California-Sunnyvale-100/150 Mathilda Place Work Letters [Amendment] - M-F Downtown Sunnyvale LLC and Handspring Facility Co. LLC
AMENDMENT TO WORK LETTERS
THIS AMENDMENT TO WORK LETTERS (this "Amendment") is made as of January
29, 2003, by and between M-F DOWNTOWN SUNNYVALE, LLC, a Delaware limited
liability company (herein called "M-F Downtown"), and HANDSPRING FACILITY
COMPANY, LLC, a Delaware limited liability company (herein called "HFC").
Capitalized terms used but not defined herein shall have the meanings given them
in the Work Letters.
RECITALS
This Agreement is entered into upon the basis of the following facts,
understandings and intentions of the parties:
A. M-F Downtown owns certain real property located in Sunnyvale, Santa
Clara County, California, commonly known as 100 Mathilda Place and more
particularly described on Exhibit A hereto (the "Building 3 Parcel") and a
multi-story office building ("Building 3") situated therein.
B. M-F Downtown also owns certain real property located in Sunnyvale,
Santa Clara County, California, commonly known as 150 Mathilda Place and more
particularly described on Exhibit B hereto (the "Building 2 Parcel" and,
together with the Building 3 Parcel, the "Property") and a multi-story office
building ("Building 2" and, together with Building 3, the "Buildings") situated
therein.
C. On or about February 14, 2001, M-F Downtown, as landlord, and
Handspring, Inc. ("Handspring"), as tenant, entered into that certain Lease
Agreement (Building 3) (as the same has been amended by the parties prior to the
date hereof, the "Building 3 Lease"), whereby M-F Downtown agreed to lease to
Handspring, and Handspring agreed to lease from M-F Downtown, all of the
Rentable Area within Building 3 other than the Excluded Space (as the terms
"Rentable Area" and "Excluded Space" are defined in the Building 3 Lease) and
certain associated parking and other rights. All of Handspring's right, title
and interest under the Building 3 Lease has been assigned to HFC pursuant to
that certain Assignment and Assumption Agreement dated as of the date of this
Amendment.
D. In connection with the Building 3 Lease, M-F Downtown and Handspring
entered into that certain Work Letter (Building 3) (as the same has been amended
by the parties prior to the date hereof, the "Building 3 Work Letter") governing
the completion of construction of Building 3 by M-F Downtown and Handspring and
the construction of certain tenant improvements therein by Handspring. As
security for the performance of its obligations under the Building 3 Work
Letter, Handspring caused Wells Fargo Bank to issue to M-F Downtown an
unconditional, irrevocable, transferable letter of credit (the "Building 3 TI
Letter of Credit") in the amount of Fourteen Million Two Hundred Thousand
Dollars ($14,200,000). All of Handspring's right, title and interest under the
Building 3 Work Letter has been assigned to HFC pursuant to that certain
Assignment and Assumption Agreement dated as of the date of this Amendment.
E. On or about February 14, 2001, M-F Downtown, as landlord, and
Handspring, as tenant also entered into that certain Lease Agreement (Building
2) (as the same has been
-1-
<PAGE>
amended by the parties prior to the date hereof, the "Building 2 Lease"),
whereby M-F Downtown agreed to lease to Handspring, and Handspring agreed to
lease from M-F Downtown, all of the Rentable Area within Building 2 (as the term
"Rentable Area" is defined in the Building 2 Lease) and certain associated
parking and other rights. All of Handspring's right, title and interest under
the Building 2 Lease has been assigned to HFC pursuant to that certain
Assignment and Assumption Agreement dated as of the date of this Amendment.
F. In connection with the Building 2 Lease, M-F Downtown and Handspring
entered into that certain Work Letter (Building 2) (as the same has been amended
by the parties prior to the date hereof, the "Building 2 Work Letter") governing
the completion of construction of Building 2 by M-F Downtown and Handspring and
the construction of certain tenant improvements therein by Handspring. All of
Handspring's right, title and interest under the Building 2 Work Letter has been
assigned to HFC pursuant to that certain Assignment and Assumption Agreement
dated as of the date of this Amendment.
G. As contemplated by the Building 2 Lease and the Building 3 Lease
(collectively, the "Leases") and by the Building 2 Work Letter and the Building
3 Work Letter (collectively, the "Work Letters"), Bank of America, N.A., as
administrative agent for M-F Downtown's construction lenders (collectively, the
"Construction Lenders") (Bank of America, N.A., acting in such capacity being
referred to herein as ("Bank of America"), has become the beneficiary under the
Building 3 TI Letter of Credit. In accordance with the terms of the Building 3
Work Letter, the principal amount of the Building 3 TI Letter of Credit has been
reduced to Ten Million Three Hundred Twenty-Eight Thousand One Hundred
Twenty-Four and 23/100 Dollars ($10,328,124.23); the Building 3 TI Letter of
Credit has not been drawn upon by M-F Downtown or Bank of America.
H. Handspring is the sole member of HFC.
I. In light of the current business cycle and the local market for
commercial real estate leasing and sub-leasing, Handspring has requested that
M-F Downtown provide Handspring with significant economic relief under the terms
of the Buildings 2 Lease and the Building 3 Lease (collectively, the "Leases").
On careful analysis, Handspring has concluded that if the parties can agree on
terms for modifying the Leases, Handspring will benefit both as to the
immediately quantifiable economic relief bargained for and as to the opportunity
afforded Handspring to thereby continue its business.
J. In light of the current business cycle and the local market for
commercial real estate leases and sub-leasing, M-F Downtown is willing to enter
into a material restructuring of the Leases, but only if the transaction is
economically balanced, fair in fact and on arms' length terms.
K. The parties have agreed to co-operate in the form of a unified
transaction involving the restructuring of the Leases in a manner which includes
the sale of Building 3 by M-F Downtown in order to provide Handspring with the
requested economic relief, to minimize financial loss to the parties, and to
adopt a single, integrated structure that will enable Handspring to perform its
modified obligations to M-F Downtown, while minimizing the risk to M-F Downtown
should Handspring subsequently be unwilling or unable to so perform, all
-2-
<PAGE>
pursuant to that certain Property Purchase and Lease Modification Agreement
dated as of January 16, 2003 by and between M-F Downtown, Handspring and HFC
(the "Purchase Agreement").
L. Pursuant to the Purchase Agreement, as of the date hereof, (i) M-F
Downtown has sold, transferred and conveyed Building 3 to HFC, and HFC has
purchased and acquired Building 3 from M-F Downtown; (ii) M-F Downtown and HFC
have terminated the Building 2 Lease; and (ii) M-F Downtown and HFC have
modified the terms of the Building 3 Lease to, among other things, redefine the
Premises to include the Building 3 Parcel and to exclude Building 3, and alter
the term of such lease (such modified lease being referred to as the "Modified
Building 3 Lease").
M. HFC's obligations pursuant to each of the Work Letters are and have
been independent of, and in addition to, HFC's obligations under the Leases.
N. The Work Letters collectively require that HFC complete certain Warm
Shell Improvements and Tenant Improvements to the Buildings in an aggregate
amount equal to or in excess of $23,484,000, and Handspring, as HFC's
predecessor-in-interest under the Work Letters, has performed a portion of HFC's
obligations under each of the Work Letters. The unperformed portion of HFC's
obligations under the Work Letters immediately prior to the effectiveness of
this Amendment has an aggregate value in excess of $9,025,525.03.
O. M-F Downtown and HFC desire to modify the Work Letters in accordance
with the foregoing Recitals, and also to reflect all other terms and conditions
set forth in this Amendment to Work Letters and for the purposes provided
herein.
NOW, THEREFORE, in consideration of the mutual promises set
forth herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. PARTIES TO AGREEMENT. All references in the Work Letter to "Landlord"
shall be changed to refer to "M-F Downtown", and all references to "Tenant"
shall be changed to refer to "HFC".
2. EXISTING OBLIGATIONS. M-F Downtown and HFC acknowledge and agree that
(a) M-F Downtown has fully performed all of M-F Downtown's obligations under
each of the Work Letters, including, without limitation, all obligations
included in "Landlord's Work" under each of the Work Letters, and that M-F
Downtown has no further obligations of any kind under either Work Letter, except
for the obligations expressly set forth in this Amendment; and (b) Handspring's
obligations as "Tenant" under each of the Work Letters have been assigned to and
assumed by HFC, and such obligations are amended by Paragraph 4 below and,
accordingly, neither Handspring nor HFC has further obligations of any kind
under either Work Letter, except for the obligations expressly set forth in this
Amendment.
3. HFC WORK DEFINED. As of the date of this Agreement, HFC's obligations
to complete and pay for the "Tenant's Work" under the Work Letters are
terminated and replaced with the "HFC Work" as described in this Paragraph 3.
HFC shall, from and after the date of this Amendment, from time-to-time, upon
the written request of M-F Downtown, (i) enter into
-3-
<PAGE>
agreements with contractors pursuant to Paragraph 4 below for the performance of
various portions of the work defined in the Work Letters as "Tenant's Work"
and/or construction of other improvements to Building 2 and/or Building 3 which
are determined by M-F Downtown to be necessary or appropriate in connection with
efforts to re-lease the Buildings; (ii) pay real estate brokerage commissions
incurred in connection with the leasing of the Buildings and/or (iii) pay real
property taxes and assessments, insurance premiums and/or other operating costs
incurred in connection with the Project (all of the foregoing work and cost
obligations being referred to herein as the "HFC Work"); provided, however, that
(a) the aggregate cost of all of the HFC Work shall not exceed Nine Million
Twenty-Five Thousand Five Hundred Twenty-Five and 03/100 Dollars ($9,025,525.03)
(the "Maximum Cost"), and (b) M-F Downtown's only recourse against HFC or
Handspring with respect to the HFC Work and/or payment of costs therefor shall
be to make draws upon the "Modified TI Letter of Credit" (as defined in
Paragraph 6 below).
4. COMPLETION OF HFC WORK.
(a) CONTRACTS FOR HFC WORK. M-F Downtown may designate the Warm
Shell Contractor and/or such other contractor(s) to perform the construction of
the improvements that are included within the HFC Work pursuant to one or more
written agreements with HFC entered into pursuant to this Paragraph 4(a). HFC
shall execute written agreements with such contractor(s), architect(s),
engineer(s), supplier(s) and other third parties providing services and/or
materials for the HFC Work (each of the foregoing individually, a "Contractor"
and collectively, "Contractors") as may be requested by M-F Downtown within two
(2) business days after receipt of such request, provided that any such
agreements with such Contractor(s) shall (i) provide that HFC's liability under
such agreement or arising out of such HFC Work shall be limited to the balance
remaining undrawn from time-to-time under the Modified TI Letter of Credit, that
the Contractor(s) shall have no recourse against HFC personally for payment for
HFC Work, and that such Contractor(s)' only recourse with respect to payment for
any of such HFC Work shall be to cause M-F Downtown to draw (or to cause Bank of
America, as the Beneficiary thereunder to draw) on the Modified TI Letter of
Credit and to cause proceeds from such draw to be paid to such Contractor(s) in
amounts then due; (ii) provide that M-F Downtown shall be a third party
beneficiary of such agreements, and (iii) contain commercially reasonable
insurance and indemnification requirements as determined by the Project
Developer (as defined below) in its reasonable discretion. M-F Downtown shall
enter into, and shall cause the Beneficiary under the Modified TI Letter of
Credit to enter into, such agreements with Contractor(s) for the HFC Work as may
be reasonably necessary to cause payment of such Contractor(s) for HFC Work from
draws on the Modified TI Letter of Credit and to otherwise effectuate the
agreements set forth in this Paragraph 4.
(b) PROJECT MANAGEMENT. HFC has entered into the Project
Management Agreement with The Mozart Development Company ("Project Manager")
attached hereto as Exhibit C, authorizing the Project Manager to act as project
manager for all HFC Work, including acting as construction manager of all
construction related to the HFC Work.
(c) POWER OF ATTORNEY.
-4-
<PAGE>
(i) HFC hereby irrevocably constitutes and appoints M-F
Downtown and any officer of M-F Downtown and any agent designated by
such officer, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and stead of HFC and in the name of HFC, or in its own name, from time
to time in M-F Downtown's discretion, for the purpose of carrying out
the terms of this Amendment to Work Letters, to take the following
action and/or to execute and deliver the following documents and
instruments and hereby gives M-F Downtown the power and right, on behalf
of HFC, without notice to or assent by HFC to do the following:
(A) in the name of HFC, to enter into such
contracts and agreements with Contractor(s) as may be designated
by M-F Downtown in accordance with this Paragraph 4, provided
that (I) any such contract and/or agreement complies with the
express requirements of this Paragraph 4, (II) HFC has not
signed and returned such contract and/or agreement to M-F
Downtown and/or to the Project Manager within two (2) business
days after receipt thereof together with request for signature
in accordance with Paragraph 4(a), and (III) M-F Downtown
delivers to HFC a copy of each contract or agreement executed
pursuant to this power of attorney promptly after it is signed;
and
(B) at any time and from time to time after the
occurrence of a Work Letter Draw Event (other than the Work
Letter Draw Event described in clause V of Subparagraph
13(d)(i)), to execute any assignments or other instruments of
conveyance or transfer with respect to any HFC Work in progress
and/or any contracts with respect thereto and/or any plans,
specifications, drawings and other work product in connection
with HFC Work if HFC does not sign and return any such
assignments or other instruments to M-F Downtown within three
(3) days after receipt thereof.
(ii) The powers conferred on M-F Downtown hereunder are
solely to protect M-F Downtown's interests under this Amendment to Work
Letters and shall not impose any duty upon it to exercise any such
powers.
5. LIMITATION ON HFC'S OBLIGATIONS. Notwithstanding anything to the
contrary in this Amendment or in the Work Letters, HFC's obligations to perform
and pay for the HFC Work under the Work Letters, as amended by this Amendment,
and any and all other liabilities arising out of the HFC Work (except to the
extent caused by HFC's active negligence or willful misconduct) shall be limited
in the aggregate to the Maximum Cost, and M-F Downtown's only recourse with
respect to HFC's obligations to complete and pay for the HFC Work shall be to
the Modified TI Letter of Credit. M-F Downtown shall indemnify and hold HFC
harmless from and defend HFC against any and all claims or liability (i) for any
costs or expenses in excess of the Maximum Cost arising out of the HFC Work,
(ii) for any injury or damage to any person or property, including any
reasonable attorneys' fees, occurring in connection with the HFC Work, except to
the extent such injury or damage is caused by the active negligence or willful
misconduct of HFC, and/or (iii) resulting from M-F Downtown's wrongful exercise
of the power of attorney pursuant to Paragraph 4(c) including, without
limitation, by entering into, in HFC's name, any contract or agreement that does
not comply with the requirements of Paragraph 4(a).
-5-
<PAGE>
6. MODIFIED TI LETTER OF CREDIT. M-F Downtown acknowledges that it, or
its Mortgagee, holds an unconditional, irrevocable, transferable letter of
credit (the "Modified TI Letter of Credit") issued by Wells Fargo Bank in the
aggregate amount of Nine Million Twenty-Five Thousand Five Hundred Twenty-Five
and 03/100 Dollars ($9,025,525.03), to secure and insure the faithful
performance by HFC of all of the covenants, terms and conditions of the Work
Letters, as amended by this Amendment. The Modified TI Letter of Credit is given
with the understandings set forth in, and shall comply with the requirements of,
Paragraph 13 of each Work Letter as modified by Paragraph 8(b) of this
Amendment.
7. TERMINATION OF LEASE. Upon the expiration or sooner termination of
the Modified Building 3 Lease, M-F Downtown may draw (or cause the Beneficiary
thereunder to draw) the entire face amount of the Modified TI Letter of Credit,
and the proceeds thereof may be used to pay for HFC Work and/or other expenses
not described in this Amendment but related to the Project or the Buildings
and/or paid to M-F Downtown or the Beneficiary, all as M-F Downtown may elect in
its sole discretion.
8. SPECIFIC AMENDMENTS TO WORK LETTER. Each of the Work Letters are
specifically amended as follows:
(a) By deleting Paragraphs 3(b) and (c), 4, 5, 6, 7, 8, 9, 10,
11, 12, 14, 15, 16 and 17 of each of the Work Letters in their entirety.
(b) By amending Paragraph 13 of each Work Letter to read as
follows:
13. INDEPENDENT OBLIGATIONS/SECURITY. The parties acknowledge
and agree as follows:
(a) INDEPENDENT OBLIGATIONS. In consideration of M-F
Downtown's agreement to enter into the Purchase Agreement and the
transactions contemplated thereby, and with the understanding of the
limitations on damages that may result from application of the
Bankruptcy Code, HFC has agreed that HFC's obligations under the Work
Letters shall be independent of, and in addition to, Handspring's and
HFC's obligations under the Purchase Agreement, the Modified Building 3
Lease and/or any and all other documents and instruments entered into by
and between M-F Downtown, Handspring and HFC. HFC has provided the
Modified TI Letter of Credit, in accordance with Paragraph 6, to secure
HFC's independent obligations under the Work Letters as amended by this
Amendment and payment of all costs therefor.
(b) Intentionally Deleted.
(c) REQUIREMENTS OF MODIFIED TI LETTER OF CREDIT. The
Modified TI Letter of Credit shall be issued by Wells Fargo Bank, or
another financial institution acceptable to M-F
-6-
<PAGE>
Downtown and any Mortgagee, in their respective sole discretion, and in
form and substance acceptable to M-F Downtown and any Mortgagee, in the
reasonable exercise of their respective discretion, with an original
term of no less than one year and automatic extensions through at least
January 30, 2004. M-F Downtown and any Mortgagee shall not unreasonably
withhold their approval of such a financial institution if it is a
national bank, or a bank branch located in the United States (with an
office in the United States allowing the Modified TI Letter of Credit to
be presented to and paid by such office pursuant to procedures
acceptable to M-F Downtown in its reasonable discretion) with assets of
the issuing bank or bank branch in excess of Twenty Billion Dollars
($20,000,000,000). The Modified TI Letter of Credit shall (i) be a
stand-by, at-sight, irrevocable letter of credit; (ii) be payable to M-F
Downtown, its Mortgagee or their assignees (any of the foregoing, the
"Beneficiary"); (iii) require that any draw on the Modified TI Letter of
Credit shall be made only upon receipt by the issuer of a letter signed
by a purported authorized representative of the Beneficiary certifying
that the Beneficiary is entitled to draw on the Modified TI Letter of
Credit pursuant to this Amendment; (iv) allow partial draws; and (v)
provide that it is governed by the Uniform Customs and Practice for
Documentary Credits (1993 revisions) or the International Standby
Practices (ISP 98). M-F Downtown acknowledges that the Modified TI
Letter of Credit which it or its Mortgagee now holds satisfies the
requirements of this Amendment. HFC shall keep the Modified TI Letter of
Credit, at its expense, in full force and effect until at least January
30, 2004, and shall use good faith efforts to cause such Modified TI
Letter of Credit to be extended (by one or more extensions) to the
earlier of the thirtieth (30th) day after the termination of the
Building 3 Lease and January 30, 2008. The Modified TI Letter of Credit
shall provide at least thirty (30) days' prior written notice to M-F
Downtown and the Beneficiary of cancellation or material change thereof.
(d) WORK LETTER DRAW EVENTS.
(i) "WORK LETTER DRAW EVENT" DEFINED. A "Work
Letter Draw Event" shall mean any of the following: (I) Handspring
and/or HFC are the subject of an Insolvency Proceeding; (II) a Default
by HFC occurs under the Modified Building 3 Lease; (III) the Modified TI
Letter of Credit is not extended at least thirty (30) days prior to its
expiration; (IV) the Modified Building 3 Lease expires or is terminated
for any reason; and (V) any costs are incurred by any party in
connection with any of the HFC Work.
-7-
<PAGE>
(ii) M-F DOWNTOWN OPTIONS. At any time after a
Work Letter Draw Event occurs, M-F Downtown or the Beneficiary, at its
option, may present its written demand for payment of the entire
undisbursed amount thereof, or such portion of the face amount as M-F
Downtown or the Beneficiary may elect, of the Modified TI Letter of
Credit and the funds so obtained shall become due and payable to the
Beneficiary, and funds so obtained may be used, at M-F Downtown's sole
option, (A) to reimburse M-F Downtown for costs incurred by M-F Downtown
in connection with performance of HFC's obligations hereunder; and/or
(B) to complete all, or such portion as M-F Downtown may elect, of the
HFC Work or, in lieu of all or any portion thereof, any other
improvements or alterations to the Buildings and/or Project; and/or (C)
to compensate M-F Downtown for damages incurred, or to reimburse M-F
Downtown as provided herein, in connection with or as a result of any
Work Letter Draw Event; and/or (D) to pay amounts due to the Warm Shell
Contractor and/or any other contractor or third party providing
materials or services in connection with the HFC Work; and/or (E) for
any other purpose as determined by M-F Downtown.
(iii) NO REPLACEMENT. If M-F Downtown or the
Beneficiary draws any portion of the Modified TI Letter of Credit for
any reason, whether or not permitted or contemplated by this Paragraph
13 or elsewhere in this Amendment, HFC shall not be required to provide
a replacement Modified TI Letter of Credit, to restore the amount
thereof, or to provide any other letter of credit or security under the
Work Letters as amended by this Amendment.
(e) Intentionally Deleted.
(f) Intentionally Deleted.
(g) ASSIGNMENT OF LETTER OF CREDIT/MORTGAGEE. M-F
Downtown shall be entitled to assign the Modified TI Letter of Credit
and its rights thereto from time to time to a Mortgagee as security for
the obligations of M-F Downtown to such Mortgagee, or in connection with
a sale or other transfer of M-F Downtown's interest in all or a portion
of the Project (provided that, in each instance, M-F Downtown pays any
bank fees associated with any transfer of the Modified TI Letter of
Credit). HFC shall cooperate with M-F Downtown in connection with any
modifications of or amendments to the Modified TI Letter of Credit that
may be reasonably requested by any Mortgagee
-8-
<PAGE>
and/or in connection with any such assignment. At M-F Downtown's sole
election, M-F Downtown may also direct HFC to cause the Modified TI
Letter of Credit to directly name a Mortgagee as the sole beneficiary
thereunder.
(h) Intentionally Deleted.
(i) ADDITIONAL OBLIGATIONS. The Modified TI Letter of
Credit described in this Paragraph 13, and HFC's obligations and M-F
Downtown's rights with respect thereto, shall be in addition to any
letter of credit or other security deposit provided by HFC under any
other document or instrument by and/or between M-F Downtown and/or HFC.
9. ATTORNEYS' FEES. If either party brings any action against the other,
declaratory or otherwise, arising out of this Amendment, and whether such
litigation sounds in tort or in contract, the losing party shall pay the
prevailing party a reasonable sum for attorney's fees, which shall be deemed to
have accrued on the commencement of such action and shall be paid whether or not
the action is prosecuted to judgment.
10. CHOICE OF LAW. This Amendment and all of the terms and conditions
herein shall be governed by, and construed and enforced in accordance with, the
laws of the State of California, except to the extent preempted by federal laws.
11. NO AMENDMENT. This Amendment and the Work Letters are not subject to
modification or amendment except by a writing executed by M-F Downtown and HFC.
12. COUNTERPARTS. This Amendment may be executed in separate
counterparts. Each such counterpart hereof shall be deemed to be an original
instrument but all such counterparts together shall constitute but one
Amendment.
13. TIME OF THE ESSENCE. Time is expressly declared to be of the essence
of this Amendment, and of each, every and all of the covenants and conditions
herein contained.
14. ENTIRE AGREEMENT. This Amendment, together with the Purchase
Agreement, constitutes the understanding and agreement of the parties hereto
with respect to the matters set forth herein, and all prior agreements,
understandings or representations with respect to the subject matter of this
Amendment are hereby superseded, terminated and cancelled in their entirety and
are of no further force or effect.
15. CONSTRUCTION OF AGREEMENT. The parties hereto agree that both
parties cooperated in drafting this Amendment. Accordingly, any rule of law or
legal decision that would require interpretation of any ambiguities in this
Amendment against the party drafting it is not applicable and is waived. The
provisions of this Amendment shall be interpreted in a reasonable manner to
effect the intent of the parties and the purpose of this Amendment. If any
provisions hereof shall be unenforceable or ineffective, all of the other
provisions shall remain in full force and effect.
-9-
<PAGE>
16. SUCCESSORS AND ASSIGNS. This Amendment shall be binding on and inure
to the benefit of the parties and their respective heirs, successors, executors,
administrators and assigns.
17. NO OTHER AMENDMENTS. Except as expressly and specifically amended by
this Amendment, the Work Letters and all terms and provisions thereof shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have each respectively caused
this Amendment to be fully executed and delivered as of the date and year first
above written.
M-F DOWNTOWN:
------------
M-F Downtown Sunnyvale, LLC,
a Delaware limited liability company
By: M-D Ventures, Inc., a California
Corporation, its Manager
By: /s/ John Mozart
--------------------------
John Mozart, its President
HFC:
---
HANDSPRING FACILITY COMPANY,
LLC, a Delaware limited liability company
By: Handspring, Inc.,
a Delaware corporation
Its Managing Member
By: /s/ Donna Dubinsky
--------------------------
Its: CEO
--------------------------
-10-