replacement of all portions of the
Project, including without limitation, paving and parking areas, roads, roofs (including the roof
membrane), alleys, and driveways, mowing, landscaping, snow removal, exterior painting, utility
lines, heating, ventilation and air conditioning systems, lighting, electrical systems and other
mechanical and building systems provided that repairs and replacements that are required to be
capitalized for federal income tax purposes shall be amortized on a straight line basis over a
period equal to the useful life for federal income tax purposes; amounts paid to contractors and
subcontractors for work or services performed in connection with any of the foregoing; charges or
assessments of any association to which the Project is subject; property management fees payable to
a property manager, including any affiliate of Landlord, or if there is no property manager, an
administration fee of 15 percent of Operating Expenses payable to Landlord; security services, if
any; trash collection, sweeping and removal; and additions or alterations made by Landlord to the
Project or the Building in order to comply with Legal Requirements (other than those expressly
required herein to be made by Tenant) or that are appropriate to the continued operation of the
Project or the Building as a bulk warehouse facility in the market area, provided that the cost of
additions or alterations that are required to be capitalized for federal income tax purposes shall
be amortized on a straight line basis over a period equal to the useful life thereof for federal
income tax purposes. Operating Expenses do not include costs, expenses, depreciation or
amortization for capital repairs and capital replacements required to be made by Landlord under
Paragraph 10 of this Lease, debt service under mortgages or ground rent under ground leases, costs
of restoration to the extent of net insurance proceeds received by Landlord with respect thereto,
leasing commissions, or the costs of renovating space for tenants or costs or expenses paid to any
affiliate of Landlord in excess of market rates.



          If Tenant’s total payments of Operating Expenses for any year are less than Tenant’s
Proportionate Share of actual Operating Expenses for such year, then Tenant shall pay the
difference to Landlord within 30 days after demand, and if more, then Landlord shall retain such
excess and credit it against Tenant’s next payments. For purposes of calculating Tenant’s
Proportionate Share of Operating Expenses, a year shall mean a calendar year except the first
year, which shall begin on the Commencement Date, and the last year, which shall end on the
expiration of this Lease. With respect to Operating Expenses which Landlord allocates to the
entire Project, Tenant’s “Proportionate Share” shall be the percentage set forth on the first page
of this Lease as Tenant’s Proportionate Share of the Project as reasonably adjusted by Landlord in
the future for changes in the physical size of the Premises or the Project; and, with respect to
Operating Expenses which Landlord allocates only to the Building, Tenant’s “Proportionate Share”
shall be the percentage set forth on the first page of this Lease as Tenant’s Proportionate Share
of the Building as reasonably adjusted by Landlord in the future for changes in the physical size
of the Premises or the Building. Landlord may equitably increase Tenant’s Proportionate Share for
any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or
service that benefits only the Premises or only a portion of the Project or Building that includes
the Premises or that varies with occupancy or use. The estimated Operating Expenses for the
Premises set forth on the first page of this Lease are only estimates, and Landlord makes no
guaranty or warranty that such estimates will be accurate.




     7. Utilities. Tenant shall pay for all water, gas, electricity, heat, light, power,
telephone, sewer, sprinkler services, refuse and trash collection, and other utilities and
services used on the Premises, all maintenance charges for utilities, and any storm sewer charges
or other similar charges for utilities imposed by any governmental entity or utility provider,
together with any taxes, penalties, surcharges or the like pertaining to Tenant’s use of the
Premises. Landlord may cause at Tenant’s expense any utilities to be separately metered or charged
directly to Tenant by the provider. Tenant shall pay its share of all charges for jointly metered
utilities based upon consumption, as reasonably determined by Landlord. No interruption or failure
of utilities shall result in the termination of this Lease or the abatement of rent. Tenant agrees
to limit use of water and sewer for normal restroom use.



     8. Taxes. Landlord shall pay all taxes, assessments and governmental charges (collectively
referred to as “Taxes”) that accrue against the Project during the Lease Term, which shall be
included as part of the Operating Expenses charged to Tenant. Landlord may contest by appropriate
legal proceedings the amount, validity, or application of any Taxes or liens thereof. All capital
levies or other taxes assessed or imposed on Landlord upon the rents payable to Landlord under
this Lease and any franchise tax, any excise, transaction, sales or privilege tax, assessment,
levy or charge measured by or based, in whole or in part, upon such rents from the Premises and/or
the Project or any portion thereof shall be paid by Tenant to Landlord monthly in estimated
installments or upon demand, at the option of Landlord, as additional rent; provided, however, in
no event shall Tenant be liable for any net income taxes imposed on Landlord unless such net
income taxes are in substitution for any Taxes payable hereunder. If any such tax or excise is
levied or assessed directly against Tenant, then Tenant shall be responsible for and shall pay the
same at such times and in such manner as the taxing authority shall require. Tenant shall be
liable for all taxes levied or assessed against any personal property or fixtures placed in the
Premises, whether levied or assessed against Landlord or Tenant.



     9. Insurance. Landlord shall maintain all risk property insurance covering the full
replacement cost of the Building. Landlord may, but is not obligated to, maintain such other
insurance and additional coverages as it may deem necessary, including, but not limited to,
commercial liability insurance and rent loss insurance. All such insurance shall be included as
part of the Operating Expenses charged to Tenant. The Project or Building may be



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included in a blanket policy (in which case the cost of such insurance allocable to the Project or
Building will be determined by Landlord based upon the insurer’s cost calculations). Tenant shall
also reimburse Landlord for any increased premiums or additional insurance which Landlord
reasonably deems necessary as a result of Tenant’s use of the Premises.




          Tenant, at its expense, shall maintain during the Lease Term: all risk property insurance
covering the full replacement cost of all property and improvements installed or placed in the
Premises by Tenant at Tenant’s expense; worker’s compensation insurance with no less than the
minimum limits required by law; employer’s liability insurance with such limits as required by law;
and commercial liability insurance, with a minimum limit of $1,000,000 per occurrence and a minimum
umbrella limit of $1,000,000, for a total minimum combined general liability and umbrella limit of
$2,000,000 (together with such additional umbrella coverage as Landlord may reasonably require) for
property damage, personal injuries, or deaths of persons occurring in or about the Premises.
Landlord may from time to time require reasonable increases in any such limits. The commercial
liability policies shall name Landlord as an additional insured, insure on an occurrence and not a
claims-made basis, be issued by insurance companies which are reasonably acceptable to Landlord,
not be cancelable unless 30 days’ prior written notice shall have been given to Landlord, contain a
hostile fire endorsement and a contractual liability endorsement and provide primary coverage to
Landlord (any policy issued to Landlord providing duplicate or similar coverage shall be deemed
excess over Tenant’s policies). Such policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the Lease Term and upon each renewal of said insurance.




          The all risk property insurance obtained by Landlord and Tenant shall include a waiver of
subrogation by the insurers and all rights based upon an assignment from its insured, against
Landlord or Tenant, their officers, directors, employees, managers, agents, invitees and
contractors, in connection with any loss or damage thereby insured against. Neither party nor its
officers, directors, employees, managers, agents, invitees or contractors shall be liable to the
other for loss or damage caused by any risk coverable by all risk property insurance, and each
party waives any claims against the other party, and its officers, directors, employees, managers,
agents, invitees and contractors for such loss or damage. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees and contractors shall not
be liable for, and Tenant hereby waives all claims against such parties for, business interruption
and losses occasioned thereby sustained by Tenant or any person claiming through Tenant resulting
from any accident or occurrence in or upon the Premises or the Project from any cause whatsoever,
including without limitation, damage caused in whole or in part, directly or indirectly, by the
negligence of Landlord or its agents, employees or contractors.




     10. Landlord’s Repairs. Landlord shall maintain, at its expense, the structural soundness of
the roof, foundation, and exterior walls of the Building in good repair, reasonable wear and tear
and uninsured losses and damages caused by Tenant, its agents and contractors excluded. The term
“walls” as used in this Paragraph 10 shall not include windows, glass or plate glass, doors or
overhead doors, special store fronts, dock bumpers, dock plates or levelers, or office entries.
Tenant shall promptly give Landlord written notice of any repair required by Landlord pursuant to
this Paragraph 10, after which Landlord shall have a reasonable opportunity to repair.



     11. Tenant’s Repairs. Landlord, at Tenant’s expense as provided in Paragraph 6, shall
maintain in good repair and condition the parking areas and other common areas of the Building,
including, but not limited to driveways, alleys, landscape and grounds surrounding the Premises.
Subject to Landlord’s obligation in Paragraph 10 and subject to Paragraphs 9 and 15, Tenant, at
its expense, shall repair, replace and maintain in good condition all portions of the Premises and
all areas, improvements and systems exclusively serving the Premises including, without
limitation, dock and loading areas, truck doors, plumbing, water and sewer lines up to points of
common connection, fire sprinklers and fire protection systems, entries, doors, ceilings, windows,
interior walls, and the interior side of demising walls, and heating, ventilation and air
conditioning systems. Such repair and replacements include capital expenditures and repairs whose
benefit may extend beyond the Term. Heating, ventilation and air conditioning systems and other
mechanical and building systems serving the Premises shall be maintained at Tenant’s expense
pursuant to maintenance service contracts entered into by Tenant or, at Landlord’s election, by
Landlord. The scope of services and contractors under such maintenance contracts shall be
reasonably approved by Landlord. At Landlord’s request, Tenant shall enter into a joint
maintenance agreement with any railroad that services the Premises. If Tenant fails to perform any
repair or replacement for which it is responsible, Landlord may perform such work and be
reimbursed by Tenant within 10 days after demand therefor. Subject to Paragraphs 9 and 15, Tenant
shall bear the full cost of any repair or replacement to any part of the Building or Project that
results from damage caused by Tenant, its agents, contractors, or invitees and any repair that
benefits only the Premises.



     12. Tenant-Made Alterations and Trade Fixtures. Any alterations, additions, or improvements
made by or on behalf of Tenant to the Premises (“Tenant-Made Alterations”) shall be subject to
Landlord’s prior written consent. Tenant shall cause, at its expense, all Tenant-Made Alterations
to comply with insurance requirements and with Legal Requirements and shall construct at its
expense any alteration or modification required by Legal Requirements as a result of any
Tenant-Made Alterations. All Tenant-Made Alterations shall be constructed in a good and
workmanlike manner by contractors reasonably acceptable to Landlord and only good grades of
materials shall be used. All plans and specifications for any Tenant-Made Alterations shall be
submitted to Landlord for its approval. Landlord may monitor construction of the Tenant-Made
Alterations. Tenant shall reimburse Landlord for its costs in reviewing plans and specifications
and in monitoring construction. Landlord’s right to review plans and specifications and to monitor
construction shall be solely for its own benefit, and Landlord shall have no duty to see that such
plans and specifications or construction comply with applicable laws, codes, rules and
regulations. Tenant shall provide Landlord with the identities and mailing addresses of all
persons performing work or supplying materials, prior to beginning such construction, and Landlord
may post on and about the Premises notices of non-responsibility pursuant
to applicable law. Tenant shall furnish security or make other arrangements satisfactory to
Landlord to assure payment for the completion of all work free and clear of liens and shall
provide



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certificates of insurance for worker’s compensation and other coverage in amounts and from an
insurance company satisfactory to Landlord protecting Landlord against liability for personal
injury or property damage during construction. Upon completion of any Tenant-Made Alterations,
Tenant shall deliver to Landlord sworn statements setting forth the names of all contractors and
subcontractors who did work on the Tenant-Made Alterations and final lien waivers from all such
contractors and subcontractors. Upon surrender of the Premises, all Tenant-Made Alterations and any
leasehold improvements constructed by Landlord or Tenant (including those improvements constructed
or installed during the Prior Lease) shall remain on the Premises as Landlord’s property, except to
the extent Landlord requires removal at Tenant’s expense of any such items or Landlord and Tenant
have otherwise agreed in writing in connection with Landlord’s consent to any Tenant-Made
Alterations. Tenant shall repair any damage caused by such removal. Notwithstanding anything to the
contrary herein, Tenant shall not be required to remove the “Tenant Improvements” (as defined in
Exhibit B of the Prior Lease and also referenced in that certain structural permit set dated May
31, 2000).




          Tenant, at its own cost and expense and without Landlord’s prior approval, may erect such
shelves, bins, machinery and trade fixtures (collectively “Trade Fixtures”) in the ordinary course
of its business provided that such items do not alter the basic character of the Premises, do not
overload or damage the Premises, and may be removed without injury to the Premises, and the
construction, erection, and installation thereof complies with all Legal Requirements and with
Landlord’s requirements set forth above. Tenant shall remove its Trade Fixtures and shall repair
any damage caused by such removal.




     13. Signs. Tenant shall not make any changes to the exterior of the Premises, install any
exterior lights, decorations, balloons, flags, pennants, banners, or painting, or erect or install
any signs, windows or door lettering, placards, decorations, or advertising media of any type
which can be viewed from the exterior of the Premises, without Landlord’s prior written consent.
Upon surrender or vacation of the Premises, Tenant shall have removed all signs and repair, paint,
and/or replace the building facia surface to which its signs are attached. Tenant shall obtain all
applicable governmental permits and approvals for sign and exterior treatments. All signs,
decorations, advertising media, blinds, draperies and other window treatment or bars or other
security installations visible from outside the Premises shall be subject to Landlord’s approval
and conform in all respects to Landlord’s requirements.



     14. Parking. Tenant shall be entitled to park in common with other tenants of the Project in
those areas designated for nonreserved parking. Landlord may allocate parking spaces among Tenant
and other tenants in the Project if Landlord determines that such parking facilities are becoming
crowded. Landlord shall not be responsible for enforcing Tenant’s parking rights against any third
parties.



     15. Restoration. If at any time during the Lease Term the Premises are damaged by a fire or
other casualty, Landlord shall notify Tenant within 60 days after such damage as to the amount of
time Landlord reasonably estimates it will take to restore the Premises. If the restoration time
is estimated to exceed 6 months, either Landlord or Tenant may elect to terminate this Lease upon
notice to the other party given no later than 30 days after Landlord’s notice. If neither party
elects to terminate this Lease or if Landlord estimates that restoration will take 6 months or
less, then, subject to receipt of sufficient insurance proceeds, Landlord shall promptly restore
the Premises to the condition existing as of the date Tenant received the Premises under the Prior
Lease, reasonable wear and tear and Tenant’s Tenant-Made Alterations, Trade Fixtures and personal
property excepted, subject to delays arising from the collection of insurance proceeds or from
Force Majeure events. If Landlord fails to complete the restoration within 90 days (such date
shall be extended for tenant-caused delays and Force Majeure (defined in Paragraph 33)) after
Landlord’s estimated time of completion, Tenant may elect to terminate this Lease following
30-days written notice to Landlord given no later than 10 days after expiration of such 90-day
period (such date shall be extended for tenant-caused delays and Force Majeure 33); provided,
however, that if Landlord completes the restoration within such 30-day period following Tenant’s
notice, then Tenant’s termination shall be null and void and the Lease Term shall continue. Tenant
at Tenant’s expense shall promptly perform, subject to delays arising from the collection of
insurance proceeds, or from Force Majeure events, all repairs or restoration not required to be
done by Landlord and shall promptly re-enter the Premises and commence doing business in
accordance with this Lease. Notwithstanding the foregoing, either party may terminate this Lease
if the Premises are damaged during the last year of the Lease Term and Landlord reasonably
estimates that it will take more than one month to repair such damage. Base Rent and Operating
Expenses shall be abated for the period of repair and restoration in the proportion which the area
of the Premises, if any, which is not usable by Tenant bears to the total area of the Premises.
Such abatement shall be the sole remedy of Tenant, and except as provided herein, Tenant waives
any right to terminate the Lease by reason of damage or casualty loss.



     16. Condemnation. If any part of the Premises or the Project should be taken for any public
or quasi-public use under governmental law, ordinance, or regulation, or by right of eminent
domain, or by private purchase in lieu thereof (a “Taking” or “Taken”), and the Taking would
prevent or materially interfere with Tenant’s use of the Premises or in Landlord’s judgment would
materially interfere with or impair its ownership or operation of the Project, then upon written
notice by Landlord (and upon written notice by Tenant if the Taking would prevent or materially
interfere with Tenant’s use of the Premises) this Lease shall terminate and Base Rent shall be
apportioned as of said date. If part of the Premises shall be Taken, and this Lease is not
terminated as provided above, the Base Rent payable hereunder during the unexpired Lease Term
shall be reduced to such extent as may be fair and reasonable under the circumstances. In the
event of any such Taking, Landlord shall be entitled to receive the entire price or award from any
such Taking without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant’s
interest, if any, in such award. Tenant shall have the right, to the extent that same shall not
diminish Landlord’s award, to make a separate claim against the condemning authority (but not
Landlord) for such compensation as may be separately awarded or recoverable by Tenant for moving
expenses and damage to Tenant’s Trade Fixtures, if a separate award for such items is made to
Tenant.



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     17. Assignment and Subletting. Without Landlord’s prior written consent, not to be
unreasonably withheld, conditioned or delayed, Tenant shall not assign this Lease or sublease the
Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant
any concession or license within the Premises and any attempt to do any of the foregoing shall be
void and of no effect. It shall be reasonable for the Landlord to withhold, delay or condition its
consent, where required, to any assignment or sublease in any of the following instances: (i) the
assignee or sublessee does not have a tangible net worth calculated according to generally accepted
accounting principles at least equal to the greater of the tangible net worth of Tenant immediately
prior to such assignment or sublease or the tangible net worth of the Tenant at the time it
executed the Lease; (ii) the intended use of the Premises by the assignee or sublessee is not
reasonably satisfactory to Landlord; (iii) the intended use of the Premises by the assignee or
sublessee would materially increase the pedestrian or vehicular traffic to the Premises or the
Project; (iv) occupancy of the Premises by the assignee or sublessee would, in Landlord’s opinion,
violate any agreement binding upon Landlord or the Project with regard to the identity of tenants,
usage in the Project, or similar matters; (v) the identity or business reputation of the assignee
or sublessee will, in the good faith judgment of Landlord, tend to damage the goodwill or
reputation of the Project; (vi) the assignment or sublease is to another tenant in the Project and
is at rates which are below those charged by Landlord for comparable space in the Project; (vii) in
the case of a sublease, the subtenant has not acknowledged that the Lease controls over any
inconsistent provision in the sublease; or (viii) the proposed assignee or sublessee is a
government entity. The foregoing criteria shall not exclude any other reasonable basis for Landlord
to refuse its consent to such assignment or sublease. Any approved assignment or sublease shall be
expressly subject to the terms and conditions of this Lease. Tenant shall provide to Landlord all
information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may
revoke its consent immediately and without notice if, as of the effective date of the assignment or
sublease, there has occurred and is continuing any default under the Lease. For purposes of this
paragraph, a transfer of the ownership interests controlling Tenant shall be deemed an assignment
of this Lease unless such ownership interests are publicly traded. Notwithstanding the above,
Tenant may assign or sublet the Premises, or any part thereof, (i) to any entity controlling
Tenant, controlled by Tenant or under common control with Tenant (a “Tenant Affiliate”) or (ii) to
any entity resulting from a merger or consolidation with Tenant or any entity that purchases all or
substantially all of the stock or assets of Tenant and such entity has a tangible net worth at the
time of such transfer equal to or greater than the tangible net worth of Tenant as of the execution
of this Lease (a “Permitted Transferee”), without the prior written consent of Landlord. Tenant
shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with
any assignment or sublease. Upon Landlord’s receipt of Tenant’s written notice of a desire to
assign or sublet the Premises, or any part thereof (other than to a Permitted Transferee), Landlord
may, by giving written notice to Tenant within 30 days after receipt of Tenant’s notice, terminate
this Lease with respect to the space described in Tenant’s notice, as of the date specified in
Tenant’s notice for the commencement of the proposed assignment or sublease.



          Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s
obligations under this Lease shall at all times remain fully responsible and liable for the
payment of the rent and for compliance with all of Tenant’s other obligations under this Lease
(regardless of whether Landlord’s approval has been obtained for any such assignments or
sublettings). In the event that the rent due and payable by a sublessee or assignee (or a
combination of the rental payable under such sublease or assignment plus any bonus or other
consideration therefor or incident thereto) exceeds the rental payable under this Lease, then
Tenant shall be bound and obligated to pay Landlord as additional rent hereunder all such excess
rental and other excess consideration within 10 days following receipt thereof by Tenant.




          If this Lease be assigned or if the Premises be subleased (whether in whole or in part) or in
the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold interest or grant of any
concession or license within the Premises or if the Premises be occupied in whole or in part by
anyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect rent from
the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold interest was
hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in
the preceding paragraph, apply the amount collected to the next rent payable hereunder; and all
such rentals collected by Tenant shall be held in trust for Landlord and immediately forwarded to
Landlord. No such transaction or collection of rent or application thereof by Landlord, however,
shall be deemed a waiver of these provisions or a release of Tenant from the further performance
by Tenant of its covenants, duties, or obligations hereunder.




     18. Indemnification. Except for the negligence of Landlord, its agents, employees or
contractors, and to the extent permitted by law, Tenant agrees to indemnify, defend and hold
harmless Landlord, and Landlord’s agents, employees and contractors, from and against any and all
losses, liabilities, damages, costs and expenses (including attorneys’ fees) resulting from claims
by third parties for injuries to any person and damage to or theft or misappropriation or loss of
property occurring in or about the Project and arising from the use and occupancy of the Premises
or from any activity, work, or thing done, permitted or suffered by Tenant in or about the
Premises or due to any other act or omission of Tenant, its subtenants, assignees, invitees,
employees, contractors and agents. The furnishing of insurance required hereunder shall not be
deemed to limit Tenant’s obligations under this Paragraph 18.



     19. Inspection and Access. Landlord and its agents, representatives, and contractors may
enter the Premises at any reasonable time to inspect the Premises and to make such repairs as may
be required or permitted pursuant to this Lease and for any other business purpose. Landlord and
Landlord’s representatives may enter the Premises during business hours for the purpose of showing
the Premises to prospective purchasers and, during the last year of the Lease Term, to prospective
tenants. Landlord may erect a suitable sign on the Premises stating the Premises are available to
let or that the Project is available for sale. Landlord may grant easements, make public
dedications, designate common areas and create restrictions on or about the Premises, provided
that no such



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easement, dedication, designation or restriction materially interferes with Tenant’s use or
occupancy of the Premises. At Landlord’s request, Tenant shall execute such instruments as may be
necessary for such easements, dedications or restrictions.




     20. Quiet Enjoyment. If Tenant shall perform all of the covenants and agreements herein
required to be performed by Tenant, Tenant shall, subject to the terms of this Lease, at all times
during the Lease Term, have peaceful and quiet enjoyment of the Premises against any person
claiming by, through or under Landlord.



     21. Surrender. Landlord and Tenant agree and understand that Tenant has occupied the Premises
since July 1, 2001 under the Prior Lease and that upon termination of the Lease Term, or earlier
termination of Tenant’s right of possession, Tenant shall surrender the Premises to Landlord in the
same condition as received under the Prior Lease following the completion of the “Tenant
Improvements” (as defined in Exhibit B of the Prior Lease and also referenced in that certain
structural permit set dated May 31, 2000), broom clean, ordinary wear and tear and casualty loss
and condemnation covered by Paragraphs 15 and 16 excepted. Any Trade Fixtures, Tenant-Made
Alterations, improvements, and property (including the foregoing which may have been constructed or
placed in the Premises during the term of the Prior Lease), not so removed by Tenant as permitted
or required herein shall be deemed abandoned and may be stored, removed, and disposed of by
Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for any damages
resulting from Landlord’s retention and disposition of such property. All obligations of Tenant
hereunder not fully performed as of the termination of the Lease Term shall survive the termination
of the Lease Term, including without limitation, indemnity obligations, payment obligations with
respect to Operating Expenses and all obligations concerning the condition and repair of the
Premises.



     22. Holding Over. If Tenant retains possession of the Premises after the termination of the
Lease Term, unless otherwise agreed in writing, such possession shall be subject to immediate
termination by Landlord at any time, and all of the other terms and provisions of this Lease
(excluding any expansion or renewal option or other similar right or option) shall be applicable
during such holdover period, except that Tenant shall pay Landlord from time to time, upon demand,
as Base Rent for the holdover period, an amount equal to 150% the Base Rent in effect on the
termination date, computed on a monthly basis for each month or part thereof during such holding
over. All other payments shall continue under the terms of this Lease. In addition, Tenant shall
be liable for all damages incurred by Landlord as a result of such holding over. No holding over
by Tenant, whether with or without consent of Landlord, shall operate to extend this Lease except
as otherwise expressly provided, and this Paragraph 22 shall not be construed as consent for
Tenant to retain possession of the Premises. For purposes of this Paragraph 22, “possession of the
Premises” shall continue until, among other things, Tenant has delivered all keys to the Premises
to Landlord, Landlord has complete and total dominion and control over the Premises, and Tenant
has completely fulfilled all obligations required of it upon termination of the Lease as set forth
in this Lease, including, without limitation, those concerning the condition and repair of the
Premises.



     23. Events of Default. Each of the following events shall be an event of default (“Event of
Default”) by Tenant under this Lease:




     (i) Tenant shall fail to pay any installment of Base Rent or any other payment
required herein when due, and such failure shall continue for a period of 5 days after written
notice that such payment was due; provided, however, that Landlord shall not be obligated
to provide written notice of such failure more than 2 times in any consecutive 12-month
period, and the failure of Tenant to pay any third or subsequent installment of Base Rent
or any other payment required herein when due in any consecutive 12-month period shall
constitute an Event of Default by Tenant under this Lease without the requirement of notice
or opportunity to cure; provided, however, that any such notice shall be in lieu of, and
not in addition to, any notice required under applicable law.




     (ii) Tenant or any guarantor or surety of Tenant’s obligations hereunder shall (A)
make a general assignment for the benefit of creditors; (B) commence any case, proceeding or other
action seeking to have an order for relief entered on its behalf as a debtor or to
adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or of any
substantial part of its property (collectively a “proceeding for relief); (C) become the
subject of any proceeding for relief which is not dismissed within 60 days of its filing or
entry; or (D) die or suffer a legal disability (if Tenant, guarantor, or surety is an
individual) or be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).




     (iii) Any insurance required to be maintained by Tenant pursuant to this Lease shall
be cancelled or terminated or shall expire or shall be reduced or materially changed,
except, in each case, as permitted in this Lease.




     (iv) Tenant shall not occupy or shall vacate the Premises or shall fail to
continuously operate its business at the Premises for the permitted use set forth herein,
whether or not Tenant is in monetary or other default under this Lease.




     (v) Tenant shall attempt or there shall occur any assignment, subleasing or other
transfer of Tenant’s interest in or with respect to this Lease except as otherwise permitted in this
Lease.




     (vi) Tenant shall fail to discharge any lien placed upon the Premises in violation of
this Lease within 30 days after any such lien or encumbrance is filed against the Premises.



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     (vii) Tenant shall fail to comply with any provision of this Lease other than those
specifically referred to in this Paragraph 23, and except as otherwise expressly provided
herein, such default shall continue for more than 30 days after Landlord shall have given
Tenant written notice of such default (unless such failure will due to the nature of the
obligation require a period of time in excess of 30 days and Tenant has made diligent
efforts to cure such default within the 30 day period and thereafter proceeds continuously
and diligently to cure such default within a commercially reasonable time, then after such
period of time as is reasonably necessary not to exceed 90 days).



     24. Landlord’s Remedies. Upon each occurrence of an Event of Default and so long as such
Event of Default shall be continuing, Landlord may at any time thereafter at its election: terminate
this Lease or Tenant’s right of possession, (but Tenant shall remain liable as hereinafter
provided) and/or pursue any other remedies at law or in equity. Upon the termination of this Lease
or termination of Tenant’s right of possession, it shall be lawful for Landlord, without formal
demand or notice of any kind, to re-enter the Premises by summary dispossession proceedings or any
other action or proceeding authorized by law and to remove Tenant and all persons and property
therefrom. If Landlord re-enters the Premises, Landlord shall have the right to keep in place and
use, or remove and store, all of the furniture, fixtures and equipment at the Premises.



          If Landlord terminates this Lease, Landlord may recover from Tenant the sum of: all Base Rent
and all other amounts accrued hereunder to the date of such termination; the cost of reletting the
whole or any part of the Premises, including without limitation brokerage fees and/or leasing
commissions incurred by Landlord, and costs of removing and storing Tenant’s or any other
occupant’s property, repairing, altering, remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant or tenants, and all reasonable expenses incurred by Landlord
in pursuing its remedies, including reasonable attorneys’ fees and court costs; and the excess of
the then present value of the Base Rent and other amounts payable by Tenant under this Lease as
would otherwise have been required to be paid by Tenant to Landlord during the period following
the termination of this Lease measured from the date of such termination to the expiration date
stated in this Lease, over the present value of any net amounts which Tenant establishes Landlord
can reasonably expect to recover by reletting the Premises for such period, taking into
consideration the availability of acceptable tenants and other market conditions affecting
leasing. Such present values shall be calculated at a discount rate equal to the 90-day U.S.
Treasury bill rate at the date of such termination.




          If Landlord terminates Tenant’s right of possession (but not this Lease), Landlord may, but
shall be under no obligation to, relet the Premises for the account of Tenant for such rent and
upon such terms as shall be satisfactory to Landlord without thereby releasing Tenant from any
liability hereunder and without demand or notice of any kind to Tenant. For the purpose of such
reletting Landlord is authorized to make any repairs, changes, alterations, or additions in or to
the Premises as Landlord deems reasonably necessary or desirable. If the Premises are not relet,
then Tenant shall pay to Landlord as damages a sum equal to the amount of the rental reserved in
this Lease for such period or periods, plus the cost of recovering possession of the Premises
(including attorneys’ fees and costs of suit), the unpaid Base Rent and other amounts accrued
hereunder at the time of repossession, and the costs incurred in any attempt by Landlord to relet
the Premises. If the Premises are relet and a sufficient sum shall not be realized from such
reletting [after first deducting therefrom, for retention by Landlord, the unpaid Base Rent and
other amounts accrued hereunder at the time of reletting, the cost of recovering possession
(including attorneys’ fees and costs of suit), all of the costs and expense of repairs, changes,
alterations, and additions, the expense of such reletting (including without limitation brokerage
fees and leasing commissions) and the cost of collection of the rent accruing therefrom] to
satisfy the rent provided for in this Lease to be paid, then Tenant shall immediately satisfy and
pay any such deficiency. Any such payments due Landlord shall be made upon demand therefor from
time to time and Tenant agrees that Landlord may file suit to recover any sums falling due from
time to time. Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect in writing to terminate this Lease for such previous breach.




         Exercise by Landlord of any one or more remedies hereunder granted or otherwise available
shall not be deemed to be an acceptance of surrender of the Premises and/or a termination of this
Lease by Landlord, whether by agreement or by operation of law, it being understood that such
surrender and/or termination can be effected only by the written agreement of Landlord and Tenant.
Any law, usage, or custom to the contrary notwithstanding, Landlord shall have the right at all
times to enforce the provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease strictly in accordance with
same shall not be construed as having created a custom in any way or manner contrary to the
specific terms, provisions, and covenants of this Lease or as having modified the same. Tenant and
Landlord further agree that forbearance or waiver by Landlord to enforce its rights pursuant to
this Lease or at law or in equity, shall not be a waiver of Landlord’s right to enforce one or
more of its rights in connection with any subsequent default. A receipt by Landlord of rent or
other payment with knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision of this Lease shall be deemed to have been
made unless expressed in writing and signed by Landlord. To the greatest extent permitted by law,
Tenant waives the service of notice of Landlord’s intention to re-enter as provided for in any
statute, or to institute legal proceedings to that end, and also waives all right of redemption in
case Tenant shall be dispossessed by a judgment or by warrant of any court or judge. The terms
“enter,” “re-enter,” “entry” or “re-entry,” as used in this Lease, are not restricted to their
technical legal meanings. Any reletting of the Premises shall be on such terms and conditions as
Landlord in its sole discretion may determine (including without limitation a term different than
the remaining Lease Term, rental concessions, alterations and repair of the Premises, lease of
less than the entire Premises to any tenant and leasing any or all other portions of the Project
before reletting the Premises). Landlord shall not be liable, nor shall Tenant’s obligations
hereunder be diminished because of, Landlord’s failure to relet the Premises or collect rent due
in respect of such reletting.




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     25. Tenant’s Remedies/Limitation of Liability. Landlord shall not be in default hereunder unless
Landlord fails to perform any of its obligations hereunder within 30 days after written notice from
Tenant specifying such failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as is reasonably
necessary). All obligations of Landlord hereunder shall be construed as covenants, not conditions;
and, except as may be otherwise expressly provided in this Lease, Tenant may not terminate this
Lease for breach of Landlord’s obligations hereunder. All obligations of Landlord under this Lease
will be binding upon Landlord only during the period of its ownership of the Premises and not
thereafter. The term “Landlord” in this Lease shall mean only the owner, for the time being of the
Premises, and in the event of the transfer by such owner of its interest in the Premises, such
owner shall thereupon be released and discharged from all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon each new owner for the
duration of such owner’s ownership. Any liability of Landlord under this Lease shall be limited
solely to its interest in the Project, and in no event shall any personal liability be asserted
against Landlord in connection with this Lease nor shall any recourse be had to any other property
or assets of Landlord.



     26. Waiver of Jury Trial. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.



     27. Subordination. This Lease and Tenant’s interest and rights hereunder are and shall be
subject and subordinate at all times to the lien of any first mortgage, now existing or hereafter
created on or against the Project or the Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant provided that as to the lien of
any such mortgage Tenant’s right to quiet possession of the Premises shall not be disturbed if
Tenant is not in default. Tenant agrees, at the election of the holder of any such mortgage, to
attorn to any such holder. Tenant agrees upon demand to execute, acknowledge and deliver such
instruments, confirming such subordination and such instruments of attornment as shall be
requested by any such holder. Tenant hereby appoints Landlord attorney in fact for Tenant
irrevocably (such power of attorney being coupled with an interest) to execute, acknowledge and
deliver any such instrument and instruments for and in the name of the Tenant and to cause any
such instrument to be recorded. Notwithstanding the foregoing, any such holder may at any time
subordinate its mortgage to this Lease, without Tenant’s consent, by notice in writing to Tenant,
and thereupon this Lease shall be deemed prior to such mortgage without regard to their respective
dates of execution, delivery or recording and in that event such holder shall have the same rights
with respect to this Lease as though this Lease had been executed prior to the execution, delivery
and recording of such mortgage and had been assigned to such holder. The term “mortgage” whenever
used in this Lease shall be deemed to include deeds of trust, security assignments and any other
encumbrances, and any reference to the “holder” of a mortgage shall be deemed to include the
beneficiary under a deed of trust.



     28. Mechanic’s Liens. Tenant has no express or implied authority to create or place any lien
or encumbrance of any kind upon, or in any manner to bind the interest of Landlord or Tenant in,
the Premises or to charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause to be paid all sums
legally due and payable by it on account of any labor performed or materials furnished in
connection with any work performed on the Premises and that it will save and hold Landlord
harmless from all loss, cost or expense based on or arising out of asserted claims or liens
against the leasehold estate or against the interest of Landlord in the Premises or under this
Lease. Tenant shall give Landlord immediate written notice of the placing of any lien or
encumbrance against the Premises and cause such lien or encumbrance to be discharged within 30
days of the filing or recording thereof; provided, however, Tenant may contest such liens or
encumbrances as long as such contest prevents foreclosure of the lien or encumbrance and Tenant
causes such lien or encumbrance to be bonded or insured over in a manner satisfactory to Landlord
within such 30 day period.



     29. Estoppel Certificates. Tenant agrees, from time to time, within 10 days after request of
Landlord, to execute and deliver to Landlord, or Landlord’s designee, any estoppel certificate
requested by Landlord, stating that this Lease is in full force and effect, the date to which rent
has been paid, that Landlord is not in default hereunder (or specifying in detail the nature of
Landlord’s default), the termination date of this Lease and such other matters pertaining to this
Lease as may be requested by Landlord. Tenant’s obligation to furnish each estoppel certificate in
a timely fashion is a material inducement for Landlord’s execution of this Lease. No cure or grace
period provided in this Lease shall apply to Tenant’s obligations to timely deliver an estoppel
certificate. Tenant hereby irrevocably appoints Landlord as its attorney in fact to execute on its
behalf and in its name any such estoppel certificate if Tenant fails to execute and deliver the
estoppel certificate within 10 days after Landlord’s written request thereof.



     30. Environmental Requirements. Except for Hazardous Material contained in products used by
Tenant in de minimis quantities for ordinary cleaning and office purposes, Tenant shall not permit
or cause any party to bring any Hazardous Material upon the Premises or transport, store, use,
generate, manufacture or release any Hazardous Material in or about the Premises without
Landlord’s prior written consent. Tenant, at its sole cost and expense, shall operate its business
in the Premises in strict compliance with all Environmental Requirements and shall remediate in a
manner satisfactory to Landlord any Hazardous Materials released on or from the Project by Tenant,
its agents, employees, contractors, subtenants or invitees. Tenant shall complete and certify to
disclosure statements as requested by Landlord from time to time relating to Tenant’s
transportation, storage, use, generation,




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manufacture or release of Hazardous Materials on the Premises. The term “Environmental
Requirements” means all applicable present and future statutes, regulations, ordinances, rules,
codes, judgments, orders or other similar enactments of any governmental authority or agency
regulating or relating to health, safety, or environmental conditions on, under, or about the
Premises or the environment, including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource Conservation and Recovery Act;
and all state and local counterparts thereto, and any regulations or policies promulgated or issued
thereunder. The term “Hazardous Materials” means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic, under any Environmental
Requirements, asbestos and petroleum, including crude oil or any fraction thereof, natural gas
liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and
such synthetic gas). As defined in Environmental Requirements, Tenant is and shall be deemed to be
the “operator” of Tenant’s “facility” and the “owner” of all Hazardous Materials brought on the
Premises by Tenant, its agents, employees, contractors or invitees, and the wastes, by-products, or
residues generated, resulting, or produced therefrom.




          Tenant shall indemnify, defend, and hold Landlord harmless from and against any and all
losses (including, without limitation, diminution in value of the Premises or the Project and loss
of rental income from the Project), claims, demands, actions, suits, damages (including, without
limitation, punitive damages), expenses (including, without limitation, remediation, removal,
repair, corrective action, or cleanup expenses), and costs (including, without limitation, actual
attorneys’ fees, consultant fees or expert fees and including, without limitation, removal or
management of any asbestos brought into the property or disturbed in breach of the requirements of
this Paragraph 30, regardless of whether such removal or management is required by law) which are
brought or recoverable against, or suffered or incurred by Landlord as a result of any release of
Hazardous Materials for which Tenant is obligated to remediate as provided above or any other
breach of the requirements under this Paragraph 30 by Tenant, its agents, employees, contractors,
subtenants, assignees or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The obligations of Tenant under this Paragraph 30 shall survive any termination of
this Lease.




          Landlord shall have access to, and a right to perform inspections and tests of, the Premises
to determine Tenant’s compliance with Environmental Requirements, its obligations under this
Paragraph 30, or the environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord’s prior notice to Tenant and at such times so as to minimize, so far as may be
reasonable under the circumstances, any disturbance to Tenant’s operations. Such inspections and
tests shall be conducted at Landlord’s expense, unless such inspections or tests reveal that
Tenant has not complied with any Environmental Requirement, in which case Tenant shall reimburse
Landlord for the reasonable cost of such inspection and tests. Landlord’s receipt of or
satisfaction with any environmental assessment in no way waives any rights that Landlord holds
against Tenant.




     31. Rules and Regulations. Tenant shall, at all times during the Lease Term and any
extension thereof, comply with all reasonable rules and regulations at any time or from time to
time established by Landlord covering use of the Premises and the Project. The current rules and
regulations are attached hereto. In the event of any conflict between said rules and regulations
and other provisions of this Lease, the other terms and provisions of this Lease shall control.
Landlord shall not have any liability or obligation for the breach of any rules or regulations by
other tenants in the Project.



     32. Security Service. Tenant acknowledges and agrees that, while Landlord may patrol the
Project, Landlord is not providing any security services with respect to the Premises and that
Landlord shall not be liable to Tenant for, and Tenant waives any claim against Landlord with
respect to, any loss by theft or any other damage suffered or incurred by Tenant in connection with
any unauthorized entry into the Premises or any other breach of security with respect to the
Premises.



     33. Force Majeure. Landlord shall not be held responsible for delays in the performance of
its obligations hereunder when caused by strikes, lockouts, labor disputes, acts of God, inability
to obtain labor or materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls, delay in issuance of permits, enemy or hostile
governmental action, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of Landlord (“Force Majeure”).



     34. Entire Agreement. This Lease constitutes the complete agreement of Landlord and Tenant
with respect to the subject matter hereof. No representations, inducements, promises or agreements,
oral or written, have been made by Landlord or Tenant, or anyone acting on behalf of Landlord or
Tenant, which are not contained herein, and any prior agreements, promises, negotiations, or
representations are superseded by this Lease. This Lease may not be amended except by an
instrument in writing signed by both parties hereto.



     35. Severability. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby. It is also the
intention of the parties to this Lease that in lieu of each clause or provision of this Lease that
is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may
be possible and be legal, valid and enforceable.



     36. Brokers. Tenant represents and warrants that it has dealt with no broker, agent or other
person in connection with this transaction and that no broker, agent or other person brought about
this transaction, other than the broker, if any, set forth on the first page of this Lease, and
Tenant agrees to indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of compensation by virtue of
having dealt with Tenant with regard to this leasing transaction.



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     37. Miscellaneous. (a) Any payments or charges due from Tenant to
Landlord hereunder shall be considered rent for all purposes of this Lease.



     (b) If and when included within the term “Tenant,” as used in this instrument, there is more
than one person, firm or corporation, each shall be jointly and severally liable for the
obligations of Tenant.



     (c) All notices required or permitted to be given under this Lease shall be in writing and
shall be sent by registered or certified mail, return receipt requested, or by a reputable national
overnight courier service, postage prepaid, or by hand delivery addressed to the parties at their
addresses below, and with a copy sent to Landlord at 4545 Airport Way, Denver, Colorado 80239.
Either party may by notice given aforesaid change its address for all subsequent notices. Except
where otherwise expressly provided to the contrary, notice shall be deemed given upon delivery.



     (d) Except as otherwise expressly provided in this Lease or as otherwise required by law,
Landlord shall not unreasonably withhold any consent or approval required under this Lease.



     (e) At Landlord’s request from time to time Tenant shall furnish Landlord with true and
complete copies of its most recent annual and quarterly financial statements prepared by Tenant or
Tenant’s accountants and any other financial information or summaries that Tenant typically
provides to its lenders or shareholders.



     (f) Neither this Lease nor a memorandum of lease shall be filed by or on behalf of Tenant in
any public record. Landlord may prepare and file, and upon request by Landlord Tenant will execute,
a memorandum of lease.



     (g) The normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Lease or any
exhibits or amendments hereto.



     (h) The submission by Landlord to Tenant of this Lease shall have no binding force or effect,
shall not constitute an option for the leasing of the Premises, nor confer any right or impose any
obligations upon either party until execution of this Lease by both parties.



     (i) Words of any gender used in this Lease shall be held and construed to include any other
gender,
and words in the singular number shall be held to include the plural, unless the context otherwise
requires. The captions inserted in this Lease are for convenience only and in no way define, limit
or otherwise describe the scope or intent of this Lease, or any provision hereof, or in any way
affect the interpretation of this Lease.



     (j) Any amount not paid by Tenant within 5 days after its due date in accordance with the
terms of


this Lease shall bear interest from such due date until paid in full at the lesser of the highest
rate permitted by applicable law or 12 percent per year. It is expressly the intent of Landlord
and Tenant at all times to comply with applicable law governing the maximum rate or amount of any
interest payable on or in connection with this Lease. If applicable law is ever judicially
interpreted so as to render usurious any interest called for under this Lease, or contracted for,
charged, taken, reserved, or received with respect to this Lease, then it is Landlord’s and
Tenant’s express intent that all excess amounts theretofore collected by Landlord be credited on
the applicable obligation (or, if the obligation has been or would thereby be paid in full,
refunded to Tenant), and the provisions of this Lease immediately shall be deemed reformed and the
amounts thereafter collectible hereunder reduced, without the necessity of the execution of any
new document, so as to comply with the applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder.



     (k) Construction and interpretation of this Lease shall be governed by the laws of the state
in which the Project is located, excluding any principles of conflicts of laws.



     (l) Time is of the essence as to the performance of Tenant’s obligations under this Lease.



     (m) All exhibits and addenda attached hereto are hereby incorporated into this Lease and made
a part hereof. In the event of any conflict between such exhibits or addenda and the terms of this
Lease, such exhibits or addenda shall control.



     (n) In the event either party hereto initiates litigation to enforce the terms and provisions
of this Lease, the non-prevailing party in such action shall reimburse the prevailing party for
its reasonable attorney’s fees, filing fees, and court costs.



     38. Landlord’s Lien/Security Interest. Landlord hereby waives any and all liens for rent
(whether arising by virtue of statute, common law, or otherwise) on Tenant’s trade fixtures,
furnishings, equipment, inventory and personal property. Landlord does not waive any right to
obtain and enforce any judgment lien or any pre-judgment rights and remedies other than those
described above.



     39. Limitation of Liability of Trustees, Shareholders, and Officers of ProLogis. Any
obligation or liability whatsoever of ProLogis, a Maryland real estate investment trust, which may
arise at any time under this Lease or any obligation or liability which may be incurred by it
pursuant to any other instrument, transaction, or undertaking contemplated hereby shall not be
personally binding upon, nor shall resort for the enforcement thereof be had to the property of,
its trustees, directors, shareholders, officers, employees or agents, regardless of whether such
obligation or liability is in the nature of contract, tort, or otherwise.



 - 11 - 









 





     IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first above written.



	 	 	 	 	 	 	 

	TENANT:	 	LANDLORD:
	 
	 	 	 	 	 	 
	Brooks Automation, Inc.	 	CATELLUS OPERATING LIMITED
	 	 	PARTNERSHIP,
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 
	 

	 	By:	 	Palmtree Acquisition Corporation,	 	 
	 

	 	 	 	
 a Delaware
corporation, 
its general partner	 	 






	 	 	 	 	 	 	 

	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 	 	 

	By:

	 	/s/ Greg Marvell                                            9-15-10
 

	 	 	 	By:
	 	/s/ W. Scott Lamson
 

	 	 
	Name:

	 	Greg Marvell
 

	 	 
	 	Name:
	 	W. Scott Lamson	 	 
	Title:

	 	SVP, GM Brooks
 

	 	 
	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Address:	 	 	 	Address:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	15 Elizabeth Drive	 	 	 	47775 Fremont Blvd.	 	 
	Attn: Linda Galligan	 	 	 	



	 	 
	Chelmsford, MA 01824	 	 	 	



Fremont, CA 94538	 	 






 - 12 - 









 






Rules and Regulations





	1.	 	The sidewalk, entries, and driveways of the Project shall not be obstructed by Tenant, or its
agents, or used by them for any purpose other than ingress and egress to and from the
Premises.

	 
	2.	 	Tenant shall not place any objects, including antennas, outdoor furniture, etc., in the
parking areas, landscaped areas or other areas outside of its Premises, or on the roof of the
Project.

	 
	3.	 	Except for seeing-eye dogs, no animals shall be allowed in the offices, halls, or corridors in
the Project.

	 
	4.	 	Tenant shall not disturb the occupants of the Project or adjoining buildings by the use of
any radio or musical instrument or by the making of loud or improper noises.

	 
	5.	 	If Tenant desires telegraphic, telephonic or other electric connections in the Premises,
Landlord or its agent will direct the electrician as to where and how the wires may be
introduced; and, without such direction, no boring or cutting of wires will be permitted. Any
such installation or connection shall be made at Tenant’s expense.

	 
	6.	 	Tenant shall not install or operate any steam or gas engine or boiler, or other mechanical
apparatus in the Premises, except as specifically approved in the Lease. The use of oil, gas
or inflammable liquids for heating, lighting or any other purpose is expressly prohibited.
Explosives or other articles deemed extra hazardous shall not be brought into the Project.

	 
	7.	 	Parking any type of recreational vehicles is specifically prohibited on or about the Project.
Further, parking any type of trucks, trailers or other vehicles in the Premises is
specifically prohibited. Except for the overnight parking of operative vehicles, no vehicle
of any type shall be stored in the parking areas at any time. In the event that a vehicle is
disabled, it shall be removed within 48 hours. There shall be no “For Sale” or other
advertising signs on or about any parked vehicle. All vehicles shall be parked in the
designated parking areas in conformity with all signs and other markings. All parking will
be open parking, and no reserved parking, numbering or lettering of individual spaces will be
permitted except as specified by Landlord.

	 
	8.	 	Tenant shall maintain the Premises free from rodents, insects and other pests.

	 
	9.	 	Landlord reserves the right to exclude or expel from the Project any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs or who shall in
any manner do any act in violation of the Rules and Regulations of the Project.

	 
	10.	 	Tenant shall not cause any unnecessary labor by reason of Tenant’s carelessness or
indifference in the preservation of good order and cleanliness. Landlord shall not be
responsible to Tenant for any loss of property on the Premises, however occurring, or for any
damage done to the effects of Tenant by the janitors or any other employee or person.

	 
	11.	 	Tenant shall give Landlord prompt notice of any defects in the water, lawn sprinkler, sewage,
gas pipes, electrical lights and fixtures, heating apparatus, or any other service equipment
affecting the Premises.

	 
	12.	 	Tenant shall not permit storage outside the Premises, including without limitation, outside
storage of trucks and other vehicles, or dumping of waste or refuse or permit any harmful
materials to be placed in any drainage system or sanitary system in or about the Premises.

	 
	13.	 	All moveable trash receptacles provided by the trash disposal firm for the Premises must be
kept in the trash enclosure areas, if any, provided for that purpose.

	 
	14.	 	No auction, public or private, will be permitted on the Premises or the Project.

	 
	15.	 	No awnings shall be placed over the windows in the Premises except with the prior written
consent of Landlord.

	 
	16.	 	The Premises shall not be used for lodging, sleeping or cooking or for any immoral or illegal
purposes or for any purpose other than that specified in the Lease. No gaming devices shall
be operated in the Premises.

	 
	17.	 	Tenant shall ascertain from Landlord the maximum amount of electrical current which can
safely be used in the Premises, taking into account the capacity of the electrical wiring in
the Project and the Premises and the needs of other tenants, and shall not use more than such
safe capacity. Landlord’s consent to the installation of electric equipment shall not
relieve Tenant from the obligation not to use more electricity than such safe capacity.

	 
	18.	 	Tenant assumes full responsibility for protecting the Premises from theft, robbery and
pilferage.






 - 13 - 









 






	19.	 	Tenant shall not install or operate on the Premises any machinery or mechanical
devices of a nature not directly related to Tenant’s ordinary use of the Premises and shall
keep all such machinery free of vibration, noise and air waves which may be transmitted beyond
the Premises.





 - 14 - 









 











ADDENDUM 1




base rent adjustments



ATTACHED TO AND A PART OF THE LEASE AGREEMENT
 DATED
9/30/10, BETWEEN



CATELLUS OPERATING LIMITED PARTNERSHIP

and

Brooks Automation, Inc.



Base Rent shall equal the following amounts for the respective periods set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Period	 	Monthly Base Rent	 
	January 1, 2011
	 	to	 	March 31, 2011	 	$	0.00	*
	April 1, 2011
	 	to	 	March 31, 2013	 	$	64,350.00	 
	April 1, 2013
	 	to	 	March 31, 2015	 	$	68,211.00	 
	April 1, 2015
	 	to	 	March 31,  2016	 	$	72,303.66	 







 




			
	*	 	Tenant shall remain responsible for Operating Expenses and Utilities during the period of abated
rent.




 - 15 - 









 










ADDENDUM 2




HVAC MAINTENANCE CONTRACT


ATTACHED TO AND A PART OF THE LEASE AGREEMENT

DATED 9/30/10, BETWEEN



CATELLUS OPERATING LIMITED PARTNERSHIP

and

Brooks Automation, Inc.




	Paragraph 11, captioned “TENANT REPAIRS,” is revised to include the following:





          Tenant agrees to enter into and maintain through the term of the Lease, a regularly scheduled
preventative maintenance/service contract for servicing all hot water, heating and air conditioning
systems and equipment within the Premises. Landlord requires a qualified HVAC contractor perform
this work. A certificate must be provided to the Landlord upon occupancy of the leased Premises.



     The service contract must become effective within thirty (30) days of occupancy, and service
visits should be performed on a quarterly basis. Landlord suggests that Tenant send the following
list to a qualified HVAC contractor to be assured that these items are included in the maintenance
contract:




	 	1.	 	Adjust belt tension;
	 
	 	2.	 	Lubricate all moving parts, as necessary;
	 
	 	3.	 	Inspect and adjust all temperature and safety controls;
	 
	 	4.	 	Check refrigeration system for leaks and operation;
	 
	 	5.	 	Check refrigeration system for moisture;
	 
	 	6.	 	Inspect compressor oil level and crank case heaters;
	 
	 	7.	 	Check head pressure, suction pressure and oil pressure;
	 
	 	8.	 	Inspect air filters and replace when necessary;
	 
	 	9.	 	Check space conditions;
	 
	 	10.	 	Check condensate drains and drain pans and clean, if necessary;
	 
	 	11.	 	Inspect and adjust all valves;
	 
	 	12.	 	Check and adjust dampers;
	 
	 	13.	 	Run machine through complete cycle.




 - 16 - 









 











ADDENDUM 3




SIGN SPECIFICATION



ATTACHED TO AND A PART OF THE LEASE AGREEMENT

DATED 9/30/10, BETWEEN



CATELLUS OPERATING LIMITED PARTNERSHIP

and

Brooks Automation, Inc.



BASIC IDENTIFICATION SIGN:



Each Tenant is allowed a basic identification sign to display company name in 18” microgramma (aka
Eurostile Bold Extended) letters the color of which shall match the green reveal stripe on the
building. Logos or symbols of the same construction as letters may be added, a maximum of 30” in
any one dimension, color may be determined by Tenant and approved by Landlord. Letters and logos
are to be non-illuminated and individually mounted with the building facade providing the
background. Corporate or company names will be listed in capital letters only, no lower case
letters are allowed. Letter height will remain consistent at 18” with the length of the sign
varying according to the length of the name displayed. Logos or symbols are to be centered from top
to bottom in the sign area. Names will be mounted above the entry, centered in the area below the
accent stripe and above the glass line. If there is a double store front, the name shall be
justified to the left for the right entry, and justified right for the left entry. If it is a
single entrance, the company name will be centered above the entrance. Logo placement is dependent
upon sign location. This Tenant building sign will be restricted to company or corporate name and
logo or symbol only, no division names, descriptions of services or slogans are allowed in this
sign area.




WINDOW SIGNS:



Identity signs displaying trademarks or logos may be used on the glass panel to the left or the
right of the entrance door depending upon location of basic identification sign (see above), i.e.,
if identification sign is mounted to the right of the outside window frame, then window sign would
be placed on glass panel to the left of the entrance door. These signs may be either painted or
pressure sensitive vinyl or a combination of both. Company names shall be listed in 3” white
pressure sensitive capital letters in the microgramma style. Logos and symbols may be in corporate
colors as determined by Tenant. Tenant is required to submit a layout to the Landlord for final
approval.




REAR LOADING SIGNS:




Each Tenant will be allowed to identify its rear door for shipping and receiving purposes. The
company name shall be placed on a 36” x 24” aluminum panel adjacent to the rear doors. The
aluminum panel shall be painted to match the building.


Copy shall consist of 3” vinyl capital letters only in Futura Bold style, the color of which shall
match the green reveal stripe on the building. Company names and logos only are allowed.


Landlord reserves the right to deny any copy it considers unsuitable. Layout must be
approved by Landlord prior to installation of any signage. The cost of all lettering and logos
will be the responsibility of the Tenant. No other signs are allowed in the windows or doors.





 - 17 - 









 








ADDENDUM 4




MOVE-OUT CONDITIONS



ATTACHED TO AND A PART OF THE LEASE AGREEMENT

DATED 9/30/10, BETWEEN



CATELLUS OPERATING LIMITED PARTNERSHIP

and

Brooks Automation, Inc.



     Per Paragraph 21, Tenant is obligated to check and address prior to move-out of the Premises
the following items. Landlord expects to receive the Premises in a well maintained condition, with
normal wear and tear of certain areas acceptable. The following list is designed to assist Tenant
in the move-out procedures but is not intended to be all inclusive.




	1.	 	All lighting is to be placed into good working order. This includes replacement of bulbs,
ballasts, and lenses as needed.

	 
	2.	 	All truck doors and dock levelers should be serviced and placed in good operating order.
This would include the necessary replacement of any dented truck door panels and adjustment of
door tension to insure proper operation. All door panels which are replaced need to be painted
to match the Building standard.

	 
	3.	 	All structural steel columns in the warehouse and office should be inspected for damage.
Repairs of this nature should be pre-approved by the Landlord prior to implementation.

	 
	4.	 	Heating/air-conditioning systems should be placed in good working order, including the
necessary replacement of any parts to return the unit to a well maintained condition. This
includes warehouse heaters and exhaust fans. Upon move-out, Landlord will have an exit
inspection performed by a certified mechanical contractor to determine the condition.

	 
	5.	 	All holes in the sheet rock walls should be repaired prior to move-out.

	 
	6.	 	The carpets and vinyl tiles should be in a clean condition and should not have any holes or
chips in them. Landlord will accept normal wear on these items provided they appear to be in a
maintained condition.

	 
	7.	 	Facilities should be returned in a clean condition which would include cleaning of the coffee
bar, restroom areas, windows, and other portions of the space.

	 
	8.	 	The warehouse should be in broom clean condition with all inventory and racking removed.
There should be no protrusion of anchors from the warehouse floor and all holes should be
appropriately patched. If machinery/equipment is removed, the electrical lines should be
properly terminated at the nearest junction box.

	 
	9.	 	All exterior windows with cracks or breakage should be replaced.

	 
	10.	 	The Tenant shall provide keys for all locks on the Premises, including front doors, rear
doors, and interior doors.

	 
	11.	 	Items that have been added by the Tenant and affixed to the Building will remain the property
of Landlord, unless agreed otherwise. This would include but is not limited to mini-blinds,
air conditioners, electrical, water heaters, cabinets, flooring, etc. Please note that if
modifications have been made to the space, such as the addition of office areas, Landlord
retains the right to have the Tenant remove these at Tenant’s expense.

	 
	12.	 	All electrical systems should be left in a safe condition that conforms to code. Bare wires
and dangerous installations should be corrected prior to move-out.

	 
	13.	 	All plumbing fixtures should be in good working order, including the water heater. Faucets
and toilets should not leak.

	 
	14.	 	All dock bumpers must be left in place and well secured.





 - 18 - 









 











ADDENDUM 5




one renewal option at market



ATTACHED TO AND A PART OF THE LEASE AGREEMENT

DATED 9/30/10, BETWEEN



CATELLUS OPERATING LIMITED PARTNERSHIP

and

Brooks Automation, Inc.



     (a) Provided that as of the time of the giving of the Extension Notice and the Commencement
Date of the Extension Term, (x) Tenant is the Tenant originally named herein, (y) Tenant actually
occupies all of the Premises initially demised under this Lease and any space added to the
Premises, and (z) no Event of Default exists or would exist but for the passage of time or the
giving of notice, or both; then Tenant shall have the right to extend the Lease Term for an
additional term of 5 years (such additional term is hereinafter called the “Extension Term”)
commencing on the day following the expiration of the Lease Term (hereinafter referred to as the
“Commencement Date of the Extension Term”). Tenant shall give Landlord notice (hereinafter
called the “Extension Notice”) of its election to extend the term of the Lease Term at least 6
months, but not more than 9 months, prior to the scheduled expiration date of the Lease Term.



     (b) The Base Rent payable by Tenant to Landlord during the Extension Term shall be the greater
of (i) the Base Rent applicable to the last year of the initial Lease term and (ii) the then
prevailing market rate for comparable space in the Project and comparable buildings in the vicinity
of the Project, taking into account the size of the Lease, the length of the renewal term, market
escalations and the credit of Tenant. The Base Rent shall not be reduced by reason of any costs or
expenses saved by Landlord by reason of Landlord’s not having to find a new tenant for such
premises (including, without limitation, brokerage commissions, costs of improvements, rent
concessions or lost rental income during any vacancy period). In the event Landlord and Tenant
fail to reach an agreement on such rental rate and execute the Amendment (defined below) at least 4
months prior to the expiration of the Lease, then Tenant’s exercise of the renewal option shall be
deemed withdrawn and the Lease shall terminate on its original expiration date.



     (c) The determination of Base Rent does not reduce the Tenant’s obligation to pay or reimburse
Landlord for Operating Expenses and other reimbursable items as set forth in the Lease, and Tenant
shall reimburse and pay Landlord as set forth in the Lease with respect to such Operating Expenses
and other items with respect to the Premises during the Extension Term without regard to any cap on
such expenses set forth in the Lease.



     (d) Except for the Base Rent as determined above, Tenant’s occupancy of the Premises during
the Extension Term shall be on the same terms and conditions as are in effect immediately prior to
the expiration of the initial Lease Term; provided, however, Tenant shall have no further right to
any allowances, credits or abatements or any options to expand, contract, renew or extend the
Lease.



     (e) If Tenant does not give the Extension Notice within the period set forth in paragraph (a)
above, Tenant’s right to extend the Lease Term shall automatically terminate. Time is of the
essence as to the giving of the Extension Notice.



     (f) Landlord shall have no obligation to refurbish or otherwise improve the Premises for the
Extension Term. The Premises shall be tendered on the Commencement Date of the Extension Term in
“as-is” condition.



     (g) If the Lease is extended for the Extension Term, then Landlord shall prepare and Tenant
shall execute an amendment to the Lease confirming the extension of the Lease Term and the other
provisions applicable thereto (the “Amendment”).



     (h) If Tenant exercises its right to extend the term of the Lease for the Extension Term
pursuant to this Addendum, the term “Lease Term” as used in the Lease, shall be construed to
include, when practicable, the Extension Term except as provided in
(d) above.



 - 19 - 









 





EXHIBIT A




site plan



ATTACHED TO AND A PART OF THE LEASE AGREEMENT

DATED 9/30/10, BETWEEN



CATELLUS OPERATING LIMITED PARTNERSHIP

and

Brooks Automation, Inc.









 - 20 -