EXHIBIT 10.16
CONSENT TO SUBLEASE AGREEMENT AND
FIRST AMENDMENT TO LEASE AGREEMENT
This Consent to Sublease and First Amendment to Lease Agreement (this
"Consent") is entered into as of this 20th day of December, 2002, by and among
BRIARWOOD WATERS RIDGE LP, a Texas limited partnership ("Master Landlord"),
ULTRAK, OPERATING, L.P., a Texas limited partnership ("Sublandlord"), and
PITTWAY CORPORATION, a Delaware corporation and wholly owned subsidiary of
Honeywell International, Inc. a Delaware corporation ("Subtenant").
RECITALS
A. Master Landlord, as landlord, and Sublandlord, as tenant, are
parties to that certain Lease Agreement dated December 17, 2001 (the "Master
Lease"), pursuant to which Master Landlord has leased to Sublandlord, the
"Premises" (as defined in Section 1 of the Master Lease), which Premises are
described by metes and bounds on Exhibit A attached to the Master Lease, shown
on Exhibit B attached to the Master Lease (the "Premises"), and are located at
0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
B. Sublandlord and Subtenant have entered into (or are about to enter
into) that certain Sublease Agreement (herein so called) dated of even date
herewith, attached hereto as Exhibit "A" and made a part hereof for all
purposes, pursuant to which Sublandlord has agreed to sublease to Subtenant a
portion(s) of the Premises more particularly described and defined in Section 1
of the Sublease Agreement, and as shown on Exhibit B attached to the Sublease
Agreement (sometimes referred to herein collectively as the "Subleased
Premises").
C. Sublandlord and Subtenant have requested Master Landlord's consent
to the Sublease Agreement.
D. Master Landlord has agreed to give such consent upon the terms and
conditions contained in this Consent, including, without limitation, certain
amendments and/or modifications to the Master Lease, as more particularly set
forth below.
AGREEMENTS
NOW THEREFORE, in consideration of the foregoing preambles which by
this reference are incorporated herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Master Landlord and Sublandlord hereby agree to amend the Master Lease and
Master Landlord hereby consents to the Sublease Agreement, subject to the
following terms and conditions all of which are hereby acknowledged and agreed
to by and among Master Landlord, Sublandlord and Subtenant:
1. Sublease Agreement. Sublandlord and Subtenant hereby represent that
a true and complete copy of the Sublease Agreement is attached hereto as Exhibit
"A" and made a part hereof for all purposes. Except for this Consent and the
Sublease Agreement, and except as may be otherwise disclosed in the Proxy
Statement for Special Meeting of Stockholders of Ultrak, Inc. dated November 27,
2002 (as same may be amended from time to time), there are no other agreements,
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written or oral, between Sublandlord and Subtenant with respect to the subject
matter of this Consent and the Sublease Agreement.
2. Representations of Sublandlord. Sublandlord hereby represents and
warrants that (a) Sublandlord has full power and authority to sublease the
Subleased Premises to Subtenant, (b) Sublandlord has not transferred or
conveyed, and will not transfer or convey, its interest in the Master Lease with
respect to the Subleased Premises to any person or entity collaterally or
otherwise, (c) Sublandlord has full power and authority to enter into the
Sublease Agreement and this Consent, (d) there are no existing defaults under
the Master Lease on the part of Master Landlord as of the date of this Consent,
and (e) there are no additional payments of rent or any other consideration of
any type payable by Subtenant to Sublandlord with regard to the Subleased
Premises other than as disclosed in the Sublease Agreement.
3. Representations of Subtenant. Subtenant hereby represents, warrants,
acknowledges and agrees (as applicable) that (a) Subtenant has full power and
authority to enter into the Sublease Agreement and this Consent, (b) neither
Master Landlord nor any other party on its behalf and/or affiliated with Master
Landlord in any way has made, and Subtenant hereby waives, any representation or
warranty with respect to the Subleased Premises or any other portion of the
Building and/or the Premises including, without limitation, any representation
or warranty with respect to the suitability or fitness of the Subleased Premises
or any other portion of the Building and/or the Premises for the conduct of
Subtenant's business, (c) the expiration date of the Initial Term (as defined in
the Sublease Agreement) of the Sublease is December 31, 2003 (unless sooner
terminated as provided in the Sublease Agreement and/or the Master Lease), (d)
notwithstanding the terms of Section 2.1 of the Sublease Agreement or anything
else contained therein or herein to the contrary, Subtenant shall have no right
to extend the Initial Term of the Sublease (as defined therein) without
obtaining the prior written consent of Master Landlord (which consent may
granted or withheld in the reasonable discretion of Landlord), (f) Subtenant
shall not be permitted to exercise any rights or options of Sublandlord under
the Master Lease whatsoever, and (g) there are no additional payments of rent or
any other consideration of any type payable by Subtenant to Sublandlord with
regard to the Subleased Premises other than as disclosed in the Sublease
Agreement.
4. Insurance. Notwithstanding anything to the contrary contained in
this Consent or in the Sublease Agreement (including, without limitation,
Section 4.1 of the Sublease Agreement), Subtenant hereby assumes, with respect
to Master Landlord, all of the insurance obligations of Sublandlord under the
Master Lease with respect to the Subleased Premises, provided, however, that (a)
the foregoing shall not be construed as relieving or releasing Sublandlord from
any such obligations on its own behalf, and (b) Subtenant shall be permitted to
satisfy any and all insurance obligations under this Section 4 by maintaining at
all times during the term of the Sublease Agreement the insurance coverages
evidenced by the certificate(s) of insurance attached hereto as Exhibit "B" and
made a part hereof for all purposes, which certificates (i) evidence Subtenant's
standard insurance coverages under the blanket policies of insurance maintained
by Subtenant and/or Honeywell International, Inc., and (ii) name Master Landlord
as an additional insured party thereunder with respect to the Subleased
Premises.
5. No Release. Nothing contained in the Sublease Agreement or this
Consent shall be construed as relieving or releasing Sublandlord from any of its
obligations under the Master Lease, it
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being expressly understood and agreed that Sublandlord shall remain liable for
such obligations notwithstanding anything contained in the Sublease Agreement or
this Consent or any subsequent or further assignment(s), sublease(s) or
transfer(s) of the interest of the tenant under the Master Lease. Sublandlord
shall be responsible for the collection of all rent due it from Subtenant, and
for the performance of all the other terms and conditions of the Sublease
Agreement, it being understood that Master Landlord is not a parry to the
Sublease Agreement and, notwithstanding anything to the contrary contained in
this Consent and the Sublease Agreement, is not bound by any terms or provisions
contained in the Sublease Agreement and is not obligated to Sublandlord or
Subtenant for any of the duties and obligations contained therein, other than
the obligations that Master Landlord has to Sublandlord under the Master Lease.
Sublandlord hereby reaffirms its continuing obligations under the Master Lease
and confirms that Sublandlord remains liable for the payment of all rentals due
under the Master Lease and the performance of all other obligations under the
Master Lease. Neither the Sublease Agreement nor this Consent shall be construed
as a waiver of Master Landlord's right to consent to any further subletting
either by Sublandlord or by Subtenant or to any assignment by Sublandlord of the
Master Lease or assignment by Subtenant of the Sublease Agreement, or as a
consent to any portion of the Subleased Premises being used or occupied by any
other party.
6. No Transfer. Notwithstanding anything contained in the Sublease
Agreement, this Consent or the Master Lease to the contrary, Subtenant shall not
further sublease the Subleased Premises (or any portion thereof), assign its
interest as Subtenant under the Sublease Agreement or otherwise transfer its
interest in the Subleased Premises or The Sublease Agreement to any person or
entity (other than to "Affiliates" pursuant to and in accordance with Section 6
of the Sublease Agreement), without the prior written consent of Master
Landlord, which Master Landlord may withhold in its sole and absolute
discretion.
7. Master Lease. In no event shall the Sublease Agreement or this
Consent be construed as granting or conferring upon Sublandlord or Subtenant any
greater rights than those contained in the Master Lease nor shall there be any
diminution of the rights and privileges of the Master Landlord under The Master
Lease. Without limiting the scope of the preceding sentence, any construction or
alterations performed in or to the Subleased Premises shall be performed with
Master Landlord's prior written approval and in accordance with the terms and
conditions of the Master Lease. In the event Sublandlord defaults under the
Master Lease beyond any applicable notice, cure or grace period, Master Landlord
may collect rent directly from Subtenant, but such collection shall not be
deemed to be an acceptance of Subtenant as "Tenant" under the Master Lease or a
release of Sublandlord's obligations under the Master Lease. Sublandlord
acknowledges and agrees that if Master Landlord collects rent directly from
Subtenant, the amount of such rent so collected shall constitute a payment of
rent under the Sublease Agreement and be credited against the payment or
payments of rent then or next due and payable under the Sublease Agreement.
8. Services. Sublandlord hereby authorizes Subtenant, as agent for
Sublandlord, to obtain services and materials for or related to the Subleased
Premises. Master Landlord may xxxx Subtenant directly for such services and
materials, or any portion thereof, in which event Subtenant shall pay for the
services and materials so billed upon written demand; provided, however, the
provision of services shall not create any contractual relationship between
Master Landlord and Subtenant.
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9. Attornment. If the Master Lease or Sublandlord's right to possession
thereunder terminates for any reason prior to expiration of the Sublease
Agreement, Subtenant and Master Landlord agree, at the election of Master
Landlord, Subtenant shall attorn to Master Landlord, and Master Landlord shall
recognize Subtenant, upon the then executory terms and conditions of the
Sublease Agreement for the remainder of the Term of the Sublease Agreement (as
defined therein); provided, however, if Master Landlord so elects, Master
Landlord shall not be (A) liable for any previous act or omission of Sublandlord
under the Sublease, (B) subject to any offset which heretofore accrued to
Subtenant against Sublandlord, or (C) bound by any previous modification of the
Sublease to which Master Landlord was not a party or to which it did not
expressly consent, or by any previous prepayment of more than one (1) month's
rental under the Sublease, and no direct collection of rent by Master Landlord
from Subtenant shall be a novation or a release of Sublandlord or any guarantor
under the Master Lease from the performance of their obligations under the
Master Lease or under any guaranty executed by guarantor, and Sublandlord and
any such guarantors shall continue to be liable under the Master Lease and any
such guaranty, with the same force and effect as if this Consent and the
Sublease Agreement had never been executed. If Master Landlord does not elect to
have Subtenant attorn to Master Landlord as described above, the Sublease
Agreement and all rights of Subtenant in the Subleased Premises shall terminate
upon the date of termination of the Master Lease or Sublandlord's right to
possession thereunder.
10. Prepayment of Minimum Rent and Taxes under Master Lease.
Concurrently with the execution of this Consent, Sublandlord shall deliver to
Landlord (a) an amount equal to Three Hundred Fifty-Six Thousand Four Hundred
and No/100 Dollars ($356,400.00) (the "Minimum Rent Prepayment Amount"),
representing six (6) months' of installments of Minimum Rent under the Master
Lease in an amount equal to at total of $360,000.00, less a one percent (1.0%)
discount, and (b) an amount equal to One Hundred Eighteen Thousand Eight Hundred
and No/100 Dollars ($118,800.00) (the "Tax Prepayment Amount"), representing
monthly payments of one-twelfth (1/12th) of taxes, assessments and governmental
charges for six (6) months pursuant to Section 7(a) of the Master Lease in an
amount equal to at total of $120,000.00, less a one percent (1.0%) discount. The
Minimum Rent Prepayment Amount shall be applied by Landlord towards Tenant's
obligations to pay monthly installments of Minimum Rent pursuant to Section 3(a)
of the Master Lease for the 24th through and including the 29th calendar months
of the term of the Master Lease. The Tax Prepayment Amount shall be applied by
Landlord towards Tenant's obligations to pay monthly payments of one-twelfth
(1/12th) of taxes, assessments and governmental charges pursuant to Section 7(a)
of the Master Lease for the last six (6) calendar months of the term of the
Master Lease.
11. Increase in Purchase Price for Purchase Option. Master Landlord and
Sublandlord hereby acknowledge and agree that effective as of the date of this
Consent, the reference to "SIX MILLION NINE HUNDRED THOUSAND AND NO/100 DOLLARS
($6,900,000.00)" is hereby amended to read "SEVEN MILLION FIVE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($7,550,000.00)".
12. Defined Terms. Any capitalized term or phrase used in this Consent
shall have the same meaning as the meaning ascribed to such term or phrase in
the Master Lease unless expressly otherwise defined in this Consent.
13. Conflict. In the event that the terms of the Master Lease or the
Sublease conflict or
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are inconsistent with those of this Consent, the terms of this Consent shall
control and govern.
14. Conditions to Effectiveness. It is a condition to the effectiveness
of this Consent and the Sublease Agreement that Sublandlord shall pay to
Landlord its reasonable administrative and legal costs in connection therewith
concurrently with its execution of this Consent.
15. Controlling Law. The terms and provisions of this Consent shall be
construed in accordance with and governed by the laws of the State of Texas.
16. Binding Effect. This Consent shall be binding upon and inure to the
benefit of the parties hereto, their heirs, successors and/or assigns. As used
herein, the singular number includes the plural and the masculine gender
includes the feminine and neuter.
17. Captions. The paragraph captions utilized herein are in no way
intended to interpret or limit the terms and conditions hereof; rather, they are
intended for purposes of convenience only.
18. Partial Invalidity. If any term, provision or condition contained
in this Consent shall, to any extent, be invalid or unenforceable, the remainder
of this Consent, or the application of such term, provision or condition to
persons or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Consent shall be valid and enforceable to the
fullest extent possible permitted by law.
19. Brokerage Commissions. Sublandlord and Subtenant covenant and agree
that under no circumstances shall Master Landlord be liable for any brokerage
commission or other charge or expense in connection with the Sublease Agreement
or this Consent, and Sublandlord and Subtenant hereby covenant and agree to
protect, defend, indemnify and hold Master Landlord harmless from the same and
from any cost or expense (including but not limited to attorneys' fees) incurred
by Master Landlord in resisting any claim for any such brokerage commission(s).
20. Ratification. Except as amended by this Consent, the terms of the
Master Lease remain in full force and effect. All obligations of Sublandlord as
"Tenant" under the Master Lease are hereby ratified and reaffirmed.
21. Notices. The reference in Section 21 of the Master Lease to the
party to whom copies of notices to Master Landlord are to be delivered (i.e.,
Jenkens & Xxxxxxxxx, P.C., etc.) is hereby amended to read as follows:
With a copy to: Xxxxx, Xxxxxxx & Xxxxxx,
A Professional Corporation
Two Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
22. Counterparts; Telecopy. This Consent may be executed in
counterparts and shall
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constitute an agreement binding on all parties notwithstanding that all parties
are not signatories to the original or the same counterpart provided that all
parties are furnished a copy or copies thereof reflecting the signature of all
parties. Delivery of executed counterparts by telecopy shall be effective with
respect to the signing party(ies).
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IN WITNESS WHEREOF, Master Landlord, Sublandlord and Subtenant have
executed this Consent as of the date first above written.
MASTER LANDLORD:
BRIARWOOD WATERS RIDGE L.P.,
a Texas limited partnership
By: Briarwood Capital Corporation,
a Texas corporation, its General Partner
By: /s/ X. XXXXXX XXXXXX
-----------------------------------------
X. Xxxxxx Xxxxxx, President
SUBLANDLORD:
ULTRAK OPERATING, L.P.,
a Texas limited partnership
By: Ultrak GP, Inc., a Texas corporation,
its General Partner
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: CFO
--------------------------------------
SUBTENANT:
PITTWAY CORPORATION,
a Delaware corporation and wholly owned subsidiary of
Honeywell International, Inc., a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------
Title:
--------------------------------------
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The following parties are guarantors of the Master Lease, and hereby execute and
join in this Consent below to evidence their respective and collective agreement
to the terms set forth hereinabove, effective as of the date first
above-written.
GUARANTORS:
ULTRAK, INC., a Delaware corporation
Attest:
/s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Senior VP & CFO
---------------------------------
ULTRAK, GP, INC., a Delaware corporation
Attest:
/s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: CFO
---------------------------------
ULTRAK LP, INC., a Delaware corporation
Attest:
/s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: CFO
---------------------------------
DIAMOND ELECTRONICS, INC.,
an Ohio corporation
Attest:
/s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
MONITOR DYNAMICS, INC.,
a California corporation
Attest:
/s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
[CONTINUED ON FOLLOWING]
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ABM DATA SYSTEMS, INC.,
a Texas Corporation
Attest:
/s/ XXXXXX XXXXXX
---------------------------- By: /s/ XXXXX X. XXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SECURITY WARRANTY, INC.,
a Texas Corporation
Attest:
/s/ XXXXXX XXXXXX
---------------------------- By: /s/ XXXXX X. XXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ XXXXXX X. XXXXXX
---------------------------------
Xxxxxx X. Xxxxxx, Individually
CONSENT OF SPOUSE
The undersigned is the spouse of Xxxxxx X. Xxxxxx, a guarantor of the
Master Lease. By executing this Consent, the undersigned hereby acknowledges the
terms and obligations of the above Consent and reaffirms that the Guaranty
is binding upon the martial community assets of Xxxxxx X. Xxxxxx and the
undersigned spouse.
/s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
-------------------------
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EXHIBIT "A"
SUBLEASE AGREEMENT
[attached following this page]
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