**Exhibit10.28**

 

**AGREEMENT TO RESOLVECERTAIN TENANT IMPROVEMENT**

**DISPUTES WITH RESPECTTO B-4, B-5 & B-6**

 

This Agreementis entered into and dated for reference purposes as of January 8, 2002, by andbetween Pacific Shores Development, LLC (“**PSD**”) and BroadVision, Inc. (“**BroadVision**”)and is as follows:

 

1.             Disputes.  This is an agreement (“**Agreement**”) to confirm theresolution of all disputes regarding (i) the characterization of variouscomponents of construction at B-4, B-5 and B-6 as being either Shell or TenantImprovement items, (ii) the appropriate cost or expense of those items, (iii)any remaining obligations of BroadVision to pay for the construction ofadditional Tenant Improvements in B-4 and B-5, and (iv) the appropriateallocation of all remaining amounts of the B-4 and B-5 Tenant Improvementdeposits to the cost of Tenant Improvements (collectively the “**Disputes**”).

 

2.             Release and Indemnity.  Each of the undersigned, on behalf ofitself, its respective shareholders, partners, officers, directors, constituentmembers, lenders, associates, affiliates, attorneys, trustees, trusts as towhich it serves as trustee, employees, agents, and all others claiming throughsame and each of their successors and assigns (collectively, disjunctively, andconjunctively its “**Affiliates**”) hereby generally releases andforever discharges the other and its Affiliates from and against any and allclaims, demands, charges, costs, liabilities, expenses (including reasonableattorneys’ fees), accounts, actions or causes of action of any nature, whetherabsolute or contingent, tort or contract, legal or equitable, common law orstatutory, now or hereafter occurring, and no matter by whom alleged orasserted, and including, without limitation, both known and unknown liabilities,claims and causes of action arising out of, related to or in connection withthe Disputes.  Each party agrees toindemnify and hold harmless the other party and its Affiliates as to any of theDisputes released by such party which is brought against such other partyand/or its Affiliates.

 

3.             Application to TenantImprovement Deposits.  Asconsideration herefor, all of the money deposited by BroadVision into theTenant Improvement accounts established under the B-4 and B-5 Leases shall beapplied by Pacific Shores Development, LLC as payment for or reimbursement ofthe cost and expense of various construction components and shall be allocatedamong Tenant Improvement costs in certain amounts set forth below (andotherwise in its sole discretion), regardless of whether such costs areexpressly described in the Leases and regardless of any prior disputes betweenthe parties with respect to such costs and expense, including, withoutlimitation, the cost and expense of B-6 windscreens ($150,000) and B-4, B-5 andB-6 winterization ($100,000), overtime ($100,000), general conditions andtemporary utilities ($100,000), man lift and operator ($80,000), temporarystairs ($40,000) and certain poured in place concrete slab floors ($1,340,101)as well as the cost and expense of certain Tenant Improvements yet to beconstructed in B-4 and/or B-5, including, without limitation, for constructioncomponents necessary or appropriate to convert either or both B-4 and B-5 tomulti-tenant use.

 

4.             Obligations Satisfied.  As further consideration for this Agreement,BroadVision is deemed to have complied with all of its obligations to pay forthe design and construction of Tenant Improvements under the B-4, B-5 and B-6Leases.

 

5.             Lender’s Consent; BoardAuthorization.  Lessee’s andLessor’s obligations hereunder are subject to the receipt (i) by Lessee, nolater than one hundred fifty (150) days after the date hereof, of the Lender’sConsent, as hereinafter defined, and (ii) by Lessor, no later than one hundredfifty (150) days after the date hereof, of a certified resolution of Lessee’sBoard of Directors authorizing the execution of this Agreement.  Lessor hereby agrees to use diligent effortsto obtain the Lender’s Consent by such date; however, if Lessee does notreceive the Lender’s Consent by such date, this Agreement shall, at eitherLessor’s or Lessee’s option, thereupon be deemed terminated and of no furtherforce or effect, and neither party shall have any further rights, obligations,or liabilities hereunder.  As used herein,the term “**Lender’sConsent**” means a written consent to this Agreement (including,without limitation, Section 2 hereof), executed by the holder of the promissorynote secured by that certain Deed of Trust encumbering the fee interest in thereal property of which the Premises are a part) recorded on March 31, 2001 inthe Official Records of San Mateo, California, as Document No 2000-037860.

 

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6.             Leases Ratified.  The B-4, B-5 and B-6 Leases are herebyratified and confirmed as being in full force and effect.

 
|   | Pacific  Shores Development, LLC,     |
|--------|---------------------------------------|
|   | a Delaware  limited liability company |
|   |                                  |   |
|   |                                  |   |
|   | By:                                   | Technology  Land, LLC, |
|   |                                  | a California  limited liability company |
|   |                                  |   |
|   |                                  |   |
|   | By:                                   | /s/ Jay Paul |   |
|   |                                  | Jay Paul,  Sole Member |
|   |                                  |   |
|   |                                  |   |
|   | BroadVision, Inc.,                    |
|   | a Delaware  corporation,              |
|   |                                  |   |
|   |                                  |   |
|   | By:                                   | /s/ Fran  Barton |   |
|   |                                  | Fran Barton |   |
|   |                                  | (Type or  Print Name) |
|   |                                  |   |
|   | Its:                                  | EVP &  CFO |   |
|        |                                       |  |  |  |

 

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