EXHIBIT 10.7
NINTH AMENDMENT TO LEASE
This Ninth Amendment to Lease Agreement is entered into as of April 26,
2004 ("Reference Date"), by and between XXXX XXXXXXX, FORMERLY XXXX X. XXXXXX,
AS TRUSTEE UNDER THE XXXX X. XXXXXX TRUST AGREEMENT DATED OCTOBER 5, 1990
("Xxxxxxx") and XXXXXX X. XXXX AY ("XxxXxx") (Xxxxxxx and XxxXxx hereinafter
collectively referred to as "Landlord") and TEGAL CORPORATION, A DELAWARE
CORPORATION ("Tenant"), with reference to the following facts:
RECITALS:
A. WHEREAS, the Premises as defined below are currently leased to Tenant
by Landlord pursuant to that certain Lease Agreement dated as of August 15, 1986
("Original Lease") as the Original Lease was amended numerous times through and
including the last amendment entitled Eighth Amendment to Lease Agreement dated
as of January 12, 2004. The Amendments and the Original Lease are collectively
referred to as the "Lease."
B. WHEREAS, the Premises consist of an approximate 47,464 square feet
portion of an approximately 120,000 square feet building located at 0000 Xxxxx
XxXxxxxx Xxxxxxxxx in Petaluma, California ("Premises").
C. WHEREAS, Tenant desires to add approximately 9,954 square feet of
additional space to the Premises under Lease for such area known as the
"Additional Expansion Space" ("Additional Expansion Space").
D. WHEREAS, Landlord approves of Tenant's request to occupy and lease such
Additional Space as of May 1, 2004 and thereafter as hereinafter set forth..
E. WHEREAS, Landlord and Tenant desire to modify and amend certain
provisions of the Lease as hereinafter set forth. NOW, THEREFORE, for good and
valuable consideration, receipt of which is hereby acknowledged, the parties
agree, as follows:
1. RECITALS. The Recitals set forth above are incorporated herein by
reference into this Ninth Amendment to Lease as though set forth at length
herein.
2. PREMISES. The Premises shall be modified and increased to add
approximately 9,954 square feet of area cross-hatched on EXHIBIT A hereto (the
content of which is incorporated herein by reference) bringing the total area of
the Premises under the Lease, as hereby amended, to approximately 57,418 square
feet and hereinafter all references to the Premises shall be to said 57,418
square feet. The effective date of the addition of such Additional Expansion
Space to the area of the Premises for all purposes under the Lease shall be May
1, 2004.
3. BASIC RENT.* As a result of the addition of said 9,954 square feet of
Additional Expansion Space to the Premises, Basic Rent commencing on May 1, 2004
for the Premises shall be, as follows:
MONTHLY ANNUAL
PERIOD BASIC RENT BASIC RENT
------ ---------- ----------
5-1-2004 thru 12-31-2004 $72,174.43 $577,395.44 (8 months)
1-1-2005 thru 12-31-2005 $74,339.66 $892,075.92
1-1-2006 thru 12-31-2006 $76,569.85 $918,838.20
1-1-2007 thru 12-31-2007 $78,866.95 $946,403.40
1-1-2008 thru 12-31-2008 $81,232.96 $974,795.52
1-1-2009 thru 12-31-2009 $83,669.95 $1,004,039.40
*NOTE: Section 3 of the Eighth Amendment to Lease is hereby deleted and
superseded by the new Basic rent Schedule set forth above.
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4. TENANT'S SHARE. Section 4 of the Eighth Amendment to Lease is hereby
modified by deleting "39.55%" and inserting in its place "47.85%."
5. NO LANDLORD' WORK. Landlord shall not be obligated to make any
alterations to the Additional Expansion Space in connection with this Ninth
Amendment. Tenant hereby takes the Additional Expansion Space in its "AS IS,"
"WHERE IS" condition. Tenant shall be allowed to use the cubicles, tables,
chairs, furniture and other personal property located in the said Additional
Expansion Space with the understanding that such personal property belongs to
Landlord pursuant to the terms of paragraph 10 to that Seventh Amendment to
Lease and the Xxxx of Sale which is EXHIBIT B to such Seventh Amendment to Lease
between the parties and that at the termination of the Lease, or earlier
surrender of the Additional Expansion Space to Landlord, that such personal
property shall remain in such space or be removed by Tenant at the sole election
of Landlord without cost to Landlord.
6. BROKERAGE COMMISSIONS. Tenant warrants that it has not had any dealings
with any real estate brokers, leasing agents, salesmen, or incurred any
obligations for the payment of real estate brokerage commissions or finder's
fees which would be earned or due and payable by reason of the execution of this
Ninth Amendment. Landlord warrants that it has not had any dealings with any
real estate brokers, leasing agents, salesmen, or incurred any obligations for
the payment of real estate brokerage commissions or finder's fees which would be
earned or due and payable by reason of the execution of this Ninth Amendment
In the event that any person or broker makes a claim for such a commission
based upon any contact, dealings or communication, the party whose conduct is
the basis for the making of such claim shall indemnify, defend and hold harmless
the other party against and from any commission, fee, liability, damage, cost
and expense, including, without limitation, attorney's fees arising out of or
resulting from any such claim.
7. FULL FORCE AND EFFECT. Except as supplemented and/or modified by this
Ninth Amendment, to the best of Landlord's and Tenant's knowledge, this Lease is
in full force and effect and neither party has any defenses to the enforcement
of this Lease.
8. ENTIRETY. Except as provided in this Ninth Amendment, this Lease is the
entire agreement between the parties and there are no agreements or
representations between the parties except as expressed herein. Moreover, no
subsequent change or modification of this Lease, as amended, shall be binding
unless in writing and fully executed by Landlord and Tenant. In the event of a
conflict between the terms, conditions, and provisions of this Lease and this
Ninth Amendment, the terms, conditions, and provisions of this Ninth Amendment
shall control.
9. MISCELLANEOUS. Any breach or default under any provision of this Ninth
Amendment shall be a breach or default under this Lease and any breach or
default under this Lease shall be a breach or default under this Ninth
Amendment. All capitalized terms not defined herein shall have the meaning set
forth in the Lease.
10. COUNTERPARTS. This Ninth Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument. Furthermore, this Ninth
Amendment may be executed and delivered by the exchange of electronic facsimile
copies of counterparts of the signed documents, which facsimile copies or
counterparts shall be binding on the parties and such execution and delivery
shall have the same force and effect as any other delivery of a manually signed
original of this Ninth Amendment.
11. EFFECTIVE DATE. This Ninth Amendment shall be effective only when it
has been executed in writing by all of the parties hereto, when such Ninth
Amendment has been delivered by Landlord and Tenant to each other and on such
date when the last signatory necessary to execute this Ninth Amendment shall
have executed it.
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IN WITNESS THEREOF, Landlord and Tenant have executed this Ninth Amendment to
Lease as of the Effective Date.
TENANT: LANDLORD:
TEGAL CORPORATION, XXXX X. XXXXXXX, TRUSTEE AND
INC., A DELAWARE CORPORATION XXXXXX X. XXX XXX
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx, Trustee
--------------------- ---------------------
Its: President & CEO Its: Owner
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Dated: April 30, 2004 Dated: April 29, 2004
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By:
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By: /s/ Xxxxxx X. XxxXxx
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Its: Owner
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Dated: April 29, 2004
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(Xxxxxxx, Tegal 9th Amend. to Lease 4/22/04)
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