FIRST AMENDMENT to BUILD TO SUIT LEASE
Exhibit 10.29
FIRST AMENDMENT
to
BUILD TO SUIT
LEASE
The first amendment (this "Amendment") is
entered into as of January 15, 2008, by and between MICRON TECHNOLOGY, INC., a
Delaware corporation and PHOTRONICS, INC., a Connecticut corporation in
connection with the Build to Suit Lease (the "Lease") between the Parties dated
May 5, 2006. All capitalized terms used herein and not otherwise defined shall
have the meaning ascribed to such terms in the Lease.
RECITALS
A. On May 5, 2006, the Parties entered into the
Lease, and, in accordance with the terms thereof, Micron constructed the Micron
Improvements upon the Land.
B. Effective as of January 1, 2008 the Parties
entered into a Supplemental Agreement as provided for in Section 4.2(c) of the
Lease setting forth the Lease Commencement Date and the Rent Commencement
Date.
C. Section 3.1(a) of the Lease provides that
the Parties shall enter into an amendment to the Lease to provide a legal
description and depiction of the Land as Exhibits A and B to the Lease once the
location of the Land has been identified.
D. Section 5.1(a) of the Lease provides that
Micron shall prepare and deliver to Photronics the Lease Payment Schedule
setting forth the quarterly Base Rent. Section 5.1(a) further provides that Base
Rent shall be calculated based upon amortization of all Development Costs in an
amount not to exceed xxxx (Material omitted pursuant to a request for
confidential treatment under Rule 24b-2 of the Exchange Act of 1934. Material
filed separately with the Securities and Exchange Commission.)
E. The Parties desire to enter into this
Amendment to amend the Rent Commencement Date, supply a legal description and
depiction of the Land, establish a Lease Payment Schedule and increase the limit
on Development Costs.
AGREEMENT
In consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt of
which the Parties hereby acknowledge, the Parties hereby agree as
follows:
1. The description attached hereto as Schedule
A shall constitute Exhibit A to the Lease and shall be incorporated therein. The
legal description attached hereto as Schedule B shall constitute Exhibit B to
the Lease and shall be incorporated therein.
2. The schedule attached hereto as Schedule C
shall constitute the Lease Payment Schedule described in Section 5.1(a) of the
Lease.
3. The Rent Commencement Date of January 1,
2008 set forth in the Supplemental Agreement between the Parties shall be
changed to April 1, 2008.
4. The language xxxx (Material
omitted pursuant to a request for confidential treatment under Rule 24b-2 of the
Exchange Act of 1934. Material filed separately with the Securities and Exchange
Commission.) set forth in Section 5.1(a) and (c) of the Lease shall be
deleted and the following language shall be set forth in the place
thereof:
"Sixty-One
Million Six Hundred and Sixty-One
Thousand
Six
Hundred and Twenty-Six and No/100 Dollars ($61,661,626.00)"
5. This Amendment, together with the
Supplemental Agreement and the Transaction Documents and the exhibits and
schedules referred to herein and therein, constitute the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersede any and all prior oral and written, and all contemporaneous oral,
agreements or understandings pertaining thereto. There are no agreements,
understandings, restrictions, warranties or representations relating to such
subject matter among the Parties other than those set forth herein and in the
other documents, exhibits and schedules referred to herein and therein. No
verbal agreement or implied covenant shall be held to vary the provisions
hereof, any statute, law or custom to the contrary notwithstanding. This
Amendment shall not be amended without the prior written consent of each Party
hereto and shall only be amended by a written amendment executed by the
Parties. Any provision of this Amendment may be waived if, and only if,
such waiver is in writing and is duly executed by the Party against whom the
waiver is to be enforced. No failure or delay by any Party in exercising
any right, power or privilege under this Amendment shall operate as a waiver
thereof nor shall any single or partial waiver or exercise thereof preclude the
enforcement of any other right, power or privilege.
6. This Amendment may be executed in
counterparts, each of which so executed will be deemed to be an original and
such counterparts together will constitute one and the same agreement.
Execution and delivery of this Amendment by exchange of facsimile copies bearing
the facsimile signature of a Party shall constitute a valid and binding
execution and delivery of this Amendment by such Party.
7. This Amendment will be governed by and
construed in accordance with the laws of the State of Idaho, United States of
America, as applied to agreements among Idaho residents entered into and wholly
to be performed within the State of Idaho (without reference to any choice or
conflicts of laws rules or principles that would require the application of the
laws of any other jurisdiction).
8. The Parties hereby agree that claims,
disputes or controversies of whatever nature, arising out of, in connection
with, or in relation to the interpretation, performance or breach of this
Amendment (or any other agreement contemplated by or related to this Amendment),
shall be resolved in accordance with the dispute resolution procedures set forth
in the Company Operating Agreement.
IN WITNESS WHEREOF the Parties hereto have
executed this Agreement as of the date first set forth above.
PHOTRONICS, INC., a Connecticut corporation
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By: |
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/s/ XXXXXXX X. XXXXXXX |
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Xxxxxxx X. Xxxxxxx |
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Chief Executive Officer |
MICRON TECHNOLOGY, INC., a Delaware corporation
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By: |
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/s/ D. XXXX XXXXXX |
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D. Xxxx Xxxxxx |
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President & Chief Executive Officer |
REVIEWED
MTI Legal
X.X.
Schedule A
xxxx (Material omitted pursuant to a request for confidential treatment
under Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.)
Schedule B
xxxx (Material omitted pursuant to a request for confidential treatment
under Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.)
Schedule C
xxxx (Material omitted pursuant to a request for confidential treatment
under Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.)
