{"id":41968,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/sublease-termination-and-release-agreement-broadvision-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"sublease-termination-and-release-agreement-broadvision-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/sublease-termination-and-release-agreement-broadvision-inc.html","title":{"rendered":"Sublease Termination and Release Agreement – BroadVision, Inc. and Dexterra Inc."},"content":{"rendered":"

SUBLEASE TERMINATION AND RELEASE AGREEMENT<\/strong>\n<\/p>\n

\n

This Sublease Termination and Release Agreement (the
\n“Agreement”<\/em><\/strong>) is made and entered into as of June 10,
\n2009 (the “Effective Date”<\/em><\/strong>) by and between
\nBroadVision, Inc<\/strong>., a Delaware corporation (“Sublandlord”), and
\nDexterra Inc.<\/strong>, a Delaware corporation (“Subtenant”) in the
\nfollowing factual context:<\/p>\n<\/p>\n

A. Sublandlord leases certain premises consisting of approximately 50,000
\nrentable square feet (“RSF”) in Building 6 (the “Building”), located at Pacific
\nShores Center, 1600 Seaport Boulevard, Redwood City, California 94060 pursuant
\nto that certain Triple Net Space Lease dated July 7, 2004 (“Master Lease”),
\nbetween Pacific Shores Investors, LLC as landlord and BroadVision, Inc. as the
\n“Lessee”. On or about December 7, 2006, the Master Lease was assigned to VII Pac
\nShores Investors, L.L.C., a Delaware limited liability company, c\/o Starwood
\nCapital Group Global, L.L.C., 455 Market Street, Suite 2200, San Francisco, CA
\n94105 and VII Pac Shores Investors L.L.C. replaced Pacific Shores Investors, LLC
\nas the “Lessor” in the Master Lease. Sublandlord is referred to as Lessee in the
\nMaster Lease. The entire 50,000 RSF are more particularly described in the
\nMaster Lease as the “Premises”. Capitalized terms used but not defined herein
\nhave the same meanings as they have in the Master Lease or the Sublease as
\nhereinafter defined.<\/p>\n<\/p>\n

B. Sublandlord sublet to Subtenant, a portion of the Premises consisting of
\napproximately 22,509 RSF on the 2nd floor of the Building pursuant to a sublease
\ndated December 21, 2006 (the “Sublease”<\/em><\/strong>) covering the
\nsublet premises more particularly described in the Sublease (the
\n“Subleased Premises”<\/em><\/strong>) for a term of approximately
\nsixty-six (66) months from January 8, 2007 (“Commencement Date”) with right of
\nearly termination at the end of the thirty-sixth (36th) month from the
\nCommencement Date, upon six (6) months prior written notice to Sublandlord and
\npayment of a fee equal to the sum of an additional three (3) month153s Base Rent.\n<\/p>\n<\/p>\n

C. Subtenant exercised the right of early termination on May 22, 2009.<\/p>\n<\/p>\n

D. Sublandlord and Subtenant now desire to terminate the Sublease prior to
\nthe end of the thirty-sixth (36th<\/sup>) month on the terms and conditions
\nset forth in this Agreement.<\/p>\n<\/p>\n

NOW THEREFORE, Sublandlord and Subtenant (collectively referred to as the
\n“Parties” <\/em><\/strong>or individually as
\n“Party”<\/em><\/strong>) agree as follows:<\/p>\n<\/p>\n

1.<\/strong> Lease Termination<\/strong>. Subject to
\nSubtenant153s performance of its obligations under this Agreement, Sublandlord and
\nSubtenant agree to terminate the Sublease effective as of June 4, 2009 (the
\n“Termination Date”<\/em><\/strong>). Subtenant shall surrender to
\nSublandlord the Subleased Premises and all of Subtenant’s right, title and
\ninterest in and to the Sublease as of the Termination Date.<\/p>\n<\/p>\n

2. Acceptance of Premises.<\/strong> Sublandlord shall accept
\nsurrender of the Subleased Premises in “as-is” condition with any and all
\nfurniture, fixtures, wiring, and other items Subtenant elects to leave in the
\nSubleased Premises and further will waive all late fees and any other charges
\nassociated therewith as may be available to Sublandlord pursuant to the terms of
\nthe Sublease.<\/p>\n<\/p>\n

3.<\/strong> Termination Fee<\/strong>. In consideration for
\nthe termination of the Sublease, and in full satisfaction of all outstanding
\nobligations of Sublandlord and Subtenant under the Sublease: Subtenant shall pay
\nSublandlord the sum of $550,405.40 (the “Termination Fee”). The Termination Fee
\nhas been calculated and shall be paid as set forth in Section I and
\nSection II of<\/u><\/strong> Exhibit A<\/strong><\/u>.<\/p>\n<\/p>\n

4.<\/strong> Rent.<\/strong> Upon delivery of the Termination
\nFee in accordance with Section II of Exhibit A, Sublandlord shall be deemed to
\nhave released Subtenant as of the Termination Date from all claims for rent,
\nadditional rent, tenant improvement costs, management fees, common area
\nmaintenance costs, real property taxes and impositions, insurance premiums, late
\ncharges, interest, and taxes due and payable after the Termination Date, and all
\nother obligations arising under the Sublease after the Termination Date.<\/p>\n<\/p>\n

5.<\/strong> Security Deposit.<\/strong> Subtenant153s Security
\nDeposit has been applied in the calculation of the Termination Fee as set forth
\nin calculations in Section I of Exhibit A<\/u><\/strong>.<\/p>\n<\/p>\n

6.<\/strong> Partial Termination Fee Refund to Subtenant Upon
\nSublandlord153s Re-Subleasing of Subleased Premises. <\/strong>In the event
\nSublandlord subleases the Subleased Premises to another lessor prior to January
\n7, 2010, Sublandlord agrees to refund to Subtenant a portion of the Termination
\nFee as set forth in Section III of Exhibit A<\/u><\/strong>.<\/p>\n<\/p>\n

7.<\/strong> Mutual Release.<\/strong> Subject to delivery of
\nthe Termination Fee in accordance with Section II of Exhibit A, for good and
\nvaluable consideration, the receipt of which is hereby acknowledged, each Party,
\non behalf of itself and its officers, directors, shareholders, employees,
\nattorneys, insurers, agents, representatives, successors and assigns
\n(collectively, “Releasors”<\/em><\/strong>), hereby intentionally and
\nunconditionally fully releases, acquits and forever discharges the other Party,
\nits officers, directors, shareholders, employees, attorneys, insurers, agents,
\nrepresentatives, successors and assigns (collectively,
\n“Releasees”<\/em><\/strong>), from all or any manner of rights,
\nclaims, demands, actions in law or equity, obligations, damages, debts and
\nliabilities, of any kind or nature whatsoever, whether known or unknown, whether
\nnow existing or hereinafter arising, suspected or claimed, liquidated or
\nunliquidated, accrued or unaccrued, fixed or contingent (collectively, the
\n“Claims”<\/em><\/strong>) from or relating in any manner to the Lease
\nor the Sublease (the “Release”<\/em><\/strong>). Each Party
\nunderstands and expressly waives any rights or benefits available to it under
\nSection 1542 of the Civil Code of California or any similar provision in any
\nother jurisdiction. Section 1542 provides substantially as follows:<\/p>\n<\/p>\n

CIVIL CODE 1542: A general release does not extend to claims which the
\ncreditor does not know or suspect to exist in his or her favor at the time of
\nexecuting the release, which if known by him or her must have materially
\naffected his or her settlement with the debtor.<\/p>\n<\/p>\n

8.<\/strong> Voluntary and Knowledgeable Granting of Release.
\n<\/strong>Each Releasor hereby declares that it knows and understands the
\ncontents of the Release, that it has been recommended that it seek advice from
\nits own attorneys with respect to its rights and obligations and with respect to
\nthe execution of the Release and this Agreement, and that the Release and this
\nAgreement have been executed voluntarily by it. Each Releasor understands and
\nagrees that after signing this Release it cannot proceed against Releasees with
\nrespect to any Claims.<\/p>\n<\/p>\n

9. General Provisions.<\/strong><\/p>\n<\/p>\n

9.1<\/strong> Right and Authority to Give Release.
\n<\/strong>The Parties each represent and warrant to the other that as of the date
\nof execution of this Agreement it has the sole right and authority to execute
\nthis Agreement on behalf of itself and has not assigned, transferred, conveyed,
\nor otherwise disposed of any Claim surrendered by virtue of this Agreement.<\/p>\n<\/p>\n

9.2<\/strong> Entire Agreement<\/strong>. This Agreement, and
\nall exhibits attached hereto, sets forth the entire understanding of the Parties
\nrelating to the lease termination it contemplates, and supersedes all prior
\nunderstandings, whether written or oral. There are no obligations, commitments,
\nrepresentations or warranties relating to them except those expressly set forth
\nin this Agreement.<\/p>\n<\/p>\n

9.3<\/strong> Waiver\/Modification\/Amendment<\/strong>. No
\npurported amendment of this Agreement, or waiver, discharge or termination of
\nany obligation under it, or anything else which purports to affect its terms or
\ninterpretation, shall be enforceable or admissible unless, and then only to the
\nextent, expressly set forth in a writing signed by the Party against which
\nenforcement or admission is sought. Without limiting the generality of the
\nforegoing, no oral promise or statement, nor any action, inaction, delay,
\nfailure to require performance or course of conduct shall operate as, or
\nevidence, an amendment or waiver or have any other effect on this Agreement. Any
\nwaiver granted shall be limited to the specific circumstance expressly described
\nin it, and shall not apply to any subsequent or other circumstances, whether
\nsimilar or dissimilar, or give rise to, or evidence, any obligation or
\ncommitment to grant any further waiver.<\/p>\n<\/p>\n

9.4<\/strong> Binding Agreement<\/strong>. This Agreement shall
\nbe binding upon and inure to the benefit of the Parties and each and all of
\ntheir respective officers, directors, employees, shareholders, agents,
\nattorneys, predecessors, successors, assigns, parents, subsidiaries, divisions
\nand affiliates of any kind, and each of them, as if they were Parties hereto.\n<\/p>\n<\/p>\n

9.5<\/strong> Applicable Law.<\/strong> This Agreement shall be
\ngoverned by and construed in accordance with the laws of the State of California
\napplicable to contracts made and to be performed in California.<\/p>\n<\/p>\n

9.6<\/strong> Construction of Agreement. <\/strong>For purposes
\nof construction, this Agreement, and each provision or clause of this Agreement,
\nshall be deemed to have been jointly drafted by both Parties, and any
\nuncertainty or ambiguity existing herein, shall not be interpreted against
\neither Party, but shall be interpreted according to the rules of interpretation
\nof contracts.<\/p>\n<\/p>\n

9.7<\/strong> Headings.<\/strong> The headings in this
\nAgreement are for purposes of reference only and shall not limit, enlarge or
\notherwise affect any term or provision of this Agreement.<\/p>\n<\/p>\n

9.8<\/strong> Severability. <\/strong>The provisions of this
\nAgreement are severable. If any provision or term of this Agreement or its
\napplication to any entity or circumstance shall be held by a court of competent
\njurisdiction to be invalid or unenforceable, the remainder of this Agreement
\nshall not be affected and every other provision of the Agreement shall be
\nenforced to the fullest extent permitted by law.<\/p>\n<\/p>\n

9.9<\/strong> Attorneys153 Fees<\/strong>. In the event that any
\nParty shall institute any action or proceeding against the other relating to the
\nprovisions of this Agreement, or any default hereunder, the Party or Parties not
\nprevailing in the action or proceeding shall reimburse the prevailing Party for
\nall reasonable attorneys153 fees and all costs or disbursements incurred in
\nconnection therewith by the prevailing Party including, without limitation, any
\nfees, costs or disbursements incurred on any appeal from the action or
\nproceeding.<\/p>\n<\/p>\n

9.10<\/strong> Counterparts<\/strong>. This Agreement may be
\nexecuted simultaneously in one or more counterparts, each of which shall be
\ndeemed an original, but all of which together shall constitute one and the same
\ninstrument. This Agreement may be executed and delivered by the exchange of
\nfacsimile, .pdf or other electronic image file copies of the executed
\ncounterpart signature pages, which shall be considered the equivalent of ink
\nsignature pages for all purposes.<\/p>\n<\/p>\n

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
\ndate first written above.<\/p>\n<\/p>\n<\/p>\n\n\n\n\n\n\n
<\/td>\n\n

BROADVISION, INC., a Delaware corporation<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

By:<\/p>\n

Name:<\/p>\n

Its:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

DEXTERRA, INC., a Delaware corporation<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

By:<\/p>\n

Name:<\/p>\n

Its:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n<\/p>\n

\n<\/p>\n<\/p>\n

EXHIBIT A<\/p>\n

\n

TERMINATION FEE<\/p>\n

\n<\/p>\n

I. Termination Fee Calculation<\/p>\n<\/p>\n<\/p>\n

Rent: April 1 – Jan 7 – $687,923.40<\/p>\n<\/p>\n

Less: Security Deposit – $127,518.00<\/p>\n<\/p>\n

Less: Concession – $10,000.00<\/p>\n<\/p>\n<\/p>\n<\/p>\n

Total<\/strong>:$550,405.40<\/strong><\/p>\n<\/p>\n\n\n\n
\n

II.<\/p>\n<\/td>\n

\n

Termination Fee Payment Schedule:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

A. $472,000.00 due and payable to Sublandlord on 6\/10\/09 (the “Payment Date”)\n<\/p>\n<\/p>\n\n\n\n
<\/td>\n\n

B. Balance of $78,405.40 (the “Contingent Payment”) due and payable to
\nSublandlord on the one year anniversary of the Payment Date. The Contingent
\nPayment to be from the Escrow Amount (but not the Special Escrow Amount) related
\nto the acquisition of Subtenant by Antenna Software, Inc. (“Buyer”) (the term
\n“Escrow Amount” is defined in that certain Escrow Agreement between Subtenant,
\nBuyer and the other parties thereto dated on or about June 9, 2009 and
\nrepresents the $750,000 primary escrow fund related to the acquisition) or if
\nthe Dexterra Stakeholder Representative so elects, from such other funds
\navailable to the Dexterra Stakeholder Representative. Sublandlord will be the
\nfirst party to receive payment from the Escrow Amount after the release of such
\nescrow funds by Buyer (or the Escrow Agent), if any. Sublandlord acknowledges
\nthat in the event indemnity claims by a Buyer Group Member (as defined below and
\nin the Merger Agreement) sufficiently deplete or exhaust the Escrow Amount,
\nregardless of any other funds available to the Dexterra Stakeholder
\nRepresentative, Sublandlord shall not receive some or all of the Contingent
\nPayment (and for purposes of clarification, such failure to receive some or all
\nof the Contingent Payment shall not affect the release set forth in Section 7 or
\nthe termination of the sublease set forth in Section 1). Subtenant will provide
\nSublandlord a copy of the Escrow Agreement indicating Sublandlord153s priority
\nwithin 10 days of execution of this Agreement. Capitalized terms in this
\nparagraph not otherwise defined have the meaning set forth in the Escrow
\nAgreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

All references to “Buyer” shall include the subsidiary of Buyer with whom
\nSubtenant is merging pursuant to the Merger Agreement with Subtenant as the
\nsurviving corporation.<\/p>\n<\/p>\n

“Buyer Group Member<\/u>” means (i) Buyer, its subsidiaries and each of
\ntheir respective affiliates (including, after the effective time of the merger,
\nthe surviving corporation and its subsidiaries), (ii) their respective
\nsuccessors and assigns and (iii) their respective directors and officers.<\/p>\n<\/p>\n<\/p>\n

All payments to be made according to the following instructions by wire
\ntransfer for receipt on or before the due dates set forth above:<\/p>\n<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n\n

To: Citibank N.A.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

702 Marshall Street, Suite 100<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n\n

Redwood City, CA 94063, USA<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Routing & Transit #: 321171184<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

For further credit to BroadVision. Inc. A\/C 202046322<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

III. Termination Fee Refund on Re-Subleasing the Sublease Premises
\nParameters:<\/p>\n<\/p>\n<\/p>\n\n\n\n\n
\n

A. <\/strong><\/p>\n<\/td>\n

\n

Higher of<\/strong>: (i) Actual rent charged new subtenant during
\nOverlap Period (New Lease Commencement Date through Jan 7, 2010), and (ii)
\naverage rent charged new subtenant during Overlap Period, calculated as total
\nrent due over the entire term divided by new lease term (in months) multiplied
\nby number of months in Overlap Period;<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

Less<\/strong>:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

B.<\/p>\n<\/td>\n

\n

Allocated broker commission paid to re-sublease premises, calculated as
\nbroker commission paid divided by term (in months) of new lease multiplied by
\nnumber of months in Overlap Period<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

Less<\/strong>:<\/p>\n<\/p>\n<\/p>\n

C. An administration fee equal to 10% of (A – B)<\/p>\n<\/p>\n<\/p>\n

Less:<\/p>\n<\/p>\n<\/p>\n

D. $10,000, which is the Concession amount in Section I of this Exhibit.<\/p>\n<\/p>\n<\/p>\n

Less:<\/p>\n<\/p>\n<\/p>\n

E. Unpaid portion of Contingent Payment<\/p>\n<\/p><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6951],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9583,9579],"class_list":["post-41968","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-broadvision-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41968","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41968"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41968"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41968"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41968"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}