SUBLEASE TERMINATION AND RELEASE AGREEMENT
This
Sublease Termination and Release Agreement (the “Agreement”)
is made and entered into as of June 10, 2009 (the “Effective
Date”) by and between BroadVision, Inc., a Delaware
corporation (“Sublandlord”), and Dexterra Inc., a Delaware
corporation (“Subtenant”) in the following factual
context:
A. Sublandlord
leases certain premises consisting of approximately 50,000 rentable square feet
("RSF") in Building 6 (the "Building"), located at Pacific Shores Center, 0000
Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 pursuant to that certain
Triple Net Space Lease dated July 7, 2004 ("Master Lease"), between Pacific
Shores Investors, LLC as landlord and BroadVision, Inc. as the "Lessee". On or
about December 7, 2006, the Master Lease was assigned to VII Pac Shores
Investors, L.L.C., a Delaware limited liability company, c/o Starwood Capital
Group Global, L.L.C., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 and
VII Pac Shores Investors L.L.C. replaced Pacific Shores Investors, LLC as the
"Lessor" in the Master Lease. Sublandlord is referred to as Lessee in the Master
Lease. The entire 50,000 RSF are more particularly described in the Master Lease
as the “Premises”. Capitalized terms used but not defined herein have
the same meanings as they have in the Master Lease or the Sublease as
hereinafter defined.
B. Sublandlord
sublet to Subtenant, a portion of the Premises consisting of approximately
22,509 RSF on the 2nd floor of the Building pursuant to a sublease dated
December 21, 2006 (the “Sublease”)
covering the sublet premises more particularly described in the Sublease (the
“Subleased
Premises”) for a term of approximately sixty-six (66) months from January
8, 2007 (“Commencement Date”) with right of early termination at the end of the
thirty-sixth (36th) month from the Commencement Date, upon six (6) months prior
written notice to Sublandlord and payment of a fee equal to the sum of an
additional three (3) month’s Base Rent.
C. Subtenant
exercised the right of early termination on May 22, 2009.
D. Sublandlord
and Subtenant now desire to terminate the Sublease prior to the end of the
thirty-sixth (36th) month
on the terms and conditions set forth in this Agreement.
NOW
THEREFORE, Sublandlord and Subtenant (collectively referred to as the “Parties”
or individually as “Party”)
agree as follows:
1. Lease
Termination. Subject to Subtenant’s performance of its
obligations under this Agreement, Sublandlord and Subtenant agree to terminate
the Sublease effective as of June 4, 2009 (the “Termination
Date”). Subtenant shall surrender to Sublandlord the Subleased
Premises and all of Subtenant's right, title and interest in and to the Sublease
as of the Termination Date.
2. Acceptance of
Premises. Sublandlord shall accept surrender of the Subleased
Premises in “as-is” condition with any and all furniture, fixtures, wiring, and
other items Subtenant elects to leave in the Subleased Premises and further will
waive all late fees and any other charges associated therewith as may be
available to Sublandlord pursuant to the terms of the Sublease.
3. Termination Fee. In
consideration for the termination of the Sublease, and in full satisfaction of
all outstanding obligations of Sublandlord and Subtenant under the Sublease:
Subtenant shall pay Sublandlord the sum of $550,405.40 (the “Termination
Fee”). The Termination Fee has been calculated and shall be paid as
set forth in Section I
and Section II of Exhibit
A.
4. Rent. Upon delivery
of the Termination Fee in accordance with Section II of Exhibit A, Sublandlord
shall be deemed to have released Subtenant as of the Termination Date from all
claims for rent, additional rent, tenant improvement costs, management fees,
common area maintenance costs, real property taxes and impositions, insurance
premiums, late charges, interest, and taxes due and payable after the
Termination Date, and all other obligations arising under the Sublease after the
Termination Date.
5. Security Deposit. Subtenant’s
Security Deposit has been applied in the calculation of the Termination Fee as
set forth in calculations in Section I
of Exhibit A.
6. Partial Termination Fee Refund to
Subtenant Upon Sublandlord’s Re-Subleasing of Subleased
Premises. In the event Sublandlord subleases the Subleased
Premises to another lessor prior to January 7, 2010, Sublandlord agrees to
refund to Subtenant a portion of the Termination Fee as set forth in Section
III of Exhibit A.
7. Mutual
Release. Subject to delivery of the Termination Fee in
accordance with Section II of Exhibit A, for good and valuable
consideration, the receipt of which is hereby acknowledged, each Party, on
behalf of itself and its officers, directors, shareholders, employees,
attorneys, insurers, agents, representatives, successors and assigns
(collectively, “Releasors”),
hereby intentionally and unconditionally fully releases, acquits and forever
discharges the other Party, its officers, directors, shareholders, employees,
attorneys, insurers, agents, representatives, successors and assigns
(collectively, “Releasees”),
from all or any manner of rights, claims, demands, actions in law or equity,
obligations, damages, debts and liabilities, of any kind or nature whatsoever,
whether known or unknown, whether now existing or hereinafter arising, suspected
or claimed, liquidated or unliquidated, accrued or unaccrued, fixed or
contingent (collectively, the “Claims”)
from or relating in any manner to the Lease or the Sublease (the “Release”). Each
Party understands and expressly waives any rights or benefits available to it
under Section 1542 of the Civil Code of California or any similar provision in
any other jurisdiction. Section 1542 provides substantially as
follows:
CIVIL
CODE 1542: A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or her
settlement with the debtor.
8. Voluntary and Knowledgeable Granting
of Release. Each Releasor hereby declares that it knows and
understands the contents of the Release, that it has been recommended that it
seek advice from its own attorneys with respect to its rights and obligations
and with respect to the execution of the Release and this Agreement, and that
the Release and this Agreement have been executed voluntarily by
it. Each Releasor understands and agrees that after signing this
Release it cannot proceed against Releasees with respect to any
Claims.
9. General
Provisions.
9.1 Right and Authority to Give
Release. The Parties each represent and warrant to the other
that as of the date of execution of this Agreement it has the sole right and
authority to execute this Agreement on behalf of itself and has not assigned,
transferred, conveyed, or otherwise disposed of any Claim surrendered by virtue
of this Agreement.
9.2 Entire
Agreement. This Agreement, and all exhibits attached hereto,
sets forth the entire understanding of the Parties relating to the lease
termination it contemplates, and supersedes all prior understandings, whether
written or oral. There are no obligations, commitments,
representations or warranties relating to them except those expressly set forth
in this Agreement.
9.3 Waiver/Modification/Amendment. No
purported amendment of this Agreement, or waiver, discharge or termination of
any obligation under it, or anything else which purports to affect its terms or
interpretation, shall be enforceable or admissible unless, and then only to the
extent, expressly set forth in a writing signed by the Party against which
enforcement or admission is sought. Without limiting the generality
of the foregoing, no oral promise or statement, nor any action, inaction, delay,
failure to require performance or course of conduct shall operate as, or
evidence, an amendment or waiver or have any other effect on this
Agreement. Any waiver granted shall be limited to the specific
circumstance expressly described in it, and shall not apply to any subsequent or
other circumstances, whether similar or dissimilar, or give rise to, or
evidence, any obligation or commitment to grant any further waiver.
9.4 Binding
Agreement. This Agreement shall be binding upon and inure to
the benefit of the Parties and each and all of their respective officers,
directors, employees, shareholders, agents, attorneys, predecessors, successors,
assigns, parents, subsidiaries, divisions and affiliates of any kind, and each
of them, as if they were Parties hereto.
9.5 Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts made
and to be performed in California.
9.6 Construction of
Agreement. For purposes of construction, this Agreement, and
each provision or clause of this Agreement, shall be deemed to have been jointly
drafted by both Parties, and any uncertainty or ambiguity existing herein, shall
not be interpreted against either Party, but shall be interpreted according to
the rules of interpretation of contracts.
9.7 Headings. The
headings in this Agreement are for purposes of reference only and shall not
limit, enlarge or otherwise affect any term or provision of this
Agreement.
9.8 Severability. The
provisions of this Agreement are severable. If any provision or term
of this Agreement or its application to any entity or circumstance shall be held
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall not be affected and every other provision of
the Agreement shall be enforced to the fullest extent permitted by
law.
9.9 Attorneys’ Fees. In
the event that any Party shall institute any action or proceeding against the
other relating to the provisions of this Agreement, or any default hereunder,
the Party or Parties not prevailing in the action or proceeding shall reimburse
the prevailing Party for all reasonable attorneys’ fees and all costs or
disbursements incurred in connection therewith by the prevailing Party
including, without limitation, any fees, costs or disbursements incurred on any
appeal from the action or proceeding.
9.10 Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement may be executed and
delivered by the exchange of facsimile, .pdf or other electronic image file
copies of the executed counterpart signature pages, which shall be considered
the equivalent of ink signature pages for all purposes.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
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BROADVISION,
INC., a Delaware corporation
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By:
Name:
Its:
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DEXTERRA,
INC., a Delaware corporation
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By:
Name:
Its:
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EXHIBIT
A
TERMINATION
FEE
I.
Termination Fee Calculation
Rent:
April 1 - Jan 7 -
$687,923.40
Less:
Security Deposit -
$127,518.00
Less:
Concession -
$10,000.00
Total:$550,405.40
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II.
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Termination
Fee Payment Schedule:
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A.
$472,000.00 due and payable to Sublandlord on 6/10/09 (the “Payment
Date”)
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B.
Balance of $78,405.40 (the “Contingent Payment”) due and payable to
Sublandlord on the one year anniversary of the Payment Date. The
Contingent Payment to be from the Escrow Amount (but not the Special
Escrow Amount) related to the acquisition of Subtenant by Antenna
Software, Inc. (“Buyer”) (the term “Escrow Amount” is defined in that
certain Escrow Agreement between Subtenant, Buyer and the other parties
thereto dated on or about June 9, 2009 and represents the $750,000 primary
escrow fund related to the acquisition) or if the Dexterra Stakeholder
Representative so elects, from such other funds available to the Dexterra
Stakeholder Representative. Sublandlord will be the first party to
receive payment from the Escrow Amount after the release of such
escrow funds by Buyer (or the Escrow Agent), if any.
Sublandlord acknowledges that in the event indemnity claims by a Buyer
Group Member (as defined below and in the Merger Agreement) sufficiently
deplete or exhaust the Escrow Amount, regardless of any other funds
available to the Dexterra Stakeholder Representative, Sublandlord shall
not receive some or all of the Contingent Payment (and for purposes of
clarification, such failure to receive some or all of the Contingent
Payment shall not affect the release set forth in Section 7 or the
termination of the sublease set forth in Section 1). Subtenant
will provide Sublandlord a copy of the Escrow Agreement indicating
Sublandlord’s priority within 10 days of execution of this
Agreement. Capitalized terms in this paragraph not otherwise
defined have the meaning set forth in the Escrow
Agreement.
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All
references to “Buyer” shall include the subsidiary of Buyer with whom Subtenant
is merging pursuant to the Merger Agreement with Subtenant as the surviving
corporation.
“Buyer Group Member”
means (i) Buyer, its subsidiaries and each of their respective affiliates
(including, after the effective time of the merger, the surviving corporation
and its subsidiaries), (ii) their respective successors and assigns and (iii)
their respective directors and officers.
All
payments to be made according to the following instructions by wire transfer for
receipt on or before the due dates set forth above:
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To: Citibank
N.A.
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000
Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx
Xxxx, XX 00000, XXX
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Routing
& Transit #: 000000000
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For
further credit to BroadVision. Inc. A/C
202046322
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III.
Termination Fee Refund on Re-Subleasing the Sublease Premises
Parameters:
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A.
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Higher of: (i) Actual
rent charged new subtenant during Overlap Period (New Lease Commencement
Date through Jan 7, 2010), and (ii) average rent charged new subtenant
during Overlap Period, calculated as total rent due over the entire term
divided by new lease term (in months) multiplied by number of months in
Overlap Period;
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Less:
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B.
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Allocated
broker commission paid to re-sublease premises, calculated as broker
commission paid divided by term (in months) of new lease multiplied by
number of months in Overlap Period
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Less:
C.
An administration fee equal to 10% of (A - B)
Less:
D. $10,000,
which is the Concession amount in Section I of this Exhibit.
Less:
E. Unpaid
portion of Contingent Payment
