California-Sunnyvale-100/150 Mathilda Place Property Purchase and Lease Modification Agreement - M-F Downtown Sunnyvale LLC, Handspring Facility LLC and Handspring Inc.
PROPERTY PURCHASE AND LEASE MODIFICATION AGREEMENT
This Property Purchase and Lease Modification Agreement (this
"Agreement") is made and entered into as of January 16, 2003 by and between M-F
DOWNTOWN SUNNYVALE, LLC, a Delaware limited liability company ("M-F Downtown"),
HANDSPRING FACILITY COMPANY, LLC, a Delaware LLC ("HFC") and HANDSPRING, INC., a
Delaware corporation ("Handspring").
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, 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. As security for the performance of its obligations under the Building 3
Lease, Handspring caused Wells Fargo Bank to issue to M-F Downtown an
unconditional, irrevocable, transferable letter of credit (the "Building 3
Security Deposit Letter of Credit") in the amount of Fourteen Million Three
Hundred Thirty-Five Thousand Dollars ($14,335,000).
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).
E. On or about February 14, 2001, M-F Downtown, as landlord, and
Handspring, as tenant entered into that certain Lease Agreement (Building 2) (as
the same has been amended by the parties prior to the date hereof, the "Building
2 Lease"), whereby M-F Downtown agreed to
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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. As
security for the performance of its obligations under the Building 2 Lease,
Handspring caused Wells Fargo Bank to issue to M-F Downtown an unconditional,
irrevocable, transferable letter of credit (the "Building 2 Security Deposit
Letter of Credit") in the amount of Nine Million Five Hundred Fifty-Seven
Thousand Dollars ($9,557,000).
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. As security for the performance of its obligations under the
Building 2 Work Letter, Handspring caused Wells Fargo Bank to issue to M-F
Downtown an unconditional, irrevocable, transferable letter of credit (the
"Building 2 TI Letter of Credit") in the amount of Nine Million Two Hundred
Eighty-Four Thousand Dollars ($9,284,000).
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 2 Security Deposit Letter of Credit and the
Building 3 Security Deposit Letter of Credit (collectively, the "Security
Deposit Letters of Credit") and under the Building 2 TI Letter of Credit and the
Building 3 TI Letter of Credit (collectively, the "TI Letters of Credit" and,
together with the Security Deposit Letters of Credit, the "Letters of Credit").
Neither the Building 2 Security Deposit Letter of Credit nor the Building 3
Security Deposit Letter of Credit has been drawn upon by M-F Downtown or Bank of
America. In accordance with the terms of the Building 2 Work Letter, the
principal amount of the Building 2 TI Letter of Credit has been reduced to Six
Million Seven Hundred Twenty Thousand Eight Hundred Fifty-Eight and 80/100
Dollars ($6,720,858.80), and 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); neither of the TI Letters of
Credit have been drawn upon by M-F Downtown or Bank of America.
H. Handspring has caused Handspring Facility Company, LLC, a
Delaware limited liability company ("HFC"), to be formed pursuant to the
Operating Agreement for HFC (the "HFC Operating Agreement") attached hereto as
Exhibit C. Handspring is the sole member of HFC and, at or before the Closing
(hereinafter defined), will acquire all of the authorized membership units in
HFC in exchange for the contributions described in Section 1.
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
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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.
NOW THEREFORE, IN CONSIDERATION of the covenants and promises of the
parties, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Contributions by Handspring to HFC. Prior to the Closing
Handspring will contribute to HFC, in exchange for the issuance of all of the
authorized membership interests in HFC, all of Handspring's right, title and
interest under the Leases and the Work Letters, all plans and specifications for
the Buildings or any improvements situated therein or building materials
purchased for incorporation therein, all warranties relating to the Buildings,
and the right to permit the use of the proceeds of Security Deposit Letters of
Credit and the TI Letters of Credit for the purposes provided for herein. In
addition, pursuant to the terms of the HFC Operating Agreement, Handspring
shall, prior to the Closing, contribute to HFC cash in the amount described in
subsection (iii) of Section 3 and make and deliver to HFC a promissory note in
the form attached hereto as Exhibit D (the "Settlement Funding Note").
2. Purchase And Sale of Building 3. Subject to the terms,
covenants and conditions of this Agreement, M-F Downtown shall sell Building 3
to HFC, and HFC shall purchase Building 3 from M-F Downtown at the closing of
the Escrow (hereinafter defined).
3. Purchase Price for Building 3; Manner of Payment. The purchase
price (the "Purchase Price") which HFC shall pay to M-F Downtown for Building 3
shall be Forty-Five Million Five Hundred Thousand Dollars ($45,500,000), which
sum represents the approximate cost incurred by M-F Downtown in constructing
Building 3. The Purchase Price shall be payable as follows:
(i) Nine Million Five Hundred Fifty-Seven
Thousand Dollars ($9,557,000) shall be paid through a draw of the full
amount of the Building 2 Security Deposit Letter of Credit;
(ii) Fourteen Million Three Hundred Thirty-Five
Thousand Dollars ($14,335,000) shall be paid through a draw of the full
amount of the Building 3 Security Deposit;
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(iii) Eight Hundred Five Thousand Five Hundred
Ninety-Seven and 76/100 Dollars ($805,597.76) shall be paid through a
partial drawing on the Building 3 TI Letter of Credit;
(iv) Fifteen Million Three Hundred Two Thousand
Four Hundred Two and 24/100 Dollars ($15,302,402.24) shall be paid in
cash or immediately available funds from the cash contributed by
Handspring to HFC pursuant to the terms of the HFC Operating Agreement;
(v) Pursuant to a promissory note in the form
attached hereto as Exhibit E (the "Five Year Note"), which promissory
note shall be in the principal amount of Three Million Dollars
($3,000,000), shall bear interest at the rate of three hundred fifty
(350) basis points over the prevailing rate for three (3) year United
States Treasury Notes, shall be payable in equal monthly installments
over the five (5) year period following the closing of the Escrow (the
"Closing"), and has an agreed current value of Two Million One Hundred
Fifty Thousand Dollars ($2,150,000);
(vi) Pursuant to a promissory note in the form
attached hereto as Exhibit F (the "One Year Note"), which promissory
note shall be in the principal amount of One Million Dollars
($1,000,000), shall not bear interest, shall be payable in a single
lump sum on the date which is one (1) year after the Closing, and has
an agreed current value of Eight Hundred Fifty Thousand Dollars
($850,000); and
(vii) The balance of the Purchase Price, being the
sum of Two Million Five Hundred Thousand Dollars ($2,500,000), shall be
paid by HFC causing Handspring to issue to M-F Downtown warrants (the
"Handspring Warrants") to purchase ten million (10,000,000) shares of
Handspring common stock as more particularly described in Section 10.
4. "As-Is" Condition. HFC is purchasing Building 3 in its
existing condition, "As Is, Where Is, With All Faults," in reliance upon its own
knowledge, inspection and investigation of Building 3 and the Building 3 Parcel,
on information obtained from public documents, and from information obtained
from independent third parties, and has made or has waived or will waive all
inspections and investigations of the property and its vicinity which HFC
believes are necessary to protect its own interest in, and its contemplated use
of, the property; provided, however, that the foregoing shall not be deemed to
limit or modify any of the duties or obligations of M-F Downtown after the date
hereof under the Building 3 Lease Amendment. Except as otherwise expressly set
forth herein or in the Building 3 Lease Amendment, neither M-F Downtown, nor any
person or entity acting by or on behalf of M-F Downtown, nor any member,
officer, director, employee, agent, affiliate, successor or assign of any of the
foregoing, has made any representation, warranty, inducement, promise,
agreement, assurance or statement, oral or written, of any kind to HFC or
Handspring upon which HFC or Handspring is relying, or in connection with which
HFC or Handspring is relying, or in connection with which HFC or Handspring have
made or will make any decisions concerning Building 3 and the Building 3 Parcel
or its vicinity, including, without limitation, its use or any limitations
thereon, condition (physical or environmental), value, compliance with
"Governmental Regulations," disputes with third parties, existence or absence of
Hazardous Substances (as such term is defined in the
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Building 3 Lease Amendment, hereinafter "Hazardous Substances"), or the
feasibility or suitability of all or any portion of Building 3 for any
particular use or purpose, including, without limitation, its present or future
prospects for sale, lease, development, occupancy, suitability as security for
financing, the utilities or other physical equipment and fixtures within
Building 3, the costs of operating Building 3 or any other aspect of the
economic operations of Building 3, the possibility of future assessments or
charges being levied against Building 3 or the Building 3 Parcel or imposed as a
condition to development or construction, or the condition of the soils or
groundwaters on, under, or about the Building 3 Parcel. As used herein, the term
"Governmental Regulations" means any laws, ordinances, rules, requirements,
resolutions, policy statements and regulations (including, without limitation,
those relating to rent control, land use, subdivision, zoning, Hazardous
Substances, occupational health and safety, handicapped access, water,
earthquake hazard reduction, and building and fire codes) of any governmental or
quasi-governmental body or agency claiming jurisdiction over Building 3.
5. Modification of Building 3 Lease. Effective as of the Closing,
the Building 3 Lease shall be modified pursuant to the Amended and Restated
Lease Agreement (Building 3) (the "Building 3 Lease Amendment") attached hereto
as Exhibit G.
6. Termination of Building 2 Lease. At the Closing, HFC and
Handspring shall surrender possession of Building 2 to M-F Downtown the Building
2 in its as-is condition, free and clear of the rights or claims of assignees,
subtenants or other parties claiming by or through HFC and Handspring and,
effective as of the Closing, all of the rights, duties and obligations of M-F
Downtown, HFC and Handspring under the Building 2 Lease shall terminate and be
of no further force or effect except that any provisions of the Building 2 Lease
that provide for the indemnification, defense and/or holding harmless of M-F
Downtown or the other Landlord Parties (as such term is defined in the Building
2 Lease) with respect to claims, suits, demands, actions and causes of action
asserted by third parties (other than claims by Devcon or any subcontractor to
Devcon) shall survive such termination in the same manner and to the same extent
as such rights would, in accordance with the terms of the Building 2 Lease or
the Building 2 Work Letter, survive the expiration of the term of the Building 2
Lease. Notwithstanding any provision of the Building 2 Lease to the contrary,
Handspring shall surrender possession of Building 2, and M-F Downtown shall
accept possession of Building 2 in its existing condition, "As Is, Where Is,
With All Faults," in reliance upon its own knowledge, inspection and
investigation of Building 2.
7. Modification of Work Letters. Effective as of the Closing, the
Work Letters shall be modified pursuant to the Amendment to Work Letters (the
"Work Letters Amendment") attached hereto as Exhibit H and the parties shall
cause the Building 3 TI Letter of Credit to be amended to permit the remaining
proceeds thereof (after the drawings provided for in subsection (iii) of Section
3 and Section 8(a)) to be used as provided in the Work Letters Amendment.
8. Construction Related Obligations.
(a) Payment of Devcon Invoices. At the Closing, through
Escrow, HFC shall pay to Devcon Construction Incorporated ("Devcon"), in cash,
the following amounts which are currently owed by Handspring to Devcon under
written construction contracts between
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Handspring and Devcon for the construction of improvements within the Buildings
(the "Handspring/Devcon Contracts") as contemplated by the Work Letters:
(i) Four Million One Hundred Ninety-One Thousand
Seven Hundred Seven and 15/100 Dollars ($4,191,707.15), which sum is
the entire unpaid amount (exclusive of retention sums) due under the
Pre-November Invoices (defined below);
(ii) One Million One Hundred Ten Thousand Six
Hundred Ninety-Five and 09/100 Dollars ($1,110,695.09), which sum is
the entire unpaid amount of all retention sums payable under the
Pre-November Invoices; and
(iii) One Million Nine Hundred Fifteen Thousand
Four Hundred Fifty-Eight Dollars ($1,915,458) which is currently owed
by Handspring to Devcon under the Handspring/Devcon Contracts to Devcon
under invoices dated subsequent to October 30, 2002 which have been
received by Handspring from Devcon.
As used herein, the term "Pre-November Invoices" shall mean
and refer to those certain invoices dated October 30, 2002 or earlier which have
been received by Handspring from Devcon pursuant to the Handspring/Devcon
Contracts. The payment to be made pursuant to this Section 8(a) shall be made
first from a draw of the full amount of the Building 2 TI Letter of Credit and
next from a partial drawing on the Building 3 TI Letter of Credit, and HFC shall
receive no credit against the Purchase Price for such payments.
(b) Acknowledgment By Handspring and HFC. Handspring and
HFC each hereby acknowledge and agree that neither of them qualify for or is or
will be entitled to a reduction in the TI Letters of Credit on account of any
construction work which has been performed on Building 2 or Building 3 by or on
behalf of Handspring or HFC prior to the date hereof, whether such work has been
previously paid for by Handspring or which will be paid for pursuant to the
provisions of this Section 8 from a drawing on either of the TI Letters of
Credit and that has not already resulted in a reduction in the TI Letters of
Credit.
9. Modification of Letters of Credit. Prior to the Closing, the
parties shall take all such steps as are required to amend the Letters of Credit
to permit the Letters of Credit to be drawn upon the certification of the
beneficiary thereof that the applicable Letter of Credit is being drawn upon
pursuant to the terms of this Agreement, including without limitation, the
Amendment to Work Letters attached hereto.
10. Issuance of Handspring Warrants. At the Closing, HFC shall
cause Handspring to issue and deliver, and Handspring shall issue and deliver,
the Handspring Warrants to M-F Downtown. The Handspring Warrants shall be in the
forms attached hereto as Exhibits I-1 and I-2. Additionally, Handspring shall,
prior to the Closing, take all steps as may be required to cause the issuance of
the Handspring Warrants to comply with all applicable state and federal
securities laws.
11. Conditions Precedent to Obligations of HFC and Handspring.
The obligation of HFC and Handspring to complete the transactions contemplated
by this Agreement, including without limitation HFC's purchase of Building 3, is
subject to the fulfillment or waiver by HFC of the following conditions
precedent:
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(a) Grant Deed. M-F Downtown shall have deposited into
the Escrow a duly executed and acknowledged grant deed (the "Grant Deed") in the
form attached hereto as Exhibit J, conveying title to Building 3 to HFC, subject
to all easements, liens, encumbrances, covenants, conditions, reservations and
exceptions of record. The Grant Deed shall not be recorded by HFC, Handspring or
the Title Company, and any recordation thereof by or at the request of HFC or
Handspring shall constitute a Default under (as such term is defined in) the
Building 3 Lease.
(b) Lease Memorandum. M-F Downtown shall have deposited
into the Escrow a duly executed and acknowledged memorandum of the Building 3
Lease Amendment (the "Lease Memorandum") in the form attached hereto as Exhibit
K.
(c) Execution of Agreements by M-F Downtown. M-F
Downtown shall have executed, acknowledged (where appropriate) and delivered to
the Title Company, on or before the Closing Date:
(i) The Building 3 Lease Amendment;
(ii) A consent to the assignment by Handspring to
HFC described in Section 1 pursuant to the Assignment and Assumption
Agreement attached hereto as Exhibit L (the "Assignment Agreement");
(iii) The Work Letters Amendment;
(iv) Such documents as may be required by Wells
Fargo Bank in order to effectuate the amendment to the Letters of
Credit in the manner contemplated by the provisions of Section 9; and
(v) Escrow instructions to the Title Company
consistent with and sufficient to implement the terms of this
Agreement.
(d) Project Management Agreement. M-F Downtown shall have
caused The Mozart Development Company to execute and deliver into Escrow the
Project Management Agreement attached as Exhibit A to the Work Letters Amendment
(the "Project Management Agreement");
(e) Devcon Agreements. Devcon shall have executed an
agreement (the "Handspring Termination Agreement") with Handspring terminating,
as of the Closing, that certain "Warm Shell" (Core) Construction Agreement dated
as of December 14, 2001 for the construction, among others, of the "warm shell"
core improvements of the Buildings, that certain Tenant Improvement Construction
Agreement dated July 8, 2002, for the construction, among others, of interior
tenant improvements of Building 2, and the Tenant Improvement Construction
Agreement dated November 28, 2001 for the construction, among others, of the
interior tenant improvements of Building 3, and by which Devcon agrees to
indemnify M-F Downtown from claims of subcontractors, materialmen and laborers
under said construction agreements, such agreement to be in form satisfactory to
Handspring, M-F Downtown and Bank of America.
(f) Lien Waiver. Devcon shall have executed, acknowledge,
delivered and authorized the Title Company to record a final, unconditional
waiver of all of its lien rights (the
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"Devcon Lien Waiver") with respect to the Property and/or any improvements
located thereon for work performed pursuant to contract with or otherwise at the
request of Handspring or HFC, such waiver to be in form satisfactory to M-F
Downtown and Bank of America.
(g) Approval of Construction Lenders. The Construction
Lenders shall have consented to the transactions contemplated by this Agreement,
such consent to be in form satisfactory to Handspring and HFC.
(h) Representations and Warranties. All of M-F Downtown's
representations and warranties set forth in this Agreement shall be true and
correct in all material respects as of the Closing Date.
(i) M-F Downtown's Performance. M-F Downtown shall have
performed, in all material respects, each and every obligation contained in this
Agreement to be performed by it within the time periods applicable thereto.
12. Conditions Precedent to M-F Downtown's Obligations. M-F
Downtown's obligation to complete the transactions contemplated by this
Agreement, including without limitation M-F Downtown's sale of Building 3, is
subject to fulfillment or waiver by M-F Downtown of the following conditions
precedent:
(a) Execution of Agreements by Handspring. Handspring
shall have executed, acknowledged (where appropriate) and delivered to the Title
Company, on or before the Closing Date:
(i) The Assignment Agreement;
(ii) The Warrants;
(iii) The Settlement Funding Note;
(iv) A guaranty of the obligations of HFC under
the Building 3 Lease (as amended by the Building 3 Lease Amendment),
the Five Year Note, the One Year Note and this Agreement in the form
attached hereto as Exhibit M (the "Handspring Guaranty");
(v) A pledge of its membership interests in HFC
in the form attached hereto as Exhibit N (the "Handspring Pledge");
(vi) Such documents as may be required by Wells
Fargo Bank in order to effectuate the amendment to the Letters of
Credit in the manner contemplated by the provisions of Section 9; and
(vii) Escrow instructions to the Title Company
consistent with and sufficient to implement the terms of this
Agreement.
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(b) Execution of Agreements by HFC. HFC shall have
executed, acknowledged (where appropriate) and delivered to the Title Company,
on or before the Closing Date:
(i) The Assignment Agreement;
(ii) The Building 3 Lease Amendment;
(iii) The Lease Memorandum;
(iv) The Work Letters Amendment and the Project
Management Agreement;
(v) The Five Year Note;
(vi) The One Year Note;
(vii) An assignment of the Settlement Funding Note
in the form attached hereto as Exhibit O (the "Settlement Note
Assignment");
(viii) An assignment of all of its right, title and
interest in all plans and specifications for the Buildings or any
improvements situated therein in the form attached hereto as Exhibit P
(the "Plans Assignment");
(ix) Such documents as may be required by Wells
Fargo Bank in order to effectuate the amendment to the Letters of
Credit in the manner contemplated by the provisions of Section 9; and
(x) Escrow instructions to the Title Company
consistent with and sufficient to implement the terms of this
Agreement.
(c) Endorsement of Settlement Funding Note. On or before
the Closing Date HFC shall have endorsed the Settlement Funding Note to M-F
Downtown and delivered the Settlement Funding Note to the Title Company, for
delivery to M-F Downtown at the Close of Escrow.
(d) Deposit of Funds. The proceeds of the Letters of
Credit comprising a portion of the Purchase Price shall have been deposited
directly in Escrow by Wells Fargo Bank and HFC shall have deposited the balance
of the Purchase Price in cash or immediately available funds.
(e) Payment of Construction Costs. Handspring shall have
made the payment to Devcon contemplated by the provisions of Section 8(a).
(f) Devcon Deliveries. Devcon shall have executed,
acknowledge, delivered and authorized the Title Company to record the Devcon
Lien Waiver, such waiver to be in form satisfactory to M-F Downtown and Bank of
America, and Devcon shall have executed and
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delivered the Handspring Termination Agreement, such agreement to be in form
satisfactory to Handspring, M-F Downtown and Bank of America.
(g) Approval of Construction Lenders. The Construction
Lenders shall have consented to the transactions contemplated by this Agreement,
which consent must still be in full force and effect at the Closing, and the
closing of the Escrow shall have been authorized by Bank of America, which
authorization must still be in full force and effect at the Closing.
(h) Representation and Warranties. All of the
representations and warranties of Handspring and HFC set forth in this Agreement
shall be true and correct in all material respects as of the Closing Date.
(i) Performance by Handspring and HFC. Handspring and HFC
each shall have performed, in all material respects, each and every obligation
contained in this Agreement to be performed by Handspring and HFC within the
time periods applicable thereto.
13. M-F Downtown's Representations and Warranties. M-F Downtown
hereby makes the following representations and warranties to Handspring and HFC,
which representations and warranties are true, correct and complete as of the
date hereof and shall be true, correct and complete at the Close of Escrow.
(a) M-F Downtown's Authority. M-F Downtown is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware with its principal place of business in
California and has the authority to enter into this Agreement, perform its
obligations hereunder, and own and convey title to Building 3. This Agreement
has been, and all documents executed by M-F Downtown pursuant to this Agreement
shall be, duly authorized, executed and delivered by M-F Downtown. No further
actions, approvals or authorization on M-F Downtown's part are or will be
required in order to enable M-F Downtown to consummate the transactions
contemplated by this Agreement.
(b) Litigation. There are no pending, or to M-F
Downtown's knowledge threatened, actions, suits, legal or administrative
proceedings against M-F Downtown which affect Building 3 or any portion thereof,
or M-F Downtown's ability or authority to enter in the this Agreement and
perform its obligations hereunder, whether at law or in equity, before any court
or governmental agency, domestic or foreign.
(c) Hazardous Substances. Except as described in the
Environmental Report (as that term is defined in the Building 3 Lease Amendment,
to M-F Downtown's knowledge there are no Hazardous Substances present in
Building 3 in violation of Governmental Regulations.
As used herein, the terms "M-F Downtown's knowledge", "known to M-F
Downtown" and the like shall mean the current actual knowledge of John Mozart
and James Freitas as of the date of making the representation and warranty in
question, without having undertaken any independent investigation or inquiry for
the purpose of making such representation and warranty.
14. Handspring's Representations and Warranties. Handspring hereby
makes the following representations and warranties to M-F Downtown, which
representations and
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warranties are true, correct and complete as of the date hereof and shall be
true, correct and complete at the Close of Escrow.
(a) Handspring's Authority. Handspring is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware with its principal place of business in California and has the
authority to enter into this Agreement and perform its obligations hereunder.
This Agreement has been, and all documents executed by Handspring pursuant to
this Agreement shall be, duly authorized, executed and delivered by Handspring.
No further actions, approvals or authorization on Handspring's part are or will
be required in order to enable Handspring to consummate the transactions
contemplated by this Agreement.
(b) Litigation. There are no pending, or to Handspring's
knowledge threatened, actions, suits, legal or administrative proceedings
against Handspring which affect Building 3 or any portion thereof, or
Handspring's ability or authority to enter in the this Agreement and perform its
obligations hereunder, whether at law or in equity, before any court or
governmental agency, domestic or foreign.
As used herein, the terms "Handspring's knowledge", "known to
Handspring" and the like shall mean the current actual knowledge of David Pine,
Vice President and General Counsel of Handspring, and Donna Dubinsky, Chief
Executive Officer of Handspring, as of the date of making the representation and
warranty in question, without having undertaken any independent investigation or
inquiry for the purpose of making such representation and warranty.
15. HFC's Representations and Warranties. HFC hereby makes the
following representations and warranties to M-F Downtown, which representations
and warranties are true, correct and complete as of the date hereof and shall be
true, correct and complete at the Close of Escrow.
(a) HFC's Authority. HFC is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware with its principal place of business in California and has the
authority to enter into this Agreement and perform its obligations hereunder.
This Agreement has been, and all documents executed by HFC pursuant to this
Agreement shall be, duly authorized, executed and delivered by HFC. No further
actions, approvals or authorization on HFC's part are or will be required in
order to enable HFC to consummate the transactions contemplated by this
Agreement.
(b) Litigation. There are no pending, or to HFC's
knowledge threatened, actions, suits, legal or administrative proceedings
against HFC which affect Building 3 or any portion thereof, or HFC's ability or
authority to enter in the this Agreement and perform its obligations hereunder,
whether at law or in equity, before any court or governmental agency, domestic
or foreign.
As used herein, the terms "HFC's knowledge", "known to HFC" and the
like shall mean the current actual knowledge of David Pine and Donna Dubinsky as
of the date of making the representation and warranty in question, without
having undertaken any independent investigation or inquiry for the purpose of
making such representation and warranty.
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<PAGE>
16. Indemnification. Except to the extent otherwise provided in
the Building 3 Lease Amendment, and without limitation on any provision of the
Building 3 Lease Amendment or the provisions of Section 20 below, M-F Downtown
shall indemnify, defend and hold harmless HFC and Handspring and their
respective agents, employees and representatives (the "Handspring Indemnitees")
from and against any and all claims made by governmental authorities or third
parties not affiliated with any of the Handspring Indemnitees arising out of (i)
the defective condition of Building 3 (other than those portions of Building 3
which were constructed prior to the date hereof by or on behalf of Handspring),
or (ii) the failure of Building 3 to comply with applicable laws except to the
extent such failure arises out of or with respect to those portions of Building
3 which were constructed prior to the date hereof by or on behalf of Handspring,
except in the case of both clauses (i) and (ii) above, to the extent arising out
of the active negligence or willful misconduct of any of the Handspring
Indemnitees.
17. Condition of Title. HFC shall take title to Building 3 subject
to all easements, liens, encumbrances, covenants, conditions, reservations and
exceptions of record, including without limitation the Building 3 Lease
Amendment. Any policy of title insurance obtained by HFC at the Closing with
respect to Building 3 shall paid for by HFC.
18. Escrow Matters.
(a) Establishment of Escrow. Concurrently with its
execution of this Agreement, the parties shall establish an escrow ("Escrow")
with First American Title Insurance Company (the "Title Company") at its office
located at 1737 N. First Street, San Jose, California 95112, in connection with
the transactions to be completed pursuant to, and in accordance with the
provisions of, this Agreement. Escrow shall close (the "Close of Escrow") on the
date which is two (2) business days after all of the conditions to the Close of
Escrow (other than the deposit of funds) provided for in this Section 18 have
been satisfied, but in no event later than January 28, 2003 (the "Closing
Date"). The parties agree to use good faith efforts to satisfy all such
conditions promptly following the execution of this Agreement as possible in the
circumstances.
(b) Draws on Letters of Credit. At such time as the
parties jointly determine in good faith that it appears that all conditions to
the Closing will be timely satisfied, M-F Downtown will request Bank of America
to deliver signed statements to Wells Fargo Bank as required to make draws on
the Letters of Credit as contemplated under this Agreement to pay a portion of
the Purchase Price and to pay Devcon, and instructing Wells Fargo Bank to
deliver the proceeds of the Letters of Credit to the Title Company;
(c) Deposits by M-F Downtown. One (1) business day prior
to the Closing Date, M-F Downtown shall deposit the following into Escrow:
(i) The duly executed and acknowledged Grant
Deed;
(ii) The duly executed Building 3 Lease
Amendment;
(iii) The duly executed and acknowledged Lease
Memorandum;
(iv) The duly executed Work Letters Amendment;
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(v) The duly executed Project Management
Agreement;
(vi) The duly executed Assignment Agreement;
(vii) Duly executed non-foreign person affidavits
("Non-Foreign Person Affidavits") in usual form sufficient to relieve
HFC and Handspring of any withholding requirements pursuant to the
provisions of Section 1445 of the Internal Revenue Code of the United
States and Section 18662 of the California Revenue and Taxation Code
and the regulations promulgated thereunder; and
(viii) Such escrow instructions and additional
documents as the Title Company may reasonably require of M-F Downtown
to close the transaction in accordance with this Agreement.
(d) Deposits by Handspring. One (1) business day prior to
the Closing Date, Handspring shall deposit the following into Escrow:
(i) The duly executed Assignment Agreement;
(ii) The duly executed Settlement Funding Note;
(iii) The Warrants;
(iv) The duly executed Handspring Guaranty;
(v) The duly executed Handspring Pledge; and
(vi) Such escrow instructions and additional
documents as the Title Company may reasonably require of Handspring to
close the transaction in accordance with this Agreement.
(e) Deposits by HFC. One (1) business day prior to the
Closing Date, HFC shall deposit (or cause to be deposited) the following into
Escrow:
(i) Cash or immediately available funds in the
sum specified in subsection (iv) of Section 3;
(ii) The duly executed Assignment Agreement;
(iii) The duly executed Building 3 Lease
Amendment;
(iv) The duly executed and acknowledged Lease
Memorandum;
(v) The duly executed Work Letters Amendment;
(vi) The duly executed Five Year Note;
(vii) The duly executed One Year Note;
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(viii) The duly executed Settlement Note
Assignment;
(ix) The duly executed Plans Assignment; and
(x) Such escrow instructions and additional
documents as the Title Company may reasonably require of Handspring to
close the transaction in accordance with this Agreement.
(f) Closing Procedures. The Title Company shall close the
Escrow as follows:
(i) It shall record the Devcon Lien Waiver and
the Lease Memorandum;
(ii) It shall deliver to M-F Downtown the
following:
(A) The Purchase Price, adjusted by the
closing costs and prorations as set forth in Section 18(g)
below; and
(B) A copy of the unrecorded Grant
Deed;
(C) A certified copy of the recorded
Devcon Lien Waiver and the recorded Lease Memorandum;
(D) An executed original of the
Assignment Agreement, the Building 3 Lease Amendment, the Work
Letters Amendment and the Project Management Agreement;
(E) The original Five Year Note, One
Year Note, Settlement Funding Note, Settlement Note
Assignment, Plans Assignment, Warrants, Handspring Guaranty
and Handspring Pledge; and
(F) A copy of all other documents which
were delivered into the Escrow by any party hereto.
(iii) It shall deliver to HFC the following:
(A) The original, unrecorded Grant
Deed;
(B) A certified copy of the recorded
Devcon Lien Waiver and the recorded Lease Memorandum;
(C) An executed original of the
Assignment Agreement, the Building 3 Lease Amendment, the Work
Letters Amendment and the Project Management Agreement;
(D) The executed originals of the
Non-Foreign Person Affidavits; and
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(E) A copy of all other documents which
were delivered into the Escrow by any party hereto.
(iv) It shall deliver to Handspring the
following:
(A) An executed original of the
Assignment Agreement; and
(B) A copy of all other documents which
were delivered into the Escrow by any party hereto.
(g) Closing Costs and Prorations. The expenses of the
Escrow and conveyance shall be paid in the following manner:
(i) The cost of any title insurance policies or
endorsements shall be borne by the party requesting the issuance
thereof.
(ii) The cost of recording the Lease Memorandum
shall be paid by M-F Downtown.
(iii) Any escrow fees charged by the Title Company
for escrow services shall be paid one-half by M-F Downtown and one-half
by HFC.
(iv) All transfer taxes due in connection with
the sale or conveyance of Building 3 shall be paid by M-F Downtown.
Because the Building 3 Lease (following its amendment pursuant
to the Building 3 Lease Amendment) is a "gross lease" (prior to the occurrence
of a "Reinstatement," as that term is defined in the Building 3 Lease Amendment)
pursuant to which M-F Downtown will have the obligation to pay real property
taxes and assessments, there shall be no adjusted for or proration of real
property taxes or assessments. M-F Downtown shall indemnify, hold harmless and
defend Handspring and HFC from any and all transfer taxes or property taxes due
in connection with the sale or conveyance of Building 3, and any and all
penalties, interest and taxes resulting from any failure to pay such taxes or to
report the transfer or change in ownership of Building 3.
19. Risk of Loss. If before the Close of Escrow, Building 3 is
damaged by a fire or other casualty, except as hereinafter provided, M-F
Downtown shall remain obligated to sell and convey Building 3 to HFC, and HFC
shall remain obligated to purchase Building 3 from M-F Downtown, as provided
herein. HFC and M-F Downtown shall proceed, notwithstanding such damage, to the
Close of Escrow pursuant to the terms hereof, without modification of the terms
of this Agreement and without any reduction in the Purchase Price, and M-F
Downtown shall receive and retain all insurance proceeds payable on account of
such casualty. Following the Close of Escrow, M-F Downtown shall repair such
damage in accordance with the terms and provisions of, and to the extent
provided in, the Building 3 Lease.
20. Mutual Release.
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(a) Release of Handspring and HFC. Effective as of the
Closing, M-F Downtown, for itself, its affiliates, successors and assigns,
agents, shareholders, members, attorneys, servants and employees, and each of
them, does hereby release and forever discharge Handspring and HFC, their
affiliates, successors and assigns, and the agents, shareholders, officers,
directors, attorneys, members, servants and employees of each of them, of and
from any and all claims, demands, damages, debts, liabilities, actions and
causes of action of every kind and nature arising or accruing prior to the
Closing under the Leases and/or the Work Letters or otherwise (i) for the
payment of Monthly Base Rent, Additional Charges for Expenses and Taxes,
Additional Rent or other amounts accruing thereunder other than such sums which
are payable under the Building 3 Lease Amendment or the Work Letters Amendment
with respect to periods after December 31, 2002, (ii) for the construction of
improvements, and for the payment of the cost of improvements made, within
either of the Buildings other than the obligation to make the payments provided
for in Section 8(a) or the obligation to pay for the "HFC Work" as defined and
pursuant and subject to the limitations set forth in the Work Letters Amendment,
(iii) any defective condition of Building 3 (including portions of Building 3
which were constructed prior to the date hereof by or on behalf of Handspring)
or failure of Building 3 (including portions of Building 3 which were
constructed prior to the date hereof by or on behalf of Handspring) to comply
with applicable laws and (iv) for the performance of any other duties or
obligations arising under or in relation to the Leases or Work Letters except to
the extent otherwise provided herein (including without limitation as provided
in Section 6), in the Building 3 Lease Amendment or in any of the other
documents to be executed and delivered by the parties hereto through the Escrow.
Any other provision of this Agreement (including this Section 20), the Building
3 Lease Amendment or any of the other documents to be executed and delivered by
the parties hereto through the Escrow to the contrary notwithstanding, neither
Handspring nor HFC, nor their respective affiliates, successors and assigns,
agents, shareholders, officers, directors, attorneys, members, servants and
employees, shall be released from any duty or obligation pursuant to either of
the Leases to indemnify, defend and/or hold harmless M-F Downtown or the other
Landlord Parties (as such term is defined in the Leases) with respect to any
Surviving Claim (defined below). As used herein, the term "Surviving Claim"
means any claims, suits, demands, actions or causes of action asserted by third
parties (other than claims by Devcon or any subcontractor to Devcon) against M-F
Downtown or the other Landlord Parties arising out of acts, omissions or events
which occur prior to the Closing and which are the type of indemnification
obligation which would, in accordance with the terms of the applicable Lease or
Work Letter, survive the expiration of the term of the applicable Lease.
(b) Release of M-F Downtown. Effective as of the Closing,
Handspring and HFC, for themselves, their affiliates, successors and assigns,
agents, shareholders, members, attorneys, servants and employees, and each of
them, does hereby release and forever discharge M-F Downtown, its affiliates,
successors and assigns, and the agents, shareholders, officers, directors,
attorneys, members, servants and employees of each of them, of and from any and
all claims, demands, damages, debts, liabilities, actions and causes of action
of every kind and nature whatsoever arising or accruing prior to the Closing
arising under the Leases and/or the Work Letters for the performance of any
duties or obligations arising under the Leases or Work Letters except to the
extent otherwise provided herein, in the Building 3 Lease Amendment or in any of
the other documents to be executed and delivered by the parties hereto through
the Escrow.
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(c) Limitations and Reservations. Notwithstanding the
provisions of the Sections 20(a) and 20(b), (i) the releases set forth in such
Sections shall not save, release or excuse any party from its obligations under
this Agreement or under or in respect to any of the documents, instruments or
agreements executed or to be executed pursuant to this Agreement or described
herein as a continuing obligation of any party hereto, and (ii) if any material
part of the money, warrants or other consideration paid by or authorized to be
paid by HFC or Handspring pursuant to this Agreement to or for the benefit of
M-F-Downtown or the Property is hereafter avoided, cancelled or recovered
pursuant to the order of a bankruptcy court or as the result of any creditor
action in any court, tribunal or other decision making body having jurisdiction,
then (A) this Agreement shall be rescinded in its entirety, (B) all money,
warrants or other consideration paid by or authorized to be paid by HFC or
Handspring pursuant to this Agreement shall be returned as and in the manner
required by applicable law, and (C) any release of liability or agreement to
forego enforcement by M-F Downtown under the original Building 2 and Building 3
agreements, including without limitation the Building 2 Lease, the Building 3
Lease, the Building 2 Work Letter and the Building 3 Work Letter, shall thereby
automatically be rendered null and void so that M-F Downtown shall then continue
to enjoy every right, entitlement, claim and cause of action thereunder as if
this Agreement had never been entered into.
21. Additional Terms and Conditions.
(a) Brokerage Commissions. Except as otherwise provided
in the Building 3 Lease Amendment, M-F Downtown agrees to and does hereby
indemnify and hold harmless HFC and Handspring from and against all costs,
liabilities or causes of action in any proceeding which may be instituted by any
broker, agent or finder claiming through, under or by reason of the conduct of
M-F Downtown in connection with the transactions contemplated by this Agreement.
(b) Brokerage Commissions of HFC and Handspring. Except
as otherwise provided in the Building 3 Lease Amendment, HFC and Handspring each
agrees to and does hereby indemnify and hold harmless M-F Downtown from and
against all costs, liabilities or causes of action in any proceeding which may
be instituted by any broker, agent or finder, claiming through, under or by
reason of the conduct of HFC and Handspring in connection with the transactions
contemplated by this Agreement.
(c) Foreign Investor Tax Reporting Requirements. M-F
Downtown hereby warrants to HFC and Handspring that M-F Downtown is not a
foreign person, non-resident alien, foreign corporation, foreign partnership,
foreign trust or foreign estate, within the meaning of those terms set forth in
Sections 1445 and 7701 of the Internal Revenue Code of the United States. M-F
Downtown shall also warrant, represent and certify to HFC and Handspring at the
closing of the Escrow that M-F Downtown is not a foreign person, non-resident
alien, foreign corporation, foreign partnership, foreign trust or foreign
estate, within the meaning of those terms set forth in Sections 1445 and 7701 of
the Internal Revenue Code of the United States.
(d) Relationship. Nothing contained in this Agreement
shall be deemed or construed by the parties or by any third person to create a
relationship of principal and agent or a partnership or a joint venture between
the parties or any of them and any third party.
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<PAGE>
(e) No Third Party Beneficiaries. Nothing contained in
this Agreement is intended by the parties, nor shall any provision of this
Agreement be deemed or construed by the parties or by any third person, to be
for the benefit of any third party, nor shall any third party have any right to
enforce any provision of this Agreement or be entitled to damages for any breach
by M-F Downtown, HFC or Handspring of any of the provisions of this Agreement.
(f) Time. Time is of the essence of this Agreement and of
each provision hereof. The time in which any act required or permitted by this
Agreement is to be performed shall be determined by excluding the day upon which
the event occurs from whence the time commences. If the last day upon which
performance would otherwise be required or permitted is a Saturday, Sunday or
holiday, then the time for performance shall be extended to the next day which
is not a Saturday, Sunday or holiday. The term "holiday" shall mean all and only
those holidays: (i) specified in, or determined in accordance with, the
provisions of Sections 6700 and 6701 of the Government Code of the State of
California; (ii) any mandatory federal holidays during which deliveries by the
United States Postal Service are suspended; and, with respect to any act which
involves the recordation of any document, (iii) any other day upon which the
Recorder's Office in Santa Clara County, California is not open for the
recordation of documents.
(g) Assignment by HFC. The rights of HFC pursuant to this
Agreement to purchase Building 3 may not be assigned by HFC.
(h) Supersedence. This Agreement, together with the
documents, instruments and other written agreements referred to herein,
constitute the entire understanding and agreement of the parties hereto
pertaining to the subject matter of this Agreement and all prior agreements,
understandings or representations are hereby superseded, terminated and canceled
in their entirety and are of no further force or effect.
(i) Amendments. This Agreement is not subject to
modification or amendment except by a writing executed by M-F Downtown, HFC and
Handspring.
(j) Exhibits. All exhibits described in this Agreement,
which are attached, are incorporated by this reference and made a part of this
Agreement.
(k) Severability. Save and except as expressly provided
to the contrary in Section 20(c), invalidation of any provision of this
Agreement, the documents, instruments and other written agreements referred to
herein, or of the application thereof to any person by judgment or court order,
shall not affect any other provision of this Agreement or its application to any
other person or circumstance, and the remaining portions of this Agreement shall
continue in full force and effect.
(l) Choice of Law. This Agreement, and the interpretation
and enforcement thereof, shall be governed by the laws of the State of
California.
(m) Waivers. No failure by any party hereto to insist
upon a strict performance by the other of any covenant, term or condition of
this Agreement or to exercise any right or remedy consequent upon a breach
thereof shall constitute a waiver of any other breach or of such covenant, term
or condition. No waiver of any breach shall affect or alter this
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Agreement, but each and every covenant, term and condition of this Agreement
shall continue in full force and effect with respect to any other existing or
subsequent breach.
(n) Survival. All covenants, agreements and indemnities
made and all obligations to be performed under the provisions of this Agreement,
to the extent not performed at or before the closing of the Escrow, shall
survive the closing of the Escrow, and shall not be deemed to merge with the
Grant Deed or any of the other documents to be delivered by the parties at the
Closing upon delivery or acceptance thereof.
(o) Notices. Any notice or other communication hereunder
shall be in writing and shall be given personally, or by prepaid registered mail
with return receipt requested or by commercial airfreight delivery service
guaranteeing next day delivery. Notices may also effectively be given by
transmittal over electronic transmitting devices such as facsimile, telex or
telecopy machine if the party to whom the notice is being sent has such a device
in its office, provided that a standard machine-printed confirmation of the
electronic transmission is provided and also provided that a complete copy of
any notice so transmitted shall also be mailed in the same manner as required
for a mailed notice. Notices which are mailed or forwarded by commercial
airfreight delivery service shall be addressed as follows:
If to M-F Downtown:
M-F Downtown Sunnyvale, LLC
c/o Mozart Development Company
1068 East Meadow Circle
Palo Alto, CA 94303
Attention: Mr. John Mozart and Mr. James Freitas
Facsimile No.: (650) 493-9050
With a copy to:
Ellman, Burke, Hoffman & Johnson
One Ecker Street, Suite 200
San Francisco, California 94105
Attention: Mr. Jeffrey W. Johnson and Mr. Thomas
M. Sherwood
Facsimile No.: (415) 495-7587
If to HFC:
Handspring Facility Company, LLC
189 Bernardo Avenue
Mountain View, CA 94043-5203
Attention: Mr. David Pine
Facsimile No.: (650) 230-5477
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With a copy to:
Coblentz, Patch, Duffy & Bass, LLP
222 Kearny Street, 7th Floor
San Francisco, California 94108
Attention: Richard R. Patch
Facsimile No.: (415) 989-1663
If to Handspring:
Handspring, Inc.
189 Bernardo Avenue
Mountain View, CA 94043-5203
Attention: Mr. David Pine
Facsimile No.: (650) 230-5477
With a copy to:
Coblentz, Patch, Duffy & Bass, LLP
222 Kearny Street, 7th Floor
San Francisco, California 94108
Attention: Richard R. Patch
Facsimile No.: (415) 989-1663
Any notice required or permitted to be given under this Agreement shall
be deemed given and received (i) when personally delivered, (ii) upon
transmission when sent by electronic transmitting device (provided that a copy
of such notice shall also be deposited with the United States Postal Service,
first-class postage prepaid and return receipt requested, within twenty-four
(24) hours after such transmission), (iii) the next day following the deposit of
such notice with a commercial airfreight delivery service under circumstances
where next day delivery is requested or is standard, or (iv) forty-eight (48)
hours after deposit with the United States Postal Service, first-class postage
prepaid and return receipt requested.
The address to which notices shall be sent may be changed by giving
notice of such change in accordance with the provisions of this Section 21(o).
(p) Attorney Fees. If any action shall be instituted by
M-F Downtown against either HFC or Handspring or by either HFC or Handspring
against M-F Downtown for the enforcement or interpretation of any of its rights
or remedies in or under this Agreement, the prevailing party shall be entitled
to recover from the losing party or parties all costs incurred by the prevailing
party in said action and any appeal therefrom, including reasonable attorneys
fees and court costs to be fixed by the court therein.
(q) Separate Counterparts. This Agreement may be executed
in one or more separate counterparts, each of which, when so executed, shall be
deemed to be an original. Such counterparts, together, shall constitute the one
and the same instrument.
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(r) Recitals, Captions, Number and Gender. The Recitals
of this Agreement are material terms of the parties' agreement hereunder and are
hereby confirmed, adopted, and ratified by the parties as true and correct. The
captions appearing at the commencement of the paragraphs and subparagraphs
hereof are descriptive only and for convenience in reference. Should there be
any conflict between such caption and the paragraph or subparagraph at the head
of which it appears, the paragraph or subparagraph and not such caption shall
control and govern the construction of this Agreement. Unless the context
otherwise requires, singular nouns and pronouns used in this Agreement are to be
construed as including the plural thereof. For convenience and brevity,
masculine pronouns are used herein in their generic sense as a reference to all
persons, without regard to sex.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first-above written.
"M-F DOWNTOWN" "HANDSPRING"
M-F DOWNTOWN SUNNYVALE, LLC, HANDSPRING, INC.,
a Delaware limited liability company a Delaware corporation
By: M-D Ventures, Inc., a California
Corporation, its Manager By: /s/ Donna Dubinsky
-----------------------
Donna Dubinsky
-----------------------
Its CEO
-------------------
By: /s/ John Mozart
--------------------
John Mozart "HFC"
Its President
HANDSPRING FACILITY COMPANY,
LLC, a Delaware limited liability
company
By: Handspring, Inc., a Delaware
corporation, its Managing Member
By: /s/ Donna Dubinsky
-----------------------
Donna Dubinsky
-----------------------
Its CEO
-------------------
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Schedule of Exhibits
<TABLE>
<S> <C>
Exhibit A Legal Description of Building 3 Parcel
Exhibit B Legal Description of Building 2 Parcel
Exhibit C HFC Operating Agreement
Exhibit D Settlement Funding Note
Exhibit E Five Year Note
Exhibit F One Year Note
Exhibit G Building 3 Lease Amendment
Exhibit H Work Letters Amendment
Exhibit I-1 and I-2 Handspring Warrants
Exhibit J Grant Deed
Exhibit K Lease Memorandum
Exhibit L Assignment Agreement
Exhibit M Handspring Guaranty
Exhibit N Handspring Pledge
Exhibit O Settlement Note Assignment
Exhibit P Plans Assignment
</TABLE>
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EXHIBIT A
LEGAL DESCRIPTION OF BUILDING 3 PARCEL
All that certain real property situated in Sunnyvale, Santa Clara County,
California, described as follows:
Parcel 4 as shown and described on that certain Parcel Map filed for
record in the Office of the Recorder of the County of Santa Clara,
State of California, on November 22, 2000 in Book 734 of Maps at pages
17 through 21, inclusive.
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EXHIBIT B
LEGAL DESCRIPTION OF BUILDING 2 PARCEL
All that certain real property situated in Sunnyvale, Santa Clara County,
California, described as follows:
Parcel 3 as shown and described on that certain Parcel Map filed for
record in the Office of the Recorder of the County of Santa Clara,
State of California, on November 22, 2000 in Book 734 of Maps at pages
17 through 21, inclusive.
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EXHIBIT C
[HFC Operating Agreement]
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EXHIBIT D
[Settlement Funding Note]
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EXHIBIT E
[Five Year Note]
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EXHIBIT F
[One Year Note]
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EXHIBIT G
[Building 3 Lease Amendment]
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EXHIBIT H
[Work Letters Amendment]
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EXHIBITS I-1 AND I-2
[Handspring Warrants]
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EXHIBIT J
[Grant Deed]
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EXHIBIT K
[Lease Memorandum]
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EXHIBIT L
[Assignment Agreement]
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EXHIBIT M
[Handspring Guaranty]
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EXHIBIT N
[Handspring Pledge]
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EXHIBIT O
[Settlement Note Assignment]
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EXHIBIT P
[Plans Assignment]
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