REAL ESTATE MATTERS AGREEMENT
BETWEEN
3COM CORPORATION
AND
PALM, INC.
FEBRUARY 26, 2000
TABLE OF CONTENTS
PAGE
----
ARTICLE I PROPERTY...................................................................1
Section 1.1 Leased Property..................................................1
Section 1.2 Shared Properties................................................1
Section 1.3 Headquarters Facility............................................2
Section 1.4 Obtaining the Lease Consents.....................................2
Section 1.5 Occupation by Palm...............................................3
Section 1.6 Obligation to Complete...........................................4
Section 1.7 Form of Transfer.................................................5
Section 1.8 Casualty; Lease Termination......................................6
Section 1.9 Tenant's Fixtures and Fittings...................................6
Section 1.10 Costs............................................................6
ARTICLE II MISCELLANEOUS.............................................................7
Section 2.1 Limitation of Liability..........................................7
Section 2.2 Entire Agreement.................................................7
Section 2.3 Governing Law....................................................7
Section 2.4 Notices..........................................................7
Section 2.5 Counterparts.....................................................8
Section 2.6 Binding Effect; Assignment.......................................8
Section 2.7 Severability.....................................................8
Section 2.8 Failure or Indulgence Not Waiver; Remedies Cumulative............8
Section 2.9 Amendment........................................................9
Section 2.10 Authority........................................................9
Section 2.11 Interpretation...................................................9
Section 2.12 Disputes.........................................................9
ARTICLE III DEFINITIONS..............................................................9
-i-
REAL ESTATE MATTERS AGREEMENT
This Real Estate Matters Agreement (this "AGREEMENT") is entered into
on February 26, 2000 between 3Com Corporation, a Delaware corporation ("3COM"),
and Palm, Inc., a Delaware corporation ("PALM"). Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to such terms
in the Separation Agreement (as defined below).
RECITALS
WHEREAS, 3Com has transferred or will transfer to Palm effective as of
the Separation Date, substantially all of the business and assets of the Palm
Business owned by 3Com in accordance with the Master Separation and Distribution
Agreement dated as of December 13, 1999 between 3Com and Palm's predecessor
corporation, Palm Computing, Inc., a California corporation (the "SEPARATION
AGREEMENT").
WHEREAS, the parties desire to set forth certain agreements regarding
real estate matters.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
PROPERTY
SECTION 1.1 LEASED PROPERTY
(a) 3Com shall assign or cause its applicable Subsidiary to assign, and
Palm shall accept and assume, or cause its applicable Subsidiary to accept and
assume, 3Com's or its Subsidiary's interest in the Leased Properties, subject to
the other provisions of this Agreement and (to the extent not inconsistent with
the provisions of this Agreement) the terms of the Separation Agreement and the
other Ancillary Agreements. Such assignment shall be completed on the later of:
(i) the Separation Date; and (ii) the earlier of (A) the fifth (5th) business
day after the relevant Lease Consent has been granted and (B) the date agreed
upon by the parties in accordance with Section 1.6(a) below.
(b) Subject to the completion of the assignment to Palm or its
applicable Subsidiary of the relevant Leased Property, with respect to each
Leased Property which is also a Shared Property, Palm shall grant or cause its
applicable Subsidiary to grant to 3Com or its applicable Subsidiary a license to
occupy that part of the relevant Leased Property identified in Section A of
Schedule 1 of this Agreement currently occupied by 3Com or its applicable
Subsidiary and 3Com shall accept or cause its applicable Subsidiary to accept
the same. Such license shall be completed immediately following completion of
the transfer of the relevant Leased Property to Palm or its applicable
Subsidiary.
SECTION 1.2 SHARED PROPERTIES
3Com shall grant or cause its applicable Subsidiary to grant to Palm or
its applicable Subsidiary a license to occupy those parts of the Shared
Properties identified in Section B of
-1-
Schedule 1 of this Agreement currently occupied by Palm or its applicable
Subsidiary and Palm shall accept or cause its applicable Subsidiary to accept
the same, subject to the other provisions of this Agreement and (to the
extent not inconsistent with the provisions of this Agreement) the terms of
the Separation Agreement and the other Ancillary Agreements. Such license
shall be completed on the Separation Date.
SECTION 1.3 HEADQUARTERS FACILITY
3Com shall grant to Palm a lease of those parts of the Headquarters
Facility identified in Section C of Schedule 1 of this Agreement as leased and a
sublease of those parts of the Headquarters Facility identified in Section C of
Schedule 1 of this Agreement as subleased, and Palm shall accept the same,
subject to the other provisions of this Agreement and (to the extent not
inconsistent with the provisions of this Agreement) the terms of the Separation
Agreement and the other Ancillary Agreements. Such lease and sublease shall be
completed on the Separation Date.
SECTION 1.4 OBTAINING THE LEASE CONSENTS
(a) 3Com confirms that, with respect to each Leased Property, an
application has been made or will be made by the Separation Date to the relevant
Landlord for the Lease Consents required with respect to the transactions
contemplated by this Agreement.
(b) 3Com will use its reasonable commercial efforts to obtain the Lease
Consents as to each Leased Property, but 3Com shall not be required to commence
judicial proceedings for a declaration that a Lease Consent has been
unreasonably withheld or delayed, nor shall 3Com be required to pay any
consideration in excess of that required by the Relevant Lease or that which is
typical in the open market to obtain the relevant Lease Consent. Palm shall
cooperate as reasonably requested by 3Com to obtain the Lease Consents.
(c) Palm and 3Com will promptly satisfy or cause their applicable
Subsidiaries to satisfy the lawful requirements of the Landlord, and Palm will
take or cause its applicable Subsidiary to take all steps to assist 3Com in
obtaining the Lease Consents as to each Leased Property, including, without
limitation:
(i) if properly required by the Landlord, entering into an
agreement with the relevant Landlord to observe and perform the tenant's
obligations contained in the Relevant Lease throughout the remainder of the term
of the Relevant Lease, subject to any statutory limitations of such liability;
(ii) if properly required by the Landlord, providing a
guarantee, surety or other security (including, without limitation, a security
deposit) for the obligations of Palm or its applicable Subsidiary as tenant
under the Relevant Lease, and otherwise taking all steps which are reasonably
necessary and which Palm or its applicable Subsidiary is reasonably capable of
doing to meet the lawful requirements of the Landlord so as to ensure that the
Lease Consents are obtained; and
(iii) using all reasonable commercial efforts to assist 3Com
with obtaining the Landlord's consent to the release of any guarantee, surety or
other security which 3Com or its
-2-
Subsidiary may have previously provided to the Landlord and, if required,
offering the same or equivalent security to the Landlord in order to obtain
such release.
Notwithstanding the foregoing, (1) except with respect to guarantees, sureties
or other security referenced in Section 1.4(c)(ii) above, Palm shall not be
required to obtain a release of any obligation entered into by 3Com or its
Subsidiary with any Landlord or other third party with respect to any Property
and (2) Palm shall not communicate or permit its applicable Subsidiary to
communicate directly with any of the Landlords unless Palm can show 3Com
reasonable grounds for doing so.
(d) If, with respect to any Leased Properties, 3Com and Palm are unable
to obtain a release by the Landlord of any guarantee, surety or other security
which 3Com or its Subsidiary has previously provided to the Landlord, Palm shall
indemnify, defend, protect and hold harmless 3Com and its Subsidiary from and
after the Separation Date against all losses, costs, claims, damages, or
liabilities incurred by 3Com or its Subsidiary as a result of Palm's occupancy
of the Leased Property with respect to such guarantee, surety or other security.
SECTION 1.5 OCCUPATION BY PALM
(a) Subject to compliance with Section 1.5(b) below, in the event that
the Actual Completion Date for any Leased Property does not occur on the
Separation Date, Palm or its applicable Subsidiary shall, commencing on the
Separation Date, be entitled to occupy the relevant Property (except to the
extent that the same is a Retained Part) as a licensee upon the terms and
conditions contained in 3Com's Lease. Such license shall not be revocable prior
to the date for completion as provided in Section 1.1(a) unless an enforcement
action or forfeiture by the relevant Landlord due to Palm's or its applicable
Subsidiary's occupation of the Property constituting a breach of 3Com's Lease
cannot, in the reasonable opinion of 3Com, be avoided other than by requiring
Palm or its applicable Subsidiary to immediately vacate the relevant Property,
in which case 3Com may by notice to Palm immediately require Palm or its
applicable Subsidiary to vacate the relevant Property. Palm will be responsible
for all costs, expenses and liabilities incurred by 3Com or its applicable
Subsidiary as a consequence of such occupation, except for any losses, claims,
costs, demands and liabilities incurred by 3Com or its Subsidiary as a result of
any enforcement action taken by the Landlord against 3Com or its Subsidiary with
respect to any breach by 3Com or its Subsidiary of the Relevant Lease in
permitting Palm or its applicable Subsidiary to so occupy the Property without
obtaining the required Lease Consent, for which 3Com or its Subsidiary shall be
solely responsible. Neither Palm nor its applicable Subsidiary shall be entitled
to make any claim or demand against, or obtain reimbursement from, 3Com or its
applicable Subsidiary with respect to any costs, losses, claims, liabilities or
damages incurred by Palm or its applicable Subsidiary as a consequence of being
obliged to vacate the Property or in obtaining alternative premises, including,
without limitation, any enforcement action which a Landlord may take against
Palm or its applicable Subsidiary.
(b) In the event that the Actual Completion Date for any Leased
Property does not occur on the Separation Date, whether or not Palm or its
applicable Subsidiary occupies a Property as licensee as provided in Section
1.5(a) above, Palm shall, effective as of the Separation Date, (i) pay or cause
its applicable Subsidiary to pay 3Com all rents, service charges, insurance
premiums and other sums
-3-
payable by 3Com or its applicable Subsidiary under any Relevant Lease, (ii)
observe or cause its applicable Subsidiary to observe the tenant's covenants,
obligations and conditions contained in 3Com's Lease and (iii) indemnify,
defend, protect and hold harmless 3Com and its applicable Subsidiary from and
against all losses, costs, claims, damages and liabilities arising on account
of any breach thereof by Palm or its applicable Subsidiary.
(c) 3Com shall supply promptly to Palm copies of all invoices, demands,
notices and other communications received by 3Com or its applicable Subsidiaries
or agents in connection with any of the matters for which Palm or its applicable
Subsidiary may be liable to make any payment or perform any obligation pursuant
to Section 1.5(a) or (b), and shall, at Palm's cost, take any steps and pass on
any objections which Palm or its applicable Subsidiary may have in connection
with any such matters. Palm shall promptly supply to 3Com any notices, demands,
invoices and other communications received by Palm or its applicable Subsidiary
or agents from any Landlord while Palm or its applicable Subsidiary occupies any
Property without the relevant Lease Consent.
SECTION 1.6 OBLIGATION TO COMPLETE
(a) If, with respect to any Leased Property, at any time the relevant
Lease Consent is formally and unconditionally refused in writing, 3Com and Palm
shall commence good faith negotiations and use commercially reasonable efforts
to determine how to allocate the applicable Property, based on the relative
importance of the applicable Property to the operations of each party, the size
of the applicable Property, the number of employees of each party at the
applicable Property and the potential risk and liability to each party in the
event an enforcement action is brought by the applicable Landlord. Such
commercially reasonable efforts shall include consideration of alternate
structures to accommodate the needs of both parties and the allocation of the
costs thereof, including entering into amendments of the size, term or other
terms of the Relevant Lease, restructuring a proposed lease assignment to be a
sublease and relocating one party. If the parties are unable to agree upon an
allocation of the Property within fifteen (15) days after commencement of
negotiations between the parties as described above, then either party may, by
delivering written notice to the other, require that the matter be referred to
the Chief Financial Officers of both parties. In such event, the Chief Financial
Officers shall use commercially reasonable efforts to determine the allocation
of the Property, including having a meeting or telephone conference within ten
(10) days thereafter. If the parties are unable to agree upon the allocation of
an applicable Property within fifteen (15) days after the matter is referred to
the Chief Financial Officers of the parties as described above, the disposition
of the applicable Property and the risks associated therewith shall be allocated
between the parties as set forth in subparts (b) and (c) of this section below.
(b) If, with respect to any Leased Property, the parties are unable to
agree upon the allocation of a Property as set forth in Section 1.6(a), 3Com may
by written notice to Palm elect to apply to the relevant Landlord for consent to
sublease all of the relevant Property to Palm or its applicable Subsidiary for
the remainder of the Relevant Lease term less three (3) days at a rent equal to
the rent from time to time under the Relevant Lease, but otherwise on
substantially the same terms and conditions as the Relevant Lease. If 3Com makes
such an election, until such time as the relevant Lease Consent is obtained and
a sublease is completed, the provisions of Section 1.5 will apply and, on the
grant of the Lease Consent required to sublease the Leased Property in question,
3Com shall sublease or cause its applicable Subsidiary to sublease to Palm or
its applicable Subsidiary the
-4-
relevant Property which sublease shall be for the term and rent set forth in
the Relevant Lease and otherwise on the terms of the Relevant Lease.
(c) If the parties are unable to agree upon the allocation of a
Property as set forth in Section 1.6(a) and 3Com does not make an election
pursuant to Section 1.6(b) above, 3Com may elect by written notice to Palm to
require Palm or its applicable Subsidiary to vacate the relevant Property
immediately or by such other date as may be specified in the notice served by
3Com (the "NOTICE DATE"), in which case Palm shall vacate or cause its
applicable Subsidiary to vacate the relevant Property on the Notice Date but
shall indemnify 3Com and its applicable Subsidiary from and against all costs,
claims, losses, liabilities and damages in relation to the relevant Property
arising from and including the Separation Date to and including the later of the
Notice Date and date on which Palm or its applicable Subsidiary vacates the
relevant Property, except for any costs, losses, damages, claims and liabilities
incurred by 3Com or its Subsidiary with respect to any enforcement action taken
by the Landlord against 3Com or its Subsidiary with respect to any breach by
3Com or its Subsidiary of the Relevant Lease in permitting Palm or its
applicable Subsidiary to so occupy the Property without obtaining the required
Lease Consent. Neither Palm nor its applicable Subsidiary shall be entitled to
make any claim or demand against or obtain reimbursement from 3Com or its
applicable Subsidiary with respect to any costs, losses, claims, liabilities or
damages incurred by Palm or its applicable Subsidiary as a consequence of being
obliged to vacate the Property or obtaining alternative premises, including,
without limitation, any enforcement action which a Landlord may take against
Palm or its applicable Subsidiary.
SECTION 1.7 FORM OF TRANSFER
(a) The assignment to Palm or its applicable Subsidiary of each
relevant Leased Property shall be in substantially the form attached in Schedule
2, with such amendments which in the reasonable opinion of 3Com are necessary
with respect to a particular Property, including, without limitation, in all
cases where a relevant Landlord has required a guarantor or surety to guarantee
the obligations of Palm or its applicable Subsidiary contained in the relevant
Lease Consent or any other document which Palm or its applicable Subsidiary is
required to complete, the giving of such guarantee by a guarantor or surety, and
the giving by Palm or its applicable Subsidiary and any guarantor or surety of
Palm's or its applicable Subsidiary's obligations of direct obligations to 3Com
or third parties where required under the terms of any of the Lease Consent or
any covenant, condition, restriction, easement, lease or other encumbrance to
which the Property is subject. Such amendments shall be submitted to Palm for
approval, which approval shall not be unreasonably withheld or delayed.
(b) The licenses to be granted by Palm or its applicable Subsidiary to
3Com or its applicable Subsidiary, and 3Com or its applicable Subsidiary to Palm
or its applicable Subsidiary, with respect to the Shared Properties shall be at
the rental rates and terms set forth in Section B of Schedule 1 hereof. Rent
shall be abated for the period from the Separation Date to March 1, 2000. The
license shall be substantially in the form of the License Form, with such
amendments as are, in the reasonable opinion of 3Com, necessary with respect to
a particular Property. Such amendments shall be submitted to Palm for approval,
which approval shall not be unreasonably withheld.
(c) The lease and sublease to be granted to Palm with respect to the
Headquarters Facility
-5-
shall be at a monthly rental rate of $3.72 per square foot full service gross
including furniture and copier rental through February 28, 2001, $3.82 per
square foot full service gross including furniture and copier rental from
March 1, 2001 through February 28, 2002 and $3.93 per square foot full
service gross including furniture and copier rental thereafter, and be for a
term commencing on the Separation Date and expiring (i) February 28, 2003 as
to Buildings 12 and 15 and the related common areas and (ii) August 1, 2002
as to Buildings 9 and 10 and the related common areas; provided, however,
that in the event 3Com extends its underlying lease as to Buildings 9 and 10
or purchases the underlying fee interest in such property, the expiration
date as to Buildings 9 and 10 and the related common areas shall be
automatically extended to February 28, 2003. Either party may terminate the
lease or sublease as to any of the buildings then subject to the lease or
sublease upon six (6) months prior notice, which notice may be given at any
time after December 31, 2000; provided, however, that any given termination
notice may apply as to only one building and neither party may give a
termination notice within thirty (30) days of any previous termination notice
given by either party. The lease and sublease shall commence as to the
various buildings within the Headquarters Facility in accordance with the
schedule set forth in Section C of Schedule 1 hereof; provided, however, that
the lease as to Building 15 shall not commence until such building is
delivered to Tenant. Rent shall be abated for the period from the Separation
Date to March 1, 2000. Such lease and sublease shall be substantially in the
form of the lease and sublease forms attached hereto as Schedule 4 and shall
include such amendments which in the reasonable opinion of 3Com are necessary
with respect to a particular Property. Such amendments shall be submitted to
Palm for approval, which approval shall not be unreasonably withheld or
delayed.
SECTION 1.8 CASUALTY; LEASE TERMINATION
The parties hereto shall grant and accept assignments, leases,
subleases or licenses of the Properties as described in this Agreement,
regardless of any casualty damage or other change in the condition of the
Properties. In addition, subject to 3Com's obligations in Section 5.6 of the
Separation Agreement, in the event that 3Com's Lease with respect to a Leased
Property or a Shared Property or 3Com's interest in the leased portion of the
Headquarters Facility is terminated prior to the Separation Date, (a) 3Com or
its applicable Subsidiary shall not be required to assign, sublease or license
such Property, (b) Palm or its applicable Subsidiary shall not be required to
accept an assignment, sublease or license of such Property and (c) neither party
shall have any further liability with respect to such Property hereunder.
SECTION 1.9 TENANT'S FIXTURES AND FITTINGS
The provisions of the Separation Agreement and the other Ancillary
Agreements shall apply to any trade fixtures and personal property located at
each Property. The lease and sublease of the Headquarters Facility and the
licenses as to the Shared Properties shall include the rental of the furniture
at such Properties.
SECTION 1.10 COSTS
3Com shall pay all reasonable costs and expenses incurred in connection
with obtaining the Lease Consents, including, without limitation, Landlord's
consent fees and attorneys' fees and any costs and expenses relating to
re-negotiation of 3Com's Leases.
-6-
ARTICLE II
MISCELLANEOUS
SECTION 2.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY MEMBER
OF THE 3COM GROUP OR PALM GROUP BE LIABLE TO ANY OTHER MEMBER OF THE 3COM
GROUP OR PALM GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR
PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT
EACH PARTY'S INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS
SET FORTH IN THE INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT.
SECTION 2.2 ENTIRE AGREEMENT. This Agreement, the Separation
Agreement, the other Ancillary Agreements and the Exhibits and Schedules
referenced or attached hereto and thereto, constitute the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all prior written and oral and all contemporaneous oral agreements
and understandings with respect to the subject matter hereof.
SECTION 2.3 GOVERNING LAW. This Agreement shall be construed in
accordance with and all Disputes hereunder shall be governed by the laws of
the State of California, excluding its conflict of law rules and the United
Nations Convention on Contracts for the International Sale of Goods. The
Superior Court of Santa Clara County and/or the United States District Court
for the Northern District of California shall have jurisdiction and venue
over all Disputes between the parties that are permitted to be brought in a
court of law pursuant to Section 5.9 of the Separation Agreement.
Notwithstanding the foregoing, the applicable Property transfers shall be
performed in accordance with the laws of the state in which the applicable
Property is located.
SECTION 2.4 NOTICES. Notices, demands, offers requests or other
communications required or permitted to be given by either party pursuant to
the terms of this Agreement shall be given in writing to the respective
parties to the following addresses:
if to 3Com:
3Com Corporation
5400 Bayfront Plaza
Santa Clara, California 95052
Attention: General Counsel
Fax: 408.326.6434
-7-
if to Palm:
Palm Computing, Inc.
5470 Great America Parkway
Santa Clara, California 95052
Attention: General Counsel
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
SECTION 2.5 COUNTERPARTS. This Agreement, including the Schedules
and Exhibits hereto, and the other documents referred to herein, may be
executed in counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement.
SECTION 2.6 BINDING EFFECT; ASSIGNMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
legal representatives and successors, and nothing in this Agreement, express
or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement. This
Agreement may be enforced separately by each member of the 3Com Group and
each member of the Palm Group. Neither party may assign this Agreement or any
rights or obligations hereunder, without the prior written consent of the
other party, and any such assignment shall be void; provided, however, either
party may assign this Agreement to a successor entity in conjunction with
such party's reincorporation.
SECTION 2.7 SEVERABILITY. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto is determined by a
court, administrative agency or arbitrator to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
fullest extent possible.
SECTION 2.8 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of either party hereto in the exercise of any
right hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement
herein, nor shall any single or partial exercise of any such right preclude
other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement or the Exhibits or Schedules attached
hereto are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
-8-
SECTION 2.9 AMENDMENT. No change or amendment will be made to this
Agreement or the Exhibits or Schedules attached hereto except by an
instrument in writing signed on behalf of each of the parties to such
agreement.
SECTION 2.10 AUTHORITY. Each of the parties hereto represents to
the other that (a) it has the corporate or other requisite power and
authority to execute, deliver and perform this Agreement, (b) the execution,
delivery and performance of this Agreement by it have been duly authorized by
all necessary corporate or other action, (c) it has duly and validly executed
and delivered this Agreement, and (d) this Agreement is a legal, valid and
binding obligation, enforceable against it in accordance with its terms
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and general equity
principles.
SECTION 2.11 INTERPRETATION. The headings contained in this
Agreement, in any Exhibit or Schedule hereto and in the table or contents to
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Any capitalized term
used in any Schedule or Exhibit but not otherwise defined therein, shall have
the meaning assigned to such term in this Agreement. When a reference is made
in this Agreement to an Article or a Section, Exhibit or Schedule, such
reference shall be to an Article or Section of, or an Exhibit or Schedule to,
this Agreement unless otherwise indicated.
SECTION 2.12 DISPUTES. Any Disputes that arise under this Agreement
shall be resolved in accordance with the provisions of Section 5.9 of the
Separation Agreement.
ARTICLE III
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
ACTUAL COMPLETION DATE means, with respect to each Property, the date upon which
completion of the assignment, lease or sublease of that Property actually takes
place.
HEADQUARTERS FACILITY means Buildings 9, 10, 12 and 15 located at 3Com's campus
at Santa Clara, California, as set forth in Section C of Schedule 1 of this
Agreement, together with the non-exclusive right to use the Building 1 and
Building 9 cafeterias, the Building 6 bistro cafe and the Building 5 annex,
located on 3Com's campus upon the terms and subject to the restrictions set
forth in the lease and sublease forms attached hereto a Schedule 4 .
LANDLORD means the landlord under 3Com's Lease, and its successors and assigns,
and includes the holder of any other interest which is superior to the interest
of the landlord under 3Com's Lease.
LEASE CONSENTS means all consents, waivers or amendments required from the
Landlord or other third parties under the Relevant Leases to assign the Relevant
Leases to Palm or its applicable Subsidiary.
LEASED PROPERTIES means those Properties in Section A of Schedule 1 of this
Agreement.
-9-
LICENSE FORM means the form license attached hereto as Schedule 3.
PROPERTY means the Leased Properties, the Shared Properties and the
Headquarters Facility.
RELEVANT LEASES means those of 3Com's Leases with respect to which the
Landlord's consent is required for assignment or sublease to a third party or
which prohibit assignments or subleases.
RETAINED PARTS means those parts of the Leased Properties which, following
assignment to Palm or its applicable Subsidiary, are intended to be licensed
to 3Com or its applicable Subsidiary.
SHARED PROPERTIES means those Properties listed in (a) Section A of Schedule
1 as a Property involving a license back to 3Com and (b) Section B of
Schedule 1 of this Agreement.
3COM'S LEASE means, in relation to each Property, the lease(s) or sublease(s)
or license(s) under which 3Com or its applicable Subsidiary holds such
Property and any other supplemental document completed prior to the Actual
Completion Date.
-10-
IN WITNESS WHEREOF, each of the parties has caused this Real Estate
Matters Agreement to be executed on its behalf by its officers thereunto duly
authorized on the day and year first above written.
3COM CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
PALM, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
-11-
SCHEDULE 1
Properties
Section A: Leased Properties
- -----------------------------------------------------------------
Address License back Approximate
to 3Com? Area to be
(Y/N) licensed
- -----------------------------------------------------------------
Tour Kupka A Y 5,200
18 Rue Hoche
92800 Paris La Defense, France
- -----------------------------------------------------------------
3180 139th Ave. SE, N
Ste. # 200
Bellevue, WA
- -----------------------------------------------------------------
Section B
Shared Properties
- -----------------------------------------------------------------------------------------------------------------------------------
Location Address Current Additional Cost Per Current License
PALM HC Square Footage Person Per Monthly Cost Expiration
(@ $9.50 per Month Date
sf per month)*
- -----------------------------------------------------------------------------------------------------------------------------------
SANTA CLARA 5400 Bayfront Plaza, Bldg 1 5 $ 1,900 $ 9,500 12/31/00
Santa Clara, CA 95052
- -----------------------------------------------------------------------------------------------------------------------------------
SANTA CLARA (whse) 2940-2990 Mead Avenue #1 0 800 $ 880 12/31/00
*Note: cost = $1.10 psf Santa Clara, CA 95051
- -----------------------------------------------------------------------------------------------------------------------------------
SALT LAKE CITY 605 N. 5600 WEST 1 $ 1,900 $ 1,900 3/31/00
Salt Lake City, UT 84116
- -----------------------------------------------------------------------------------------------------------------------------------
CHICAGO 3800 Golf Rd. 11 910 $ 1,900 $ 29,545 8/31/00
Rolling Meadows, IL 60008
- -----------------------------------------------------------------------------------------------------------------------------------
ATLANTA, GA Six Concourse Pkwy # 1450 1 $ 1,900 $ 1,900 3/31/00
Atlanta, GA 30328-5346
- -----------------------------------------------------------------------------------------------------------------------------------
BLOOMINGTON, MN 7760 France Ave. S., 6th floor 1 $ 1,900 $ 1,900 3/31/00
Bloomington MN 55435
- -----------------------------------------------------------------------------------------------------------------------------------
VIENNA, VA 2070 CHAIN BRIDGE ROAD 1 $ 1,900 $ 1,900 3/31/00
Vienna, VA 22182
- -----------------------------------------------------------------------------------------------------------------------------------
WINNERSH 220 WHARFDALE ROAD 26 $ 1,900 $ 49,400 5/31/00
Winnersh, Wokingham
Berkshire RG41 5TB England
- -----------------------------------------------------------------------------------------------------------------------------------
MAARSEN, NETHERLANDS 3Com Benelux 2 $ 1,900 $ 3,800 3/31/00
PLANET PARK II PLANETENBAAN 118
3606 AK Maarssen
Maarsen, Netherlands
- -----------------------------------------------------------------------------------------------------------------------------------
MUNICH, GERMANY 3Com GmbH 8 100 $ 1,900 $ 16,150 3/31/00
MAX-PLANCK-STRASSE 3
D-85609 ASCHHEIM-DORNACH
Germany
- -----------------------------------------------------------------------------------------------------------------------------------
SOLNA, SWEDEN FROSUNDAVIKS ALLE 15, Box 1251 4 $ 1,900 $ 7,600 3/31/00
171 24 Solna, Sweden
- -----------------------------------------------------------------------------------------------------------------------------------
ZURICH, SWITZERLAND 3Com (Schweiz) AG 1 $ 1,900 $ 1,900 3/31/00
54 THURGAUER STRASSE
CH-8050 Zurich, Switzerland
- -----------------------------------------------------------------------------------------------------------------------------------
DUBLIN, IRELAND 3Com Dublin 3 $ 1,900 $ 5,700 6/30/00
Ballycoolin Business Park
Blanchardstown, Dublin 15, Ireland
- -----------------------------------------------------------------------------------------------------------------------------------
MILAN, ITALY 3Com Italia S.p.A. 1 $ 1,900 $ 1,900 3/31/00
Via Michaelangelo Buonarroti, 1
20093 Cologno Monzese
- -----------------------------------------------------------------------------------------------------------------------------------
HONG KONG 3Com Asia LTD 5 120 $ 1,900 $ 10,640 5/31/00
23F,
Li Po Chun Chambers
89 Des Voeux Rd.
Central Hong Kong
- -----------------------------------------------------------------------------------------------------------------------------------
NORTH SYDNEY, AUSTRALIA 65 BERRY ST., level 12/13 4 $ 1,900 $ 7,600 3/31/00
Sidney, NSW, Australia 2060
- -----------------------------------------------------------------------------------------------------------------------------------
JAPAN 21F, Center Office 5 520 $ 1,900 $ 14,440 5/31/00
Bunkyo Green Court
2-28-8 Honkomagome
Bunkyo-Ku, Tokyo Japan, 113-6591
- -----------------------------------------------------------------------------------------------------------------------------------
SINGAPORE (SALES OFFICE) 50 RAFFLES PLACE 4 $ 1,900 $ 7,600 5/31/00
#27-05/06
Singapore Land Tower
048623 Singapore
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
Location Address Current Additional Cost Per Current License
PALM HC Square Footage Person Per Monthly Cost Expiration
(@ $9.50 per Month Date
sf per month)*
- -----------------------------------------------------------------------------------------------------------------------------------
SINGAPORE (MFG ) 3Com Technologies 5 284 $ 1,900 $ 2,198 5/31/00
3 Changi North ST. 2
498827 Singapore
- -----------------------------------------------------------------------------------------------------------------------------------
MEXICO Paseo de las Palmas 1 $ 1,900 $ 1,900 3/31/00
405-903 Torre Optima, Pico 9
Mexico City, Mexico 11000
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL MONTHLY RENT FOR LICENSED PREMISES 89 $188,353
- -----------------------------------------------------------------------------------------------------------------------------------
Section C: Headquarters Facility
- ---------------------------- ----------------- -------------------- --------------------
Address Leased or Estimated Estimated Square
Subleased? Area Commencement Date Footage
- ---------------------------- ----------------- -------------------- --------------------
5400 Bayfront Plaza, Leased 3/1/00 35,000
Bldg 12
Santa Clara, CA
- ---------------------------- ----------------- -------------------- --------------------
5400 Bayfront Plaza, Leased 11/15/00 35,000
Bldg. 15
Santa Clara, CA
- ---------------------------- ----------------- -------------------- --------------------
5400 Bayfront Plaza, Subleased 3/1/00 63,600
Bldg. 9
- ---------------------------- ----------------- -------------------- --------------------
5400 Bayfront Plaza, Subleased 3/1/00 83,100
Bldg. 10
- ---------------------------- ----------------- -------------------- --------------------
Common Area Subleased 3/1/00 12,800
- ---------------------------- ----------------- -------------------- --------------------
SCHEDULE 2
Form Assignment for Leased Properties
SCHEDULE 3
Form License for Shared Properties
SCHEDULE 4
Form Lease and Sublease for the Headquarters Facility