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Handspring Facility LLC Agreement 01-15-2003

Limited Liability Company

 

Agreement

 

Of

 

HANDSPRING FACILITY COMPANY, LLC

 

This Limited Liability Company Agreement is entered into as of

January 15, 2003, by HANDSPRING, INC., a Delaware corporation (the "Member") as

the sole member of HANDSPRING FACILITY COMPANY, LLC (the "Company"), and by

Domenic Borriello of C T Corporation Staffing, Inc. (the "Independent Manager")

as the Independent Manager. The Member desires to form a limited liability

company pursuant to the Limited Liability Company laws of the State of Delaware

upon the following terms and conditions:

 

ARTICLE 1

 

Name and Place of Business

 

The name of the Company is HANDSPRING FACILITY COMPANY, LLC. Its

principal place of business is c/o Handspring, Inc., 189 Bernardo Avenue,

Mountain View, CA 94043, Attn: David Pine, V.P. and General Counsel.

 

ARTICLE 2

 

Business, Purpose, and Term of Company

 

Section 2.1 Purpose. The purpose of the Company is to acquire,

own, lease, repair, maintain, hold for investment, encumber and sell or

otherwise dispose of a fee and leasehold interest in those certain improvements

and underlying real property described in Exhibit A hereto, (the "Property"),

and to engage in any and all other activities as may be necessary or

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advisable in connection with the foregoing. In addition, the Company may cause

certain improvements to be completed pursuant to that certain Property Purchase

and Lease Modification Agreement ("Master Agreement"), dated as of January 15,

2003, between the Company and M-F Downtown Sunnyvale, LLC, a Delaware limited

liability company ("MFDS"), including, without limitation, with respect to

Building 2 and/or Building 3, as defined therein. The Company shall engage in no

other business, it shall have no other purpose, it shall not own or acquire any

real or personal property other than property related to the Property or in the

furtherance of the purposes of the Company as stated herein, and it shall not

incur, create, or assume any indebtedness or liabilities, secured or unsecured,

direct or contingent, other than (i) the obligations owing to MFDS pursuant to

the MFDS Documents (as defined in Section 14.9), (ii) indebtedness that

represents trade payables or accrued expenses occurring pursuant to this

Agreement or in the normal course of business of owning, operating and insuring

the Property and due and payable in the ordinary course, including without

limitation, obligations due to Devcon Construction Company for certain tenant

improvement work as provided for under that certain Amended and Restated Lease

Agreement (Building 3) between the Company and MFDS ("Modified Building 3

Lease"), (iii) fees of the Independent Manager as contemplated by Section 15.8

hereof, and (iv) franchise and similar taxes imposed by the State of California

and the State of Delaware as well as property taxes for the Property. The

Company, and the Member on behalf of the Company, may enter into and perform the

MFDS Documents and all documents, agreements, certificates, or financing

statements contemplated thereby or related thereto, all without any further act,

vote or approval of any Member or other person or entity notwithstanding any

other provision of this Agreement. The

 

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foregoing authorization shall not be deemed a restriction on the powers of the

Member to enter into other agreements on behalf of the Company in accordance

with this Agreement.

 

Section 2.2 Prohibitions. So long as obligations under the MFDS

Documents remain outstanding, the Company shall not do any of the following:

 

(a) dissolve (to the fullest extent permitted by law),

liquidate, consolidate, merge or sell all or substantially all of its assets; or

 

(b) amend or recommend the amendment of this Agreement in

any manner.

 

Section 2.3 Requirements. The Company shall, consistent with the

provisions of Section 2.2 above and except pursuant to the MFDS Documents or as

consented to by MFDS in writing:

 

(a) not commingle assets with those of any other entity and shall

hold its assets in its own name;

 

(b) conduct its own business in its own name;

 

(c) maintain bank accounts, books, records and financial

statements in accordance with generally accepted accounting principles and

separate from any other person or entity;

 

(d) maintain its books, records, resolutions and agreements as

official records;

 

(e) pay its own liabilities out of its own funds (which may

include payments made or capital contributed by the Member pursuant to Article

3);

 

(f) maintain adequate capital to make payments of principal and

interest, if

 

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applicable, pursuant to the One Year Note and the Five Year Note (each as

defined in the Master Agreement) and the obligation to make payments of Base

Rent pursuant to the Modified Building 3 Lease (which capital may include

payments made or capital contributed by the Member pursuant to Article 3 but

which shall not require the Company to maintain any minimum balance of cash on

hand);

 

(g) observe all Company formalities;

 

(h) maintain an arm's-length relationship with the Affiliates;

 

(i) pay the salaries of its own employees, if any;

 

(j) not guarantee or become obligated for the debts of any other

entity or hold out its credit as being available to satisfy the obligations of

others;

 

(k) not make any loans to any other person or entity;

 

(l) allocate fairly and reasonably any overhead for shared office

space;

 

(m) not pledge its assets for the benefit of any other entity;

 

(n) hold itself out as a separate entity, with the exception that

Company shall not be considered as a separate entity from the Member for

federal, state, and local income tax purposes, and not fail to correct any known

misunderstanding regarding its separate identity; and

 

(o) not identify itself or any of its Affiliates as a division or

part of the other.

 

Further, the Company shall at all times observe the single purpose

entity and separateness covenants set forth in the MFDS Documents as agreed to

and signed by the Company. Nothing

 

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in this Section 2.3 shall be construed to require or impose an obligation,

either directly or by implication, on the part of the Member to contribute

capital to the Company except as specifically set forth in Section 3.1.

 

Section 2.4 Term of Company; Certificate of Formation. The term

of the Company shall commence on the date the Certificate of Formation is filed

with the Secretary of State of Delaware in accordance with the provisions of the

Act and shall continue on a perpetual basis unless dissolved pursuant to Article

7 of this Agreement.

 

Section 2.5 Delaware Registered Offices and Agent for Service of

Process. The Company shall maintain a Delaware registered office and agent for

service of process as required by the Act. If the registered agent ceases to act

as such for any reason or the registered office shall change, then the Member

may designate a replacement registered agent or file a notice of change of

address of the registered office.

 

Section 2.6 Sole Member. The Company shall at all times be and

remain a single member limited liability company, and it shall not have more

than one Member at any time; nor shall the Member be entitled to divide or

subdivide the Membership Interest in any manner whatsoever.

 

ARTICLE 3

 

Capital Contributions; Issuance of Membership Units

 

Section 3.1 Capital Contribution by Member. On or before the date

of this Agreement, the Member shall have committed to the Company to provide

certain capital contributions as specifically set forth on Exhibit B hereto and

shall additionally contribute to the Company all interests of Member in the

Property. Except as specifically set forth in Section 3.1,

 

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the Member is not obligated to make any Capital Contributions to the Company.

Furthermore, the Company acknowledges that the Member's obligations pursuant to

item 7 on Exhibit B are expressly contingent upon the Company using such funds

to satisfy the Company's obligations to pay principal and accrued interest

pursuant to items 4 and 5 on Exhibit B and rent on item 6 on Exhibit B.

 

Section 3.2 [ Deleted ]

 

Section 3.3 Capital Accounts. A Capital Account shall be

maintained for the Member to which shall be credited (i) the Member's Capital

Contributions and (ii) all Company revenues. The Capital Account shall be

debited with (A) all costs, expenses, and losses of the Company and (B) the

amount of any distributions (including return of capital) made to the Member. No

interest shall be paid on the Member's Capital Account.

 

Section 3.4 Issuance of Membership Units as a Security. Upon

receipt from the Member of the Capital Contribution as set forth in Section 3.1

above, the Company shall issue 1,000 membership units to the Member. The

Membership Interest shall be evidenced by a Certificate of Membership Interest

issued by the Company, in the form set forth as Exhibit C hereto. The Membership

Interest in the Company is a security and shall be governed by Article 8 of the

Delaware Uniform Commercial Code. No other Membership Interest or units thereof

shall be issued without the prior written consent of the Member and as permitted

under Article 6 hereof.

 

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<PAGE>

ARTICLE 4

 

Income, Deductions and Distributions

 

Section 4.1 Income. All items of income, gain, loss, deduction

and credit of the Company (including, without limitation, items not subject to

federal or state income tax) shall be treated for federal and state income tax

purposes as items of income, gain, loss, deduction and credit of the Member.

 

Section 4.2 Allocation of Distributions. To the fullest extent

permitted by law, all distributions of cash or other assets of the Company shall

be made to the Member when and as determined by the Member.

 

ARTICLE 5

 

Management of the Company

 

Section 5.1 General. Subject to Article 6 hereof, the Member

shall be the Managing Member and shall be responsible for the management of the

Company. The Managing Member shall have the right, power and authority to

manage, direct and control all of the business and affairs of the Company, to

transact business on behalf of the Company, to sign for the Company or on behalf

of the Company or otherwise to bind the Company.

 

ARTICLE 6

 

Independent Manager

 

Section 6.1 Independent Manager. The Independent Manager shall at

all times remain the Independent Manager for so long as obligations under the

MFDS Documents are outstanding or until another Independent Manager is appointed

acceptable to MFDS and the Member. The

 

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Independent Manager shall resign, and shall not be replaced, within one (1)

business day of the date that MFDS provides written verification to the Member

and to the Independent Manager that all obligations under the MFDS Documents

have been satisfied. Notwithstanding any other provision of this Agreement, so

long as obligations are outstanding under the MFDS Documents, without the

written approval of all parties owning and having any other interest, including

a security interest, in the authorized and issued membership interests (herein,

"Membership Interest Parties") and the Independent Manager, the Company shall

not do any of the following:

 

(a) File, or consent to the filing of, a bankruptcy or

insolvency petition or otherwise institute insolvency proceedings with respect

to the Company;

 

(b) Take any bankruptcy action, defined as:

 

(i) Taking an action that would result in the

Company becoming insolvent;

 

(ii) Commencing any case, proceeding or other

action on behalf of the Company under any existing or future law of any

jurisdiction relating to bankruptcy, insolvency, reorganization or relief of

debtors;

 

(iii) Instituting proceedings to have the Company

adjudicated as bankrupt or insolvent;

 

(iv) Consenting to the institution of bankruptcy

or insolvency proceedings against the Company;

 

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(v) Filing a petition or consent to a petition

seeking reorganization, arrangement, adjustment, winding-up, dissolution,

composition, liquidation or other relief on behalf of the Company of its debts

under any federal or state law relating to bankruptcy;

 

(vi) Seeking or consenting to the appointment of

a receiver, liquidator, assignee, trustee, sequestrator, custodian or any

similar official for the Company or a substantial portion of its properties;

 

(vii) Admitting in writing the Company's inability

to pay debts generally as they become due;

 

(viii) Making any assignment for the benefit of the

Company's creditors;

 

(c) Dissolve (to the fullest extent permitted by law),

liquidate, consolidate, merge or sell all or substantially all of the assets of

the Company;

 

(d) Engage in any business activity other than permitted

under Section 2.1;

 

(e) Amend this Agreement or the Certificate of Formation

in any respect; and

 

(f) Issue any additional Membership Interests or units

thereof or any Membership Certificates. Under no circumstances shall the

Independent Manager have any power to directly or indirectly cause a

Reinstatement as defined in the Modified Building 3 Lease.

 

Section 6.2 Delegation of Powers of Managing Member. The Managing

Member shall have full, exclusive, and complete discretion, power, and

authority, subject in all cases to the other provisions of this Agreement and

the requirements of applicable law, to delegate the

 

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management, control, administration, and operation of the business and affairs

of the Company or the custody of the Company's assets for all purposes stated in

this Agreement. Such delegation shall be as provided in such documentation as

the Managing Member shall determine. Any such delegation shall not cause the

Managing Member to cease to be the Managing Member.

 

Section 6.3 Officers. The Managing Member may appoint individuals

with or without such titles as it may elect, including the titles of President,

Vice President, Treasurer, and Secretary, to act on behalf of the Company with

such power and authority as the Managing Member may delegate in writing to any

such persons.

 

Section 6.4 Powers of Managing Member. Subject to the remaining

provisions of this Article 6, the Managing Member shall have the right, power

and authority, in the management of the business and affairs of the Company, to

do or cause to be done any and all acts deemed by the Managing Member to be

necessary or appropriate to effectuate the business, purposes and objectives of

the Company at the expense of the Company, including but not limited to the

execution of all documents or instruments in all matters necessary, desirable,

convenient or incidental to the purpose of the Company or the making of

investments of Company funds.

 

Section 6.5 Reliance by Third Parties. Except or for acts or

matters described in Section 6.1, above, any person or entity dealing with the

Company may rely on a certificate signed by the Managing Member as to:

 

(a) the identity of the Managing Member;

 

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(b) the existence or non-existence of any fact or facts

which constitute a condition precedent to acts by the Managing Member or are in

any matter germane to the affairs of the Company;

 

(c) the persons who or entities which are authorized to

execute and deliver any instrument or document of or on behalf of the Company;

or

 

(d) any act or failure to act by the Company or as to any

other matter whatsoever involving the Company.

 

Section 6.6 Actions Requiring Member Approval. Subject to

Section 2.2 hereof, the written consent of the Membership Interest Parties and,

to the limited extent specifically required by Article 6 hereof, the written

consent of the Independent Manager, shall be required to approve the following

matters:

 

(a) the dissolution or winding up of the Company;

 

(b) the merger or consolidation of the Company;

 

(c) the sale, transfer, contribution, exchange, mortgage,

pledge, encumbrance, lease or other disposition or transfer of all or

substantially all of the assets of the Company (except as contemplated by the

MFDS Documents);

 

(d) any action to cause a Reinstatement as defined in the

Modified Building 3 Lease;

 

(e) the declaration of any distributions by the Company;

and

 

(f) amendments to this Agreement.

 

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Section 6.7 Actions Requiring Handspring, Inc. Approval.

Regardless of whether Handspring is a Member of the Company, the prior written

consent of Handspring, Inc., or any successor in interest to Handspring, Inc.,

shall be required to approve the following matters:

 

(a) any action to cause a Reinstatement as defined in the

Modified Building 3 Lease;

 

(b) the admission of any Person as a Member of the

Company except pursuant to Section 12.2 herein below;

 

(c) any amendment to the provisions of this Section 6.7.

 

ARTICLE 7

 

Dissolution

 

Section 7.1 Required Dissolution. The Company shall be dissolved,

and shall wind up its affairs, upon the first to occur of the following:

 

(a) the determination by the Member to dissolve the

Company (subject to Sections 2.2, 6.1 and 6.6 hereof) and Section 7.2;

 

(b) the termination of the legal existence of the last

remaining member of the Company or the occurrence of any other event which

terminates the continued membership of the last remaining member of the Company

in the Company unless the Company is continued without dissolution in a manner

permitted by this Agreement or the Act; or

 

(c) the entry of a decree of judicial dissolution

pursuant to Section 18-802 of the Act.

 

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Section 7.2 Permitted Dissolution. The Company may be dissolved

by the Member in its discretion, subject to the following terms and conditions,

upon the sooner of:

 

(a) the termination or expiration of the Modified

Building 3 Lease and transfer of the Company's entire interests in Building 3 to

MFDS or its designee, provided that (i) all rent and other obligations of the

Company under the Modified Building 3 Lease have been paid in full and (ii) the

Member reaffirms its obligation for all sums and obligations of the Company then

outstanding under the Master Agreement, including, without limitation, pursuant

to the Five Year Note and the One Year Note (as defined, respectively, therein);

and

 

(b) two years after closing, if Member is being merged or

substantially all of its assets are being acquired, provided that (i) ownership

of Building 3 and the lessee's interest under the Modified Building 3 Lease are

transferred to another person or entity acceptable to MFDS in its reasonable

discretion, (ii) all rent and other obligations of the Company under the

Modified Building 3 Lease have been prepaid and otherwise performed in full, and

(iii) all sums and obligations of the Company then outstanding under the Master

Agreement, including, without limitation, pursuant to the Five Year Note (as

defined therein), are either prepaid or assumed, pursuant to documentation

satisfactory to MFDS in its sole discretion, by the entity acquiring or merging

with the Company.

 

ARTICLE 8

 

Limitations on Dissolution

 

Section 8.1 Limitations on Dissolution. Notwithstanding any other

provision of this Agreement, the bankruptcy (as defined in the Act) of the

Member or a Special Member shall not cause the Member or Special Member,

respectively, to cease to be a member of the Company

 

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and upon the occurrence of such an event, the Company shall continue without

dissolution. Notwithstanding any provision in this Agreement to the contrary,

upon the occurrence of any event that causes the Member to cease to be a member

of the Company, (a) the person or entity acting as an Independent Manager

pursuant to Section 6.1 shall, without any action of any person or entity and

simultaneously with the Member's ceasing to be a member of the Company,

automatically be admitted to the Company as a Special Member and shall continue

the Company without dissolution, and (b) the personal representative of such

Member is hereby authorized to, and shall, within 90 days after the occurrence

of the event that terminated the continued membership of such Member in the

Company, appoint a person or entity as a substitute member of the Company (the

"Substitute Member"). The Special Member may not resign from the Company or

transfer its rights as Special Member unless (i) a successor Special Member has

been admitted to the Company as Special Member by executing a counterpart to

this Agreement, and (ii) such successor has also accepted its appointment as

Independent Manager pursuant to Section 6.1; provided, however, the Special

Member shall automatically cease to be a member of the Company upon the

admission to the Company of a Substitute Member but shall not thereby cease to

be an Independent Manager. The Special Member shall be a member of the Company

that has no interest in the profits, losses and capital of the Company and has

no right to receive any distributions of Company assets. Pursuant to Section

18-301 of the Act, the Special Member shall not be required to make any capital

contributions to the Company and shall not receive a limited liability company

interest in the Company. The Special Member, in its capacity as Special Member,

shall have the right to vote on, approve or otherwise consent to any action by,

or matter relating to, the Company, including, without limitation, the merger,

consolidation or conversion of the Company. In order to implement the admission

to the Company of the Special

 

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Member, the person or entity acting as an Independent Manager pursuant to

Section 6.1 shall execute a counterpart to this Agreement. Prior to its

admission to the Company as Special Member, the person or entity acting as an

Independent Manager pursuant to Section 6.1 shall not be a member of the

Company. Upon the occurrence of any event that causes the last remaining member

of the Company to cease to be a member of the Company, to the fullest extent

permitted by law, the personal representative of such member is hereby

authorized to, and shall, within 90 days after the occurrence of the event that

terminated the continued membership of such member in the Company, agree in

writing (i) to continue the Company, and (ii) to the admission of the personal

representative or its nominee or designee, as the case may be, as a substitute

member of the Company, effective as of the occurrence of the event that

terminated the continued membership of the last remaining member of the Company

in the Company. Under no circumstances shall any Substitute Member or any

Special Member have any power to directly or indirectly cause a Reinstatement as

defined in the Modified Building 3 Lease.

 

ARTICLE 9

 

Governing Law

 

Section 9.1 Governing Law. This Agreement, including its

existence, validity, construction and operating effect, and the rights of each

of the parties hereto, shall be governed by and construed in accordance with the

laws of the State of Delaware.

 

Section 9.2 Enforceability. Notwithstanding any other provision

of this Agreement, the Member agrees that this Agreement constitutes a legal,

valid and binding agreement of the Member, and is enforceable against the Member

by the Independent Manager, in accordance with its terms.

 

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ARTICLE 10

 

Indemnification and Fiduciary Duties

 

Section 10.1 Exemption from Liability. To the maximum extent

permitted by applicable law, the Managing Member and the Independent Manager

shall not be liable to the Company or any other third party (i) for mistakes of

judgment, (ii) for any act or omission suffered or taken by it, or (iii) for

losses due to any such mistakes, action or inaction.

 

Section 10.2 Indemnification. Except as may be restricted by

applicable law, the Managing Member and the Independent Manager shall not be

liable for and the Company shall indemnify the Managing Member and the

Independent Manager against, and agrees to hold the Managing Member and the

Independent Manager harmless from, all liabilities and claims (including

reasonable attorney's fees and expenses in defending against such liabilities

and claims) against the Managing Member or the Independent Manager, arising from

the Managing Member's or the Independent Manager's performance of its duties in

conformance with the terms of this Agreement. Any obligations of the Company to

indemnify the Member and the Independent Manager are hereby fully subordinated

to its obligations respecting the Property and shall not constitute a claim

against the Company in the event that cash flow in excess of amounts required to

pay holders of any debt pertaining to the Property is insufficient to pay such

obligations.

 

Section 10.3 Reliance on Experts. The Managing Member or the

Independent Manager may consult with legal counsel or accountants selected by

the Managing Member or the Independent Manager and, to the maximum extent

permitted by applicable law, any action or omission suffered or taken in good

faith in reliance and in accordance with the written opinion or

 

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advice of any such counsel or accountants (provided such counsel or accountants

have been selected with reasonable care) shall be fully protected and justified

with respect to the action or omission so suffered or taken.

 

Section 10.4 Insurance. The Company shall have the power to

purchase insurance on behalf of any person who is or was a Member or agent of

the Company against any claims, demands, losses, damages, liabilities or

expenses incurred by such person in such capacity or arising out of such

person's status as a Member or agent of the Company, whether or not the Company

would have the power to indemnify such person under the provisions of Section

10.2 or under applicable law.

 

Section 10.5 Other Activities. The Member may engage in activities

outside of the Company, including activities that compete with the Company and

the Member shall have no duty to make any report or accounting to the Company.

The Member shall devote whatever time, effort and skill as such Member, in its

discretion, deems appropriate for the operation of the Company.

 

Section 10.6 Fiduciary Duties. The fiduciary duties of the Member

to the Company and of the Independent Manager to the Member and the Company are

hereby eliminated except to the limited extent expressly provided in this

Agreement.

 

ARTICLE 11

 

MFDS Requirements

 

Section 11.1 Interest of Creditors. To the fullest extent

permitted by applicable law and without regard to whether the Company is then

insolvent or approaching a zone of insolvency,

 

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the Independent Manager shall take into account the interests of the Company's

creditors as well as the interests of the Member with respect to all matters

subject to the consideration or vote of the Independent Manager.

 

ARTICLE 12

 

No Transfer

 

Section 12.1 Prohibition. Subject to the provisions of the next

section, Member shall not transfer its Membership Interest to any person at any

time in whole or in part, voluntarily or involuntarily, and any such purported

transfer shall be null and void.

 

Section 12.2 Security Interest. Member shall have the right to

create a security interest in the Membership Interest solely in favor of MFDS,

and MFDS shall have the right to assign the same for security purposes (MFDS and

any creditor of MFDS as such collateral assignee are hereinafter, individually

and collectively, referred to in this Section 12.2 as "Secured Party") In

connection with such security interest, (a) Secured Party shall have the right

of enforcement and sale of the Membership Interest only in the event of a

default of the obligation secured thereby and without the need for further

consent or modification hereunder or hereof, (b) no consent of any Member,

Manager, or other Person shall be a condition to the admission as a member of

the Company of any transferee (including, without limitation, Secured Party)

that acquires ownership of a Membership Interest as a result of the exercise by

Secured Party of any remedy granted under any pledge or security agreement

executed by any Member or under applicable law and (c) unless and until such

sale, Member shall remain the Owner of the Membership Interests and Secured

Party shall not have dominion, power over or control of the Membership Interests

beyond that which may be essential to perfect Secured Party's security interest

therein,

 

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and Secured Party shall bear no expense, neither accrue nor be attributed any

loss or gain with respect thereto and shall have no liability for taxes of any

kind that may be or become due in connection with the Membership Interests.

 

ARTICLE 13

 

No Withdrawal

 

Section 13.1 No Withdrawal. No Member shall have the right or

power to resign from the Company.

 

ARTICLE 14

 

Winding Up and Distribution of Assets

 

Section 14.1 Winding Up. If the Company is dissolved, the Member

shall wind up the affairs of the Company.

 

Section 14.2 Distribution of Assets. Upon the winding up of the

Company, subject to the provisions of the Act, the Member (or, if there is no

Member, the personal representative of the last remaining Member) shall pay or

make reasonable provision to pay all claims and obligations of the Company,

including all costs and expenses of the liquidation and all contingent,

conditional or unmatured claims and obligations that are known to the Member

(or, if there is no Member, the personal representative of the last remaining

Member) but for which the identity of the claimant is unknown. If there are

sufficient assets, such claims and obligations shall be paid in full and any

such provision shall be made in full. If there are insufficient assets, such

claims and obligations shall be paid or provided for according to their priority

and, among claims and obligations of equal priority, ratably to the extent of

assets available therefor. Any remaining assets shall be distributed to the

Member.

 

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Section 14.3 Termination. Subject to Sections 2.3 and 6.1 hereof,

the Company shall terminate when (i) all of the assets of the Company, after

payment of or due provision for all debts, liabilities and obligations of the

Company shall have been distributed to the Member in the manner provided for in

this Agreement and (ii) the Certificate of Formation shall have been canceled in

the manner required by the Act.

 

Section 14.4 Disregarded Entity. The Company is being formed as,

and shall remain, a single member limited liability company. So long as there is

only one Member, the Company shall be treated as a disregarded entity for

federal and state income tax purposes under Section 7701 of the Code, the

Treasury Regulations thereunder, and applicable state law, and neither the

Company, the Member, the Independent Manager or the Special Member shall take

any action or make any election which is inconsistent with such tax treatment.

Anything to the contrary herein notwithstanding, the Company shall not, whether

by taking or failing to take any voluntary act, by authorizing or permitting

another Person or governmental entity to take or fail to take any voluntary act,

or by failing to oppose any attempted act by any other Person or governmental

entity, either (a) elect to classify the Company as a corporation for tax

purposes or (b) otherwise change its status, for tax purposes, in any way

whatsoever from that of a disregarded entity.

 

ARTICLE 15

 

Definitions

 

As used herein, the following terms shall have the indicated

definitions.

 

15.1 "Act" means the Delaware Limited Liability Company Act, 6 Del.

C. Section 18-101 et seq., as may be amended from time to time.

 

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15.2 "Affiliate" means a person or entity that directly or

indirectly (through one or more intermediaries) controls, or is controlled by,

or is under common control with, the person or entity specified; for purposes

hereof, the term "control" shall include, without limitation, (i) the ownership

or control of power to vote ten percent (10%) or more of the outstanding equity

interests of any such entity, directly or indirectly, (ii) the control in any

manner over the election of more than one director or trustee (or persons

exercising similar functions) of such entity, or (iii) the possession, direct or

indirect, of the power to direct or cause the direction of the management and/or

policies of such entity, whether through the ownership of voting securities, by

contract, or otherwise.

 

15.3 "Agreement" means this Limited Liability Company Agreement,

as may be amended from time to time.

 

15.4 "Capital Account" means a separate accounting maintained with

respect to the Member pursuant to Section 3.3 of this Agreement.

 

15.5 "Capital Contribution" means the contribution by the Member to

capital of the Company.

 

15.6 "Certificate of Formation" means the Certificate of Formation

of the Company as filed with the Delaware Secretary of State on January 13,

2003, as the same may be amended from time to time.

 

15.7 "Company" means HANDSPRING FACILITY COMPANY LLC, a Delaware

limited liability company.

 

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<PAGE>

15.8 "Independent Manager" means Domenic Borriello, an individual,

or such other natural person or special-purpose entity as is approved in writing

by MFDS, but who shall not be an agent of MFDS. The Independent Manager shall

have no interests in the profits, losses or capital of the Company. The Company

may pay a mutually-agreeable fee to the Independent Manager as compensation for

serving in such capacity.

 

15.9 "MFDS Documents" means the Property Purchase and Lease

Modification Agreement, the Amended and Restated Lease Agreement (Building 3),

and all documents required by MFDS in connection therewith, which may include

documents such as Promissory Notes, a Pledge and Security Agreement, Lessee's

Certificate, Uniform Commercial Code Financing Statement (Form UCC-1), and

similar documents evidencing and securing obligations, together with any

documents executed by HFC or Member at the request of MFDS's mortgage lender,

Bank of America.

 

15.10 "Managing Member" means the Member.

 

15.11 "Member" means Handspring, Inc., a Delaware corporation, and

any person or entity subsequently admitted as the member of the Company in

accordance with the terms of this Agreement, but shall not include the Special

Member.

 

15.12 "Membership Interest" means the limited liability company

interest of the Member in the Company, including any and all rights, powers,

benefits, duties or obligations conferred or imposed on the Member under the Act

or this Agreement.

 

15.13 "Membership Interest Parties" shall have the meaning ascribed

thereto in Section 6.1.

 

22

<PAGE>

15.14 "Person" means any individual, corporation, limited liability

company, partnership, joint venture, trust, estate, sole proprietor,

association, or similar entity or group.

 

15.15 "Special Member" means, upon such person's or entity's

admission to the Company as a member of the Company pursuant to Article 8, a

person or entity acting as an Independent Manager, in such person's or entity's

capacity as a member of the Company. A Special Member shall only have the rights

and duties expressly set forth in this Agreement.

 

<SIGNATURE PAGE FOLLOWS>

 

23

<PAGE>

IN WITNESS WHEREOF, the Member has executed and delivered this Limited Liability

Company Agreement the day and year first above written.

 

MEMBER:

 

HANDSPRING, INC.,

 

a Delaware corporation

 

By: /s/ Donna Dubinsky

_____________________________

 

Name: Donna Dubinsky

_____________________________

 

Its CEO

_____________________________

 

 

INDEPENDENT MANAGER:

 

/s/ Domenic Borriello

___________________________

Domenic Borriello

<PAGE>

EXHIBIT A - Legal Description of the Property

 

DESCRIPTION OF BUILDING 3 PARCEL SUBJECT TO LEASE

 

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.

 

DESCRIPTION OF BUILDING 3 IMPROVEMENTS PURCHASED BY HFC

 

That certain multi-story office building located in City of Sunnyvale,

County of Santa Clara County, California, commonly known as 100

Mathilda Place and more particularly described in the Grant Deed

attached as Exhibit J to the Master Agreement.

<PAGE>

EXHIBIT B - Capital Contributions

 

1. Cash in the amount of $15,303,652

 

2. Benefits of current and future payments made from proceeds of the

following Letters of Credit issued by Wells Fargo Bank, available as of January

29, 2003, in the specified amounts:

 

WFB # NZS-347453 $9,557,000.00

 

WFB # NZS-387454 $14,335,000.00

 

WFB # NZS-387455 $6,720,858.80

 

WFB # NZS-387458 $10,328,124.23

 

3. Master Agreement

 

4. Modified Building 3 Lease

 

5. Settlement Funding Note (Member to Company)

 

6. Reserve cash in the amount of $15,000.00

 

2

<PAGE>

EXHIBIT C - Certificate of Membership Interest

 

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE IS A SECURITY

GOVERNED BY ARTICLE 8 OF THE DELAWARE UNIFORM COMMERCIAL CODE.

 

HANDSPRING FACILITY COMPANY, LLC

A DELAWARE LIMITED LIABILITY COMPANY

 

Certificate Number Membership Interest

------------------------- ----------------------------

Cert. No. 1 100%

------------------------- ----------------------------

 

================================================================================

LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST

================================================================================

 

THIS CERTIFIES THAT Handspring, Inc. is the registered holder of 100% of the

Membership Interests of

 

HANDSPRING FACILITY COMPANY, LLC

 

IN WITNESS WHEREOF, the said Limited Liability Company has caused this

Certificate to be signed by its manager this _____ day of January, 2003

 

By: HANDSPRING, INC., MANAGER

 

By: ____________________________

 

Name: __________________________

 

Its: ___________________________