AMENDMENT NO. 1 TO LEASE AGREEMENT AND WORK LETTER AGREEMENT
Exhibit 10.40
AMENDMENT NO. 1 TO LEASE AGREEMENT AND WORK LETTER AGREEMENT
THIS AMENDMENT NO. 1 TO LEASE AGREEMENT AND WORK LETTER AGREEMENT (“Amendment”) is made as of May 23, 2002, between NETWORK APPLIANCE, INC., a Delaware corporation (“Landlord”), and PALMSOURCE,
INC., a Delaware corporation (“Tenant”).
THE PARTIES ENTER INTO THIS AMENDMENT based upon the
following facts, understandings and intentions:
A. Landlord and Tenant are now parties to
that certain Lease Agreement, effective as of April 19, 2002 (the “Lease”), whereby Landlord leases to Tenant, and Tenant leases from Landlord, approximately 88,096 rentable square feet of space (the “Premises”) located in
Landlord’s building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in Sunnyvale, California.
B. Landlord and Tenant are also now parties to that certain Improvement Agreement, effective as of April 19, 2002 (the “Improvement Agreement”) which sets forth the obligations of Landlord and Tenant
with respect to the build out of the Premises. The Lease and Improvement Agreement are hereinafter referred to as the “Lease Documents.”
C. Pursuant to the terms of the Improvement Agreement, Landlord has agreed to perform certain improvements to the Premises in accordance with the “Approved Plans”
attached thereto. Tenant may request change orders to the Approved Plans pursuant to the terms of the Improvement Agreement. Tenant has requested certain change orders to the Approved Plans, the cost of which the parties have estimated to be
$106,649. Those change orders, which are a part of the “Landlord’s Work” described in Exhibit B-1 attached hereto, are hereinafter referred to as the “Tenant’s Change Orders”. Tenant has requested that the cost
of such Tenant’s Change Orders be paid in cash by Tenant to Landlord. Tenant’s Change Orders shall also require certain changes in the Furniture included with the Premises, as more particularly described below.
D. Section 8.12 of the Lease states that Tenant may install and use a satellite/antenna on the roof of the Building
in accordance with plans and specifications attached to the Lease as Schedule 4. Tenant has no immediate plans to install the satellite/antenna, and Schedule 4 is not currently attached to the Lease.
E. Section 22.34 of the Lease states that either party thereto may terminate the Lease if the Master Lessor does
not consent to its terms within forty five (45) days after the Effective Date of the Lease. However, after the Effective Date, but prior to the expiration of such forty-five (45) day time period, Landlord purchased the Project from the Master Lessor
and terminated the Master Lease, rendering the need for Master Lessor’s written consent to the Lease obsolete.
F. The parties hereto desire to modify the Lease Documents as hereinafter provided. Capitalized terms used herein shall have the same meaning given them in the Lease Documents.
1
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties, the parties hereto agree as
follows:
1. Estimated Commencement Date. The
Estimated Commencement Date is hereby modified to August 15, 2002. Notwithstanding anything to the contrary in the Lease Documents, the Commencement Date shall not be affected as a result of the Tenant’s Change Orders.
2. Approved Plans. The “Approved Plans” attached to the
Improvement Agreement as Exhibits B-1 and B-2 are hereby deleted in their entirety and replaced with the plans attached hereto as Exhibit B-1, which plans shall be the “Approved Plans” for the purposes of the Lease
Documents.
3. Payment of Change Orders
Costs. The cost of the Tenant’s Change Orders is agreed by the parties to be $106,649 (“Change Order Cost”). Tenant shall pay the Change Order Cost to Landlord upon execution of this First Amendment.
4. Furniture. The description of the
Furniture to be included as part of the Premises pursuant to Section 1.4 of the Lease and attached thereto as Schedule 2 is hereby deleted in its entirety and replaced with the description of Furniture attached hereto as Schedule 2.
5. Master Lessor’s Consent. Master
Lessor’s consent to the Lease is no longer required, and neither party shall have the right to terminate the Lease pursuant to Section 22.34 of the Lease, notwithstanding the failure of the Master Lessor to consent to its terms.
6. Satellite/Antenna. Landlord acknowledges that Tenant
has no immediate plans to install a satellite/antenna on the roof of the Building and that a Schedule 4 is not currently attached to the Lease. Tenant acknowledges and agrees that at such time as Tenant determines to install a satellite/antenna,
Schedule 4 will be provided in advance to Landlord for Landlord’s review and approval, which shall not be unreasonably withheld or delayed.
7. Full Force and Effect. Except as herein amended and supplemented, the Lease Documents shall continue in full force and effect as written.
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment with duplicate counterparts as of the day and year
first above written.
“Landlord”
| NETWORK APPLIANCE, INC., a
Delaware corporation | ||
| By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇
| |
| Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: VP WPR | ||
“Tenant”
| PALMSOURCE, INC., a Delaware
corporation | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: CAO | ||
3
SCHEDULE 1
APPROVED PLANS
[TO BE ATTACHED]
Network Appliance
Building 5 Tenant Improvement
Sunnyvale, CA
Owner Revisions-Private Offices Delta 05
March 7, 2001
| SHEET INDEX |
||||
| ARCHITECTURAL |
||||
| COVER SHEET |
||||
| A5—0.1 |
TITLE SHEET |
AS NOTED | ||
| A5—0.2 |
GENERAL NOTES AND ABBREVIATIONS |
NTS | ||
| A5—0.3 |
GENERAL NOTES |
NTS | ||
| A5—1.01 |
EXITING/OCCUPANCY FLOOR 1 |
1/8"=1'—0" | ||
| A5—1.02 |
EXITING/OCCUPANCY FLOOR 2 |
1/8"=1'—0" | ||
| A5—1.03 |
EXITING/OCCUPANCY FLOOR 3 |
1/8"=1'—0" | ||
| A5—1.04 |
SHELL/TI COORDINATION FLOOR 1 |
1/8"=1'—0" | ||
| A5—1.05 |
SHELL/TI COORDINATION FLOOR 2 |
1/8"=1'—0" | ||
| A5—1.06 |
SHELL/TI COORDINATION FLOOR 3 |
1/8"=1'—0" | ||
| CONSTRUCTION PLANS |
||||
| A5—2.1 |
CONSTRUCTION PLAN FLOOR 1 |
1/8"=1'—0" | ||
| A5—2.2 |
CONSTRUCTION PLAN FLOOR 2 |
1/8"=1'—0" | ||
| A5—2.3 |
CONSTRUCTION PLAN FLOOR 3 |
1/8"=1'—0" | ||
| POWER + SIGNAL AND FURNITURE PLANS |
||||
| A5—3.1 |
POWER + SIGNAL AND FURN. PLAN FLOOR 1 |
1/8"=1'—0" | ||
| A5—3.2 |
POWER + SIGNAL AND FURN. PLAN FLOOR 2 |
1/8"=1'—0" | ||
| A5—3.3 |
POWER + SIGNAL AND FURN. PLAN FLOOR 3 |
1/8"=1'—0" | ||
| RCP |
||||
| A5—4.1 |
REFLECTED CEILING PLAN FLOOR 1 |
1/8"=1'—0" | ||
| A5—4.2 |
REFLECTED CEILING PLAN FLOOR 2 |
1/8"=1'—0" | ||
| A5—4.3 |
REFLECTED CEILING PLAN FLOOR 3 |
1/8"=1'—0" | ||
| FINISH PLANS |
||||
| A5—5.1 |
FINISH PLAN FLOOR 1 |
1/8"=1'—0" | ||
| A5—5.2 |
FINISH PLAN FLOOR 2 |
1/8"=1'—0" | ||
| A5—5.3 |
FINISH PLAN FLOOR 3 |
1/8"=1'—0" | ||
| A5—5.4 |
FINISH SCHEDULE |
|||
| ENLARGED PLANS |
||||
| A5—6.11 |
ENLARGED FINISH PLANS |
1/4"=1'—0" | ||
| A5—6.12 |
ENLARGED DELI FINISH PLAN |
1/4"=1'—0" | ||
| A5—6.21 |
ENLARGED TYPICAL PRIVATE OFFICES PLAN |
1/4"=1'—0" | ||
| ELEVATIONS |
||||
| A5—7.11 |
ELEVATIONS FLOOR 1 |
1/4"=1'—0" | ||
| A5—7.12 |
ELEVATIONS FLOOR 1 |
1/4"=1'—0" | ||
| A5—7.13 |
ELEVATIONS FLOOR 1 |
1/4"=1'—0" | ||
| A5—7.14 |
ELEVATIONS FLOOR 1 |
1/4"=1'—0" | ||
| A5—7.15 |
ELEVATIONS FLOOR 3 (2 SIM) |
1/4"=1'—0" | ||
| A5—7.16 |
ELEVATIONS FLOOR 3 (2 SIM) |
1/4"=1'—0" | ||
| A5—7.17 |
ELEVATIONS FLOOR 3 (2 SIM) |
1/4"=1'—0" | ||
| A5—7.18 |
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇ & ▇ |
▇/▇"▇▇'—0" | ||
| DETAILS |
| |||
| A5—8.01 |
PARTITION DETAILS |
AS NOTED | ||
| A5—8.02 |
PARTITION DETAILS |
AS NOTED | ||
| A5—8.03 |
PARTITION DETAILS |
AS NOTED | ||
| A5—8.11 |
CEILING DETAILS |
AS NOTED | ||
| A5—8.21 |
MILLWORK DETAILS |
AS NOTED | ||
| A5—8.31 |
FINISHES DETAILS |
AS NOTED | ||
| DETAIL AREAS |
||||
| A5—9.1 |
ENLARGED TOILET CORE PLANS AND ELEVATIONS |
AS NOTED | ||
| A5—9.21 |
STAIR #1 PLANS/SECTION |
AS NOTED | ||
| A5—9.22 |
STAIR #2 PLANS/SECTION |
AS NOTED | ||
| A5—9.23 |
STAIR DETAILS |
AS NOTED | ||
| A5—9.3 |
ELEVATOR PLAN, SECTION & DETAILS |
AS NOTED | ||
| DOORS AND WINDOWS |
||||
| A5—10.01 |
DOOR & WINDOW SCHEDULE FLOOR 1 & 2 |
NTS | ||
| A5—10.02 |
HARDWARE & GLASS SCHEDULE, NOTES |
NTS | ||
| A5—10.03 |
DOOR DETAILS |
AS NOTED | ||
| FOOD SERVICE CONSULTANT |
||||
| FS1.1 |
EQUIPMENT PLAN |
AS NOTED | ||
| FS1.2 |
BUILDING CONDITIONS PLAN |
AS NOTED | ||
| FS1.3 |
PLUMBING ROUGH—IN PLAN |
AS NOTED | ||
| FS1.4 |
ELECTRICAL ROUGH—IN PLAN |
AS NOTED | ||
| FS1.5 |
SHEET NOTES, SYMBOLS & DETAILS |
AS NOTED | ||
| FS1.6 |
EXISTING BLDG 1 DELI PLAN |
AS NOTED | ||
| STRUCTURAL |
||||
| TIS—1 |
GENERAL NOTES |
AS NOTED | ||
| TIS—2 |
GENERAL NOTES |
AS NOTED | ||
| TIS—3 |
TYPICAL CONCRETE DETAILS |
AS NOTED | ||
| TIS—4 |
TYPICAL METAL DECK AND STEEL DETAILS |
AS NOTED | ||
| TIS—5 |
STAIR #1 FRAMING PLANS/DETAILS |
AS NOTED | ||
| MECHANICAL |
||||
| M5—0 |
MECHANICAL LEGEND, INDEX & SYMBOLS |
AS NOTED | ||
| M5—0.1 |
MECHANICAL ENERGY COMPLIANCE FORMS |
AS NOTED | ||
| M5—0.2 |
MECHANICAL ENERGY COMPLIANCE FORMS |
AS NOTED | ||
| M5—2.1 |
MECHANICAL FIRST FLOOR PLAN |
AS NOTED | ||
| M5—2.2 |
MECHANICAL SECOND FLOOR PLAN |
AS NOTED | ||
| M5—2.3 |
MECHANICAL THIRD FLOOR PLAN |
AS NOTED | ||
| M5—2.4 |
MECHANICAL ROOF PLAN |
AS NOTED | ||
| M5—3.1 |
MECHANICAL SCHEDULES |
AS NOTED | ||
| M5—3.2 |
MECHANICAL SCHEDULES |
AS NOTED | ||
| M5—5.1 |
CHILLED WATER PIPING DIAGRAM |
AS NOTED | ||
| M5—5.2 |
HEATING HOT WATER DIAGRAM |
AS NOTED | ||
| M5—5.3 |
MISCELLANEOUS DIAGRAMS |
AS NOTED | ||
| M5—6.1 |
MECHANICAL DETAILS |
AS NOTED | ||
| M5—6.2 |
MECHANICAL DETAILS |
AS NOTED | ||
| PLUMBING |
||||
| P5—0 |
PLUMBING LEGEND, INDEX & SYMBOLS |
AS NOTED | ||
| P5—2.1 |
PLUMBING FIRST FLOOR PLAN |
AS NOTED | ||
| P5—2.2 |
PLUMBING SECOND FLOOR PLAN |
AS NOTED | ||
| P5—2.3 |
PLUMBING THIRD FLOOR PLAN |
AS NOTED | ||
| P5—2.4 |
PLUMBING ROOF PLAN |
AS NOTED | ||
| P5—2.5 |
ENLARGED KITCHEN & TOILET ROOM PLANS |
AS NOTED | ||
| P5—2.6 |
ENLARGED TOILET ROOM PLANS |
AS NOTED | ||
| P5—5.1 |
WASTE/VENT PIPING DIAGRAM |
AS NOTED | ||
| ELECTRICAL |
||||
| E5—0.0 |
COVER SHEET |
AS NOTED | ||
| E5—0.1 |
SINGLE LINE DIAGRAM |
AS NOTED | ||
| E5—0.2 |
FIRST FLOOR PANEL SCHEDULES |
AS NOTED | ||
| E5—0.3 |
FIRST FLOOR PANEL SCHEDULES |
AS NOTED | ||
| E5—0.4 |
FIRST FLOOR PANEL SCHEDULES |
AS NOTED | ||
| E5—0.5 |
SECOND FLOOR PANEL SCHEDULES |
AS NOTED | ||
| E5—0.6 |
SECOND FLOOR PANEL SCHEDULES |
AS NOTED | ||
| E5—0.7 |
THIRD FLOOR PANEL SCHEDULES |
AS NOTED | ||
| E5—0.8 |
THIRD FLOOR PANEL SCHEDULES |
|||
| E5—0.9 |
FIXTURE SCHEDULE & TILE 24 |
|||
| E5—1.1 |
FIRST FLOOR LIGHTING PLAN |
AS NOTED | ||
| E5—1.2 |
SECOND FLOOR LIGHTING PLAN |
AS NOTED | ||
| E5—1.3 |
THIRD FLOOR LIGHTING PLAN |
AS NOTED | ||
| E5—2.1 |
FIRST FLOOR POWER PLAN |
AS NOTED | ||
| E5—2.1A |
FIRST, SECOND, THIRD LAB POWER PLAN |
AS NOTED | ||
| E5—2.2 |
SECOND FLOOR POWER PLAN |
AS NOTED | ||
| E5—2.3 |
THIRD FLOOR POWER PLAN |
AS NOTED | ||
| E5—3.0 |
ROOF NORTH ELECTRICAL PLAN |
AS NOTED | ||
[DIAGRAMS]
4
SCHEDULE 2
FURNITURE
[TO BE ATTACHED]
5
SCHEDULE 2
Network Appliance—1240 ▇▇▇▇▇▇▇▇
Furniture Inventory
Private Office Typicals
| (1) 24x60x48x24 Corner worksurface | ||
| (1) 24x60x38x24 Corner worksurface | ||
| (1) 30x24 Worksurface | ||
| (1) Keyboard tray | ||
| 8x10 office |
(2) 60” overhead shelves | |
| Quantity: 274 |
(2) 60” wall mounted tack boards | |
| (1) File/File pedestal | ||
| (1) Task light | ||
| (1) 48” wall mounted whiteboard | ||
| (1) Task chair | ||
| (1) Side chair | ||
| (1) 24x60x48x24 Corner worksurface | ||
| (1) 24x60x38x24 Corner worksurface | ||
| (1) 30x24 Worksurface | ||
| (1) Keyboard tray | ||
| 10x17 office |
(2) 60” overhead shelves | |
| Quantity: 6 |
(2) 60” wall mounted tack boards | |
| (2) File/File pedestal | ||
| (2) Task light | ||
| (1) 48” wall mounted whiteboard | ||
| (1) Task chair | ||
| (2) Side chairs | ||
| (1) 42” round table | ||
First Floor
| Room type |
Room number |
Furniture |
||||
| Lobby |
5.1.200 |
(1) Reception station |
||||
| (5) Soft seating chairs |
||||||
| (1) Coffee table |
||||||
| (1) Side table |
||||||
| Conference |
5.1.249 |
(1) 60” Round table |
||||
| (5) Chairs |
||||||
| (1) Whiteboard |
||||||
| Conference |
5.1.250 |
(1) 60” Round table |
||||
| (5) Chairs |
||||||
| (1) Whiteboard |
||||||
6
Second Floor
| Room type |
Room number |
Furniture |
||||
| Break room |
5.2.200 |
(3) Break room tables (6) Stools |
||||
| Conference |
5.2.205 |
(1) 48x84 table (8) Chairs (1) Whiteboard |
||||
| Conference |
5.2.216 |
(1) 58x216 table (20) Chairs (1) Whiteboard |
||||
| Conference |
5.2.225 |
(1) 42x96 table (8) Chairs (1) Whiteboard |
||||
| Conference |
5.2.226 |
(1) 48x120 table (10) Chairs (1) Whiteboard |
||||
| Conference |
5.2.227 |
(1) 60” Round table (5) Chairs (1) Whiteboard |
||||
| Conference |
5.2.228 |
(1) 58x192 table (14) Chairs (1) Whiteboard |
||||
| Conference |
5.2.229 |
(1) 48x96 table (8) Chairs (1) Whiteboard |
||||
| Conference |
5.2.238 |
(1) 48x121 table (10) Chairs (1) Whiteboard |
||||
| Conference |
5.2.239 |
(1) 48x144 table (12) Chairs (1) Whiteboard |
||||
7
Third Floor
| Room type |
Room number |
Furniture |
||||
| Reception |
5.3.200 |
(6) Soft seating chairs (2) Coffee tables |
||||
| Conference |
5.3.205 |
(1) 48x84 table (8) Chairs (1) Whiteboard |
||||
| Library |
5.3.087 |
(1) 42” round table (2) chairs |
||||
| Break room |
5.3.216 |
(3) Break room tables (6) Stools |
||||
| Conference |
5.3.225 |
(1) 42x96 table (8) Chairs (1) Whiteboard |
||||
| Conference |
5.3.226 |
(1) 48x120 table (10) Chairs (1) Whiteboard |
||||
| Conference |
5.3.227 |
(1) 60” Round table (5) Chairs (1) Whiteboard |
||||
| Conference |
5.3.228 |
(1) 58x192 table (14) Chairs (1) Whiteboard |
||||
| Conference |
5.3.229 |
(1) 48x96 table (8) Chairs (1) Whiteboard |
||||
| Boardroom |
5.3.239 |
(1) 58x240 table (22) Chairs (1) Whiteboard |
||||
| Conference |
5.3.240 |
(1) 48x121 table (10) Chairs (1) Whiteboard |
||||
| Conference |
5.3.241 |
(1) 48x144 table (12) Chairs (1) Whiteboard |
||||
| Lab/Conference |
5.3.232C |
(1) 30x96 table (4) chairs |
||||
| Lab/Conference |
5.3.232D |
(1) 30x96 table (4) chairs |
||||
| Lab/Conference |
5.3.232E |
(1) 30x96 table (4) chairs |
||||
8