EXHIBIT 10.38
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (the "First Amendment") is made
and entered into as of this 21st day of January, 2003, by and between Phoenix
Industrial Investment Partners, L.P., an Arizona limited partnership
("Landlord") and SpeedFam - IPEC, Inc., an Illinois corporation ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated
June 21, 2002 (the "Lease"), pursuant to which Landlord agreed to lease to
Tenant and Tenant agreed to lease from Landlord, certain premises located at 000
Xxxxx 00xx Xxxxxx and 000 Xxxxx 00xx Xxxxxx, Xxxxxxxx, Xxxxxxx, as more
particularly described in the Lease ("Leased Premises"), on all of the terms and
conditions set forth therein.
B. On or about December 6, 2002, all of Tenant's outstanding capital stock
was acquired by Novellus Systems, Inc., a California corporation ("Novellus")
pursuant to a reverse triangular merger which resulted in Tenant becoming a
wholly owned subsidiary of Novellus ("Merger").
C. Tenant and Landlord now desire to amend the Lease on the terms and
conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the promises, terms and conditions
contained herein and such other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Tenant and Landlord hereby agree as
follows:
1. Defined Terms and Recitals. Except as otherwise defined herein,
all capitalized terms used herein but not otherwise defined herein shall have
the meanings set forth in the Lease.
2. Modifications to Lease. Landlord and Tenant hereby agree that
from and after the date of this First Amendment, the Lease shall be modified as
follows:
a Section 25(b) of the Lease Agreement is hereby amended to
provide that in every instance where Tenant is required to provide
financial statements pursuant to Section 25(b) of the Lease Agreement,
Tenant may provide, in lieu thereof, consolidated financial statements of
Tenant and Novellus Systems, Inc., the parent company of Tenant.
b Although Landlord acknowledges that Landlord's consent is
not required under Section 23 of the Lease, Landlord hereby consents to
the Merger. Landlord further acknowledges that Landlord has no right,
title or interest in and to any "Transfer Consideration" in connection
with the Merger.
c Concurrently herewith Novellus will enter into a Lease
Guaranty for the benefit of Landlord wherein Novellus guarantees the full
and prompt performance of Tenant's obligations under the Lease. The Lease
Guaranty will be substantially in the form attached hereto as Exhibit A.
d Section 30 of the Lease Agreement is hereby amended to
provide that in every instance a notice is to be provided to Tenant under
the Lease such notice shall be provided to Tenant at SpeedFam-IPEC, Inc.,
c/o Novellus Systems, Inc., 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx
00000, Attention: Xxxxx X. Royal, with a copy to Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx
Xxxxxxxxxx.
3. Governing Law. This First Amendment shall be governed by,
construed and enforced in accordance with, the laws of the State of Arizona.
4. Counterparts. This First Amendment may be executed in two or more
counterparts, which when taken together shall constitute one and the same
instrument. The parties contemplate that they may be executing counterparts of
the First Amendment transmitted by facsimile and agree and intend that a
signature by facsimile machine shall bind the party so signing with the same
effect as though the signature were an original signature.
5. Reaffirmation of Lease. Landlord and Tenant hereby acknowledge
and agree that the Lease, as modified by this First Amendment, is hereby
reaffirmed, ratified, and confirmed in its entirety. Except as set forth herein,
the Lease remains unmodified and in full force and effect. In the event of any
inconsistency between the provisions of the Lease and this First Amendment, the
terms of this First Amendment shall control.
IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed as of the day and year first written above.
LANDLORD: 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
TENANT: SPEEDFAM - IPEC, INC.,
an Illinois corporation
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Its: President
