Mexico-Chihuahua-Ciudad Juarez-Fuentes Sur Avenue Lease Termination and Settlement Agreement - Complejo Industrial Fuentes SA de CV, STB de Mexico SA de CV and STB Systems Inc.
LEASE TERMINATION AND SETTLEMENT AGREEMENT
THIS LEASE TERMINATION AND SETTLEMENT AGREEMENT (the "Termination
Agreement") is entered into on April 19, 2002, by and among COMPLEJO INDUSTRIAL
FUENTES, S.A. DE C.V., a Mexican corporation ("Landlord"), S.T.B. DE MEXICO,
S.A. DE C.V., a Mexican corporation ("Tenant"), and STB Systems, Inc., a Texas
corporation ("Guarantor"). Landlord, Tenant and Guarantor may be referred to
herein individually as a "Party" or collectively as the "Parties."
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated
October 4, 1996 (the "Lease"), regarding the premises located on Fuentes Sur
Avenue, Ciudad Juarez, Chihuahua, Mexico (the "Premises"), with an area of
approximately 316,152.86 square feet, legally described as:
Lot 7 and Lot 8, Block E, Complejo Industrial Fuentes, Ciudad
Juarez, Chihuahua, Mexico
B. STB. Systems, Inc., a Texas corporation ("Guarantor") signed a Lease
Guaranty Agreement dated October 4, 1996 (the "Guaranty") pursuant to which it
guaranteed the prompt payment of all rents and the performance of all of
Tenant's other duties and obligations under the Lease.
C. Tenant has ceased operations at the Premises and wishes to terminate
the Lease and STB's obligations under the Guaranty.
D. Landlord has agreed to terminate the Lease and STB's obligations
under the Guaranty on the terms and conditions set forth in this Termination
Agreement.
E. All capitalized terms not otherwise defined in this Termination
Agreement will have the meaning for such terms as set forth in the Lease.
AGREEMENT
In consideration of the mutual covenants and agreements hereinafter set
forth, the parties hereto agree and covenant as follows:
1. Termination of Lease and Guaranty. Effective as of the date hereof (the
"Termination Date"), the Lease and the leasehold estate and rights created
thereby shall be terminated and canceled in all respects, and except as set
forth in this Termination Agreement, Landlord and Tenant and their respective
successors and assigns shall have no further rights, privileges, duties,
obligations or liabilities to each other relating to the Lease. By the execution
of this Termination Agreement, Tenant waives and quitclaims to Landlord any
right, title or interest it may have in the Premises by virtue of the Lease.
Further, except as set forth in this Termination Agreement, the Guaranty shall
likewise be terminated and canceled in all respects, and Guarantor, its
successors and assigns shall have no further duties, obligations or liabilities
to Landlord under
<PAGE>
the Guaranty or the Lease. Each Party warrants and represents to the other that
it has full power, authority and authorization to enter in to this Termination
Agreement. Furthermore, Landlord agrees to indemnify and hold Tenant, Guarantor
and their respective affiliates, successors and assigns harmless from and
against any direct or indirect claim, damage, action, judgment, controversy,
cost, expense and liability incurred by Tenant or Guarantor, including
reasonable attorneys fees, as a result of claims asserted by Landlord's lender
or any third party as a result of the termination of the Lease or the Guaranty
pursuant to the terms of this Termination Agreement.
2. Waiver and Release of the Parties. Except as set forth in this
Termination Agreement, each Party, for itself and its subsidiaries, affiliates,
employees, officers and directors, hereby forever discharges and releases the
other Party and its employees, officers and directors, successors and assigns
from any and all known and unknown, direct or indirect, claims, damages, action,
judgments, controversies, and liabilities of every nature, at law or in equity,
including all such items enumerated in Section 1 above (but specifically
excluding the last sentence of Section 1); provided, that the foregoing shall
not affect any rights and obligations between Tenant and Guarantor.
Notwithstanding the foregoing, Landlord's agreement to terminate the Lease and
subsequently release Tenant and Guarantor from their remaining duties,
liabilities and obligations under the Lease and Guaranty, respectively, is
expressly conditioned upon Landlord's ability to successfully enter into a new
lease agreement for the Premises with a new tenant (the "New Tenant") at an
annual rental of $5.00 per square foot annually, which Landlord expects to do on
April 19, 2002. If this condition is not met, Landlord shall be entitled to
enforce all of its rights, privileges and remedies against Tenant and Guarantor
under the Lease and Guaranty.
3. Surrender of Premises. On or before April 19, 2002 (the "Surrender
Date"), Tenant agrees to surrender and deliver the Premises to Landlord in good
condition and repair, reasonable wear and tear excepted, and Tenant shall remove
all of its inventory, personal property, trade fixtures and tenant improvements,
including without limitation, any leasehold improvements made by Tenant or made
by Landlord on Tenant's behalf which Landlord directs Tenant to remove. Tenant
shall repair any damage caused by such removal or shall reimburse Landlord for
the cost of repairing any such damage. Notwithstanding the foregoing, Tenant and
Landlord acknowledge and agree that Tenant shall be responsible to repair those
items described on Exhibit A attached hereto to bring the Premises into good
condition and repair. In the event Tenant fails to make any such repairs, Tenant
agrees to reimburse the Landlord the cost of such repairs immediately upon
demand by Landlord.
4. Rent Payments.
(a) Delinquent Rent. Tenant shall pay to Landlord all
delinquent rent owed on the Premises for the months of January,
February and March, 2002, totaling $208,888.89, in addition to
$20,888.89 for Value Added Taxes (totaling 10% of the rental amount for
such rental period). In addition, Tenant shall pay to Landlord the sum
of $44,098.75, representing rent from April 1, 2002 to April 19, 2002,
in addition to $4,409.87 for Value Added Taxes (totaling 10% of the
rental amount for such rental period). Accordingly, Tenant shall pay to
Landlord a total of $278,286.31 for delinquent rent on the Premises for
the period covering January 1, 2002 through April 19, 2002.
(b) Rent Deficiency for Remaining Term. Tenant acknowledges
that Landlord shall enter into a lease agreement with the New Tenant
for the Premises at an
2
<PAGE>
initial rent rate of $0.41667 per square foot per month ($5.00 per
annum), which is $0.0925 per square foot per month ($1.11 per annum)
less than the rent currently payable by Tenant. In consideration of
Landlord's agreement to terminate the Lease as of the Effective Date
and discharge Tenant and Guarantor from their duties, obligations and
liabilities under the Lease and Guaranty, Tenant agrees to pay Landlord
the sum of $866,490.11, in addition to $86,649.01 Value Added Tax
relating thereto, which represents the difference between the minimum
rent that Landlord would have earned from Tenant and the rent that
Landlord will earn from the New Tenant during the remaining Initial
Term of the Lease, calculated as follows: 136,751.25 square feet,
multiplied by $0.0925 per square foot deficiency per month, multiplied
by the 68.5 months remaining in the Initial Term (136,751.25 x $.0925 x
68.5 + VAT = $953,139.12.) Accordingly, Tenant shall pay to Landlord a
total of $953,139.12 for the rent deficiency on the Premises for the
period covering April 19, 2002 through December 31, 2007.
5. Payment of Utilities, Taxes and Insurance. Tenant shall pay in full
for the cost of all utilities, including but not limited to charges for
electricity, water, sewer, gas, and telephone lines, up through and including
the Surrender Date. Tenant shall pay such costs directly to the utility provider
and shall provide Landlord with written evidence that such utilities have been
paid through such date. In addition, Tenant shall pay to Landlord the sum of
$2,276.44, representing the estimated prorated Property Taxes for 2002 and the
sum of $1,938.15, representing the estimated pro-rated insurance costs incurred
by Landlord based on the number of days that Tenant occupied the Premises in
2002.
6. Payment of Legal Fees. Tenant shall reimburse Landlord for the legal
fees incurred by Landlord in enforcing the Lease (including without limitation
pursuing the payment of delinquent rent) and negotiating the terms of and
preparing this Termination Agreement. Landlord shall deliver to Tenant a written
account of such legal fees within thirty (30) days of the date of the execution
of this Termination Agreement, and such sum will be immediately due and payable
by Tenant. An approximate summary and breakdown of the legal fees are attached
hereto as Exhibit B.
7. Schedule of Payment. Upon the execution of this Termination
Agreement, Tenant or Guarantor shall deliver to Landlord certified funds in the
amount of $100,000.00 to be applied against the amounts due to Landlord under
Sections 3, 4, 5 and 6 above (the "Tenant Obligations"). The remaining balance
of the Tenant Obligations shall be paid by Tenant or Guarantor to Landlord on or
before the earlier of (i) the time that the "Stock Consideration" provided for
under Section 1.3(a) of the Asset Purchase Agreement identified below is
received by Tenant or any of its affiliates, including 3dfx Interactive, Inc., a
California corporation ("3dfx"), (ii) the "Post-Closing Advance" provided for
under Section 1.3(b) of the Asset Purchase Agreement is received by Tenant or
any of its affiliates, including 3dfx, or (iii) at such time Tenant or Guarantor
receives an infusion of funds of at least $25,000,000.00 from new investors, or
(iv) April 19, 2003. The "Asset Purchase Agreement" referred to in this
paragraph is that certain Asset Purchase Agreement dated December 15, 2000 by
and among 3dfx, Nvidia Corporation and Titan Acquisition Corp. No. 2.
8. Environmental Certificate. Tenant shall cooperate fully with
Landlord and the Secretaria del Medio Ambiente, Recursos Naturales y Pezca
(Ministry of the Environment, Natural Resources and Fishery), the Procuraduria
Federal de Proteccion al Ambiente (Federal
3
<PAGE>
Agency for Protection of the Environment) and any other federal, state or local
agency with jurisdiction over environmental matters relating to the Premises
(the "Agencies"), to obtain a letter of compliance regarding the environment
condition of the Premises and shall prepare such reports and respond to such
inquiries regarding Tenant's use and occupancy of the Premises as required by
the Agencies. Tenant shall pay all costs, expenses, penalties and fines incurred
in obtaining the letters of compliance to the extent related to Tenant's use and
occupancy of the Premises, including but not limited to costs of environmental
studies and evaluations required by any Agency, all costs of remediation of any
environmental contamination or condition resulting from Tenant's use and
occupancy of the Premises, all costs of removing any hazardous materials brought
onto the Premises by Tenant or Tenant's invitees, all other costs and expenses
incurred to cure or rectify any other condition caused by Tenant's use and
occupancy of the Premises as necessary to obtain letters of compliance, any
penalties or fines imposed by any Agency relating to environmental conditions or
practices resulting from or relating to Tenant's use and occupancy of the
Premises, and any other administrative cost or expense incurred to obtain all
necessary letters of compliance or Agency clearances. In the event Landlord
shall pay any such costs, expenses, penalties or fines, Tenant shall reimburse
Landlord the full amount thereof immediately upon demand.
9. Option. Tenant acknowledges that the option described in Section
Twenty of the Lease (regarding the right and option to acquire land adjacent to
the Premises) has expired and is null and void. Tenant expressly waives and
quitclaims to Landlord any right, title and interest in such option or the
property covered by the option. Furthermore, as Tenant never exercised the
Option under the terms stated in Section Twenty of the Lease, the deposit in the
amount of $55,000.00 has been forfeited in favor of the Landlord.
10. Currency. Any reference in this Termination Agreement to "dollars"
or "$" shall mean United States ("U.S.") dollars. Notwithstanding that any
amounts due and payable by Tenant under this Termination Agreement shall be
expressed in U.S. dollars, Tenant shall have the right to make payment in
Mexican pesos, with the amount of pesos owed being calculated at the "sell"
exchange rate of the Bank of Mexico published daily in the Diario Oficial de la
Federacion (Official Gazette of the Federation) on the date that payment is
made.
11. Binding Effect. This Termination Agreement shall be binding upon
and inure to the benefit of the Parties hereto and their respective successors
and assigns.
12. Governing Law; Venue. This Termination Agreement shall be governed
by and construed in accordance with the venue agreed to by Tenant and STB under
the Lease and the Guaranty, respectively. Accordingly, Tenant and STB agree to
submit to the jurisdiction of the courts of Ciudad Juarez, State of Chihuahua,
Mexico and El Paso, Texas, respectively.
13. No Oral Agreements. This Termination Agreement constitutes the sole
agreement of the parties and supersedes any prior understandings,
representations or written or oral agreements between the parties respecting the
subject matter hereof.
14. Counterparts. This Termination Agreement may be executed in
multiple counterparts, and each counterpart shall be deemed an original
instrument upon execution thereof.
4
<PAGE>
EXECUTED as of the date first stated above.
LANDLORD:
WITNESS: COMPLEJO INDUSTRIAL FUENTES,
S.A. DE C.V.
------------------------- By: /s/ Eduardo Fuentes Varela
Signature of Witness Name: Eduardo Fuentes Varela,
Title: Chairman of the Board of Directors
-------------------------
Printed Name of Witness
TENANT:
S.T.B. DE MEXICO, S.A. DE C.V.
By: /s/ Richard A. Heddleson
Name: Richard A. Heddleson
Title: Chairman
GUARANTOR:
S.T.B. SYSTEMS, INC.
By: /s/ Richard A. Heddleson
Name: Richard A. Heddleson
Title: President
5