Exhibit 10.44
ASSIGNMENT AND ASSUMPTION OF
MASTER LEASE,
PARTIAL TERMINATION OF MASTER LEASE AND
ASSIGNMENT AND ASSUMPTION OF SUBLEASES
THIS ASSIGNMENT AND ASSUMPTION OF
MASTER LEASE, PARTIAL TERMINATION OF MASTER LEASE AND ASSIGNMENT
AND ASSUMPTION OF SUBLEASES (“Agreement”) is dated as
of this 7 th day of July 2004, by and between PACIFIC
SHORES INVESTORS, LLC, a Delaware limited liability company
(“PSI”), and BROADVISION, INC., a Delaware corporation
(“BroadVision”).
R E C I T A
L S :
A.
PSI’s predecessor-in-interest,
Pacific Shores Center LLC, and BroadVision have previously entered
into that certain Triple Net Building Lease dated as of February
15, 2000, as amended by that certain undated Memorandum of
Commencement of Lease Term (referencing the Commencement Date of
the Lease of May 1, 2001), that certain Agreement to Resolve
Certain Tenant Improvement Disputes with Respect to B-4, B-5 &
B-6 dated as of January 8, 2002, and that certain First Amendment
to Lease (Building 6 - 1600 Seaport Boulevard) dated as of May 9,
2002 (collectively, the “Master Lease”), under which
BroadVision leases from PSI certain premises identified therein and
commonly known as Building 6, Pacific Shores Center, 1600 Seaport
Boulevard, Redwood City, California 94060 (the
“Premises”). A true and complete copy of the
Master Lease is attached to this Agreement as Exhibit A
. All capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to them in the Master
Lease.
B.
BroadVision and Symantec
Corporation, a Delaware corporation (“Symantec”), as
successor-in-interest to Recourse Technologies, Inc., a Delaware
corporation, are parties to that certain Sublease dated October 31,
2001, as amended by that certain Consent to Sublease dated November
29, 2001, that certain First Amendment to Sublease dated as of
October 14, 2002, that certain First Amendment to Consent to
Sublease dated as of November 25, 2002, that certain letter dated
January 24, 2003 re: First Amendment to Sublease Terms
(Commencement Date), that certain Second Amendment to Sublease
dated as of October 20, 2003, that certain Second Amendment to
Consent to Sublease dated as of January 9, 2004, and that certain
undated Commencement Date Agreement (referencing the Commencement
Date of the Term of the 2 nd Amendment of March 1, 2004)
(collectively, the “Symantec Sublease”), under which
Symantec subleases from BroadVision a portion of the Premises more
particularly identified therein. A true and correct copy of
the Symantec Sublease is attached to this Agreement as
Exhibit B-1 .
C.
BroadVision and Nextance, Inc., a
Delaware corporation (“Nextance”) have previously
entered into that certain Sublease dated April 2, 2002, as amended
by that certain Consent to Sublease dated May 24, 2002
(collectively, the “Nextance Sublease”), under which
Nextance subleases from BroadVision a portion of the Premises more
particularly identified
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therein. A true and correct copy of the
Nextance Sublease is attached to this Agreement as
Exhibit B-2 .
D.
BroadVision and E2Open, Inc., a
Delaware corporation (“E2Open”), as successor-by-merger
to E2Open, LLC, a Delaware limited liability company, have
previously entered into that certain Sublease dated June 19, 2002,
as amended by that certain Consent to Sublease dated July 25, 2002,
that certain undated Commencement Date Memorandum (referencing the
Commencement Date of July 19, 2002), that certain Amendment One to
Sublease dated as of August , 2002, and that
certain Letter Agreement re: Sublease Utility Charges dated June
24, 2004 (collectively, the “E2Open Sublease”), under
which E2Open subleases from BroadVision a portion of the Premises
more particularly identified therein. A true and correct copy
of the E2Open Sublease is attached to this Agreement as
Exhibit B-3 .
E.
BroadVision and MedExpert
International, Inc., a Delaware corporation
(“MedExpert”) have previously entered into that certain
Sublease dated May 28, 2003, as amended by that certain Early
Occupancy Agreement dated as of May 29, 2003, and that certain
Consent to Sublease dated June , 2003
(collectively, the “MedExpert Sublease”), under which
MedExpert subleases from BroadVision a portion of the Premises more
particularly identified therein. A true and correct copy of
the MedExpert Sublease is attached to this Agreement as
Exhibit B-4 .
F.
BroadVision and Postini, Inc., a
Delaware corporation (“Postini”) have previously
entered into that certain Sublease dated September 22, 2003, as
amended by that certain Consent to Sublease dated September 1, 2003
(collectively, the “Postini Sublease”), under which
Postini subleases from BroadVision a portion of the Premises more
particularly identified therein. A true and correct copy of
the Postini Sublease is attached to this Agreement as
Exhibit B-5 .
G.
Symantec, Nextance, E2Open,
MedExpert and Postini are sometimes referred to herein,
individually, each as a “Subtenant,” and, collectively,
as the “Subtenants.” The Symantec Sublease, the
Nextance Sublease, the E2Open Sublease, the MedExpert Sublease and
the Postini Sublease are sometimes referred to herein,
individually, each as a “Sublease,” and, collectively,
as the “Subleases.” Those portions of the
Premises that are subleased to the Subtenants under the Subleases
shall be collectively referred to herein as the “Subleased
Premises”.
H.
BroadVision has requested that PSI
accept an assignment of all of BroadVision’s estate, right,
title and interest in, to and under the Master Lease, the Subleases
and the Premises, and that PSI assume BroadVision’s
obligations under the Master Lease and the Subleases. PSI is
prepared to accept such assignment and to assume such obligations
upon, and subject to, all of the terms and conditions hereinafter
set forth.
A G R E E M
E N T :
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as
follows:
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ARTICLE 1
TRANSFER DATE
1.1
For purposes herein, the term
“Transfer Date” shall mean the date that all of the
following conditions have been satisfied:
1.1.1
BroadVision has paid the First
Installment (as defined in Section 5.1 below) to PSI in accordance
with Section 5.1 below;
1.1.2
BroadVision has delivered the
modification to the Existing LC (as defined in Section 5.2.1 below)
to PSI in accordance with Section 5.2.1 below;
1.1.3
BroadVision has delivered the New LC
(as defined in Section 5.2.2 below) to PSI in accordance with
Section 5.2.2 below;
1.1.4
BroadVision has delivered the
Warrant (as defined in Section 5.3 below) to PSI in accordance with
Section 5.3 below;
1.1.5
BroadVision has delivered the Bill
of Sale (as defined in Section 5.4 below) to PSI in accordance with
Section 5.4 below and has fulfilled its obligations pursuant to
Section 5.5 below with respect to the Service Contracts;
1.1.6
BroadVision has surrendered the
Subleased Premises and has vacated and surrendered the Terminated
Premises to PSI in accordance with Article 6 below;
1.1.7
BroadVision has executed and
delivered to PSI that certain lease of even date herewith for
approximately fifty thousand (50,000) square feet of rentable area
at the Pacific Shores Center (“New Lease”), and has
delivered the letter of credit required by Section 4.06 of the New
Lease;
1.1.8
BroadVision has satisfied all of the
Sublease Transfer Conditions (as defined in Article 3 below);
and
1.1.9
BroadVision has delivered all
information, material and documents to PSI required under this
Agreement and BroadVision has satisfied all conditions required of
it under this Agreement prior to the Transfer.
1.2
PSI and BroadVision shall use their
respective commercially reasonable, good faith efforts to cause the
Transfer Date to occur on or before August 1, 2004, but in any
event as soon as reasonably practicable. If the Transfer Date
has not occurred on or before August 30, 2004, then, at any
time thereafter, either party shall have the right, exercisable in
its sole and absolute discretion, to terminate this Agreement and
the New Lease by sending written notice to the other party prior to
the occurrence of the Transfer Date, in which event the Master
Lease shall remain unmodified and in full force and
effect.
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ARTICLE 2
ASSIGNMENT AND ASSUMPTION OF MASTER LEASE; NO MERGER
Effective as of the Transfer Date,
and subject to the terms, conditions and provisions of this
Agreement and conditioned upon the performance by BroadVision of
its obligations hereunder, BroadVision hereby assigns, sells,
transfers, sets over and delivers to PSI all of BroadVision’s
estate, right, title and interest, as lessee, in, to and under the
Master Lease and the Premises, and PSI hereby accepts such
assignment and assumes, and agrees to perform, pay and discharge
all terms, covenants, conditions and obligations of BroadVision as
lessee under the Master Lease, including, but not limited to,
payment of all rent due thereunder, arising or accruing from and
after the Transfer Date. Notwithstanding the foregoing,
subject to the terms of Article 7 below, BroadVision shall remain
obligated under the Master Lease to pay to PSI, as lessor under the
Master Lease, all amounts owing by the lessee under the Master
Lease to the extent arising or accruing prior to the Transfer Date,
including, but not limited to, “Lessee’s Share”
of “Operating Expenses” and all other “Additional
Rent,” as those terms are defined in the Master Lease.
Notwithstanding that PSI holds fee title to the Building and the
real property upon which the Building is located, it is the express
intent of PSI and BroadVision that the assignment of
BroadVision’s interest in the Master Lease to PSI not effect
a merger of the leasehold estate into the fee.
ARTICLE 3
ASSIGNMENT AND ASSUMPTION OF SUBLEASES
Effective as of the Transfer Date,
and subject to the terms, conditions and provisions of this
Agreement and conditioned upon the performance by BroadVision of
its obligations hereunder, BroadVision hereby assigns, sells,
transfers, sets over and delivers to PSI all of BroadVision’s
estate, right, title and interest, as sublandlord, in, to and under
the Subleases (and any security deposits held by BroadVision under
the Subleases, such amounts to be transferred pursuant to
Section 7.3 hereof), and PSI hereby accepts such assignment
and assumes, and agrees to perform, pay and discharge all terms,
covenants, conditions and obligations of BroadVision, as
sublandlord, under the Subleases arising or accruing from and after
the Transfer Date. In addition, on or before the Transfer
Date, BroadVision shall do all of the following (collectively, the
“Sublease Transfer Conditions”):
(a) BroadVision shall do all acts and pay all fees and costs
as may be required to effectuate an assignment of the Subtenant
Letters of Credit (as defined in Section 8.5 below) to PSI;
(b) BroadVision shall provide to PSI estoppel certificates
dated not earlier than July 1, 2004, and duly executed by all of
the Subtenants, each of which estoppel certificates shall
(i) certify, if true, that the applicable Sublease is
unmodified and in full force and effect (or, if modified, state the
nature of such modification and certify, if true, that such
Sublease, as so modified, is in full force and effect),
(ii) certify the date to which the rent and other charges
under such Sublease have been paid in advance, if any,
(iii) acknowledge, if true, that there are not, to such
Subtenant’s knowledge, any uncured defaults on the part of
the sublandlord under such Sublease, or specify such defaults if
any are claimed, (iv) certify or acknowledge such other
matters as are reasonably requested by PSI or its lender
(including, without limitation, confirmation that any expansion,
first offer, first refusal or other similar rights of such
Subtenant have been exercised, have expired or continue in effect,
as the case may be), and (v) be in a form, and upon terms,
reasonably acceptable to PSI and PSI’s lender, it being
understood that PSI shall prepare draft estoppel certificates for
execution by the
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Subtenants; (c) BroadVision shall provide
to PSI subordination, nondisturbance and attornment agreements
dated not earlier than July 1, 2004, and duly executed and
acknowledged by all of the Subtenants, substantially in the form
attached to the New Lease as Exhibit “F” thereto; and
(d) BroadVision shall provide to PSI a written notice
addressed to each Subtenant duly executed by BroadVision notifying
such Subtenant of the assignment of its respective Sublease,
providing PSI’s address for future payment of rent, and
informing such Subtenant of the transfer of its security deposit,
if any, in accordance with the requirements of California Civil
Code § 1950.7(d).
ARTICLE 4
PARTIAL TERMINATION OF MASTER LEASE
PSI and BroadVision hereby agree
that, subject to the terms, conditions and provisions of this
Agreement and conditioned upon the performance by BroadVision of
its obligations hereunder, the Master Lease shall terminate and be
of no further force or effect as to the portion of the Premises
described on Exhibit H attached hereto (the
“Terminated Premises”) only as of the Transfer Date;
provided, however, that it is not the intent of the parties that
the foregoing partial termination of the Master Lease would in any
way adversely affect any expansion, first offer, first refusal or
other similar rights of any of the Subtenants, and PSI hereby
covenants and agrees to honor all of such rights as set forth in,
and in accordance with, the Subleases. From and after the
Transfer Date, references in the Master Lease to the
“Premises” shall be deemed to include only the
Subleased Premises and not the Terminated Premises, unless the
context clearly requires otherwise.
ARTICLE 5
CONSIDERATION
5.1
Cash Consideration
. As consideration for
PSI’s execution of this Agreement and PSI’s obligations
hereunder, BroadVision shall pay Pacific Shores the sum of
Thirty-Six Million Two Hundred Thousand and No/100 Dollars
($36,200,000.00) in two equal installments, as follows: (a) the
first installment of Eighteen Million One Hundred Thousand and
No/100 Dollars ($18,100,000.00) shall be paid by wire transfer of
immediately available funds to PSI on or before the Transfer Date
(“First Installment”) and timely payment of such First
Installment shall be a condition to the effectiveness of this
Agreement; and (b) the second installment of Eighteen Million One
Hundred Thousand and No/100 Dollars ($18,100,000.00) shall be paid
by wire transfer of immediately available funds to PSI on or before
January 7, 2005 (“Second Installment”).
5.2
Letters of Credit
5.2.1
BroadVision previously delivered a
letter of credit to PSI (which included a confirmation thereof)
under the Master Lease in the amount of Fourteen Million Four
Hundred Three Thousand Seven Hundred Seventy-Six and No/100 dollars
($14,403,776.00) (“Existing LC”). As
consideration for PSI’s execution of this Agreement and
PSI’s obligations hereunder, on or before the Transfer Date,
BroadVision shall cause the Existing LC to be modified by the
issuing and confirming banks to provide, in addition to any and all
rights PSI has under the Master Lease with respect to the Existing
LC, (i) that, if required by PSI’s lender(s), (a)
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PSI and PSI’s lender(s) shall be
co-beneficiaries under the Existing LC or (b) PSI’s lender(s)
shall the beneficiary(ies) under the Existing LC, (ii) that the
beneficiary(ies) may draw on the Existing LC, in whole or in part,
if (a) BroadVision fails to pay either the First Installment or the
Second Installment, as provided for herein, or (b) a bankruptcy or
other similar insolvency proceeding (e.g., an assignment for the
benefit of creditors) under state law is commenced by or against
BroadVision, (iii) that the beneficiary(ies) may draw on the
Existing LC upon the presentment of the Existing LC to the issuing
or confirming bank accompanied by a sight draft and letter from the
beneficiary(ies) stating that it (they) is (are) entitled to draw
on the Existing LC, and (iv) for a final expiry date no sooner than
June 30, 2005. Such modification to the Existing LC shall be
at the sole cost and expense of BroadVision.
5.2.2
As consideration for PSI’s
execution of this Agreement and PSI’s obligations hereunder,
on or before the Transfer Date, BroadVision shall deliver an
unconditional, irrevocable, standby letter of credit, in the amount
of Three Million Six Hundred Ninety-Six Thousand Two Hundred
Twenty-Four and No/100 Dollars ($3,696,224.00), in a form and
issued or confirmed by a commercial money center bank reasonably
satisfactory to PSI with retail branches in San Francisco,
California, designating either (1) PSI as beneficiary or (2) if
required by PSI’s lender(s), (a) PSI and PSI’s
lender(s) as co-beneficiaries, or (b) PSI’s lender(s) as
beneficiary(ies) (“New LC”). The New LC shall
further provide that the beneficiary(ies) may draw on the New LC,
in whole or in part, if (a) BroadVision shall fail to pay either
the First Installment or the Second Installment, as provided for in
this Agreement, (b) a bankruptcy or other similar insolvency
proceeding (e.g., an assignment for the benefit of creditors) under
state law is commenced by or against BroadVision, (c) BroadVision
shall fail to honor its indemnification obligations to PSI under
Article 11 of this Agreement, or (d) BroadVision shall fail to pay
the Termination Payment, as defined in the New Lease, in the event
BroadVision shall have exercised its termination right under the
New Lease. The New LC shall (1) have a final expiry date no
sooner than June 30, 2005, and (2) provide that is governed by the
Uniform Customs and Practice for Documentary Credits (1993
revisions) International Chamber of Commerce Publication 500 or
International Standard Practice 1998 (ISP 98), International
Chamber of Commerce Practice, Publication No. 590. The
beneficiary(ies) may draw on the New LC upon the presentment of the
New LC to the issuing bank accompanied by a sight draft and letter
from the beneficiary(ies) stating that it (they) is (are) entitled
to draw on the New LC.
5.2.3
The proceeds of any draw under the
New LC or the Existing LC shall be for the sole benefit and account
of, and may be retained (unconditionally) by, PSI or PSI’s
lender(s).
5.2.4
Within one hundred (100) days
following PSI’s receipt of both the First Installment and the
Second Installment, PSI shall return (1) the New LC, less any
amounts previously drawn under the New LC because of
BroadVision’s failure to honor its indemnification
obligations to PSI under Article 11 of this Agreement, and (2) the
Existing LC, to BroadVision. Notwithstanding the foregoing,
if BroadVision elects to exercise its right to make the Termination
Payment as provided for under the New Lease, then PSI or
PSI’s lender(s) shall retain the New LC, less any amounts
previously drawn under the New LC because of BroadVision’s
failure to honor its indemnification obligations to PSI under
Article 11 of this Agreement as support for such Termination
Payment, and PSI shall return the same upon its expiration as
provided for herein.
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5.3
Warrants . Concurrent with the execution of this
Agreement, BroadVision will deliver to PSI a warrant in the form of
Exhibit E (the “Warrant”) entitling PSI or
its assignees to purchase up to seven hundred thousand (700,000)
shares of BroadVision common stock exercisable at $5.00 per share
pursuant to the terms of the Warrant.
5.4
Transferred Property
. Effective as of the Transfer
Date, BroadVision shall convey to PSI all right, title and interest
in and to that certain furniture, fixtures and equipment currently
located in the Premises, as set forth on the Inventory attached
hereto as Exhibit C (the “Transferred
Property”). BroadVision shall convey the Transferred
Property to PSI pursuant to a Bill of Sale and Assignment
substantially in the form attached hereto as Exhibit D
(the “Bill of Sale”), which document shall be executed
and delivered by BroadVision to PSI concurrently with
BroadVision’s execution and delivery of this Agreement to
PSI. PSI shall thereafter execute and deliver the Bill of
Sale to BroadVision.
5.5
Assignment of Certain Service
Contracts .
Effective as of the Transfer Date, and pursuant to the Bill of
Sale, BroadVision shall assign to PSI all right, title and interest
in and to those Service Contracts (as defined in Section 8.7
below) which PSI shall have elected, by delivery of written notice
to BroadVision prior to the Transfer Date, to assume. On or
before the Transfer Date, BroadVision shall provide to PSI written
notices duly executed by BroadVision to third parties under any
Service Contracts which PSI has elected to assume, changing the
address for service of notice and delivery of statements and
bills.
ARTICLE 6
SURRENDER OF PREMISES
BroadVision hereby agrees to
surrender and deliver exclusive possession of the Subleased
Premises, subject to the Subleases, to PSI on or before the
Transfer Date, in their current condition, without the removal of
any tenant improvements, furniture, fixtures or equipment.
BroadVision hereby further agrees to vacate the Terminated Premises
and surrender and deliver exclusive possession of the Terminated
Premises and all improvements thereon to PSI on or before the
Transfer Date, broom clean in good order, condition and repair,
ordinary wear and tear excepted, in accordance with the provisions
of Section 17.09 of the Master Lease. Any provisions of the
Master Lease that could be read to require the removal from the
Subleased Premises or the Terminated Premises of any alterations,
additions or improvements (or restoration following such removal)
that were made in compliance with Section 6.03 of the Master Lease,
are hereby expressly waived. BroadVision shall remain liable
for any alterations, additions or improv
