EXHIBIT 10.48
LEASE AGREEMENT
THIS LEASE is made and entered into as of December 15, 2000, by and
between The Development Authority of the City of Manchester ("Landlord") and
Horizon Medical Products, Inc., a Georgia corporation ("Tenant");
WHEREAS, Tenant is presently leasing from Landlord the "Facility" and
the "Project Site", as defined in and pursuant to the provisions of that certain
Lease Agreement dated July 1, 1996 (the "1996 Lease"), recorded at Deed Book
363, page 33, ▇▇▇▇▇▇▇▇▇▇ County records;
WHEREAS, Tenant is presently leasing from Landlord the remaining 20,000
square feet of the Facility pursuant to the provisions of that certain Lease
Agreement dated August 29, 1997 (the "1997 Lease"), recorded at Deed Book 383,
page 532, ▇▇▇▇▇▇▇▇▇▇ County records;
WHEREAS, Landlord has constructed on the Project Site a 15,000 square
foot building for lease by Tenant pursuant to the provisions of this Lease
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. PREMISES. Landlord, for and in consideration of the rents,
covenants, agreements, and stipulations herein mentioned, provided for, and
contained herein to be paid, kept, and performed by Tenant, demises and leases
and rents unto Tenant, and Tenant hereby leases and takes upon the terms and
conditions which hereinafter appear, the following described property (the
"Premises"), to-wit:
The approximate 15,000 square foot building that is
not part of the Project under the 1996 Lease, which
Premises is located on the Project Site as described
in the 1996 Lease and on the real property described
in Exhibit "A" attached hereto.
2. TERM AND RENEWAL. Tenant shall have the right and hold the
Premises for a term of one hundred eighteen (118) months, beginning on July 1,
2000 and ending on April 30, 2010, at midnight, unless sooner terminated as
hereinafter provided.
If Tenant renews the Agreement Term under Section 8.7(a) of the 1996
Lease, Tenant shall renew the term of this Lease for one additional five-year
term on the same terms and conditions as contained in this Lease, provided that
monthly rental during the renewal term will be Six Thousand Two Hundred
Ninety-Six and 65/100 Dollars ($6,296.65).
3. RENTAL. Tenant agrees to pay to Landlord, without demand,
deduction, or setoff, (i) rental and costs of Thirty Seven Thousand Eight
Hundred Seventy-One and 77/100 Dollars ($37,871.77) for the period from July 1,
2000 through December 31, 2000, and (ii) commencing on January 1, 2001 monthly
rental of Six Thousand Two Hundred Ninety-Six and 65/100 Dollars ($6,296.65) in
advance on the first day of each month during the remaining term hereof, with
the first
month's rental due hereunder on January 1, 2001. Rental for any period during
the term hereof which is for less than one month shall be a prorated portion of
the monthly rental due.
4. AGREEMENTS AND REPRESENTATIONS.
(A) REPRESENTATIONS BY LANDLORD. The Landlord makes the
following representations as the basis for the undertakings on its part herein
contained:
(I) Landlord is a public body corporate and
politic organized and existing under the laws of the State of
Georgia and is duly authorized to enter into, execute, and
deliver this Lease Agreement and to undertake the transactions
contemplated by this Lease Agreement and to carry out its
obligations hereunder. By duly adopted resolution, Landlord
has duly authorized the execution and delivery of this Lease
Agreement.
(II) Landlord has good and marketable title
to that certain real property specifically described in
Exhibit "A" attached hereto and incorporated herein by
reference, subject only to the permitted encumbrances
described in Exhibit "B" attached hereto ("Permitted
Encumbrances").
(III) There are no actions, suits,
proceedings, inquiries, or investigations pending, or to the
knowledge of Landlord threatened, against or affecting
Landlord in any court or before any governmental authority or
arbitration board or tribunal, which involve the possibility
of materially and adversely affecting the transactions
contemplated by this Agreement or which, in any way, would
adversely affect the validity or enforceability of this
Agreement or any agreement to which Landlord is a party and
which is used or contemplated for use in the consummation of
the transactions contemplated hereby.
(B) REPRESENTATIONS BY TENANT. Tenant makes the following
representations as the basis for the undertakings on its part herein contained:
(I) Tenant is a corporation duly organized
and validly existing under the laws of the State of Georgia.
Tenant is not in violation of any provision of its Articles of
Incorporation or Bylaws, as amended, has the corporate power
to enter into and perform this Agreement, and has duly
authorized by proper corporate action the execution and
delivery of this Agreement, and is qualified to do business
and is in good standing under the laws of the State of
Georgia.
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(II) To the best knowledge of Tenant, based
upon due diligence, neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions hereof conflicts with or results in a
breach of the Articles of Incorporation or Bylaws of Tenant or
the terms, conditions, or provisions of any agreement or
instrument to which Tenant is now a party or by which it is
bound, or constitutes a default under any of the foregoing, or
results in the creation or imposition of any lien, charge, or
encumbrance whatsoever upon any of the property or assets of
Tenant under the terms of any such instrument or agreement.
(III) There is no action, suit, proceeding,
inquiry, or investigation, at law or in equity, before or by
any court, public board or body, known to be pending or
threatened against or affecting Tenant, nor to the best
knowledge of Tenant is there any basis therefor, wherein an
unfavorable decision, ruling, or finding would materially and
adversely affect the transactions contemplated by this
Agreement or which would adversely affect, in any way, the
validity or enforceability of this Agreement or any agreement
or instrument to which Tenant is a party, used or contemplated
for use in the consummation of the transactions contemplated
hereby.
(C) OPERATION OF PREMISES. Tenant will use due diligence to
cause the Premises to be operated in accordance with the laws, rulings,
regulations, and ordinances of the State of Georgia and the departments,
agencies, and political subdivisions thereof. Tenant has obtained or will cause
to be obtained all requisite approvals of the State of Georgia and of other
federal, state, regional, and local governmental bodies for the construction and
equipping of the Premises.
5. CONSTRUCTION OF PREMISES.
(A) Landlord has constructed to Premises pursuant to a
construction agreement between Landlord and ▇▇▇▇▇▇▇▇ Construction Company
("Construction Agreement"). Landlord has financed the construction of the
Premises through financing with ▇▇▇▇▇▇▇▇▇▇ Bank and Trust Company in the
principal amount of Four Hundred Fifty Thousand Dollars ($450,000.00) (the
"Loan").
(B) At the direction and sole cost of Tenant, Landlord
will promptly proceed, either separately or in conjunction with others, to
exhaust the remedies of Landlord against any defaulting supplier, contractor, or
subcontractor and against any surety therefor, for the performance of any
contract made in connection with the Premises. If Tenant shall so notify
Landlord, Tenant may, in its own name or in the name of Landlord, prosecute or
defend any action or proceeding or to take any other action involving any such
supplier, contractor, subcontractor, or surety which Tenant deems reasonably
necessary, and in such event Landlord agrees to cooperate fully with Tenant, and
to take all action necessary, to the extent it might lawfully do so, to effect
the substitution of Tenant
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for Landlord in any such action or proceeding. In addition, Landlord recognizes
that it may be entitled to a refund of certain sales, use, or other taxes levied
and paid on goods and merchandise which are used in the construction of the
Premises and which become an integral part thereof. Landlord agrees that it
will, at the request and expense of Tenant, take all action necessary to obtain
any such refund to which it is entitled.
(C) Landlord represents and agrees that it will defend
Tenant in the quiet enjoyment and peaceful possession of the Premises, free from
all claims of all persons claiming by, through, or under Landlord, throughout
the Lease term, so long as Tenant shall perform the agreements to be performed
by it hereunder, or so long as the period for remedying any failure in such
performance shall not have expired.
(D) Landlord agrees that it will not take any action
during the term of this Lease which might reasonably be construed as tending to
cause or induce the levy or assessment of ad valorem taxes on the Premises or on
its title in and to the Premises.
(E) Pursuant to Section 3(i) above, Tenant has paid
Landlord and ▇▇▇▇▇▇▇▇▇▇ Bank and Trust Company, a division of the Bank of ▇▇▇▇▇,
(the "Bank") for all of the following costs and expenses incurred by Landlord or
the Bank in connection with the construction loan ("Construction Loan") from the
Bank and the permanent loan from the Bank and/or F&M Bank and Trust Company
("Permanent Loan") to Landlord for the construction of the Premises and the
review of this Agreement:
(A) the interest charged by the Bank on the
Construction Loan, and
(B) costs of the Construction Loan and the Permanent
Loan, including without limitation, attorney's fees, recording
costs, closing costs, cost of the survey, cost of the
appraisal, origination fees, intangible taxes, cancellation
fees, and fees of counsel for the Bank and for Synovus Trust
in connection with this lease; provided, however, that the sum
of all costs and expenses which Tenant is obligated to pay or
reimburse under this clause (b) shall not exceed in the
aggregate Fifteen Thousand Dollars ($15,000.00).
6. UTILITY BILLS. Tenant shall pay all utility bills, including
but not limited to water, sewer, gas, electricity, fuel, light, and heat bills
for the Premises, and Tenant shall pay all charges for garbage collection or
other sanitary services.
7. TAXES. Tenant will pay, or cause to be paid, as the same
become lawfully due and payable:
(A) All taxes and governmental charges of any kind upon
or with respect to Tenant's interest in the Premises;
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(B) All taxes and governmental charges of any kind upon
or with respect to Tenant's machinery, equipment, inventory or related property
installed or brought by the Tenant in or on the Premises; and
(C) All assessments and charges made by any governmental
body for public improvements that may be secured by a lien or charge on the
Premises; provided, (i) that there will be no ad valorem tax liability with
respect to Tenant's interest in and to the Premises (but that personal property
owned by Tenant and located in the Premises shall be subject to ad valorem
taxes) and provided further (ii) that with respect to such special assessments
or other governmental charges that may lawfully be paid in installments over a
period of years, Tenant shall be obligated to pay only such installments as they
become due and payable.
Tenant may, at its own expense and in its own name and behalf, in good
faith contest any such taxes, assessments, and other charges and, in the event
of any such contest, may permit the taxes, assessments, and other charges so
contested to remain unpaid during the period of such contest and any appeal
therefrom.
8. LIENS AND ENCUMBRANCES. Tenant and Landlord represent and
warrant that, as of July 1, 2000, there exist no lien, charge, or encumbrance
upon the Premises, other than the liens and encumbrances described in Exhibit
"B" attached hereto (the "Permitted Encumbrances"). Tenant may bring equipment,
machinery, furniture, office equipment, and inventory onto the Premises, which
property of Tenant will be subject to a security interest and lien in favor of
Bank of America, N.A., formerly known as Banc of America Commercial Finance
Corporation, formerly known as NationsCredit Commercial Corporation. Landlord
agrees to execute the form of Landlord's Consent and Waiver attached hereto as
Exhibit "C" and incorporated herein by reference, if requested to execute such
form by Bank of America, N.A. and/or any other secured lender of Tenant.
Additionally, Tenant may from time to time purchase items of machinery,
equipment, or other personal property that do not constitute part of the
Premises but are placed or installed on the Premises under an installment
purchase and security agreement, purchase money mortgage agreement,
lease-purchase agreement, or similar contractual obligation in which the seller
retains a security interest.
9. INSURANCE. Throughout the term of this Lease, Tenant shall
keep, or cause to be kept, the Premises continuously insured against such risks
as are commonly insured against by businesses of like size and type (other than
business interruption insurance), paying (except as otherwise provided herein)
as the same become due, all premiums in respect thereto, including, but not
necessarily limited to:
(A) Insurance to the full insurable replacement value of
the Premises as determined by the Tenant, without deduction for depreciation,
against loss from damage by fire and lightening, with a uniform standard
extended coverage endorsement limited only as may be provided in the standard
form of extended coverage endorsement at the time and use in the State of
Georgia (provided that such insurance may provide for a deductible provision of
not in excess of One Hundred Thousand and No/100 Dollars ($100,000.00) with
respect to direct damage applicable to each separate instance of loss insured
against); and
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(B) If the Premises has located thereon a boiler (or
boilers) and/or a pressure vessel (or pressure vessels), boiler and pressure
vessel (including pressure pipes) explosion insurance in an amount at least
equal to the replacement cost of the Premises and its contents as determined by
Tenant (with deductible provision not to exceed One Thousand and No/100 Dollars
($1,000.00)) against loss of damage with respect to all boilers and pressure
vessels and pressure pipes which may be installed in the Premises; and
(C) General public liability insurance against claims for
bodily injury, death, or property damage occurring on the Premises, such
insurance to afford protection of not less than Three Million and No/100 Dollars
($3,000,000.00) per occurrence and Four Million and No/100 Dollars
($4,000,000.00) in the aggregate with respect to bodily injury and property
damage; and
(D) Throughout the term of the Lease, Tenant shall
maintain, or cause to be maintained, in connection with the Premises workers'
compensation insurance coverage required by then applicable law.
The insurance described above may be combined with insurance obtained
by Tenant pursuant to the 1996 Lease and the Project (as defined therein).
All insurance required above shall be taken out and maintained in
generally recognizable responsible insurance companies selected by Tenant and
authorized to do business in the State of Georgia. All policies evidencing such
insurance shall provide for payment of the losses for coverage required above to
Landlord and Tenant, as their respective interests may appear; provided,
however, that all claims regardless of amount may be adjusted by Landlord with
the insurers, subject to the prior written approval of Tenant, as to settlement
of any claim which is an amount which would require payment to Landlord as
aforesaid. The insurance hereby required may be contained in blanket policies
now or hereafter maintained by Tenant, so long as such blanket policies contain
standard mortgage clauses that comply with the provisions of this Section; and
provided further that the policies evidencing such insurance also show as loss
payees the Landlord.
10. USE OF PREMISES. The Premises shall be used for manufacturing,
warehousing, and office administrative purposes and no other. The Premises shall
not be used for any illegal purposes, nor in any manner to create any nuisance
or trespass, nor in any manner to vitiate the insurance on the Premises.
11. ABANDONMENT OF THE PREMISES. Tenant agrees not to abandon or
vacate the Premises during the term of this Lease and agrees to use the Premises
for the purposes herein leased until the expiration hereof.
12. INDEMNITY. Tenant agrees to and does hereby indemnify and hold
Landlord and its officers, directors, and employees harmless against all claims
for damages to persons or property by reason of Tenant's use or occupancy of the
Premises, and all expenses incurred by Landlord as a result thereof, including
reasonable attorney's fees and court costs. The provisions of this Section shall
not apply to any claims or liability resulting from Landlord's acts of gross
negligence, bad faith,
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fraud, or deceit or for any claim which Tenant was not given an opportunity to
contest due to the bad faith, gross negligence, fraud, or deceit of Landlord or
its officers, agents, attorneys, or employees.
13. MAINTENANCE OF THE PREMISES. Throughout the Lease term, Tenant
shall keep the Premises in as reasonably safe condition as the operation thereof
will permit and shall keep the Premises in good repair and in good operating
condition, making from time to time all necessary repairs thereto.
So long as no default exists hereunder, Tenant may from time to time,
in its sole discretion and at its own expense, make any alterations,
modifications, or improvements to the Premises, including installation of
additional machinery, equipment, and related property in the Premises, which
Tenant may deem desirable for its business purposes; provided that such
additions, modifications, and improvements do not adversely affect or impair the
structural integrity of the Premises or change the character of the Premises and
all such additions, modifications, and improvements are located within the
boundary lines of the Project Site (as defined in the 1996 Lease). All such
machinery, equipment, and related property installed by Tenant in the Premises
shall remain the sole property of Tenant. Tenant shall repair, at its expense,
any damage to the Premises caused by the removal of any such machinery,
equipment, or property. All such additions, modifications, or improvements to
the Premises will be accomplished in a good and workmanlike manner, in
conformity with all applicable laws and regulations, free and clear of liens and
encumbrances.
14. REMOVAL OF FIXTURES. Tenant may, if not in default hereunder,
prior to the expiration of this Lease remove any fixtures and equipment which it
has placed in the Premises, provided Tenant repairs all damages to the Premises
caused by such removal.
15. DESTRUCTION OF OR DAMAGE TO PREMISES. If the Premises is
totally destroyed by storm, fire, lightening, earthquake, or other casualty,
Tenant may terminate this Lease as of the date of such destruction and rental
shall be accounted for as between Landlord and Tenant as of that date. If this
Lease is not terminated by Tenant, Landlord and Tenant will use insurable
proceeds payable as a result of such destruction in reconstructing the Premises,
and upon completion of such reconstruction and occupancy of the Premises by
Tenant, full rental shall recommence.
If the Premises is damaged but is not wholly destroyed by any such
casualties, rental shall ▇▇▇▇▇ in such proportion as use of the Premises has
been destroyed and Tenant may restore the Premises with insurance proceeds
payable as a result of such destruction to substantially the same condition as
before such damage, whereupon full rental shall recommence.
16. GOVERNMENTAL ORDERS. Tenant agrees, at its own expense, to comply
promptly with all requirements of any legally constituted public authority made
necessary by reason of Tenant's occupancy of the Premises. It is mutually
agreed, however, between Landlord and Tenant, that if in order to comply with
such requirements, the cost to Tenant shall exceed a sum equal to two years'
rent, then Tenant may terminate this Lease by giving written notice of
termination to Landlord by certified mail, which termination shall become
effective sixty (60) days after receipt of such notice and which notice shall
eliminate the necessity of compliance with such requirements by giving such
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notice unless Landlord shall, before termination becomes effective, pay to
Tenant all costs of compliance in excess of one year's rent, or secure payment
of such sum in a manner satisfactory to Tenant.
17. CONDEMNATION. If the whole of the Premises, or such portion
thereof as will make the Premises unusable for the purposes herein leased, are
condemned by any legally constituted authority for any public use or purposes,
then in either of such events the term hereby granted shall cease from the date
when possession thereof is taken by public authorities, and rental shall be
accounted for as between Landlord and Tenant as of such date. Such termination,
however, shall be without prejudice to the rights of either Landlord or Tenant
to recover compensation and damage caused by condemnation from the condemnor. It
is further understood and agreed that neither Tenant nor Landlord shall have any
rights in any award made to the other by any condemnation authority
notwithstanding the termination of this Lease as herein provided.
18. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord, which shall not be unreasonably withheld, assign
this Lease or any interest hereunder, or sublet the Premises or any part
thereof. Consent to any assignment or sublease shall not impair this provision
and all later assignments or subleases shall be made likewise only on the prior
written consent of Landlord. The assignee of Tenant, at the option of Landlord,
shall become liable to Landlord for all obligations of Tenant hereunder, but no
sublease or assignment by Tenant shall relieve Tenant of any liability
hereunder.
19. EVENTS OF DEFAULT. The following shall be "Events of Default"
under this Lease, and the term "Event of Default" or "Default" shall mean,
whenever it is used in this Lease, any one or more of the following events:
(A) Failure by Tenant to pay or cause to be paid when due
rental payments required to be paid under Section 3 hereof for a period of five
(5) days after such amount is due.
(B) Failure by Tenant to observe and perform in any
material respect any covenant, condition, or agreement in this Lease, and such
failure shall continue unremedied for a period of thirty (30) days after written
notice, specifying such failure and requesting that it be remedied, given to
Tenant unless Tenant shall commence to remedy such failure within thirty (30)
days after the occurrence of such failure and shall diligently pursue such
remedy until completion thereof.
(C) The commencement by Tenant of a voluntary case under
the federal bankruptcy laws, failure by Tenant promptly to institute judicial
proceedings to lift any execution, garnishment, or attachment of such
consequence as will materially impair Tenant's obligations hereunder, or the
entry of an order for relief in a case instituted under the bankruptcy laws with
respect to Tenant and dismissal of such case is not obtained within ninety (90)
days of the entry of such order, or the making of any general assignment by
Tenant for the benefit of its creditors, or the entry by Tenant into an
agreement of composition with its creditors.
(D) Dissolution or liquidation of Tenant.
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(E) Default by Tenant under the 1996 Lease or the 1997
Lease, and such default shall continue without cure for a period of thirty (30)
days after written notice, specifying such default under the 1996 Lease or the
1997 Lease, given to Tenant unless Tenant shall commence to cure such default
within thirty (30) days after such notice and shall diligently pursue such cure
until completion thereof.
(F) After September 1, 2008, Landlord shall be limited to
the right to re-enter and take possession of the Premises without any liability
to Tenant for such entry and possession, as Landlord's sole remedy as result of
an Event of Default.
20. REMEDIES ON DEFAULT. Except as provided in Section 19(f)
above, in the event of a Default, the Landlord may take any one or more of the
following remedial steps in addition to any and all other rights or remedies it
may have at law or in equity:
(A) Landlord may terminate this Lease by giving notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination, with the same force and effect as
though the date so specified were the date originally fixed as the termination
date of the term of this Lease, and all rights of Tenant under the Lease and in
and to the Premises shall expire and terminate, and Tenant shall remain liable
for all obligations under this Lease arising up to the date of such termination
and Tenant shall surrender the Premises to Landlord on the date specified in
such notice.
(B) Landlord may, from time to time without terminating
this Lease, and without releasing Tenant in whole or in part from its obligation
to pay monthly rental and perform all of the covenants, conditions, and
agreements to be performed by Tenant as provided in this Lease, make such
alterations and repairs as may be necessary in order to re-let the Premises, and
after making such alterations and repairs, Landlord may, but shall not be
obligated to, re-let the Premises or any part thereof for such term or terms at
such rental or rentals and upon such other terms and conditions as Landlord in
its sole discretion may deem advisable or acceptable; upon each re-letting, all
rentals received by Landlord from such re-letting shall be applied first to the
payment of any cost and expenses of such re-letting, including brokerage fees
and attorney's fees and all costs of such alterations and repairs, and second to
the payment of the monthly rental due and unpaid hereunder, and the residue, if
any, shall be held by Landlord and paid to Tenant. In no event shall Tenant be
entitled to any excess rental received by Landlord over and above charges that
Tenant is obligated to pay hereunder as monthly rental; if such rentals received
from such re-letting during any month are less than those to be paid during the
month by Tenant hereunder, including monthly rental, Tenant shall pay any such
deficiency to Landlord, which deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord as soon as ascertained and upon demand all
costs and expenses incurred by Landlord in connection with such re-letting and
making any alterations and repairs which are not covered by the rental received
under such re-letting; notwithstanding any such re-letting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
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21. HOLDING OVER. If Tenant remains in possession of the Premises
after expiration of the term hereof, with Landlord's acquiescence and without
any express agreement of the parties, Tenant shall be a tenant at will at the
rental rate which is in effect at the end of this Lease and there shall be no
renewal of this Lease by operation of law.
22. ATTORNEY'S FEES. In the event that any action or proceeding is
brought to enforce any term, covenant, or condition of this Lease on the part of
the Landlord or Tenant, the prevailing party in such litigation shall be
entitled to recover reasonable attorney's fees to be fixed by the court in such
action or proceeding, in an amount at least equal to fifteen percent (15%) of
any damages due from the non-prevailing party.
23. RIGHTS CUMULATIVE. All rights, powers, and privileges
conferred hereunder upon the parties hereto shall be cumulative and not
restrictive to those given by law.
24. WAIVER OF RIGHTS. No failure of Landlord to exercise any power
given Landlord hereunder or to insist upon strict compliance by Tenant of its
obligations hereunder and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof.
25. PURCHASE OF PREMISES. Upon Tenant's purchase of the Facility
and the Project Site under the 1996 Lease, Tenant shall also purchase the
Premises for the cash price of which shall be composed of the sum of (i) Ten
Dollars ($10.00) and (ii) the remaining unpaid balance on the Permanent Loan.
Upon Tenant's purchase of the Premises from the Landlord and upon payment of the
purchase price set forth herein in cash, Landlord will, by ▇▇▇▇ of sale and
statutory warranty deed or other appropriate instruments, transfer and convey
the Premises (in its then condition, whatever that may be) to Tenant, subject
only to the Permitted Encumbrances and to any other liens of which Tenant
expressly consented and to those liens resulting from the failure of Tenant to
perform or observe any of the agreements or covenants on its part herein
contained.
26. ENVIRONMENTAL LAWS. Landlord represents to the best of its
knowledge and belief that the Premises are in compliance with all applicable
environmental laws and there are not excessive levels (as defined by the
Environmental Protection Agency) of radon, toxic waste, or hazardous substances
on the Premises. Tenant represents and warrants that Tenant shall comply with
all applicable environmental laws and that Tenant shall not permit any of its
employees, contractors, or subcontractors or any person present on the Premises
to generate, manufacture, store, dispose, or lease on or about or under the
Premises any toxic waste or hazardous substances which would result in the
Premises not complying with any applicable environmental laws.
27. TIME OF ESSENCE. Time is of the essence of this Lease.
28. ENTIRE AGREEMENT. This Lease contains the entire agreement of
the parties hereto concerning the subject matter hereof, and no representations,
inducements, promises, or agreements, oral or otherwise, between the parties,
not embodied herein, shall be of any force or effect. No subsequent alteration,
amendment, change, or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and signed by the parties hereto.
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29. MISCELLANEOUS.
(A) All notices, certificates, or other communications
hereunder shall be sufficiently given and shall be deemed given on the third day
following the date on which the same shall have been mailed by first class mail,
postage prepaid, or on the date given if given by facsimile, confirmed in
writing, addressed as follows:
If to Landlord: The Development Authority of the City
of Manchester
ATTN: Chairman
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Tenant: Horizon Medical Products, Inc.
ATTN: President
Seven North Parkway Square
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and
Horizon Medical Products, Inc.
ATTN: Vice President of Administration
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The parties by notice given hereunder may designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
(B) This Lease shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and permitted
assigns and shall be governed by and construed in accordance with the laws of
the State of Georgia.
(C) In the event any provision of this Lease shall be
held invalid or unenforceable by any court of competent jurisdiction, the
remainder of this Lease shall be not effected thereby if such remainder would
then continue to conform to the requirements of applicable law.
(D) All covenants, stipulations, obligations, and
agreements of the Landlord contained in this Lease shall be deemed to be
covenants, stipulations, obligations, and agreements of Landlord to the full
extent authorized by Georgia law. No covenant, stipulation, obligation, or
agreement contained herein shall be deemed to be a covenant, stipulation,
obligation, or agreement of any present or future member, agent, or employee of
Landlord in his individual capacity, and neither the members of Landlord nor any
official executing this Lease shall be subject to any personal liability or
accountability by reason of the execution by Landlord or such members thereof.
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(E) Any right, interest, or remedy which shall have
accrued during the term of this Lease shall not be terminated or extinguished by
the expiration or termination of this Lease but may be enforced by the party for
whose benefit such right, interest, or remedy shall have accrued and may be
enforceable by such party in accordance with the terms of this Lease as if it
had not terminated or expired or otherwise in accordance with law.
(F) This Lease may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
(G) LANDLORD MAKES NO WARRANTY, EITHER EXPRESS OR
IMPLIED, AS TO THE PREMISES OR THE CONDITION THEREOF, OR THAT THE PREMISES WILL
BE SUITABLE FOR THE PURPOSES OR NEEDS OF TENANT, EXCEPT AS EXPRESSLY PROVIDED
HEREIN. LANDLORD MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE MERCHANTABILITY, CONDITION, OR WORKMANSHIP OF ANY PART OF THE
PREMISES OR ITS SUITABILITY FOR THE TENANT'S PURPOSES.
(H) This Lease, or a memorandum of this Lease describing
the relevant terms and conditions, and every assignment and modification hereof
shall be recorded at the Clerk's Office of the Superior Court of ▇▇▇▇▇▇▇▇▇▇
County or in such other office as may be at the time provided by law as the
proper place for such recordation.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed by its duly authorized officers as of the date first above written.
THE DEVELOPMENT AUTHORITY
OF THE CITY OF MANCHESTER
Signed, sworn to, and delivered
before me this January 24, 2001.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Chairman
---------------------------------
Unofficial Witness
Attest: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Secretary or Assistant Secretary
---------------------------------
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
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HORIZON MEDICAL PRODUCTS, INC.
Signed, sworn to, and delivered
before me this December 18, 2000.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Chairman and CEO
---------------------------------
Unofficial Witness
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------- --------------------------------
Notary Public Title: Secretary
My Commission Expires: ---------------------------------
[NOTARIAL SEAL]
13