Contract
Exhibit 10.4
FOURTH
AMENDMENT TO LEASE
THIS
FOURTH AMENDMENT TO LEASE (this “Fourth Amendment”) is dated as of May 1, 2008
and is made between CYPRESS SEMICONDUCTOR CORPORATION, as Landlord, and SUNPOWER
CORPORATION, as Tenant, to be a part of that certain Office Lease Agreement and
all exhibits thereto, dated for reference purposes only as of May 15, 2006 (the
“Original Lease”), concerning approximately 43,732 rentable square feet (“RSF”),
located within the Premises stated in the Original Lease. The Premises are
located within the Building commonly known as Building #3, (the“Building”),
located at 0000 X. Xxxxx Xxxxxx (the “Land”) as shown on the floor plan on Exhibit
A to the Original Lease.
Landlord
and Tenant now desire to modify the Original Lease and, in consideration of the
mutual promises contained herein and for the other good and valuable
consideration, the receipt and sufficiency of which the parties hereby
acknowledge, Landlord and tenant hereby agree, intending to be bound thereby,
that the Original Lease is modified and supplemented in accordance with the
terms and conditions set forth below:
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1.
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Basic
Terms Item #9 of the Original Lease is hereby amended to state in its
entirety as follows:
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Months
|
Monthly
Base
Rent /
SF
|
Rentable
Square
Feet
|
Monthly
Base
|
| 1-2 | $0.00 / SF | 43,732 | $ - |
| 3-8 | $2.16 / SF | 43,732 | $94,461 |
| 9-12 | $2.16 / SF | 45,840 | $99,014 |
| 13-14 | $2.25 / SF | 45,840 | $103,140 |
| 15-24 | $2.25 / SF | 51,228 | $115,263 |
| 25-36 | $2.34 / SF | 55,594 | $130,190 |
| 37-48 | $2.43 / SF | 55,594 | $135,093 |
| 49-60 | $2.53 / SF | 55,594 | $140,653 |
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2.
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The
monthly Base Rent remains unchanged through the 8th
month (or December 31, 2006) as per Original Lease. However,
Article 2, Section 2.1, is hereby amended such that the monthly Base Rent
shall be adjusted to include the additional space added pursuant to
Section 1 of this Fourth Amendment. Effective during the 9th
month of the term (or January 1, 2007), the monthly Base Rent shall be
adjusted to include the additional 2,108 RSF, effective during the 15th
month of the term (or July 1, 2007), the monthly Base Rent shall be
adjusted to include the additional 5,388 RSF and, effective during the
25th
month of the term (or May 1, 2008), the monthly Base Rent shall be
adjusted to include the additional 4,366 RSF, in each case as shown in the
Base Rent Table in Basic Terms Item #9 as amended by this Fourth
Amendment.
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1
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3.
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Article
3, Section 3.3 shall be amended to state the adjustment of Tenant’s
Prorata Share of Excess Operating Expenses as
follows:
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"Tenant's Prorata Share of Excess
Operating Expenses" (based on the rentable square footage of the Premises
divided by 61,975 the total
rentable square footage of the Building), shall mean 92% of the Excess
Operating Expenses for the applicable calendar year. Landlord agrees
to credit Tenant $1,134 for SLM’s office electrical use and $1,746 for Landlord’s
data center electrical use per month against Tenant’s Prorata Share of Excess
Operating Expenses for the Electric and N. Gas line items outlined Exhibit
C. These two credits are estimates and may be adjusted from time to
time based on varying electric loads.
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4.
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Exhibit
“A”, the Floor Plan of the Original Lease shall be amended as shown in
Exhibit A-1 of this Fourth
Amendment.
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5.
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In
the event of any inconsistency between this Fourth Amendment and the
Original Lease, the terms in this Fourth Amendment shall prevail. Except
as modified herein, the Original Lease remains in full force and
effect.
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6.
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The
Original Lease, as amended by this Fourth Amendment, constitutes the
entire agreement between the parties and supersedes any previous
agreements between the parties with respect to the subject matter of this
Fourth Amendment. If any provision of this Fourth Amendment is
held to be illegal, invalid or unenforceable, in whole or in part, such
provision will be modified to the minimum extent necessary to make it
legal, valid and enforceable, and the legality, validity and
enforceability of the remaining provisions will not be affected
thereby.
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IN
WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the
date first set forth above.
| CYPRESS SEMICONDUCTOR CORP: | |||
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By:
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/s/Xxxx Xxxxx | |
| Name | Xxxx Xxxxx | ||
| Title | Sr. Vice President Treasurer | ||
| Date | 8/12/08 | ||
| SUNPOWER CORPORATION | |||
|
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By:
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/s/ X. Xxxxxxxxx | |
| Name | X. Xxxxxxxxx | ||
| Title | CFO | ||
| Date | 6/10/08 | ||
2
EXHIBIT
A-1
(FOURTH
AMENDMENT TO LEASE)
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