Exhibit 10.46
COMMERCIAL LEASE AGREEMENT
LESSOR - KYUNGGI INDUSTRY
REPRESENTATIVE - PARK, SANG CHEOUL
LESSEE - BROOKS AUTOMATION ASIA LTD
THERRIEN, ROBERT
This Commercial Lease Agreement ("Lease") is made and effective 10/01/1999, by
and between PARK, SANG CHEOUL: REPRESENTATIVE OF KYUNGGI INDUSTRY ("Lessor")
and BROOKS AUTOMATION ASIA, LTD. ("Lessee").
In consideration of the mutual covenant contained herein and other valuable
consideration received, and with the intent to be legally bound, the lessor and
the lessee agree as follows:
1. ADDRESS
398-1, komae - ri, kiheung - Eup, Youngin - City, Kyunggi - Do, Korea
1st floor - 711.05m(2)
2nd floor - 711.05m(2)
4th floor - 711.05m(2)
Total - 2133.15m(2)
2. USE
The Premises shall be used by the lessee solely for factory and office and for
activities incidental thereto. The lessee may not use the Leased Premises for
any other purpose without obtaining the prior written consent of the lessor.
3. MAINTENANCE
The lessee shall have an obligation of faithful maintenance to use the Leased
Premises (Front door, stairway, corridor, freight elevator, rest room, etc.)
4. TERM
(1) The lessor hereby leases the Leased Premises to the lessee, and the
lessee hereby leases the same from the lessor, for an "Initial Term"
beginning 10/01/1999 and ending 09/30/2001. Unless Either party may
terminate this lease upon 1 month prior to the expiration of the
Initial Term with a written notice to the other party, it is considered
that this contract is extended to 2 years or more
(2) In case that the lessee haven't still used the Leased Premises since 2
months passed from the beginning of the contract or the lessee don't
deposit the key money(5-(1)) to lessor until the beginning of the
contract, the lessor can cancel this contract unilaterally
(3) When the leassor or the lessee wants to terminate the contract by each
party's circumstance in the middle of term or extended term, one must
notify the intention of terminating the contract in written statement 3
months prior to the other party. If the lessee pays 1-month lease
payment and maintenance expenses for compensation to the lessor, the
lessee can terminate the contract at any time.
(4) Both parties can't cancel only a portion of Leased Premises unless they
reach an agreement
5. KEY MONEY
(1) Upon the execution of this Lease, the lessee shall pay The lessor a key
money without liability for interest in the amount of (Won 150,000,000
won) to be held as security for the payment of rent and the faithful
performance by the lessee of all of its obligations in this lease. Of
key money, earnest money (Won 75,000,000) must be put to the lessor at
the time that contract is made, the rest (Won 75,000,000) must be put
before the beginning date of contract
(2) If this contract is canceled by the clause 4.(2) or etc., earnest money
passes to lessor as a penalty and the lessee can't demand to return
earnest money
(3) The lessee can't use key money for monthly rental payment and also
can't hand the right of return claim for key money over the third party
or hand the right of return claim as the right of security over the
third party
6. MONTHLY RENTAL PAYMENT
(1) The lessee shall pay a monthly rental payment (Won 9,000,000) to the
lessor in the 30th day of each calendar month (if 30th day is holiday, it
shall be following day)
(2) The rental payment amount for any partial calendar months included in the
lease term shall be prorated on a daily basis
7. MAINTENANCE EXPENSES
(1) The lessee shall pay maintenance expenses (electrical charges, water
supply and drainage charges, air cooling and heating charges, ventilation
charges, cleaning charges) with monthly rental payment in the 30th day of
each month
(2) The lessee also shall pay additional maintenance expenses caused by the
lessee except the basic maintenance expenses according to the lessor's
basis
8. FEE ADJUSTMENT
Among the term of contract (4. (1)) or the extended term, the lessor can
adjust the key money, monthly rental payment and maintenance expenses through
notifying one-month prior as follows ((1)-(3)). Adjusted key money, monthly
rental payment and maintenance expenses are applied from the 1st day of the
following month
(1) In case that tax of the Leased Premises or lease management is remarkably
increased or increase is expected
(2) In case that maintenance expenses is remarkably increased
(3) In case that the prices rise or economical circumstance is highly changed
9. EFFECTIVE DATE OF RENTAL PAYMENT
If the lessee can't use the Leased Premises for the lessor's certain reason
from starting date of the contract, real date the lessee uses the Leased
Premises must be considered when paying monthly rental payment
10. LATE CHARGE
If lessee fails to pay key money, monthly rental payment or any other amount
due hereunder within the time limit of payment, lessee shall pay lessor a
late payment charge equal to annual interest of 19% of the overdue amounts.
11. RETURNING KEY MONEY
In case of expiration or termination of this contract, the lessor shall give
back key money to the lessee within 7 days after the lessee recedes the
Leased Premises
If the lessee has got miscellaneous expenses or debts to pay to the lessor,
the lessor returns key money after deducting miscellaneous expenses or debts
12. INSURANCE
(1) If the Leased Premises or any other part of the Building is damaged by
fire resulting from any act or negligence of the lessee or any of
lessee's agents, employees or invitees, the lessee shall pay extended
coverage insurance to the
(2) To avoid a conflict resulting from loss of each party's (the lessor and
the lessee) own Property by the fire, the lessee shall, at its own
expense, be insured for comprehensive general liability with respect to
the Leased Premises and the lessee shall provide the lessor with
current Certificates of comprehensive general liability Insurance
13. VALUE ADDED TAX
The lessee shall cover value added tax coming from this contract
14. ALTERATION
(1) With a prior written consent of lessor, the lessee, at its own
expenses, can do as follows (A, B)
A. Attachment or alteration of Interior facilities, partitions and
advertising objects
B. Establishment or moving of miscellaneous facilities and power supply
facilities or establishment, extension, moving or alteration of water
supply and drainage facilities
(2) The lessee, at its own expenses, shall restore the former condition of
the Leased premises after expiration
(3) If the lessee doesn't perform his duty to restore the Leased premises
or the lessor don't approve lessee's restoration, the lessor can deduct
additional expenses needed to restore the Leased premises in the key
money.
15. CESSION AND SUBLEASE
The lessee can't hand rights and duties of lease contract over the third
party and also sublease all or any part of the Leased Premises
16. PROPERTY PROTECTION
The lessee is responsible for the safety maintenance of the lessee's
property and the lessor is not responsible for accident (robbery, fire and
etc.) that happened in the Leased Premises
17. EXEMPTION
(1) The lessor is not responsible for all the damage by legally
irresistible accident beyond the human control (earthquake, storms and
floods, war, riot and etc.)
(2) The lessor is not responsible for governmental restrictions caused by
the lessee's alteration, remodeling or maintenance
18. CHANGE OF OWNERSHIP
Even if proprietary, right of management and ownership are changed, this
contract still has a legal force and Next lessor shall faithfully abide by
this
19. CHANGE OF LESSEE'S INFORMATION
If there is a change in the lessee's information (address, company name,
representative, company capital, matters required to be registered and
etc), the lessee shall notify the lessor of a change without delay
20. INDEMNIFICATION
If the lessee does damage to the body or property of the lessor or third
party with or without an intention, the lessee shall notify the lessor of
this without delay and also pay for damage
21. CONTRACT TERMINATION
(1) The lessor can immediately terminate this contract if the lessee
conduct the below clauses
A. In case the monthly rental payment and maintenance expenses are two
months overdue
B. Distraint, provisional distraint, provisional disposition, auction or
bankruptcy of the lessee's property coming from liability can cause
contract termination by the lessor's judgment
C. In case that The lessee violates any clause in this contract
(2) In case of above clauses (A - C), the lessor can terminate this
contract at any time and take back Leased Premises and go through
legal formalities. The fact that the lessor has key money can't be
the reason that the lessee refuses to return the Leased Premised
22. EVACUATION AND RESTORATION
(1) The lessee shall evacuate the Leased Premises within an expiration
date and return all properties of the lessor when contract is expired
(2) The lessee, at its own expenses, shall restore the Leased Premises to
the original conditions within expiration date (ordinary wear and tear
excepted)
(3) In case that the lessee didn't evacuate the Leased Premises and
restore the Leased Premises to the original conditions within an
expiration date, the lessee shall pay additional charges (monthly
rental payments and maintenance expenses) until the evacuation and
restoration are finished. The lessee is responsible for all matters
caused by delay of the evacuation and restoration
23. APPLICATORY LAW
Details excepting the clause of this contract apply to the law of Republic
of Korea and customary laws of lease
In case that a dispute arises on the matters of this contract, basis is
the contract written in Korean
25. REGISTRATION
The lessor shall register lease contract in the proper form and the lessee
shall pay registration fee to the lessor
26. EXTENSION OF GUARDROOM
After obtaining the permission from the competent authorities, the lessor
shall pay all expenses needed to extend the guardroom
27. JURISDICTION
The lawsuit of this contract is under a competent local court
To attest a conclusion of this contract, make out a contract in duplicate with
a signature of each party and each party keeps this contract
03/31/2000
The lessor: 398-1, komae-ri, kiheung-eup, Yongin-city, Kyunggi-do, Korea
Representative of Kyunggi Industry
Park, Sang Cheoul
The lessee: 398-1, komae-ri, kiheung-eup, Yongin-city, Kyunggi-do, Korea
C.E.O. of Brooks Automation Asia
Therrien, Robert