ASSIGNMENT OF EQUIPMENT LEASES
This Assignment of Equipment Leases ("AGREEMENT") dated as of July 1, 1996
is made by FWB Software, Inc., a California corporation ("SELLER"), and
StreamLogic Corporation, a Delaware corporation ("BUYER"). Any capitalized
terms not defined herein shall have the meaning ascribed thereto in the Purchase
Agreement (as defined below).
A. Seller and Buyer are parties to that certain Asset Purchase Agreement
dated as of June 7, 1996 (as amended, the "PURCHASE AGREEMENT"), pursuant to
which Seller agreed to sell, transfer and assign to Buyer and Buyer agreed to
purchase, acquire and assume from Seller certain assets relating to the hardware
business of Seller, including without limitation, certain equipment (the
"TRANSFERRED EQUIPMENT") held under those equipment leases which are listed in
Attachment 1 hereto (the "TRANSFERRED LEASES").
B. As a condition to the Closing, Buyer was to have obtained consents from
the lessors or their assignees (each, a "LESSOR" and together, the "LESSORS")
under the Transferred Leases by the Closing. Buyer has been unable to obtain
such consents by such date, and Seller is willing to waive the condition upon
the execution of this Agreement.
NOW THEREFORE, the parties hereby agree as follows:
SECTION 1. ASSIGNMENT. For good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller hereby sells, conveys,
transfers and assigns to Buyer all of Seller's rights under all of the
Transferred Leases, effective as of the Closing, and Buyer hereby accepts the
SECTION 2. ASSUMPTION. Buyer hereby assumes and agrees to perform the
liabilities and obligations of Seller to be performed under the Transferred
Leases from and after the Closing.
SECTION 3. INDEMNITIES.
(a) Seller agrees to indemnify, defend and hold Buyer harmless from any and
all claims, losses, costs, expenses or liabilities (collectively, "CLAIMS")
arising prior to July 1, 1996 from Seller's performance or nonperformance under
any of the Transferred Leases.
(b) Buyer agrees to indemnify, defend and hold Seller harmless from any and
all Claims arising on or after July 1, 1996 from Buyer's performance or
nonperformance under any of the Transferred Leases. In addition, Buyer
specifically agrees to indemnify, defend and hold harmless Norman Fong from any
and all Claims arising on or after July 1, 1996 which arise out of any guaranty
or similar agreement with any Lessor in connection with the Transferred Leases.
The indemnifications in this Section 3(b) by Buyer shall be limited to the
portion of such Claims attributable to the Transferred Equipment.
SECTION 4. SUBLEASE. Buyer hereby subleases to FWB Software, LLC, a
California limited liability company ("LLC"), and LLC hereby subleases from
Buyer, all of the equipment identified on Attachment 2 hereto (the "SUBLEASED
EQUIPMENT"). For each Transferred Lease which includes any Subleased Equipment,
LLC shall pay to Buyer on each payment date identified in such Transferred Lease
that portion of the aggregate lease payment due from Buyer on such payment date
which is directly attributable to the Subleased Equipment under such Transferred
Lease. For each Transferred Lease, the sublease described herein shall continue
until the earlier to occur of (a) the date Buyer is able to perform its
obligations under Section 5(a)(i), and (b) the termination of the Transferred
Lease. LLC agrees to indemnify, defend and hold Buyer harmless from any and all
Claims arising on or after July 1, 1996 from LLC's sublease of the Subleased
SECTION 5. FURTHER OBLIGATIONS OF BUYER. Buyer hereby covenants to use
its best efforts to secure from each Lessor such Lessor's consent to, and to
present to Seller documentation acceptable to Seller memorializing, the
(a) Either (i) a division of each Transferred Lease into two separate
leases, only one of which shall name LLC as lessee, which shall lease directly
from Lessor to LLC only the Subleased Equipment attributable to such Transferred
Lease; or (ii) an assignment of such Transferred Lease naming Buyer as lessee
under such Transferred Lease. For any Transferred Lease that is replaced by an
assignment, the sublease agreement contained in Section 4 shall continue to
apply with regard to the Subleased Equipment under such Transferred Lease until
the termination of the Transferred Lease as assigned to Buyer.
(b) With respect to any divided Transferred Lease under Section 5(a)(i)
above not executed by LLC, and to any assigned Transferred Lease under Section
5(a)(ii), a complete release of all obligations of Seller and of Norman Fong
under such Transferred Lease and under any related guaranty or similar agreement
SECTION 6. ADDITIONAL REPRESENTATIONS. The covenants and indemnities of
Buyer and Seller with respect to the Transferred Leases set forth in this
Agreement are in addition to, and independent of, those set forth in the
SECTION 7. GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of California without regard to its
rules regarding conflicts of law.
SECTION 8. ENTIRE AGREEMENT. Except for the Purchase Agreement, this
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof, supersedes all prior and contemporaneous agreements,
representations and understandings of the parties with respect thereto, and may
not be modified, amended or otherwise changed in any manner except by a writing
executed by a duly authorized representative of the party to be charged.
SECTION 9. MISCELLANEOUS. In the event suit is brought to enforce this
Agreement, the prevailing party shall recover, as additional costs, reasonable
attorneys' fees and experts' fees and costs as determined by the court. Any
waiver by either party of a breach of any term, provision or condition of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or any other term, provision or condition of this Agreement. No
provision of this Agreement shall be construed against any party on the ground
that such party drafted such provision.
This Agreement may be executed in one or more counterparts, each of which shall
be an original and all of which shall together constitute one and the same
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first indicated above.
FWB SOFTWARE, INC.,
a California corporation
By: /s/ Norman Fong
Norman Fong, President
a Delaware corporation
By: /s/ Lee Hilbert
Lee Hilbert, Chief Financial Officer
FWB SOFTWARE, LLC,
a California limited liability corporation
By: FWB SOFTWARE, INC.
a California corporation, its Manager
By: /s/ Norman Fong
Norman Fong, President