EXHIBIT 10.40
SUB-LEASE AGREEMENT
This Sub-Lease is made this ___ day of August, 1996, at Richardson, Texas,
by and between ADC Telecommunications, Inc. (hereinafter called "Sub-Lessor'),
and STB Systems, Inc. (hereinafter called "Sub-Lessee").
Sub-Lessor is the Lessee under that certain Lease (hereinafter called
the "Main Lease") by and between Central Park Associates, LTD, as Lessor and
Sub-Lessee, as Lessee, executed on or about October 31, 1990, which was
assigned to WHTR Real Estate Limited Partnership (hereinafter called "Lessor"),
and amended on May 28, 1995, for the premises described in the Main Lease
(hereinafter called "Leased Premises"), a true and correct copy of which Main
Lease is attached hereto as Exhibit "A" and incorporated herein by reference.
In consideration of the mutual promises contained herein, Sub-Lessor
hereby sub-leases the Leased Premises to Sub-Lessee, subject to the terms of
the Main Lease, and subject further to the provisions of this Sub-Lease
Agreement, as follows:
1. Sub-Lessee hereby agrees to abide by and observe all the terms,
covenants and conditions of the Main Lease, except that said Premises
leased in the Sub-Lease Agreement shall be 16,204 rentable square
feet (hereinafter called "Sub-Leased Premises"). Sub-Lessee accepts
the Sub-Leased Premises in "as is" condition, "with all faults".
2. The term of this Sub-Lease shall be for a term of twenty-three (23)
months, commencing on November 1, 1996, and ending on October 31,
1998, provided, however, that this Sub-Lease shall sooner terminate
upon the termination for any cause whatsoever of the Main Lease.
Sub-Lessor shall have no liability to SubLessee due to the termination
of the Main Lease by reason of any default by SubLessee under this
Sub-Lease, or by reason of any condemnation or destruction of the
Main Lease Premises.
3. Insofar as the provisions of the Main Lease do not conflict with the
specific provisions of this Sub-Lease Agreement, they and each of
them are incorporated into this Sub-Lease as if fully and completely
rewritten herein, and Sub-Lessee agrees to be bound to the Sub-Lessor
by all the terms of the Main Lease and to assume towards Sub-Lessor
and perform all the obligations and responsibilities that Sub-Lessor,
by the Main Lease, assumes towards the Lessor, except for the payment
of rent by Sub-Lessee to Sub-Lessor, which is governed by Paragraph 4
herein. Sub-Lessee further agrees to defend, indemnify and hold
harmless SubLessor and Lessor from any claim or liability under the
Main Lease and this SubLease Agreement arising subsequent to the
effective date of this Sub-Lease Agreement. The relationship between
Sub-Lessee and Sub-Lessor shall be the same as that between Sub-Lessor
and Lessor under the Main Lease. Sub-Lessor
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shall not be liable for any nonperformance of or noncompliance with or
breach or failure to observe any term, covenant or condition of the
Main Lease upon Lessor's part to be kept, observed, performed or
complied with, or for any delay or interruption in Lessor's performing
its obligations thereunder, provided that Sub-Lessor shall cooperate
with Sub-Lessee in assisting Sub-Lessee in enforcing the terms of the
Main Lease, to the extent provided below. Sub-Lessor hereby assigns
unto Sub-Lessee, for so long as this Sub-Lease shall be in force and
effect, any and all assignable rights and causes of action which
Sub-Lessor may have against Lessor with respect to the Sub-Leased
Premises due to defaults by Lessor under the Main Lease. Sub-Lessor
will cooperate with and join with Sub-Lessee in any claims or suits
brought by Sub-Lessee against Lessor under the Main Lease, provided
that such participation shall be without cost or expense to SubLessor.
Sub-Lessor shall not enter into any amendment of the Main Lease with
Lessor which impairs any rights or increases any obligations of
Sub-Lessee thereunder without obtaining Sub-Lessee's written consent
thereto prior thereto.
4. (a) Sub-Lessee agrees to pay Sub-Lessor as base rental and initial
monthly escrow payments for the Sub-Leased Premises, payable in
advance on the first (1ST) day of each calendar month during the
term of this Sub-Lease, as follows:
Months Monthly Base Rent
1 - 23 $10,465.08
(b) Sub-Lessee will pay Sub-Lessor, as additional rent, monthly in
advance on the first (1ST) day of each calendar month during the
term of this SubLease, one-twelfth (1/12th) of the amount by
which Sub-Lessee's Proportionate Share of the Estimated Operating
Expenses for the Leased Premises exceeds the Base Operating
Expense Rate described in paragraph 7 of the Supplemental Lease
Agreement dated May 25, 1995, entered into between Sub-Lessor
and Lessor.
5. The following events shall be deemed to be events of default by
Sub-Lessee under this Sub-Lease:
(a) Any events of default by Sub-Lessee listed as events of default
by Lessee set forth in the Main Lease;
(b) Any events of default of the provisions of this Sub-Lease
Agreement.
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Upon the occurrence of any such event of default, and in addition to
any other available remedies provided by law or in equity, Sub-Lessor
shall have all remedies granted to Lessor in the Main Lease.
6. Any notice or other communication required or permitted to be given
under this Sub-Lease or under the Main Lease shall be in writing and
shall be deemed to be delivered on the date it is hand-delivered to
the party to whom such notice is given, or if such notice is mailed
on the date on which it is deposited in the United States Mail,
postage prepaid, Certified or Registered Mail, Return Receipt
Requested, addressed to the party to whom such notice is directed, at
the address set forth below:
IF TO SUB-LESSOR:
ADC TELECOMMUNICATIONS, INC.
0000 X. 00 XX Xx.
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Director of Corporate Facilities
CC: General Counsel fax (000) 000-0000
IF TO SUB-LESSEE:
STB SYSTEM, INC.
0000 X. Xxxxxxxxx
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, President
cc: Xxxxx X. Xxxxx fax (000) 000-0000
7. Sub-Lessee shall have no right to assign or sublet any interest in
this Sub-Lease without first obtaining the written consent of the
Lessor and Sub-Lessor, which consent may or may not be granted by
the Lessor or Sub-Lessor in their sole opinion, judgment or
discretion.
8. In the event any one or more of the provisions contained in this
Sub-Lease Agreement shall for any reason be held invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and
this Sub-Lease Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
9. That Lessor, Lessee (Sub-Lessor) and Sub-Lessee mutually agree and
acknowledge this Sub-Lease Agreement and agree as follows:
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(a) Sub-Lessee hereby agrees to perform and observe all covenants and
conditions contained in the Lease on Sub-Lessor's part to be
performed and observed, with the same force and effect as if
Sub-Lessee was originally named in the Lease as Lessee.
(b) Lessor hereby consents to the aforesaid Sub-Lease Agreement by
SubLessor to Sub-Lessee, upon the express condition that no
further SubLease or transfer of the Lease shall be made without
prior written consent of Lessor.
(c) Furthermore, Sub-Lessor understands that it remains primarily
liable for the payment of rent herein specified for the full
term of the original Lease, which Lease includes any amendments
and special provisions incorporated therein. In consideration
of the foregoing, Lessor hereby consents to the assignment of
the Lease by Sub-Lessor to Sub-Lessee but Sub-Lessor is not
released from its obligations, agreements, covenants and duties
imposed upon it by the Lease, and Sub-Lessor shall answer for
any default made in the performance of such Lease by Sub-Lessee.
Sub-Lessee hereby covenants and agrees to abide by all the
provisions and covenants of the Lease and Sub-Lease and that it
shall be held responsible by SubLessor for any default which may
occur as a result of Sub-Lessee's negligent or intentional act
or omission.
10. Sub-Lessor shall be solely responsible for the payment of all leasing
commissions arising from this Sub-Lease Agreement.
11. This Sub-Lease Agreement constitutes the sole and only agreement of
the parties hereto and supersedes any prior understandings and written
or oral agreements between the parties respecting the subject matter
of this Sub-Lease Agreement.
EXECUTED on the day and year first above written.
SUB-LESSOR: SUB-LESSEE:
ADC TELECOMMUNICATIONS, INC. STB SYSTEMS, INC.
By: Xxxxxx Xxxx By: Xxxxx X. Xxxxx
---------------------------- ----------------------------------
Title: President ADC/NSD Title: Treasurer
---------------------------- --------------------------------
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CONSENT BY LESSOR
Pursuant to Paragraph 18 in the Main Lease referred to in this Sub-Lease
Agreement, Lessor consents to this Sub-Lease Agreement. It is specifically
agreed and understood that nothing contained in this consent to sublease will
in any way alter or eliminate the liability of Sub-Lessor created under the
Main Lease referred to above. In addition, as stated in Paragraph 18 of the
Main Lease, Sub-Lessor shall pay to Lessor 50% of any excess rental as
additional rent.
LESSOR: WHTR REAL ESTATE LIMITED
PARTNERSHIP, A DELAWARE LIMITED
PARTNERSHIP
BY: JER WHTR SERVICES, INC., A VIRGINIA
CORPORATION, ITS MANAGING GENERAL
PARTNER
By: /s/ Xxxx X. Xxxx
-----------------------------------
Xxxx X. Xxxx
Vice President
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