Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Annual Report HTML 2.03M
2: EX-10.20 Amended and Restated Employment Agreement, HTML 60K
Effective January 11, 2007
3: EX-10.24 Second Amendment to Lease, Dated December 18, 2007 HTML 108K
4: EX-10.25 Pv Risk Reduction Agreement, Dated December 18, HTML 29K
2007
5: EX-10.37 Ingot/Wafer Agreement, Dated December 3, 2007 HTML 157K
6: EX-10.49 Turnkey Construction Contract With Solargen, Dated HTML 560K
December 28, 2007
7: EX-10.51 Turnkey Construction Contract With Sedwick, Dated HTML 462K
October 10, 2007
8: EX-10.53 Turnkey Construction Contract With Almuradiel, HTML 529K
Dated November 6, 2007
9: EX-10.54 Turnkey Construction Contract With Moralas, Dated HTML 543K
November 6, 2007
10: EX-10.55 Turnkey Construction Contract With Naturener, HTML 537K
Dated November 6, 2007
11: EX-10.56 Amendment to Turnkey Construction Contract, Dated HTML 18K
November 21, 2007
12: EX-10.57 Amendment to Turnkey Construction Contract With HTML 36K
Almuradiel, Dated November 29, 2007
13: EX-10.58 Amendment to Turnkey Construction Contract With HTML 37K
Moralas, Dated November 29, 2007
14: EX-10.59 Amendment to Turnkey Construction Contract With HTML 48K
Naturener, Dated November 29, 2007
15: EX-21.1 List of Subsidiaries HTML 25K
16: EX-23.1 Consent of Independent Registered Public HTML 11K
Accounting Firm
17: EX-31.1 Certification by Chief Executive Officer Pursuant HTML 17K
to Rule 13A-14(A)/15D-14(A)
18: EX-31.2 Certification by Chief Financial Officer Pursuant HTML 17K
to Rule 13A-14(A)/15D-14(A)
19: EX-32.1 Certification Furnished Pursuant to 18 U.S.C. HTML 13K
Section 1350
EX-10.24 — Second Amendment to Lease, Dated December 18, 2007
This exhibit is an HTML Document rendered as filed. [ Alternative Formats ]
SECOND AMENDMENT TO
LEASE
(Expansion of
Premises)
This
Second Amendment to Lease (“Amendment”) is made and
entered into as of the 18th day
of December, 2007 by and between FPOC, LLC, a California limited liability
company (“Landlord” or
“Lessor”), and Sunpower
Corporation, Systems, a Delaware corporation (“Tenant” or “Lessee”),
successor-in-interest to PowerLight Corporation.
R E C I T A L S
A. Landlord
and PowerLight Corporation (“Powerlight”) entered into that
certain Standard Multi-Tenant Industrial Lease – Net dated as of December 15,
2006 (together with the Addendum thereto, the “Original Lease”) pursuant to which
Tenant leases certain premises containing approximately 175,802 square feet (the
“Current Premises”) in
that certain commercial building known as Ford Point (the “Building”) and located at 1414
Harbour Way South, Richmond, California. The Current Premises
consist of approximately 110,522 square feet of space (the “Existing Premises”) and
approximately 65,280 square feet (the “Expansion
Premises”). Landlord and Powerlight entered into that certain
First Amendment to Lease dated as of May 24, 2007 (the “First Amendment”). The
Original Lease as amended by the First Amendment is hereinafter referred to as
the “Lease”. Tenant has
assumed the obligations of Powerlight as “tenant” under the Lease.
B. Tenant
desires to lease additional space in the Building.
C. Landlord
and Tenant presently desire to amend the Lease to provide, among other things,
for the expansion of the Current Premises, as more fully set forth
below.
A
G
R
E
E
M
E
N
T
NOW,
THEREFORE, in consideration of the foregoing Recitals and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Defined
Terms. All capitalized terms not defined herein shall have the
same respective meanings as are given such terms in the Lease unless expressly
provided otherwise in this Amendment.
2. Confirmation
of the Commencement Date for the Existing Premises. (a) The
parties hereto acknowledge that the Commencement Date for the portion of the
Existing Premises which Tenant occupied as of December 17, 2007 (the “December 17 Increment”) shall
be deemed to be December 17, 2007 (the “December 17 Commencement
Date”). The Commencement Date for the remainder of the First
Increment (the “Remaining
Increment”) shall be the date on which the Remaining Increment is ready
for occupancy as evidenced by a temporary certificate of occupancy or its
equivalent from the City of Richmond (the “Remaining Increment Commencement
Date”). Each of Landlord and Tenant hereby waives any claims
against the other for delays in connection with the delivery of the First
Increment. As used in the Lease, “Commencement Date” shall mean the
December 17 Commencement Date with respect to the December 17 Increment and the
Remaining Increment Commencement Date with respect to the Remaining
Increment. The square footage of the December 17 Increment and the
Remaining Increment shall be determined by Landlord’s architect promptly
following the full execution of this Amendment by Landlord and
Tenant. Notwithstanding the foregoing, Tenant acknowledges that
Landlord has no obligation to perform the following work in the Existing
Premises: (i) installation of glass doors, (ii) installation of special feature
glass in the conference room, (iii) any furniture and Tenant-supplied fixtures
and equipment, (iv) installation of non-stainless steel countertops, (v) AV and
teledata, (vi) specialty interior paint, and (vii) roof access by stair with
weatherproof observation enclosure allowing for safe assembly of 10 people
minimum (item #2 under “Tenant Improvements” listed on Exhibit B-3 attached
to the Lease).
(b) The
parties acknowledge that the provisions of Paragraph 52(b) are hereby deleted
from the Lease and shall be of no further force or effect.
3.
Additional
Allowance. The parties hereto acknowledge that Landlord
provided Tenant with an Additional Allowance with respect to the Existing
Premises pursuant to Paragraph 2.2 of Exhibit B to the
Lease. The parties acknowledge that, notwithstanding the provisions
of the second sentence of Paragraph 2.2 of Exhibit B to the
Lease, Landlord shall have no obligation to finance the amount of the Additional
Allowance and that therefore Tenant shall pay such amount to Landlord in
immediately available funds within thirty (30) days of Landlord and Tenant’s
good faith agreement regarding the actual amount of such Additional
Allowance.
4.
Addition
of 8,310 SF Increment.
(a) The
increment of space consisting of approximately 8,110 square feet of office space
located on the 2nd floor
of the Building and 200 square feet located on the first floor of the Building
(collectively, the “8,310 SF
Increment”) and labeled as such on the attached Exhibit A-3
shall become part of the Premises on the date hereof and shall be delivered to
Tenant concurrently with the Existing Premises. The Term of the Lease
with respect to the 8,310 SF Increment shall be co-terminous with the Term of
the Lease for the Existing Premises. Subject to adjustment as
provided in Paragraph
72 of the Lease, the Base Rent with respect to the 8,310 SF Increment
shall commence upon the commencement date for the Second Increment and shall be
as follows.
|
Period:
|
Monthly Base Rent:
|
|
Second Increment
Commencement Date –
9/30/10
|
$12,162.65
|
|
10/1/10
– 9/30/11
|
$12,527.53
|
|
10/1/11
– 9/30/12
|
$12,903.36
|
|
10/1/12
– 9/30/13
|
$13,290.46
|
|
10/1/13
– 9/30/14
|
$13,689.17
|
|
10/1/14
– 9/30/15
|
$14,099.85
|
|
10/1/15
– 9/30/16
|
$14,522.84
|
|
10/1/16
– 9/30/17
|
$14,958.53
|
|
10/1/17
– 9/30/18
|
$15,407.28
|
Concurrently
with Tenant’s execution of this Amendment, Tenant shall deliver to Landlord Base
Rent in the amount of $12,162.65 to be credited toward Base Rent due for the
first full month following the 8,310 SF Commencement Date (as defined
below). The schedule of rent herein shall be subject to adjustment as
provided in the Lease for the Current Premises.
(b) Prior
to delivering the 8,310 SF Increment to Tenant, Landlord shall design and
construct the Base Building Improvements therein as described in Exhibits B, B-1
and B-2 of the Lease and shall improve the 8,310 SF Increment pursuant to the
Approved 8,310 SF Working Drawings, as defined below (the “8,310 SF Improvements”), all
in accordance with the Work Letter attached to the Lease. In
performing such work, Landlord shall pay for all Standard Base Building Costs as
described in Exhibit
B-1 of the Lease with respect to the 8,310 SF Increment. Tenant shall pay
for all modifications and upgrades to the Base Building Standards within the
8,310 SF Increment with a credit for any cost saved by Landlord from the amounts
Landlord would have incurred for Standard Base Building Costs, all as more
specifically described in the Work Letter.
(c) As
used herein, “Approved 8,310 SF
Working Drawings” shall mean the final 8,310 SF Working Drawings approved
by Landlord and Tenant. The Approved 8,310 SF Working Drawings
consist of the Approved 8,110 SF Working Drawings attached hereto as Exhibit A-3-1
and the Approved 200 SF Working Drawings attached hereto as Exhibit
A-3-2. Tenant shall make no changes or modifications to the
Approved 8,310 SF Working Drawings without the prior written consent of
Landlord, which shall not be unreasonably withheld. The 8,310 SF
Improvements shall be performed in compliance with all Applicable Requirements.
Landlord shall notify Tenant upon Substantial Completion of the 8,310 SF
Improvements.
(d) The
commencement date of the Lease for the 8,310 SF Increment shall be the
Commencement Date for the Second Increment regardless of the date Tenant
commences occupancy and use of the 8,310 SF Increment for the conduct of its
business (the “8,310 SF
Commencement Date”). Tenant’s use and occupancy of the 8,310
SF Increment shall not trigger the Commencement Date for the Second
Increment.
(e) To
reflect the addition of the 8,310 SF Increment to the Lease, effective as of the
8,310 SF Commencement Date, Lessee’s Share shall be 1.61% with respect to the
8,310 SF Increment. Tenant’s initial monthly payment for the
estimated Common Area Operating Expenses with respect to the 8,310 SF Increment
is $1,246.50. Concurrently with Tenant’s execution of this Amendment,
Tenant shall pay to Landlord the amount of $1,246.50 representing the monthly
installment of the estimated Common Area Operating Expenses due with respect to
the 8,310 SF Increment for the first month of the Term of the Lease with respect
to the 8,310 SF Increment.
(f) To
reflect the addition of the 8,310 SF Increment to the Lease, effective as of the
Commencement Date, Tenant shall be entitled to an additional thirty-two (32)
unreserved parking spaces. All parking shall be free of charge throughout the
initial Lease Term.
5. Addition
of Additional Office Space. Subject to Tenant’s Additional
Termination Right set forth in Section 8 below, the
following space shall be added to the Current Premises: that certain space
consisting of two increments: (i) “Phase 1” consisting of
approximately 17,629 square feet, and (ii) “Phase 2” consisting of
approximately 23,460 square feet, collectively referred to herein as the “Additional Office Space” and
labeled as such on the attached Exhibit
A-4. Landlord and Tenant agree that for purposes of the Lease
and this Amendment, the Additional Office Space shall be deemed to contain
approximately 41,089 square feet of space, subject to the provisions of Paragraph 72 of the
Lease. Upon delivery of the applicable Phase of the Additional Office
Space, the Lease shall be modified to provide that the “Premises” consists of
approximately 247,576 square feet (the combined 8,310 SF Increment, the Current
Premises, Additional Office Space and the R&D Space [as defined below] shall
hereinafter be referred to as the “Premises”). No later than
January 15, 2008, Tenant may elect by written notice to Landlord to perform both
the Base Building Improvements and any additional improvements it desires in the
Additional Office Space (the “Tenant-Controlled
Notice”). If Tenant timely elects to perform such work by
delivery of the Tenant-Controlled Notice to Landlord, then the provisions of
Section 5(B) shall govern the addition of the Additional Office Space to the
Premises. If Tenant fails to timely notify Landlord that it has
elected to perform such work, then Landlord shall perform such work and the
provisions of Section 5(A) shall govern the addition of the Additional Office
Space to the Premises.
A. Landlord-Controlled
Build-Out
(a) The
Additional Office Space shall be delivered to Tenant upon Substantial Completion
of the Additional Space Improvements (as defined below).
(b) Prior
to delivering the Additional Office Space to Tenant, Landlord shall design and
construct the Base Building Improvements therein as described in Exhibits B, B-1 and B-2 of the Lease and
shall improve the Additional Office Space pursuant to the Approved Working
Drawings as defined below (the “Additional Space
Improvements”), all in accordance with the Work Letter attached to the
Lease. In performing such work, Landlord shall pay for all Standard
Base Building Costs as described in Exhibit B-1 of the
Lease with respect to the Additional Office Space. In addition,
Landlord shall, at Landlord’s sole cost and expense, perform the following work
in the Additional Office Space: (i) construct mezzanine 2 bathroom similar to
the one in mezzanine 4, (ii) install rough plumbing for kitchen to the west side
of the mezzanine 2 wall, and (iii) construct all necessary exiting from the
Additional Office Space. Tenant shall pay for all modifications and
upgrades to the Base Building Standards within the Additional Office Space with
a credit for any cost saved by Landlord from the amounts Landlord would have
incurred for Standard Base Building Costs, all as more specifically described in
the Work Letter.
(c) As
of the date of this Amendment, Landlord and Tenant have not developed or agreed
upon the space plans for the Additional Office Space (“Preliminary Space
Plans”). The parties agree to work in good faith to develop
and agree upon such Preliminary Space Plans.
(d) Landlord
shall construct the Additional Space Improvements pursuant to the provisions of
the Work Letter attached to the Lease as Exhibit B except that
the schedule for development of the construction drawings shall be as
follows: If Tenant has not elected to perform the Additional
Space Improvements, then within thirty (30) days following the later to occur
of: (x) the date on which the Preliminary Space Plans have been approved by
Landlord and Tenant, and (y) the earlier to occur of the date on which Landlord
receives the Tenant-Controlled Notice (in which Tenant indicates that Tenant has
elected not to perform
the Additional Space Improvements) and January 16, 2008, Landlord shall cause to
be prepared working drawings (“Additional Space Working Drawings”) for the
Additional Space Improvements pursuant to the Preliminary Space Plans and shall
deliver the same to Tenant for its review and approval (which approval shall not
be unreasonably withheld, delayed or conditioned so long as the Additional Space
Working Drawings are consistent with the approved Preliminary Space
Plans). The Additional Space Working Drawings shall include basic
programming, including architectural and MEP, all clearly
documented. Tenant shall notify Landlord whether it approves of the
submitted Additional Space Working Drawings within ten (10) business days after
Landlord’s submission thereof. If Tenant disapproves of such
Additional Space Working Drawings, then Tenant shall notify Landlord thereof
specifying in reasonable detail the reasons for such disapproval, in which case
Landlord shall, within five (5) business days after such notice, revise such
Additional Space Working Drawings in accordance with Tenant’s reasonable
objections and submit the revised Additional Space Working Drawings to Tenant
for its review and approval. Tenant shall notify Landlord in writing
whether it approves of the resubmitted Additional Space Working Drawings within
five (5) business days after its receipt thereof. This process shall
be repeated until the Additional Space Working Drawings have been finally
approved by Landlord and Tenant.
(e) As
used herein, “Approved
Additional Space Working Drawings” shall mean the final Additional Space
Working Drawings approved by Landlord and Tenant, as amended from time to time
by any approved changes thereto. Landlord shall provide a final copy
of the Approved Additional Space Working Drawings to Tenant no later than the
date which is twenty (20) days following the approval of the Approved Additional
Space Working Drawings by Landlord and Tenant. Neither party shall
make any changes or modifications to the Approved Additional Space Working
Drawings without the prior written consent of the other party, which shall not
be unreasonably withheld, conditioned or delayed. Landlord shall hire
an established and qualified general contractor which has been approved by
Tenant, which approval shall not be unreasonably withheld, conditioned or
delayed. The contractor shall put subcontractors (three each for each
of the major trades) through a competitive bid process reviewed by Tenant’s
project manager, and such hiring process shall include a determination as to the
subcontractor’s ability to meet Tenant’s reasonable timing and budget
requirements. The Additional Space Improvements shall be performed in
compliance with all Applicable Requirements. Promptly following
finalization of the Approved Additional Space Working Drawings, Landlord shall
commence and diligently prosecute to completion the Additional Space
Improvements. Landlord shall deliver to Tenant a construction
schedule for the Additional Space Improvements and shall update such schedule
not less than once a week. Landlord shall use commercially reasonable
efforts to notify Tenant at least thirty (30) days prior to the date on which
Landlord estimates that Substantial Completion of the Additional Space
Improvements will occur and Landlord shall notify Tenant promptly following the
actual date of the Substantial Completion of the Additional Space
Improvements.
(f) The
target commencement date (“Target Commencement Date”) of
the Lease for Phase 1 of the Additional Office Space shall be the earlier to
occur of: (i) the date which is five (5) months following the date on which the
Approved Additional Space Working Drawings were approved by Landlord and Tenant,
or (ii) January 1, 2009, provided that in the event the Additional Space Working
Drawings were approved after June 30, 2008 for reasons other than Tenant Delay,
the January 1, 2009 date shall be extended one day for each day after June 30,
2008 through the date immediately preceding the date of such approval of the
Additional Space Working Drawings. Except as provided below, the
commencement date for Phase 1 of the Additional Office Space shall be the
earlier of: (x) the date of Substantial Completion of the Additional Space
Improvements in the Additional Office Space in accordance with the Work Letter,
but in no event prior to the Target Commencement Date, or (y) the date on which
Tenant begins operating its business in any portion of Phase 1 of the Additional
Office Space (the “Additional
Space Commencement Date”). Notwithstanding the foregoing, if
(AA) Substantial Completion of the Lessor’s Work in Phase 1 of the Additional
Office Space has not occurred by January 1, 2009 (the “Outside Additional Delivery
Date”) as extended by any (i) Tenant Delay or (ii) events of Force
Majeure, then commencing on the day immediately following the Outside Additional
Delivery Date [as such date may be extended as provided herein], Tenant shall be
entitled to an abatement of Base Rent on a per diem basis for each day of such
delay. The Outside Additional Delivery Date shall be delayed one day
for each day of delay in the occurrence of the approval of the Additional Space
Working Drawings on and after June 30, 2008. The term of the Lease
with respect to Phase 1 of the Additional Office Space shall commence on the
Additional Space Commencement Date and shall be co-terminous with the Term of
the Lease for the Existing Premises. The commencement date of the
Lease for Phase 2 of the Additional Office Space shall be the earlier to occur
of: (A) January 1, 2010, provided that Landlord has Substantially Completed the
Additional Space Improvements therein in compliance with the Work Letter and
this Amendment, and (B) the date on which Tenant begins operating its business
in Phase 2 of the Additional Office Space (the “Phase 2 Commencement
Date”). The term of the Lease with respect to Phase 2 of the
Additional Office Space shall commence on the Phase 2 Commencement Date and
shall be co-terminous with the Term of the Lease for the Existing
Premises.
(g) Tenant
shall be permitted early access to each Phase of the Additional Office Space
commencing on the date which Landlord estimates to be thirty (30) days prior to
Substantial Completion of the Additional Space Improvements in the subject Phase
of the Additional Office Space (each, an “Additional Space Access
Date”), subject to the terms and conditions set forth
herein. Subject to and in accordance with all of the terms and
conditions of the Lease, as amended hereby, except for Tenant’s obligation to
pay Rent with respect to the Additional Office Space (which obligation shall
commence as provided in Section 6 below),
Tenant shall have access to the subject Phase of the Additional Office Space on
the subject Additional Space Access Date. The period of early access
shall commence on the subject Additional Space Access Date and continue through
the date immediately preceding the Additional Space Commencement Date or the
Phase 2 Commencement Date, as the case may be (each, an “Additional Space Access
Period”). During the Additional Space Access Period, Tenant
may enter the subject Phase of the Additional Office Space for the purpose of
installing Tenant’s furniture, fixtures and equipment, provided that Tenant
shall be solely responsible for any loss or damage to its equipment and fixtures
from any cause whatsoever other than to the extent arising from the negligence
or willful misconduct of Landlord, its contractor or any of their agents or
representatives. Such early access to the Additional Office Space and
the performance of such installation activity shall be permitted only to the
extent that Landlord determines that such early access and the performance of
such installation activity will not delay the Substantial Completion of the
Additional Space Improvements. Tenant shall (i) provide
certificates of insurance evidencing the existence and amounts of liability
insurance carried by Tenant and its agents and contractors, reasonably
satisfactory to Landlord, prior to such early entry, and (ii) comply with all
Applicable Requirements to such early entry work in the Additional Office
Space. Landlord and Tenant shall cooperate in the scheduling of
Tenant’s early access to each Phase of the Additional Office Space and of the
performance of the installation activities in an attempt to maximize the
benefits to Tenant of this Section 3(g) without
interfering with the Substantial Completion of the Additional Space
Improvements. Notwithstanding the foregoing, if such early access or
installation delays or interferes with Landlord’s performance of the Additional
Space Improvements, Landlord shall have the right to deny Tenant further access
to the subject Phase of the Additional Office Space until the Additional Space
Commencement Date or the Phase 2 Commencement Date, as the case may
be.
B.
Tenant-Controlled Build-Out
(a) Tenant
shall be permitted early access to the Additional Office Space commencing on the
first business day following Tenant’s delivery of the Tenant-Controlled Notice
to Landlord (the “Additional
Space Access Date”), subject to the terms and conditions set forth
herein. Subject to and in accordance with all of the terms and
conditions of the Lease, as amended hereby, except for Tenant’s obligation to
pay Rent with respect to the Additional Office Space (which obligation shall
commence as provided in Section 6(a) below),
Tenant shall have access to the Additional Office Space on the Additional Space
Access Date. The period of early access shall commence on the
Additional Space Access Date and continue through the date immediately preceding
the Additional Space Commencement Date or the Phase 2 Commencement Date, as the
case may be (each, an “Additional Space Access
Period”). During the Additional Space Access Period, Tenant
may enter the Additional Office Space for the purpose of constructing the
Additional Space Improvements and installing Tenant’s furniture, fixtures and
equipment, provided that Tenant shall be solely responsible for any loss or
damage to its equipment and fixtures from any cause
whatsoever. Tenant shall (i) provide certificates of insurance
evidencing the existence and amounts of liability insurance carried by Tenant
and its agents and contractors, reasonably satisfactory to Landlord, prior to
such early entry, and (ii) comply with all Applicable Requirements to such
early entry work in the Additional Office Space.
(b) Tenant
shall design and construct the Base Building Improvements in the Additional
Office Space as described in Exhibits B, B-1 and B-2 of the Lease and
shall improve the Additional Office Space pursuant to the Approved Additional
Space Working Drawings as defined below (the “Additional Space
Improvements”), all in accordance with the Work Letter attached to the
Lease and this Amendment. In performing such work, Landlord shall pay
Tenant an allowance of $40.00 per square foot of the Additional Office Space
(the “Additional Office Space
Base Allowance”) for all Standard Base Building Costs as described in
Exhibit B-1 of
the Lease with respect to the Additional Office
Space. Notwithstanding the foregoing, Landlord shall, at Landlord’s
sole cost and expense, perform the following work in the Additional Office
Space: (i) construct mezzanine 2 bathroom similar to the one in mezzanine
4, (ii) install rough plumbing for kitchen to the west side of the mezzanine 2
wall, and (iii) construct all necessary exiting from the Additional Office
Space.
(c) As
of the date of this Amendment, Landlord and Tenant have not developed or agreed
upon the space plans for the Additional Office Space (“Preliminary Space
Plans”). The parties agree to work in good faith to
develop and agree upon such Preliminary Space Plans. Tenant shall
construct the Additional Space Improvements pursuant to the provisions of the
Work Letter attached to the Lease as Exhibit B except that
the schedule for development of the construction drawings shall be as
follows: Within thirty (30) days following the later to occur
of Tenant’s delivery to Landlord of the Tenant-Controlled Notice and the
approval of the Preliminary Space Plans by Landlord and Tenant, Tenant shall
cause to be prepared working drawings (“Additional Space Working Drawings”) for the
Additional Space Improvements pursuant to the Preliminary Space Plans and
deliver the same to Landlord for its review and approval (which approval shall
not be unreasonably withheld, delayed or
conditioned). The Additional Space Working Drawings shall
include basic programming, including architectural and MEP, all clearly
documented. Landlord shall notify Tenant whether it approves of the
submitted Additional Space Working Drawings within ten (10) business days after
Tenant’s submission thereof. If Landlord disapproves of such
Additional Space Working Drawings, then Landlord shall notify Tenant thereof
specifying in reasonable detail the reasons for such disapproval, in which case
Tenant shall, within five (5) business days after such notice, revise such
Additional Space Working Drawings in accordance with Landlord’s reasonable
objections and submit the revised Additional Space Working Drawings to Landlord
for its review and approval. Landlord shall notify Tenant in writing
whether it approves of the resubmitted Additional Space Working Drawings within
five (5) business days after its receipt thereof. This process shall
be repeated until the Additional Space Working Drawings have been finally
approved by Landlord and Tenant. If, despite Tenant’s diligent
efforts (but excluding any delays solely due to Landlord Delay, as defined
below), the Additional Space Working Drawings are not approved by Landlord and
Tenant on or before October 1, 2008, then Landlord may elect to send a written
notice to Tenant stating that Tenant’s failure to perform all necessary work in
order to finalize the Additional Space Working Drawings within thirty (30) days
of receipt of such notice (the “Plan Cure Period”) shall
entitle Landlord upon the lapse of such Plan Cure Period to terminate the Lease
solely with respect to this Section 5 and Section 6
below. If, despite the good faith efforts of Landlord and Tenant, the
Additional Space Working Drawings are not approved by both parties during the
Plan Cure Period, then Landlord may elect by delivery of written notice to
Tenant (“Landlord’s Termination
Notice”) to terminate the Lease solely with respect to this Section 5 and Section 6 below and
Landlord shall have no further obligation to make the Additional Office Space
available for occupancy or lease by Tenant. Within ten (10) days of
Tenant’s receipt of Landlord’s Termination Notice, Tenant shall remove any and
all of Tenant’s personal property located in the Additional Office Space, if
any, and shall pay Landlord a termination fee in the amount of
$100,000.00.
(d) As
used herein, “Approved
Additional Space Working Drawings” shall mean the final Additional Space
Working Drawings approved by Landlord and Tenant, as amended from time to time
by any approved changes thereto. Tenant shall provide a final copy of
the Approved Additional Space Working Drawings to Landlord no later than the
date which is twenty (20) days following the approval of the Approved Additional
Space Working Drawings by Landlord and Tenant. Tenant shall make no
changes or modifications to the Approved Additional Space Working Drawings
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Tenant shall hire an
established general contractor and such general contractor shall be subject to
Landlord’s prior approval, such approval not to be unreasonably withheld,
conditioned or delayed. The general contractor shall put
subcontractors through a competitive bid process reviewed by Landlord’s project
manager and such hiring process shall include the general contractor’s ability
to meet Tenant’s reasonable timing and budget requirements. The
Additional Space Improvements shall be performed in compliance with all
Applicable Requirements. Promptly following finalization of the
Approved Additional Space Working Drawings, Tenant shall commence and diligently
prosecute to completion the Additional Space Improvements. Tenant
shall notify Landlord upon Substantial Completion of the Additional Space
Improvements.
(f) The
commencement date of the Lease for Phase 1 of the Additional Office Space shall
be the earlier to occur of: (i) the date which is five (5) months following the
approval of the Approved Additional Space Working Drawings by Landlord and
Tenant, as such period may be extended by any Landlord Delay, as defined below,
and (ii) the date on which Tenant begins operating its business in any portion
of Phase 1 of the Additional Office Space (the “Additional Space Commencement
Date”). The term of the Lease with respect to Phase 1 of the
Additional Office Space shall commence on the Additional Space Commencement Date
and shall be co-terminous with the Term of the Lease for the Existing
Premises. The commencement date of the Lease for Phase 2 of the
Additional Office Space shall be the earlier to occur of: (x) January 1, 2010,
and (y) the date on which Tenant begins operating its business in Phase 2 of the
Additional Office Space (the “Phase 2 Commencement
Date”). The term of the Lease with respect to Phase 2 of
the Additional Office Space shall commence on the Phase 2 Commencement Date and
shall be co-terminous with the Term of the Lease for the Existing
Premises. For purposes of this Paragraph, the term “Landlord Delay” shall any
delay in Tenant’s completion of the Additional Space Improvements, including the
design and construction of the Additional Space Base Work, that occurs directly
(i) because Landlord fails timely to furnish any information or to deliver,
review, comment upon or approve any plans, drawings and documentation as
provided herein (whether preliminary, interim revisions or final), pricing
estimates, construction bids and the like, (ii) because of any changes requested
by Landlord to any approved plans and drawings following the approval thereof by
the parties, (iii) because Landlord fails to attend any previously scheduled
meeting with Tenant, architect, any design professional or any contractor, or
their respective employees or representatives as may be required or scheduled
hereunder or as otherwise necessary in connection with the preparation or
completion of any construction documents and in connection with Tenant’s design
and construction of the Additional Space Improvements, or (iv) because Landlord
otherwise knowingly delays the completion of the Additional Space
Improvements. Tenant shall promptly
notify Landlord of any acts, omissions or conditions which Tenant alleges will
cause a Landlord Delay.
(g) The
Additional Office Space Base Allowance shall be paid to Tenant on the date which
is thirty (30) days following Tenant's compliance with each of the following:
(i) Tenant shall have completed the Base Building Improvements in the Additional
Office Space (“Additional Space
Base Work”) in accordance with the Approved Additional Space Working
Drawings, (ii) Tenant shall furnish Landlord with copies of invoices or other
evidence reasonably satisfactory to Landlord to confirm that Tenant spent at
least as much as the Additional Office Space Base Allowance for the Additional
Space Base Work, (iii) Tenant shall provide Landlord with an unconditional lien
waiver in the statutory form from its general contractor with respect to the
Additional Space Base Work, (iv) Tenant shall provide Landlord with a copy of
its permits for the construction of the Additional Space Base Work, and (v)
Tenant shall provide a certificate from Tenant’s architect that the Additional
Space Base Work was completed in material and substantial compliance with such
permits and the Approved Additional Space Working Drawings. All bills
for the Additional Space Base Work must be submitted on or before December 31,
2010, after which time, any amounts not funded shall be forfeited, and Landlord
will make no further payments related to the Additional Space Base Work after
such date. Landlord shall have no obligation to fund any portion of
the Additional Office Space Base Allowance at any time that Tenant is in Default
under the Lease, as amended hereby.
6. Rent for
Additional Office Space. (a) To reflect the addition of the Additional
Office Space to the Lease and notwithstanding anything in the Lease to the
contrary, effective as of the Additional Space Commencement Date for each phase,
and continuing thereafter through the remainder of the Term, Tenant shall pay to
Landlord Base Rent in advance on or before the first day of each calendar month,
for the Additional Office Space, as follows:
|
|
|
Months:
|
|
|
Base Rent Per Month PSF:
|
|
|
Base Rent Per Month:
|
|
|
Phase
1 – 17,629 sf:
|
|
|
1 –
12 |
|
|
$ |
1.57 |
|
|
$ |
27,589.39 |
|
|
Phase
1 + Phase 2
|
|
|
13
– 24 |
|
|
$ |
1.61 |
|
|
$ |
66,153.29 |
|
|
|
|
|
25
– 36 |
|
|
$ |
1.66 |
|
|
$ |
68,207.74 |
|
|
|
|
|
37
– 48 |
|
|
$ |
1.71 |
|
|
$ |
70,262.19 |
|
|
|
|
|
49
– 60 |
|
|
$ |
1.76 |
|
|
$ |
72,316.64 |
|
|
|
|
|
61
– 72 |
|
|
$ |
1.81 |
|
|
$ |
74,371.09 |
|
|
|
|
|
73
– 84 |
|
|
$ |
1.87 |
|
|
$ |
76,836.43 |
|
|
|
|
|
85
– 96 |
|
|
$ |
1.92 |
|
|
$ |
78,890.88 |
|
|
|
|
|
97
– 108 |
|
|
$ |
1.98 |
|
|
$ |
81,356.22 |
|
|
|
|
109
– 9/30/2018
|
|
|
$ |
2.04 |
|
|
$ |
83,821.56 |
|
The
schedule of rent herein shall be subject to adjustment as provided in the Lease
for the Current Premises.
(b) To
reflect the addition of the Additional Office Space to the Lease, effective as
of the Additional Space Commencement Date, Lessee’s Share shall be 3.41% with
respect to Phase 1 of the Additional Office Space. Commencing on the
Phase 2 Commencement Date, Lessee’s Share with respect to the entirety of the
Additional Office Space shall be 7.95%.
(c) To
reflect the addition of Phase 1 of the Additional Office Space to the Lease,
effective as of the Additional Space Commencement Date, Tenant shall be entitled
to an additional seventy (70) unreserved parking spaces. Commencing on the Phase
2 Commencement Date, to reflect the addition of Phase 2 of the Additional Office
Space to the Lease, Tenant shall be entitled to an additional ninety-three (93)
unreserved parking spaces.
7. Addition
of R&D Space. (a) The increment of space consisting of
approximately 22,375 square feet of yard area adjacent to the Current Premises
referred to herein as the “R&D Space” and labeled as
such on the attached Exhibit A-5 were
added to the Current Premises and were delivered to Tenant on or about November
1, 2007. Within ninety (90) days following the full execution of this
Amendment, Tenant shall enclose the R&D Space with chain link fence (the
height of such fence shall be determined by Landlord exercising its reasonable
discretion) and provide for an entrance in a mutually acceptable location so
that the R&D Space is secured for Tenant’s exclusive use. The lease of the
R&D Space shall be on a strictly “AS IS” basis and Tenant shall be
responsible, at its sole cost and expense, for complying with any and all
Applicable Requirements in connection with its use of the R&D
Space. The addition of the R&D Space to the Premises shall not
affect Tenant’s Share of Operating Expenses. The Term of the Lease
with respect to the R&D Space commenced on November 1, 2007 and shall be
co-terminous with the Term of the Lease with respect to the Existing Premises,
subject to Section
7(b) below. The Base Rent for the R&D Space shall commence
at such time as Landlord has removed its personal property from the R&D
Space (The “R&D
Commencement Date”) and shall be as follows.
|
Period:
|
|
Base Rent Per Month PSF:
|
|
|
Monthly Base Rent:
|
|
|
R&D Commencement
Date –
10/31/08
|
|
$ |
0.15 |
|
|
$ |
3,356.25 |
|
|
11/1/08
– 10/31/09
|
|
$ |
0.155 |
|
|
$ |
3,456.94 |
|
|
11/1/09
– 10/31/10
|
|
$ |
0.159 |
|
|
$ |
3,560.65 |
|
|
11/1/10
– 10/31/11
|
|
$ |
0.164 |
|
|
$ |
3,667.46 |
|
|
11/1/11
– 10/31/12
|
|
$ |
0.169 |
|
|
$ |
3,777.49 |
|
|
11/1/12
– 10/31/13
|
|
$ |
0.174 |
|
|
$ |
3,890.81 |
|
|
11/1/13
– 10/31/14
|
|
$ |
0.179 |
|
|
$ |
4,007.54 |
|
|
11/1/14
– 10/31/15
|
|
$ |
0.184 |
|
|
$ |
4,127.76 |
|
|
11/1/15
– 10/31/16
|
|
$ |
0.184 |
|
|
$ |
4,251.60 |
|
|
11/1/16
– 10/31/17
|
|
$ |
0.190 |
|
|
$ |
4,379.14 |
|
|
11/1/17
– 10/31/18
|
|
$ |
0.196 |
|
|
$ |
4,385.50 |
|
(b) Tenant
shall have the right to terminate the Lease solely with respect to the R&D
Space (the “R&D Termination
Right”) by delivering to Landlord not less than six (6) months’ advance
written notice (the “R&D
Termination Notice”) of the exercise of such R&D Termination
Right. As used herein, the “Early R&D Termination
Date” shall mean the date which is six (6) months following Landlord’s
receipt of the R&D Termination Notice. Prior to the Early R&D
Termination Date, Tenant shall, at Tenant’s sole cost and expense, restore the
R&D Space to the same condition as the remainder of the parking lot as to
grading, drainage, asphalt and striping (the “R&D Restoration
Work”). If Tenant delivers a valid R&D Termination Notice,
timely performs the R&D Restoration Work and surrenders the R&D Space to
Landlord free of all Tenant’s personal property, then the Lease solely with
respect to the R&D Space shall terminate at 11:59 p.m. on the Early R&D
Termination Date. If Tenant fails to perform the R&D Restoration
Work, then Landlord shall perform the same and Tenant shall reimburse Landlord
for all reasonable costs incurred by Landlord in connection therewith within
thirty (30) days of receipt of documented invoices for such
Work.
8. Termination
Right. (a) Prior to Tenant’s occupancy of any portion of the
Additional Office Space, Tenant shall have a right to terminate the Lease solely
with respect to the Additional Office Space (the “Additional Termination Right”)
by delivering to Landlord written notice (the “Additional Termination
Notice”) of the exercise of such Additional Termination
Right. If the Additional Termination Notice is delivered to Landlord
on or before May 1, 2008 and prior to Tenant commencing any construction in the
Additional Office Space, then Tenant shall pay to Landlord the amount of
$100,000.00. If the Additional Termination Notice is delivered to
Landlord after May 1, 2008 and prior to Tenant’s occupancy of any portion of the
Additional Office Space, then concurrently with delivery of the Additional
Termination Notice to Landlord, Tenant shall pay to Landlord a “Termination Payment” equal to
the sum of (A) the unamortized portions of the Standard Base Building Costs and
any Additional Allowance paid by Landlord in connection with the Additional
Office Space, plus (B) the unamortized portion of leasing commissions, and
legal fees paid by Landlord on account of the Lease with respect to the
Additional Office Space, plus (C) an amount equal to six (6) months Base Rent
with respect to the entirety of the Additional Office Space in the amount of
$396,919.74 (the “Termination
Rental Sum”). The Termination Rental Sum shall be paid
concurrently with delivery of the Additional Termination Notice to Landlord and
the remaining portions of the Termination Payment shall be made within thirty
(30) days following such date as Landlord provides to Tenant written
verification of such costs, fees and commissions. As used herein, the
“Additional Early Termination Date” shall
mean the date of Landlord’s receipt of the Additional Termination
Notice. The amortization calculation shall be computed as of the last
day of the period covered by the Termination Rental Sum. If Tenant
delivers a valid Additional Termination Notice together with the amount of
$100,000.00 or the Termination Payment, as the case may be, then the Lease
solely with respect to the Additional Office Space shall terminate at 11:59 p.m.
on the Additional Early Termination Date.
(b) Tenant’s
rights under this Section 8 shall
terminate: (1) on and after the date on which Tenant takes occupancy of any
portion of the Additional Office Space, (2) if Tenant assigns any of its
interest in the Lease, or sublets any portion of the Premises other than to
a Permitted Transferee, or (3) if Tenant fails to timely exercise the
Additional Termination Right under this Section 8, time being
of the essence with respect to Tenant’s exercise thereof. Tenant may
not exercise its rights under this Section 8 if
a Default exists as of the date of delivery of the Additional
Termination Notice or as of the Additional Early Termination Date.
9. Expansion
Commencement Date. Notwithstanding the provisions of
Section 3(d) of the First Amendment, the Expansion Commencement Date shall
be the date which is three (3) months prior to the earlier to occur of: (i) the
date on which Tenant begins to conduct its business operations in any portion of
the Expansion Premises and (ii) the date on which the Expansion Premises
Improvements have been Substantially Completed, subject to any Tenant
Delay.
10. Modification
of Roof Rights. As of the date hereof, the parties hereto
acknowledge that the rights of Tenant with respect to the placement of PV
Equipment on the roof of the Building pursuant to Paragraph 73 of the Lease have
been reduced in scope such that rather than the entire roof, Tenant’s rights are
limited to the roof located over the 2 bays in the southeast corner of the
Building above Tenant’s research and development area.
11. Security
Deposit. Notwithstanding anything in the Lease to the
contrary, the addition of the 8,310 SF Increment, the Additional Office
Space and the R&D Space shall not increase the Security Deposit or the
amount of the Letter of Credit required under the Lease. Landlord
acknowledges that Tenant is under no obligation to increase the amount of the
Letter of Credit pursuant to the terms of Paragraph 56(d) of the
Lease.
12. Real
Estate Brokers. Tenant and Landlord warrant that they have had
no dealings with any broker or agent in connection with this Amendment, other
than BT Commercial (Landlord’s broker) and CM Realty (Tenant’s
broker). Landlord shall pay a commission to Landlord’s broker
pursuant to a separate written agreement and shall pay Tenant’s broker pursuant
to the existing separate written agreement between Landlord and Tenant’s
broker. Landlord covenants to pay, hold harmless and indemnify Tenant
from and against any and all cost, expense or liability for any compensation,
commissions or charges claimed by any other broker or agent utilized by Landlord
with respect to this Amendment or the negotiation hereof. Tenant
covenants to pay, hold harmless and indemnify Landlord from and against any and
all cost, expense or liability for any compensation, commissions or charges
claimed by any other broker or agent utilized by Tenant with respect to this
Amendment or the negotiation hereof.
13. Authority. Tenant
and each person executing this Amendment on behalf of Tenant hereby covenants
and warrants that (a) Tenant is duly organized and validly existing under the
laws of the States of California and Delaware, (b) Tenant has full power and
authority to enter into this Amendment and to perform all Tenant’s obligations
under the Lease, as amended by this Amendment, and (c) each person (and all
of the persons if more than one signs) signing this Amendment on behalf of
Tenant is duly and validly authorized to do so.
14. No
Offer. Submission of this instrument for examination and
signature by Tenant does not constitute an offer to lease or a reservation of or
option for lease, and this instrument is not effective as a lease amendment or
otherwise until executed and delivered by both Landlord and Tenant.
15. Exhibits. Exhibit A-3, Exhibit A-3-1, Exhibit A-3-2, Exhibit A-4 and,
Exhibit A-5
attached hereto shall be incorporated into the Lease, as amended
hereby.
16. Lease in
Full Force and Effect. This Amendment contains the entire
understanding between the parties with respect to the matters contained
herein. Tenant hereby affirms to its knowledge that on the date
hereof no breach or default by either party has occurred and that the Lease, and
all of its terms, conditions, covenants, agreements and provisions, except as
hereby modified, are in full force and effect with no defenses or offsets
thereto. No representations, warranties, covenants or agreements
have been made concerning or affecting the subject matter of this Amendment,
except as are contained herein and in the Lease. This Amendment
may not be changed orally, but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change or modification or
discharge is sought.
[Remainder of Page Intentionally Left
Blank]
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the date
first set forth above.
|
LANDLORD:
|
|
TENANT:
|
|
|
|
|
|
FPOC,
LLC,
|
|
Sunpower
Corporation, Systems,
|
|
a
California limited liability company
|
|
a
Delaware corporation
|
|
|
|
|
|
|
|
|
By:
|
|
|
BY:
|
FP
Management, LLC, a California
|
|
Name:
|
Tom
Dinwoodie
|
|
|
limited
liability company, its Manager
|
|
Its:
|
CEO,
Systems
|
|
|
By:
|
|
|
By:
|
|
|
|
|
J.R.
Orton, III, Manager
|
|
Name:
|
Dan
Shugar
|
|
|
|
|
|
Its:
|
President,
Systems
|
Exhibit
A-3
Outline
of 8,310 SF Increment
Exhibit
A-3-1
Outline
of Approved 8,110 SF Working Drawings
