Promissory Note - Handspring Inc. and Handspring Facility Co. LLC
PROMISSORY NOTE
January 29, 2003
FOR VALUE RECEIVED, HANDSPRING, INC., a Delaware corporation ("Maker"),
promises to pay to the order of HANDSPRING FACILITY COMPANY, LLC, a Delaware
limited liability company ("Payee"), or "Holder" as defined below, the principal
amounts, as and when due, with Default Interest, and other fees, charges and
costs as described below.
1. Settlement Funding Note. This Promissory Note ("Note") is the
"Settlement Funding Note" described in Section 1(b) of that Property Purchase
and Lease Modification Agreement entered into as of the date first above written
by M-F Downtown Sunnyvale, LLC, a Delaware limited liability company (herein
referred to as "M-F Downtown"), Maker, and Payee.
2. Adequate and Sufficient Capital. This Note is made to and
for the benefit of Payee to assure that Payee shall have sufficient capital,
including readily available funds, to pay as and when due:
(a) The principal of and interest on that certain
promissory note (the "Five Year Note") from Payee, as maker, to M-F
Downtown, as payee, of even date herewith in the principal sum of Three
Million Dollars ($3,000,000);
(b) The principal of and default interest on that certain
promissory note (the "One Year Note") from Payee, as maker, to M-F
Downtown, as payee, of even date herewith in the principal sum of One
Million Dollars ($1,000,000);
(c) Monthly Base Rent, as that term is defined in that
certain Amended and Restated Lease Agreement (Building 3) of even date
herewith between Payee, as tenant, and M-F Downtown, as landlord (the
"Building 3 Lease Amendment") in the amount of $19,333 per month,
together with any interest and late charges thereon (as applicable), or
(ii) if the obligation of Payee to pay Monthly Base Rent is converted,
pursuant to the provisions of Paragraph 45(c) of the Building 3 Lease
Amendment, into an obligation to make payments pursuant to a promissory
note (the "Lease Termination Note"), then the principal of and interest
on such promissory note, provided, however, that Maker shall not be
liable for obligations under this Section 2(c) first arising or
accruing after a Reinstatement as to the entire Premises (as the terms
Reinstatement and Premises are defined in the Building 3 Lease
Amendment, hereinafter "Reinstatement" and "Premises", respectively)
but will remain liable with respect to accrued, unpaid Monthly Base
Rent, as to which Maker's obligations shall not terminate until such
Monthly Base Rent has been paid in full;
(d) All sums payable by Maker pursuant to the Building 3
Lease Amendment including, without limitation, Monthly Modified Rent,
Real Estate Taxes, Expenses, Additional Rent and any Reinstatement
Payment (as all of such terms are defined in the Building 3 Lease
Amendment), provided, however, that that Maker's obligations
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pursuant to this Section 2(d) shall commence only upon a Reinstatement
as to all or a portion of the Premises; and
(e) All sums payable by Maker pursuant to the Building 3
Lease Amendment to the extent arising out of any Occupancy (as defined
in the Paragraph 2(c) of the Building 3 Lease Amendment) by Maker or
Payee prior to a Reinstatement as to the entire Premises;
All amounts due as set forth in subsections (a) through (e), inclusive, of this
Section 2 are hereinafter, collectively, referred to as the "Supported
Obligations." The Supported Obligations are the only reasonably foreseeable
payment obligations of Payee during the "Term" of this Note (as described in
Section 6). For purposes of this Note, the term Supported Obligations shall not
include any Enforcement Costs or any default interest or any fees, charges or
costs, if any, which may arise under any of the Indebtedness Documents (as
defined below). The Five Year Note, the One Year Note and the Building 3 Lease
each are sometimes referred to herein as an "Indebtedness Document" and
collectively as the "Indebtedness Documents".
3. Reduction of Guaranty. The Supported Obligations are
guarantied by Maker pursuant to the terms of that certain Guaranty of even date
herewith (the "Guaranty"). To the extent that Maker makes any payments to Payee
pursuant to this Note which are received by M-F Downtown, such payments shall
reduce the obligations of Maker pursuant to the Guaranty on a dollar-for-dollar
basis; provided, however, that if any such payment, or any part thereof, must be
restored or returned by M-F Downtown or M-F Downtown's secured lender, Bank of
America, N.A., to Maker or Payee, the estates of either, or to any party
claiming through or on account of Maker or Payee or administering the assets or
obligations of either including without limitation any trustee, assignee for the
benefit of creditors, creditor or creditor representative, pursuant to
applicable law, whether as a "voidable preference", "fraudulent conveyance", or
otherwise the obligations of Maker pursuant to the Guaranty shall be reinstated
on a dollar-for-dollar basis with respect to the amount so restored or returned
and shall be deemed reduced only by the amount paid by Maker and not so restored
or returned.
4. Payments Due on Demand. All payments of amounts called for by
the Holder of this Note shall be immediately due upon demand and shall be made
in immediately available funds to the order of Holder in the manner designated
in writing from time to time by Holder.
5. Demand Procedure; Holder.
(a) The Holder of this Note shall be Payee; provided,
however, that if and so long as a security interest has been created
and continues in this Note, then the secured party with respect thereto
or the successor of either such party (collectively, the "Secured
Party"), shall be the Holder. It is understood that as of the date
first above written, Payee shall have created, and Maker shall have
consented to the creation of a first-priority perfected security
interest in this Note to and for the benefit of M-F Downtown.
(b) Holder may make demand on Maker for payment at any
time and from time to time of any Supported Obligation or any amount
otherwise due from Maker hereunder.
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(c) A demand to Maker shall be effective only if
rendered or given in writing, sent by certified mail, return receipt
requested, reputable overnight carrier, delivered personally, or
transmitted by facsimile with a hard copy sent within one business day
thereafter by any of the foregoing means (provided that the facsimile
copy will determined the date on which such notice is "received")
addressed to Maker, 189 Bernardo Avenue, Mountain View, CA 94043-5203,
Attention: David Pine, Facsimile: (650) 230-5477. Such notice shall be
deemed to have been rendered or given on the date the return receipt
indicates delivery of or refusal of delivery if sent by certified mail,
the day upon which recipient accepts and signs for delivery from a
reputable overnight carrier, or on the date a reputable overnight
carrier indicates refusal of delivery, or upon the date personal
delivery is made, or upon the date on which the notifying party
receives electronic confirmation of facsimile delivery.
6. Term. The obligation of Maker to make payments under this Note
shall continue until the later of (a) the date Holder gives notice to Maker that
all obligations of Payee to M-F Downtown as described in Section 2 above are
satisfied in full, and (b) the date Maker has paid in full to Holder any
outstanding demand for payment, with any Default Interest and other fees, costs
or charges due hereunder.
7. Default. A default ("Default") shall occur hereunder, without
the need for further notice, in the event Maker fails, for three (3) business
days, to pay in full any demand for payment by Holder pursuant to this Note.
Upon the occurrence of a Default, the amount owed pursuant to such demand, and
pursuant to any subsequent demand which is not paid by Maker when due during the
pendency of such Default, shall accrue interest ("Default Interest") at the rate
of ten percentage points (10%) per annum, or a lower rate only as and to the
extent required by any applicable law limiting the rate or amount of interest
that may be charged upon such obligation. Default Interest shall compound
annually until the amount of such default, with Default Interest and any other
fees, costs or charges due hereunder, is paid in full.
8. Attorneys' Fees and Costs. If this Note is referred to legal
counsel by Holder for the protection or enforcement of any right hereunder, to
defend the enforceability hereof, to collect payment upon Default, to file,
prosecute and/or defend any claim based here upon, including without limitation
a claim arising under the Bankruptcy Code, then Holder shall be entitled to
payment of reasonable attorney's fees and costs by Maker. Such fees and costs
include those which may be incurred in settlement discussions or negotiations,
litigation before any court or tribunal, mediation, arbitration or any other
form of alternative dispute resolution, and throughout and at every stage of a
bankruptcy case or cases under any chapter of Title 11, U.S.Code, commenced by,
against or on behalf of Maker or any other person claiming any right to, defense
against or interest in this Note adverse or potentially adverse to Holder.
Without limiting the generality of the foregoing, Holder shall be entitled to
payment by Maker of Holder's attorney's fees and costs incurred in the case of
bankruptcy for monitoring the case, appearing at any hearing as an interested
party, for appearing on any matter involving a claim on this Note, for appearing
in any avoidance action involving this Note, and for considering, negotiating,
supporting or opposing any disclosure statement or plan of reorganization
proposed in such case.
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9. Certain Waivers; General Matters.
(a) Presentment, demand, protest, notices of protest and
dishonor of this Promissory Note and all notices of every kind except
for the demand referred to above, are hereby waived. This Promissory
Note and all provisions hereof shall be binding upon Maker and all
persons claiming under or through Maker, and shall inure to the benefit
of Payee, together with its successors and assigns, including each
owner and holder from time to time of this Note.
(b) Maker waives each and every of the rights and
defenses set forth in Sections 3, 4, 5, 6 and 10 of the Guaranty as
fully and completely as if set forth at length herein, all references
in such sections of the Guaranty to "Guarantor", "HFC" and "M-F
Downtown" and/or "Bank of America" being deemed, for the purposes of
this Section, to be references to Maker, Payee and Holder,
respectively.
10. Execution as Recourse Party. This Promissory Note has been
executed and delivered by Maker in the State of California and is to be governed
by and construed in accordance with the laws of the State of California. In any
action brought under or arising out of this Promissory Note, Maker hereby
consents to the jurisdiction and venue of any court of competent jurisdiction
within the State of California. The obligations evidenced by this Note are
general, unsecured recourse obligations of Maker negotiated on arm's length
terms, and shall have priority over any obligation of Maker to any insider or
controlling party of Maker.
WHEREFORE, agreeing to pay the obligations as aforesaid, and consenting
to the creation of a security interest herein as described above, being duly
authorized to make such act, Maker does hereby execute and deliver this Note as
follows:
HANDSPRING, INC.,
a Delaware corporation
By: /s/ Donna Dubinsky
_____________________
Donna Dubinsky
_____________________
Its CEO
_________________
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