THIRD AMENDMENT TO LEASE (Confirmation of Commencement Dates)
EXHIBIT
10.13
THIRD AMENDMENT TO
LEASE
(Confirmation of Commencement
Dates)
This
Third Amendment to Lease (“Amendment”) is made and
entered into as of the 23rd day of
May, 2008 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 ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. The Current Premises
consist of approximately 110,522 square feet of space (the “Existing Premises”) and
approximately 65,280 square feet (the “Expansion Premises” identified
as “Tranche 5” on the attached Exhibit
A-1). Landlord and Powerlight entered into that certain First
Amendment to Lease dated as of May 24, 2007 (the “First Amendment”). Landlord
and Tenant entered into that certain second Amendment to Lease dated as of
December 18, 2007 (the “Second
Amendment”). The Original Lease as amended by the First
Amendment and the Second Amendment is hereinafter referred to as the “Lease”. Tenant has
assumed the obligations of Powerlight as “tenant” under the Lease.
B. Landlord
and Tenant presently desire to amend the Lease to provide, among other things,
for the Commencement Date of the Lease, 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 Dates.
(a) Commencement
Dates. 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” and
shown as “Tranche 1” on the attached Exhibit
A-2) 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”) occurred on three separate dates as follows: (i) December 24,
2007 with respect to the space consisting of 7,325 square feet located on the
first floor of the Building and shown as “Tranche 2” on the attached Exhibit
A; (ii) January 14, 2008 with respect to the space consisting of 8,444
square feet located on the first floor of the Building and shown as “Tranche 3”
on the attached
1
|
Premises
|
Square
Footage
|
Commencement
Date
|
|
December 17
Increment
|
50,000
sf of 2nd
floor office
|
December
17, 2007
|
|
Remaining Increment:
(1)
|
7,325
1st
floor office
|
December
24, 2007
|
|
(2)
|
8,444
sf of remaining 1st
floor office
|
January
14, 2008
|
|
(3)
|
20,125
sf industrial
|
February
4, 2008
|
|
Expansion
Premises
|
65,280
sf manufacturing
|
November
25, 2007
Expansion
Commencement Date
(which
date is three months prior to the earlier of the actual delivery date of
the Expansion Premises or Tenant operating its business in the Expansion
Premises)
|
|
8,310
SF Increment
|
8,310
sf
2nd
floor office
|
Second
Increment Commencement Date
Dec.
17, 2008
|
|
Second
Increment
|
26,423
sf
2nd
floor office
|
Dec.
17, 2008
Second
Increment Commencement Date
|
|
R&D
Space
(Yard)
|
21,000
sf
|
March
1, 2008
R&D
Commencement Date
|
(b) Substantially
Completed. The parties acknowledge that the Lessor’s Work in
the December 17 Increment, the Remaining Increment, the Second Increment and the
Expansion Premises has been Substantially Completed. Each of Landlord
and Tenant hereby waives any
2
(c) Early Termination
Right. For purposes of Section 76 of the Original Lease, the
references to the Commencement Date shall refer to the Remaining Increment
Commencement Date or January 1, 2008. Therefore, the last day of the
76th
full calendar months following the Commencement Date shall be April 30,
2014.
(d) Warranty
Periods. For purposes of the warranty periods set forth in
Sections 2.2, 2.3 and 51(b) of the Original Lease, the respective warranty
periods shall commence as of January 1, 2008.
3. Term. Section
1.3 of the Original Lease is hereby deleted in its entirety and replaced with
the following language: “Approximately eleven (11) years commencing on December
17, 2007 and ending on December 31, 2018 (“Expiration
Date”).”
4. Base
Rent. Notwithstanding anything to the contrary set forth in
the Lease, Base Rent shall be payable with respect to the Premises as set forth
in Exhibit
#2 attached hereto. The following schedule sets forth the
accrued Base Rent through March 31, 2008:
|
Premises
|
Square
Footage
|
Commencement
Date
|
Base
Rent
Accrued
through 3/31/08
|
|
December 17
Increment
|
50,000
sf of 2nd
floor office
|
December
17, 2007
Base
Rent commences: 4/17/08
|
$0.00
|
|
Remaining Increment:
(1)
|
7,325
1st
floor office
|
December
24, 2007
Base
Rent commences: 4/24/08
|
$0.00
|
|
(2)
|
8,444
sf of remaining 1st
floor office
|
January
14, 2008
Base
Rent commences: 5/14/08
|
$0.00
|
|
(3)
|
20,125
sf industrial
|
February
4, 2008
Base
Rent commences: 6/4/08
|
$0.00
|
|
Expansion
Premises
|
65,280
sf
manufacturing
|
November
25, 2007
Expansion
Commencement Date
Base
Rent commences: 11/25/07
|
$156,280.32
|
3
|
8,310
SF Increment
|
8,310
sf
2nd
floor office
|
Second
Increment Commencement Date
Base Rent commences:
Dec. 17, 2008
|
$0.00
|
|
Second
Increment
|
26,423
sf
2nd
floor office
|
Second
Increment Commencement Date
Base Rent commences:
Dec. 17, 2008
|
$0.00
|
|
R&D
Space
(yard)
|
21,000
sf
|
March
1, 2008
R&D
Commencement Date
Base
Rent commences: 3/1/08
|
$3,150.00
|
|
Total:
|
$159,430.32
|
||
|
Prepaid Credit:
|
$100,269.05
|
||
|
Amount Due:
|
$59,161.27
|
5. Common
Area Operating Expenses. The parties hereto acknowledge that
Tenant’s obligation to pay Common Area Operating Expenses commences on the
relevant Commencement Date for the subject increment of the
Premises. The following schedule sets forth the accrued estimated
Common Area Operating Expenses through March 31, 2008:
|
Premises
|
Square
Footage
|
Commencement
Date
|
Estimated
Common Area Operating Expenses
Accrued
through 3/31/08
|
|
December 17
Increment
|
50,000
sf of 2nd
floor office
|
December
17, 2007
|
$26,000.00
|
|
Remaining Increment:
(1)
|
7,325
1st
floor office
|
December
24, 2007
|
$3,552.63
|
|
(2)
|
8,444
sf of remaining 1st
floor office
|
January
14, 2008
|
$3,250.37
|
|
(3)
|
20,125
sf industrial
|
February
4, 2008
|
$5,735.63
|
|
Expansion
Premises
|
65,280
sf
manufacturing
|
November
25, 2007
Expansion
Commencement Date
|
$41,126.00
|
4
|
8,310
SF Increment
|
8,310
sf
2nd
floor office
|
Dec.
17, 2007
|
$4,321.20
|
|
Second
Increment
|
26,423
sf
2nd
floor office
|
Dec.
17, 2007
|
$13,739.96
|
|
Total:
|
$97,725.79
|
||
|
Prepaid Credit:
|
$14,367.86
|
||
|
Amount Due:
|
$83,357.93
|
||
|
R&D
Space
(yard)
|
21,000
sf
|
March
1, 2008
R&D
Commencement Date
|
Not
Applicable
|
6. Accrued
Rental Amounts. Concurrently with Tenant’s execution of this
Amendment, Tenant shall deliver the amount of $142,519.20 which represents the
amount of accrued Base Rent and estimated Common Area Operating Expenses through
March 31, 2008.
7. Reimbursement
of Buildout Costs.
(a) Current
Amount. Pursuant to the Work Letter attached as Exhibit B to
the Original Lease, Tenant has agreed to reimburse Landlord for Tenant
Improvement Costs as well as Above-Standard Base Building Costs less the amount
of Standard Base Building Costs incurred in connection with Lessor’s Work, as
such terms are defined in the Work Letter (collectively, “Tenant’s Share of Buildout
Costs”). Landlord and Tenant agree that the total amount of
Tenant’s Share of Buildout Costs for the December 17 Increment, the Remaining
Increment, the Second Increment and the Expansion Premises is $3,800,000.00 (the
“Current
Amount”). To date, Landlord has received the amount of
$2,690,000 toward the Tenant’s Share of Buildout Costs and thus the amount owed
by Tenant for Tenant’s Share of Buildout Costs is $1,110,000.00 (“Current Amount
Due”). Paragraph 51(d) of the Lease is hereby deleted in its
entirety.
(b) Payment
Due. Within ten (10) business days following the full
execution of this Amendment, Tenant shall pay to Landlord the amount of
$895,000.00 with respect to the Tenant’s Share of Buildout Costs. Tenant shall
pay the remaining $215,000.00 to Landlord within ten (10) business days
following the date on which Landlord has completed all work listed on the Punch
List.
8. Remeasurement. Section
72 of the Lease is hereby deleted in its entirety. Within ten (10) business days
following the date on which this Amendment is fully executed by Landlord and
Tenant, each of Landlord and Tenant shall have the right to cause its architect
or consultant to measure the actual square feet of rentable area within the
Premises and Building in accordance with the rentable standards set forth in
ANSI/BOMA Z65.1-1996, as promulgated by the Building Owners and Managers
Association (“BOMA
Standard”), and all provisions of this Lease which are dependent upon the
number of square feet (e.g.; Base Rent, Lessee’s
Share) shall be appropriately adjusted.
9. 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
5
under the
laws of the State of 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. Landlord and each person executing this
Amendment on behalf of Landlord hereby covenants and warrants that (a) Landlord
is duly organized and validly existing under the laws of the State of
California, (b) Landlord has full power and authority to enter into this
Amendment and to perform all Landlord’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 Landlord is duly and
validly authorized to do so.
10. Exhibits. Exhibit #2 attached
hereto shall be incorporated into the Lease, as amended hereby. Exhibit D to the
Original Lease is hereby deleted in its entirety. Exhibit A (Outline of
Premises) attached to the Original Lease is hereby deleted and the attached
Exhibit
A and Exhibit
A-2 are hereby substituted therefor. Exhibit A-1 (Outline
of Expansion Premises) attached to the First Amendment is hereby deleted and the
attached Exhibit
A-1 is hereby substituted therefor. Exhibit A-3 (Outline
of 8,310 SF Increment) attached to the Second Amendment is hereby deleted and
the attached Exhibit
A-2 is hereby substituted therefor.
[Remainder of Page Intentionally Left
Blank]
6
11. Lease in
Full Force and Effect. This Amendment contains the entire
understanding between the parties with respect to the matters contained
herein. 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.
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the date
first set forth above.
|
LANDLORD:
|
TENANT: | |||
|
FPOC,
LLC,
a California Limited Liability company
|
Sunpower
Corporation, Systems,
a Delaware corporation
|
|||
|
BY:
FP Management, LLC, a California
limited liability company, its
Manager
|
By:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Founder &
CTO
|
|||
|
By: /s/ J.R. Orton, III
|
By:
|
|||
|
J.R. Orton, III, Manager
|
Name:
Its:
|
7
Exhibit
#2
Rent
Schedules
|
Period:
December 17, 2007
December 17 Increment
50,000 sf
|
Monthly Base Rent per SF
|
Monthly Base Rent
|
|
12/17/07
– 4/16/08
|
$0.00
|
$0.00
|
|
4/17/08
– 12/31/08
|
$1.4000
|
$70,000.00
|
|
1/1/09
– 12/31/09
|
$1.4420
|
$72,100.00
|
|
1/1/10
– 12/31/10
|
$1.4853
|
$74,263.00
|
|
1/1/11
– 12/31/11
|
$1.5298
|
$76,490.89
|
|
1/1/12
– 12/31/12
|
$1.5757
|
$78,785.62
|
|
1/1/13
– 12/31/13
|
$1.6230
|
$81,149.19
|
|
1/1/14
– 12/31/14
|
$1.6717
|
$83,583.66
|
|
1/1/15
– 12/31/15
|
$1.7218
|
$86,091.17
|
|
1/1/16
– 12/31/16
|
$1.7735
|
$88,673.91
|
|
1/1/17
– 12/31/17
|
$1.8267
|
$91,334.12
|
|
1/1/18
– 12/31/18
|
$1.8815
|
$94,074.15
|
|
Period:
December 24, 2007
7,325 sf
|
Monthly Base Rent per SF
|
Monthly Base Rent
|
|
12/24/07
– 4/23/08
|
$0.00
|
$0.00
|
|
4/24/08
– 12/31/08
|
$1.4000
|
$10,255.00
|
|
1/1/09
– 12/31/09
|
$1.4420
|
$10,562.65
|
|
1/1/10
– 12/31/10
|
$1.4853
|
$10,879.53
|
|
1/1/11
– 12/31/11
|
$1.5298
|
$11,205.92
|
|
1/1/12
– 12/31/12
|
$1.5757
|
$11,542.09
|
|
1/1/13
– 12/31/13
|
$1.6230
|
$11,888.36
|
|
1/1/14
– 12/31/14
|
$1.6717
|
$12,245.01
|
|
1/1/15
– 12/31/15
|
$1.7218
|
$12,612.36
|
|
1/1/16
– 12/31/16
|
$1.7735
|
$12,990.73
|
|
1/1/17
– 12/31/17
|
$1.8267
|
$13,380.45
|
|
1/1/18
– 12/31/18
|
$1.8815
|
$13,781.86
|
|
Period:
January 14, 2008
8,444 sf
|
Monthly Base Rent per SF
|
Monthly Base Rent
|
|
1/14/08
– 5/13/08
|
$0.00
|
$0.00
|
|
5/14/08
– 12/31/08
|
$1.4000
|
$11,821.60
|
|
1/1/09
– 12/31/09
|
$1.4420
|
$12,176.25
|
|
1/1/10
– 12/31/10
|
$1.4853
|
$12,541.54
|
|
1/1/11
– 12/31/11
|
$1.5298
|
$12,917.78
|
|
1/1/12
– 12/31/12
|
$1.5757
|
$13,305.31
|
|
1/1/13
– 12/31/13
|
$1.6230
|
$13,704.47
|
|
1/1/14
– 12/31/14
|
$1.6717
|
$14,115.61
|
|
1/1/15
– 12/31/15
|
$1.7218
|
$14,539.08
|
|
1/1/16
– 12/31/16
|
$1.7735
|
$14,975.25
|
|
1/1/17
– 12/31/17
|
$1.8267
|
$15,424.51
|
|
1/1/18
– 12/31/18
|
$1.8815
|
$15,887.24
|
|
Period:
February 4, 2008
20,125 sf
|
Monthly Base Rent Per SF
|
Monthly Base Rent for R&D
Portion
|
|
2/4/08
– 6/3/08
|
$0.00
|
$0.00
|
|
6/4/08
– 12/31/08
|
$0.5250
|
$10,565.63
|
|
1/1/09
– 12/31/09
|
$0.5408
|
$10,882.59
|
|
1/1/10
– 12/31/10
|
$0.5570
|
$11,209.07
|
|
1/1/11
– 12/31/11
|
$0.5737
|
$11,545.34
|
|
1/1/12
– 12/31/12
|
$0.5909
|
$11,891.70
|
|
1/1/13
– 12/31/13
|
$0.6086
|
$12,248.46
|
|
1/1/14
– 12/31/14
|
$0.6269
|
$12,615.91
|
|
1/1/15
– 12/31/15
|
$0.6457
|
$12,994.38
|
|
1/1/16
– 12/31/16
|
$0.6651
|
$13,384.21
|
|
1/1/17
– 12/31/17
|
$0.6850
|
$13,785.74
|
|
1/1/18
– 12/31/18
|
$0.7056
|
$14,199.31
|
|
Period:
December 17, 2008
8,310 increment
|
Monthly Base Rent per SF
|
Monthly Base Rent:
|
|
12/17/08
– 12/31/08
|
$1.4420
|
$11,983.02
|
|
1/1/09
– 12/31/09
|
$1.4420
|
$11,983.02
|
|
1/1/10
– 12/31/10
|
$1.4853
|
$12,342.51
|
|
1/1/11
– 12/31/11
|
$1.5298
|
$12,712.79
|
|
1/1/12
– 12/31/12
|
$1.5757
|
$13,094.17
|
|
1/1/13
– 12/31/13
|
$1.6230
|
$13,486.99
|
|
1/1/14
– 12/31/14
|
$1.6717
|
$13,891.60
|
|
1/1/15
– 12/31/15
|
$1.7218
|
$14,308.35
|
|
1/1/16
– 12/31/16
|
$1.7735
|
$14,737.60
|
|
1/1/17
– 12/31/17
|
$1.8267
|
$15,179.73
|
|
1/1/18
– 12/31/18
|
$1.8815
|
$15,635.12
|
|
Period:
December 17, 2008
Second Increment
26,423 sf
|
Monthly Base Rent per SF
|
Monthly Base Rent:
|
|
12/17/08
– 12/31/08
|
$1.4420
|
$38,101.97
|
|
1/1/09
– 12/31/09
|
$1.4420
|
$38,101.97
|
|
1/1/10
– 12/31/10
|
$1.4853
|
$39,245.02
|
|
1/1/11
– 12/31/11
|
$1.5298
|
$40,422.38
|
|
1/1/12
– 12/31/12
|
$1.5757
|
$41,635.05
|
|
1/1/13
– 12/31/13
|
$1.6230
|
$42,884.10
|
|
1/1/14
– 12/31/14
|
$1.6717
|
$44,170.62
|
|
1/1/15
– 12/31/15
|
$1.7218
|
$45,495.74
|
|
1/1/16
– 12/31/16
|
$1.7735
|
$46,860.61
|
|
1/1/17
– 12/31/17
|
$1.8267
|
$48,266.43
|
|
1/1/18
– 12/31/18
|
$1.8815
|
$49,714.42
|
|
Period:
Expansion Premises
65,280 sf
|
Monthly Base Rent per SF
|
Base Rent Per Month:
|
|
11/25/07
– 12/31/07
|
$0.5700
|
$37,209.60
|
|
1/1/08
– 12/31/08
|
$0.5700
|
$37,209.60
|
|
1/1/09
– 12/31/09
|
$0.5871
|
$38,325.89
|
|
1/1/10
– 12/31/10
|
$0.6047
|
$39,475.66
|
|
1/1/11
– 12/31/11
|
$0.6229
|
$40,659.93
|
|
1/1/12
– 12/31/12
|
$0.6415
|
$41,879.73
|
|
1/1/13
– 12/31/13
|
$0.6608
|
$43,136.12
|
|
1/1/14
– 12/31/14
|
$0.6806
|
$44,430.21
|
|
1/1/15
– 12/31/15
|
$0.7010
|
$45,763.11
|
|
1/1/16
– 12/31/16
|
$0.7221
|
$47,136.01
|
|
1/1/17
– 12/31/17
|
$0.7437
|
$48,550.09
|
|
1/1/18
– 12/31/18
|
$0.7660
|
$50,006.59
|
|
Period:
R&D Space
(yard)
|
Base Rent Per Month PSF:
|
Monthly Base Rent:
|
|
3/1/08–
12/31/08
|
$0.1500
|
$3,150.00
|
|
1/1/09
– 12/31/09
|
$0.1545
|
$3,244.50
|
|
1/1/10
– 12/31/10
|
$0.1591
|
$3,341.84
|
|
1/1/11
– 12/31/11
|
$0.1639
|
$3,442.09
|
|
1/1/12
– 12/31/12
|
$0.1688
|
$3,545.35
|
|
1/1/13
– 12/31/13
|
$0.1739
|
$3,651.71
|
|
1/1/14
– 12/31/14
|
$0.1791
|
$3,761.26
|
|
1/1/15
– 12/31/15
|
$0.1845
|
$3,874.10
|
|
1/1/16
– 12/31/16
|
$0.1900
|
$3,990.33
|
|
1/1/17
– 12/31/17
|
$0.1957
|
$4,110.04
|
|
1/1/18
– 12/31/18
|
$0.2016
|
$4,233.34
|
Exhibit
A
Portion
of the Premises Located on the First Floor
Remaining
Increment:
7,325 sf located on the 1st floor
and shown as “Tranche 2”
8,444 sf located on the 1st floor
and shown as “Tranche 3”
20,125 sf
located on the 1st floor
and shown as “Tranche 4”
Exhibit
A-1
Expansion
Premises [▇▇▇▇.▇▇▇ space]
Expansion Premises = 65,280 sf
and shown as “Tranche 5”
Exhibit
A-2
Portion
of the Premises Located on the Second Floor
December 17 Increment = 50,000 sf located on
the 2nd floor
and shown as “Tranche 1”
Second Increment = 26,423 sf
located on the 2nd floor
and shown as “Tranche 7”
8,310 SF Increment = 8,310 sf
located on the 2nd floor
and shown as “Tranche 8”
