EXHIBIT 10.35
GUARANTY
THIS GUARANTY ("Guaranty") is made as of January 29, 2003 by
HANDSPRING, INC., a Delaware corporation ("Guarantor"), to and for the benefit
of M-F DOWNTOWN SUNNYVALE, LLC, a Delaware limited liability company, its
successors and assigns ("M-F Downtown").
R E C I T A L S
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 Xxxxx County, California, commonly known as 000 Xxxxxxxx Xxxxx 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 Xxxxx County, California, commonly known as 000 Xxxxxxxx Xxxxx
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 Xxxxx 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 Xxxxx 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
-1-
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 Xxxxx 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 Xxxxx 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. Handspring is the sole
member of HFC and holds all of the authorized membership units in HFC.
I. In light of the current business cycle and the local market
for commercial real estate leasing and sub-leasing, Handspring has requested
that M-F Downtown provide Handspring with significant economic relief under the
terms of the Buildings 2 Lease and the Building 3 Lease (collectively, the
"Leases"). On careful analysis, Handspring has concluded that if the parties can
agree on terms for modifying the Leases, Handspring will benefit both as to the
immediately quantifiable economic relief bargained for and as to the opportunity
afforded Handspring to thereby continue its business.
-2-
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. In order to
accomplish such restructuring, Handspring, HFC and Mozart have entered into a
Property Purchase and Lease Modification Agreement dated as of January 16, 2003.
The transactions contemplated by such agreement are collectively referred to
herein as the "Transaction".
L. Guarantor will derive material financial benefit from the
Transaction.
M. M-F Downtown has relied on the statements and agreements
contained herein in agreeing to consummate the Transaction. The execution and
delivery of this Guaranty is a condition precedent to the consummation of the
Transaction by M-F Downtown.
AGREEMENTS
NOW, THEREFORE, intending to be legally bound, Guarantor, in
consideration of the matters described in the foregoing Recitals, which Recitals
are incorporated herein and made a part hereof, and for other good and valuable
consideration the receipt and sufficiency of which are acknowledged, hereby
covenants and agrees for the benefit of M-F Downtown and its respective
successors, indorsees, transferees, participants and assigns as follows:
1. Guarantor absolutely, unconditionally and irrevocably
guarantees:
(a) The full and prompt payment of the principal of and
interest on that certain promissory note (the "Five Year Note") from
HFC, as maker, to M-F Downtown, as payee, of even date herewith in the
principal sum of Three Million Dollars ($3,000,000) when due, whether
at stated maturity, upon acceleration or otherwise, and at all times
thereafter;
(b) The full and prompt payment of the principal of and
default interest on that certain promissory note (the "One Year Note"
and, together with the Five Year Note, the "Notes") from HFC, as maker,
to M-F Downtown, as payee, of even date herewith in the principal sum
of One Million Dollars ($1,000,000) when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter;
(c) The full and prompt payment when due of Monthly
Base Rent, as that term is defined in that certain Amended and Restated
Lease Agreement (Building 3) of even date herewith between HFC, as
tenant, and M-F Downtown, as landlord (the
-3-
"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 HFC 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, then the full and prompt
payment by HFC of the principal amount of such promissory note, whether
at stated maturity, upon acceleration or otherwise, together with any
interest and late charges thereon (as applicable), provided, however,
that Guarantor shall not be liable for obligations under this Section
1(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 Guarantor's obligations shall not
terminate until such Monthly Base Rent has been paid in full;
(d) The full and prompt payment when due of all sums
which hereafter become payable by HFC pursuant to, and the full and
faithful performance and observance of any and all covenants contained
in and to be performed and observed by HFC under, 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 HFC or Guarantor
prior to a Reinstatement as to the entire Premises, including without
limitation any holdover rent payable pursuant to the provisions of
Paragraph 14 of the Building 3 Lease Amendment ("Occupancy Costs");
(e) From and after Reinstatement as to all or a portion
of the Premises, the full and prompt payment when due of all sums which
hereafter become payable by HFC pursuant to, and the full and faithful
performance and observance of any and all covenants contained in and to
be performed or observed by HFC under the Building 3 Lease Amendment
including, without limitation, Monthly Modified Rent, Real Estate
Taxes, Expenses, other Additional Charges and any Reinstatement Payment
(as all of such terms are defined in the Building 3 Lease Amendment);
and
(f) The full and prompt payment of any Enforcement Costs
(as hereinafter defined in Section 8 hereof).
All amounts due, debts, liabilities and payment obligations described in
subsections (a) through (f) of this Section 1 are hereinafter collectively
referred to as the "Indebtedness", and the Five Year Note, the One Year Note and
the Building 3 Lease Amendment each are sometimes referred to herein as an
"Indebtedness Document" and collectively as the "Indebtedness Documents". The
obligations of Guarantor pursuant to this Guaranty shall be automatically
reduced on a dollar-for-dollar basis to the extent that HFC makes any payments
to M-F Downtown pursuant to any of the Indebtedness and M-F Downtown receives
such payment; provided, however, if any such payment, or any part thereof, must
be restored or returned by M-F Downtown or Bank of America to Guarantor or HFC,
the estates of either, or to any party claiming through or on account of
Guarantor or HFC 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 Guarantor
pursuant to this Guaranty
-4-
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 HFC
and not so restored or returned.
2. In the event of any default by HFC in the payment of the
Indebtedness, after the expiration of any applicable cure or grace period,
Guarantor agrees, within three (3) business days after written demand by M-F
Downtown or the holder of the applicable Indebtedness Document, to pay the
Indebtedness regardless of any defense, right of set-off or claims which HFC or
Guarantor may have against M-F Downtown or the holder of any of the Indebtedness
Documents.
All of the remedies set forth herein and/or provided for in any of the
Indebtedness Documents or at law or equity shall be equally available to M-F
Downtown, and the choice by M-F Downtown of one such alternative over another
shall not be subject to question or challenge by Guarantor or any other person,
nor shall any such choice be asserted as a defense, setoff, or failure to
mitigate damages in any action, proceeding, or counteraction by M-F Downtown to
recover or seeking any other remedy under this Guaranty, nor shall such choice
preclude M-F Downtown from subsequently electing to exercise a different remedy.
The parties have agreed to the alternative remedies provided herein in part
because they recognize that the choice of remedies in the event of a default
hereunder will necessarily be and should properly be a matter of good faith
business judgment, which the passage of time and events may or may not prove to
have been the best choice to maximize recovery by M-F Downtown at the lowest
cost to HFC and/or Guarantor. It is the intention of the parties that such good
faith choice by M-F Downtown be given conclusive effect regardless of such
subsequent developments.
3. Guarantor does hereby (a) waive notice of acceptance of this
Guaranty by M-F Downtown and any and all notices and demands of every kind which
may be required to be given by any statute, rule or law, (b) agree to refrain
from asserting, until after repayment in full of the Indebtedness, any defense,
right of set-off or other claim which Guarantor may have against HFC, (c) waive
presentment for payment, demand for payment, notice of nonpayment or dishonor,
protest and notice of protest, diligence in collection and any and all
formalities which otherwise might be legally required to charge Guarantor with
liability, and (d) waive any failure by M-F Downtown to inform Guarantor of any
facts M-F Downtown may now or hereafter know about HFC or the land, building or
other improvements described in the Building 3 Lease Amendment, it being
understood and agreed that M-F Downtown has no duty so to inform and that
Guarantor is fully responsible for being and remaining, and has established
adequate means of keeping and remaining, informed by HFC of all circumstances
bearing on the risk of nonperformance of HFC's obligations, and Guarantor
acknowledges that no representations of any kind whatsoever have been made by
M-F Downtown with respect thereto. No modification or waiver of any of the
provisions of this Guaranty shall be binding upon M-F Downtown or Guarantor
except as expressly set forth in a writing duly signed and delivered by M-F
Downtown and Guarantor.
4. Guarantor further agrees that Guarantor's liability as
guarantor shall not be impaired or affected by any renewals or extensions which
may be made from time to time, with or without the knowledge or consent of
Guarantor of the time for payment of interest or principal under the
Indebtedness Documents or by any forbearance or delay in collecting any sums
under the Indebtedness Documents, or by any waiver by M-F Downtown under the
Indebtedness
-5-
Documents, or by M-F Downtown's failure or election not to pursue any other
remedies it may have against HFC or Guarantor, or by any change or modification
in the Indebtedness Documents (except for any increase in the Indebtedness), or
by the acceptance by M-F Downtown of any additional security or any increase,
substitution or change therein, or by the release by M-F Downtown of any
security or any withdrawal thereof or decrease therein, or by the application
of payments received from any source (other than HFC or Guarantor) to the
payment of any obligation other than the Indebtedness even though M-F Downtown
might lawfully have elected to apply such payments to any part or all of the
Indebtedness, or by the failure or invalidity of, or any defect in, the
Indebtedness Documents, or by any legal disability or other defense of HFC, any
other guarantor or any other person, or by the cessation, limitation or
termination from any cause whatsoever of any of the obligations under the
Indebtedness Documents, except upon payment in full of the Indebtedness, it
being the intent hereof that, subject to M-F Downtown's compliance with the
terms of this Guaranty, Guarantor shall remain liable for the payment of the
Indebtedness, until the Indebtedness has been paid in full, notwithstanding any
act or thing which might otherwise operate as a legal or equitable discharge of
a surety. To the extent that Guarantor makes any payments to M-F Downtown
pursuant to that certain Settlement Funding Note of even date herewith and M-F
Downtown receives such payment, such payments shall reduce Guarantor's
obligations hereunder on a dollar-for-dollar basis; provided, however, if any
such payment, or any part thereof, must be restored or returned by M-F Downtown
or Bank of America to Guarantor or HFC, the estates of either, or to any party
claiming through or on account of Guarantor or HFC 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 Guarantor pursuant to this 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 Guarantor
and not so restored or returned. Guarantor agrees that the payment of all sums
payable under the Indebtedness Documents or any part thereof or other act which
tolls any statute of limitations applicable to the Indebtedness Documents shall
similarly operate to toll the statute of limitations applicable to Guarantor's
liability hereunder. Guarantor further understands and agrees that M-F Downtown
may at any time enter into agreements with HFC to amend and modify the
Indebtedness Documents, and may waive or release any provision or provisions of
the Indebtedness Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as M-F
Downtown and HFC may deem proper and desirable, without in any manner impairing
or affecting this Guaranty or any of M-F Downtown's rights hereunder or
Guarantor's obligations hereunder.
5. Unless and until all Indebtedness is paid in full, Guarantor
hereby waives any right of subrogation, any right to enforce any remedy M-F
Downtown may have against HFC, any other Guarantor or any other person, and any
benefit of, and the right to participate in, any of the security for the
Indebtedness held by M-F Downtown.
6. This is an absolute, present and continuing guaranty of
payment and not of collection. Guarantor agrees that this Guaranty may be
enforced by M-F Downtown without the necessity at any time of resorting to or
exhausting any other security or collateral given in connection herewith or with
Indebtedness Documents, or resorting to any other guaranties, and Guarantor
hereby waives any right to require M-F Downtown to join HFC in any action
brought
-6-
hereunder or to commence any action against or obtain any judgment against HFC
or to pursue any other remedy or enforce any other right. Guarantor further
agrees that nothing contained herein or otherwise shall prevent M-F Downtown
from pursuing concurrently or successively all rights and remedies available to
it at law and/or in equity or under the Indebtedness Documents, and the exercise
of any of its rights or the completion of any of its remedies shall not
constitute a discharge of Guarantor's obligations hereunder, it being the
purpose and intent of Guarantor that the obligations of Guarantor hereunder
shall be absolute, independent and unconditional under any and all circumstances
whatsoever. None of Guarantor's obligations under this Guaranty or any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by any impairment, modification, change, release or
limitation of the liability of HFC under the Indebtedness Documents or by reason
of the bankruptcy of HFC or by reason of any creditor or bankruptcy proceeding
instituted by or against HFC. This Guaranty shall continue to be effective or be
reinstated (as the case may be) if at any time payment of all or any part of any
sum payable pursuant to any of the Indebtedness Documents is rescinded or
otherwise required to be returned by M-F Downtown upon the insolvency,
bankruptcy, dissolution, liquidation, or reorganization of HFC, or upon or as a
result of the appointment of a receiver, intervenor, custodian or conservator of
or trustee or similar officer for, HFC or any substantial part of its property,
or otherwise, all as though such payment to M-F Downtown had not been made,
regardless of whether M-F Downtown contested the order requiring the return of
such payment.
7. The obligations guaranteed hereunder shall not be limited or
terminated by the termination of the Building 3 Lease Amendment, by M-F Downtown
or otherwise, in accordance with law following any default under the Building 3
Lease Amendment and, instead, shall expressly include, without limitation, any
obligations of the Guarantor which are accelerated in accordance with the
provisions of Section 1951.2 of the California Civil Code, and Guarantor hereby
expressly hereby guarantees the prompt payment of any damages or other sums to
which M-F Downtown may become entitled in accordance with the provisions of
Section 1951.2.
8. If: (a) this Guaranty is placed in the hands of an attorney
for collection or is collected through any legal proceeding; (b) an attorney is
retained to represent M-F Downtown in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and involving a
claim under this Guaranty; (c) an attorney is retained to provide advice or
other representation with respect to this Guaranty; or (d) an attorney is
retained to represent M-F Downtown in any proceedings whatsoever in connection
with this Guaranty and M-F Downtown prevails in any such proceedings, then
Guarantor shall pay to M-F Downtown upon demand all attorney's fees, costs and
expenses incurred in connection therewith (all of which are referred to herein
as "Enforcement Costs"), in addition to all other amounts due hereunder,
regardless of whether all or a portion of such Enforcement Costs are incurred in
a single proceeding brought to enforce this Guaranty as well as the Indebtedness
Documents.
9. The parties hereto intend and believe that each provision in
this Guaranty comports with all applicable local, state and federal laws and
judicial decisions. However, if any provision or provisions, or if any portion
of any provision or provisions, in this Guaranty is found by a court of law to
be in violation of any applicable local, state or federal ordinance, statute,
law, administrative or judicial decision, or public policy, and if such court
should declare such portion, provision or provisions of this Guaranty to be
illegal, invalid, unlawful, void or
-7-
unenforceable as written, then it is the intent of all parties hereto that such
portion, provision or provisions shall be given force to the fullest possible
extent that they are legal, valid and enforceable, that the remainder of this
Guaranty shall be construed as if such illegal, invalid, unlawful, void or
unenforceable portion, provision or provisions were not contained therein, and
that the rights, obligations and interest of M-F Downtown or the holder of the
Note under the remainder of this Guaranty shall continue in full force and
effect.
10. To the greatest extent permitted by law, Guarantor hereby
waives any and all rights to require marshalling of assets by M-F Downtown. with
respect to any suit, action or proceedings relating to this Guaranty (each, a
"Proceeding"), M-F Downtown and Guarantor irrevocably (a) submits to the
non-exclusive jurisdiction of the State and Federal courts having jurisdiction
in the County of Santa Xxxxx and State of California, and (b) waives any
objection which it may have at any time to the laying of venue of any proceeding
brought in any such court, waives any claim that any proceeding has been brought
in an inconvenient forum and further waives the right to object, with respect to
such proceeding, that such court does not have jurisdiction over such party.
Nothing in this Guaranty shall preclude M-F Downtown from bringing a proceeding
in any other jurisdiction nor will the bringing of a proceeding in any one or
more jurisdictions preclude the bringing of a proceeding in any other
jurisdiction.
11. Any indebtedness of HFC to Guarantor now or hereafter existing
is hereby subordinated to the payment of the Indebtedness. Guarantor agrees
that, until the entire Indebtedness has been paid in full, Guarantor will not
seek, accept, or retain for its own account, any payment from HFC on account of
such subordinated debt. Any payments to Guarantor on account of such
subordinated debt shall be collected and received by Guarantor in trust for M-F
Downtown and shall be paid over to M-F Downtown on account of the Indebtedness
without impairing or releasing the obligations of Guarantor hereunder.
12. Any amounts received by M-F Downtown from any source on
account of the Indebtedness may be utilized by M-F Downtown for the payment of
the Indebtedness and any other obligations of HFC to M-F Downtown in such order
as M-F Downtown may from time to time elect.
13. GUARANTOR AND M-F DOWNTOWN (BY ITS ACCEPTANCE HEREOF), TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS
GUARANTY OR ANY INDEBTEDNESS DOCUMENT OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY, INCLUDING WITHOUT
LIMITATION ANY TORT ACTION, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. GUARANTOR FURTHER ACKNOWLEDGES
THAT (I) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS
WAIVER, AND (II) THIS WAIVER IS A MATERIAL INDUCEMENT FOR M-F DOWNTOWN TO
CONSUMMATE THE TRANSACTION. GUARANTOR HEREBY AGREES THAT THIS AGREEMENT
CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY PURSUANT TO THE
PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 631. GUARANTOR DOES
HEREBY CONSTITUTE AND APPOINT M-F
-8-
DOWNTOWN ITS TRUE AND LAWFUL ATTORNEY-IN-FACT, WHICH APPOINTMENT IS COUPLED WITH
AN INTEREST, AND GUARANTOR DOES HEREBY AUTHORIZE AND EMPOWER M-F DOWNTOWN, IN
THE NAME, PLACE AND STEAD OF GUARANTOR, TO FILE THIS AGREEMENT WITH THE CLERK OR
JUDGE OF ANY COURT OF COMPETENT JURISDICTION AS A STATUTORY WRITTEN CONSENT TO
WAIVER OF TRIAL BY JURY.
GUARANTOR'S INITIALS: DD
______
14. 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:
Guarantor: Handspring, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxxx, Patch, Xxxxx & Bass, LLP
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Patch
Facsimile No: (000) 000-0000
M-F Downtown: M-F Downtown Sunnyvale, LLC
c/o Mozart Development Company
0000 Xxxx Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx and Xx. Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Ellman, Burke, Xxxxxxx & Xxxxxxx
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx and Xx. Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
-9-
15. In order to induce M-F Downtown to enter into the Transaction,
Guarantor makes the following representations and warranties to M-F Downtown set
forth in this Section 15. Guarantor acknowledges that but for the truth and
accuracy of the matters covered by the following representations and warranties,
M-F Downtown would not have agreed to enter into and consummate the Transaction.
(a) Guarantor is duly formed, validly existing, and in
good standing in its state of organization and has qualified to do
business and is in good standing in any state in which it is necessary
in the conduct of its business.
(b) Guarantor maintains an office at the address set
forth for such party in Section 14.
(c) The execution, delivery, and performance by Guarantor
of this Guaranty does not and will not contravene or conflict with (i)
any Laws, order, rule, regulation, writ, injunction or decree now in
effect of any Government Authority, or court having jurisdiction over
Guarantor, (ii) any contractual restriction binding on or affecting
Guarantor or Guarantor's property or assets which may materially
adversely affect Guarantor's ability to fulfill its obligations under
this Guaranty, (iii) the instruments creating any trust holding title
to any assets included in Guarantor's financial statements, or (iv) the
organizational or other documents of Guarantor.
16. This Guaranty may be enforced against Guarantor without
attempting to collect from HFC, any other guarantor or any other person, and
without attempting to enforce the rights of M-F Downtown in any of the security
for the Indebtedness. M-F Downtown may join Guarantor in any suit in connection
with the Indebtedness Documents or proceed against Guarantor in a separate
action. M-F Downtown shall have the right to exercise its remedies in such order
as it determines in its sole discretion.
17. This Guaranty shall be binding upon the heirs, executors,
legal and personal representatives, successors and assigns of Guarantor and
shall not be discharged in whole or in part by the death of Guarantor.
18. This Guaranty and all of the Indebtedness Documents hereby
were negotiated in the State of California, and delivered by Guarantor or HFC,
as applicable, and accepted by M-F Downtown in the State of California, which
State the parties agree has a substantial relationship to the parties and the
underlying transactions embodied hereby. In all respects, including, without
limitation, matters of construction of the improvements and performance of this
Guaranty and the obligations arising hereunder, this Guaranty shall be governed
by, and construed in accordance with, the internal laws of the State of
California applicable to contracts made and to be performed in such state and
any applicable laws of the United States of America.
[SIGNATURES BEGIN ON NEXT PAGE]
-10-
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of California as of the date first written above.
"GUARANTOR":
HANDSPRING, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxx
_______________________
Its: CEO
________________________
-11-
