EXHIBIT 10.39
LEASE GUARANTY
IN CONSIDERATION of and as an inducement for the granting, execution and
delivery by Phoenix Industrial Investment Partners, L.P., an Arizona limited
partnership, as lessor ("Lessor"), of the First Amendment to Lease Agreement
dated January 21st, 2003 with SpeedFam - IPEC, Inc., an Illinois corporation, as
the lessee ("Lessee"), relating to the Lease Agreement dated June 21, 2002
between the parties (as amended, the "Lease"), pursuant to which Lessor and
Lessee agreed to the leasing and use of those certain premises located at 000
Xxxxx 00xx Xxxxxx and 000 Xxxxx 00xx Xxxxxx, Xxxxxxxx, Xxxxxxx, as more
particularly described in the Lease (the "Premises"), the undersigned, Novellus
Systems, Inc., a California corporation ("Guarantor"), hereby covenants and
agrees as follows:
1. Guarantor unconditionally and irrevocably guarantees to Lessor the full
and prompt payment of Rent (as such term is defined in the Lease) and any and
all other sums and charges payable by Lessee under the Lease, and hereby
unconditionally and irrevocably guarantees the full, faithful and timely
performance and observance of all the covenants, terms, conditions and
agreements required to be performed and observed by Lessee under the Lease and
any amendment, modification or renewal thereof.
2. Guarantor hereby covenants and agrees to and with Lessor that if a
default shall at any time be made by Lessee in the payment of any such Rent or
other such sums and charges payable by Lessee under the Lease, or if Lessee
should default in the performance and observance of any of the terms, covenants,
provisions or conditions contained in the Lease or, should Rent or other sums
and charges not be paid or terms, covenants, provisions and conditions not be
performed in the event of a Financial Proceeding (as defined in Paragraph 7
below), Guarantor shall, after the expiration of any and all applicable notice
and cure periods contained in the Lease, immediately pay such Rent and other
such sums and charges and any arrears thereof (including, without limitation,
damages, interest, costs, fees, reasonable attorneys' fees and expenses)
(collectively, the "Lease Amounts"), and shall, immediately after the expiration
of any and all applicable notice and cure periods contained in the Lease, pay
all Lease Amounts that (a) may arise in connection with or otherwise relate to
any default by Lessee under the Lease and/or any enforcement of this Guaranty,
or (b) would have accrued under the Lease but for the commencement of a
Financial Proceeding.
3. The provisions of the Lease may not be changed (which according to
terms and conditions contained therein, may only be changed by an amendment in
writing) between Lessor and Lessee without the written consent of Guarantor. The
Lease may not be assigned by Lessee, and the Premises, or a portion thereof, may
not be sublet by Lessee, without the written consent of Guarantor, which consent
will not be withheld where Lessor is required by the terms of the Lease or
applicable law to grant its consent to such assignment or sublease. With respect
to any change to the Lease between Lessor and Lessee which increases Guarantor's
liability thereunder, without Guarantor's consent, Guarantor's liability shall
be limited to those obligations set forth in the Lease and those modifications
and amendments to which the Guarantor has consented.
4. Guarantor's liability hereunder shall continue until all sums due and
owing Lessor under the Lease have been paid and all obligations of Lessee to be
performed under the Lease have been performed, all in accordance with the terms
of the Lease.
5. Lessor may, and Guarantor waives any right to require that Lessor,
proceed against Guarantor for payment and/or performance of any of the
obligations guaranteed hereunder following a default by Lessee under the Lease
without first proceeding against
Lessee and without previous notice to or demand upon either Lessee or Guarantor.
Guarantor waives any and all benefits under Arizona Revised Statutes Sections
12-1641 through and including 12-1646 and Rule 7(f) Arizona Rules of Civil
Procedure.
6. Guarantor hereby consents to, waives notice of, and agrees that it
shall not be discharged, released or exonerated from its liability hereunder, by
reason of any or all of the following (a) any and all consents and approvals of
any kind given by Lessor under the Lease (subject to Paragraph 3 above); and (b)
any and all alterations, impairments, suspensions, terminations and expirations
of the remedies or rights of Lessor against Lessee or any other person in
respect of any of Guarantor's obligations hereunder.
7. The obligations of Guarantor under this Guaranty shall remain in full
force and effect and Guarantor shall not be discharged by any of the following
events with respect to Lessee or Guarantor: (a) insolvency, bankruptcy,
reorganization arrangement, adjustment, composition, assignment for the benefit
of creditors, liquidation, winding up or dissolution (each, a "Financial
Proceeding"); (b) any merger, acquisition, consolidation or change in entity
structure, or any sale, lease, transfer, or other disposition of any entity's
assets, or any sale or other transfer of interests in the entity (each, an
"Event of Reorganization"); or (c) any sale, exchange, assignment, hypothecation
or other transfer, in whole or in part, of Lessor's interest in the Premises or
the Lease. Nothing in this Paragraph 7 shall diminish the effect of any
subsequent written agreement between Guarantor and Lessor.
8. The term "Lease" whenever used in this Guaranty shall be deemed, and
interpreted so as, to also include any renewals or extensions of the initial or
renewal term(s), as the case may be, and any holdover periods thereunder,
subject to Paragraph 3 above.
9. All demands, notices and other communications under or pursuant to this
Guaranty shall be in writing, and shall be deemed to have been duly given when
personally delivered, or three (3) days after the date deposited in the United
States Postal Service, first-class postage prepaid, certified with return
receipt requested, the delivery date designated for overnight courier services
(e.g. Federal Express), or upon receipt of confirmation of successful
transmittal when sent via facsimile (with a copy sent via United States Postal
Service, first-class postage prepaid) addressed to the party at the address set
forth below, or at such other address as may be hereafter designated in writing
by either party to the other.
LESSOR:
Phoenix Industrial Investment Partners, L.P.,
00000 Xxxx Xxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxx
Silicon Valley Law Group
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
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GUARANTOR:
Novellus Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx, XX 000
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, CFO
Fax: (000) 000-0000
10. Guarantor hereby represents and warrants that this Guaranty is binding
on Guarantor in accordance with its terms; and that the terms and provisions of
this Guaranty are intended to be valid and enforceable in accordance with its
terms. Guarantor further represents and warrants that it has the full legal
right and authority to enter into this Guaranty and that this Guaranty has been
authorized and approved by all necessary corporate powers.
11. Without the prior written consent of Guarantor, which shall not be
unreasonably withheld, Lessor may not assign or transfer this Guaranty unless
such assignment or transfer is made in conjunction with the assignment or
transfer of all or a portion of Lessor's interest in the Lease. Lessor must
first give notice of any such assignment or transfer to Guarantor in writing,
and any such assignment or transfer shall not affect, or otherwise relieve,
Guarantor from its obligations or liability hereunder. Guarantor may not assign
or otherwise delegate any of its rights or obligations hereunder without first
obtaining Lessor's written consent thereto, which consent may be withheld in
Lessor's sole and absolute discretion. The terms and provisions of this Guaranty
shall inure to the benefit of Lessor and Lessor's partners, lenders,
representatives, successors and assigns. Notwithstanding anything to the
contrary contained in this Guaranty, this Guaranty shall automatically terminate
in the event Lessee's entire interest in the Lease is transferred to Guarantor,
provided that the Guarantor assumes all of Lessee's interests and obligations
under the Lease.
12. This Guaranty shall be governed by and construed in accordance with
the laws of the State of Arizona, irrespective of its conflict of law rules.
Guarantor hereby consents to the jurisdiction of the courts of the State of
Arizona. This Guaranty shall be subject to all valid applicable laws and
official orders, rules and regulations, and, in the event this Guaranty or any
portion thereof is found to be inconsistent with or contrary to any such laws or
official orders, rules or regulations, the latter shall be deemed to control,
and this Guaranty shall be regarded as modified and shall continue in full force
and effect; provided, however, that nothing herein contained shall be construed
as a waiver of any right to question or contest any such law, order, rule or
regulation in any forum having jurisdiction in the Premises.
13. This Guaranty and any exhibits hereto constitute the entire agreement
between the parties with respect to the matters covered herein and supersede all
prior agreements and understandings between the parties hereto relating to the
subject matter hereof.
14. In the event Guarantor fails to perform any of its obligations under
this Guaranty or in the event a dispute arises concerning the meaning or
interpretation of any provision of this Guaranty, the defaulting party or the
party not prevailing in such dispute, as the case may be, shall pay any and all
costs and expenses incurred by the other party in enforcing or establishing its
rights hereunder, including, without limitation, court costs, expert fees, and
reasonable attorneys' fees.
15. Lessor and Guarantor hereby waives any right to trial by jury with
respect to any action or proceeding relating to any action or proceeding brought
by either party or any other party, relating to this Guaranty and/or any
understandings or prior dealings between the parties.
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Lessor and Guarantor hereby agree that this Guaranty constitutes a written
consent to waiver of trial by jury pursuant to the provisions of Arizona law.
16. If a dispute arises out of or relating to this Guaranty, or the breach
thereof, and if said dispute cannot be settled through direct discussions
(between representatives from each party duly authorized to bind the respective
party), the parties agree that any action to enforce or interpret this
Agreement, or to resolve disputes with respect to this Agreement shall be
determined by arbitration by a single arbitrator who shall be agreed upon by the
parties. Such single arbitrator shall then try all issues, whether of fact or
law, and report in writing a finding and judgement thereon. Judgement may be
entered upon any such final decision in accordance with applicable law in any
court having jurisdiction thereof.
LESSOR: GUARANTOR:
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17. Time is of the essence of this Guaranty.
18. This Guaranty may be executed in two or more counterparts, which when
taken together shall constitute one and the same instrument.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Guarantor has signed this Guaranty as of the date set
forth below.
Guarantor:
Date: 1/13/03 NOVELLUS SYSTEMS, INC.
A California corporation
By: /s/ Xxxxx Xxxxx
Its: Chief Financial Officer
Lessor:
Date: 1/21/03 PHOENIX INDUSTRIAL INVESTMENT PARTNERS, L.P.
an Arizona limited partnership
By: Xxxx Una Management Company,
a California corporation
its General Partner
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Its: President
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