Limited Liability Company Agreement

EXHIBIT 10.32


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 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


2 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


3 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


4 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,


5 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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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


7 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), li ...