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EXHIBIT 10.10
LEASE AGREEMENT
THIS LEASE is made and entered into as of August 29, 1997, 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");
WHEREAS, pursuant to the option granted to Tenant in the 1996 Lease,
Tenant has exercised its right to lease from Landlord the remaining 20,000
square feet of space in the Facility, and Tenant and Landlord desire to enter
into this Lease for such space;
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 20,000 square feet of space in the Facility
that are presently unoccupied and vacant and that are not
part of the Project under the 1996 Lease, which Premises is
located on the real property described in Exhibit "A"
attached hereto.
Landlord hereby grants to Tenant the right of ingress and egress from the
parking lot outside of the Facility to any door on the outside of the Facility
that leads into the Premises.
2. TERM AND RENEWAL. Tenant shall have the right and hold the Premises for
a term of one hundred fifty-one (151) months, beginning on September 1, 1997
and ending on March 31, 2010, at midnight, unless sooner terminated as
hereinafter provided.
If Tenant renews the Agreement Term under Section 8.7 of the 1996 Lease,
Tenant shall have the right to review this Lease for one additional five-year
term on the same terms and conditions as contained in this Lease.
3. RENTAL. Tenant agrees to pay to Landlord, without demand, deduction, or
setoff, an annual rental of Twenty Thousand and No/100 Dollars ($20,000.00)
payable in
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equal monthly installments of One Thousand Six Hundred Sixty-Six and 66/100
Dollars ($1,666.66) in advance on the first day of each month during the term
hereof. Upon execution of this Lease, Tenant shall pay to Landlord the first
month's rent due hereunder, if such rental payment has not previously been
made. 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. LEASE ON "AS-IS" BASIS; BUILD-OUT OF PREMISES. The Premises is leased
to Tenant by Landlord on an "as is" basis in its current condition. Tenant
acknowledges that Tenant has inspected the Premises and accepts the Premises in
such condition.
After commencement of the term of the Lease, Tenant will be solely
responsible at its expense for building out and constructing all improvements
within the Premises, pursuant to plans and drawings prepared for Tenant at its
sole expense. Tenant will furnish Landlord with copies of such drawings and
plans and will obtain Landlord's approval for such improvements, which approval
will not be unreasonably withheld.
5. 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.
6. 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;
(b) All taxes and governmental charges of any kind upon or with
respect to Tenant's machinery, equipment, 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.
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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.
7. LIENS AND ENCUMBRANCES. Tenant and Landlord represent and warrant
that, as of September 1, 1997, 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
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 NationsCredit
Commercial Corporation. 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.
8. 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
(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
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(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.
9. 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.
10. ABANDONMENT OF THE PREMISES. Tenant agrees not to abandon or vacate
the Premises during the term of the Lease and agrees to use the Premises for
the purposes herein leased until the expiration hereof
11. 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, 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.
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12. 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.
13. 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.
14. 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 xxxxx 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.
15. 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
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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 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.
16. 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.
17. 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.
18. 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.
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(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.
(e) After the twelfth (12th) anniversary date of the
commencement of the term of this Lease, Landlord shall be limited to the right
to re-enter and take position 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.
19. Remedies on Default. Except as provided in Section 18(e) 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 form its obligation to
pay monthly rental and perform all of the covenants, conditions, and agreement
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
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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.
20. 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.
21. 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.
22. RIGHTS CUMULATIVE. All rights, powers, and privileges conferred
hereunder upon the parties hereto shall be cumulative and not restrictive to
those given by law.
23. 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.
24. OPTION TO PURCHASE PROPERTY. Tenant shall have the right at any
time during term of this Lease, upon purchase of the Facility and the Project
Site under the 1996 Lease, to purchase the Premises for the sum of $10.00. Upon
the exercise of its option to purchase the Premises from the Landlord and upon
payment of the purchase price set forth herein in cash, Landlord will, by xxxx
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.
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25. 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 expressive 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.
26. TIME OF ESSENCE. Time is of the essence of this Lease.
27. 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.
28. 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
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to Tenant: Horizon Medical Products, Inc.
ATTN: President
Seven North Parkway Square
0000 Xxxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
The parties by notice given hereunder may designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
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(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.
(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, THAT TENANT
WILL HAVE QUIET AND PEACEFUL POSSESSION OF THE PREMISES. 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 the option provided in Section 24 hereof, and
every assignment
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and modification hereof shall be recorded at the Clerk's Office of the Superior
Court of Xxxxxxxxxx County or in such other office as may be at the time
provided by laws 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 this 23rd day October, 1997.
By: /s/ Xxx Xxx
/s/ Xxxxx X. Xxxxxxx -----------------------------
--------------------------------- Chairman - XXX XXX
Unofficial Witness
Attest: /s/ Xxxx X. Xxxxxx
------------------------
/s/ Xxxxxxxxx X. Xxxxx Secretary or Assistant
--------------------------------- Secretary -
Notary Public XXXX X. XXXXXX
[SEAL]
Commission Expires: Notary Public, Xxxxxxxxxx County, Georgia
My Commission Expires Nov. 8, 1998
HORIZON MEDICAL PRODUCTS, INC.
Signed, sworn to, and delivered
before me this 28th day of October, 1997.
By:/s/
/s/ Xxxxx ---------------------------
------------------------------
Unofficial Witness Title: PRESIDENT
------------------------
/s/ Xxxxxxx Xxxxx Attest: /s/
------------------------------ -----------------------
Notary Public
My Commission Expires: Title: SECRETARY
------------------------
[NOTARIAL SEAL]
NOTARY PUBLIC XXXX COUNTY, GEORGIA
MY COMMISSION EXPIRES MAY 16, 1999
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EXHIBIT "A" TO LEASE AGREEMENT
PROJECT SITE
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx Xxxxx
Xxxx Xxxxxxxx xx Xxxxxxxxxx County, Georgia, and in the City of Manchester,
containing 10.557 acres, and more particularly described as follows: To obtain
a point of beginning start at the intersection of the East right of way of State
Route 85E with the centerline of Pigeon Creek and proceed in a southerly
direction along the East right of way of State Route 85E a distance of 2,280
feet to an iron pin which is the Point of Beginning. FROM SAID POINT OF
BEGINNING proceed South 73 degrees 28 minutes 25 seconds East 730 feet to an
iron pin; thence South 16 degrees 31 minutes 35 seconds West 325 feet to an iron
pin; thence proceed along a curve which has a radius of 2,834.79 feet, an arc of
331.96 feet and a chord of South 19 degrees 52 minutes 52 seconds West 331.77
feet to an iron pin; thence proceed North 69 degrees 01 minutes 25 seconds West
730.18 feet to an iron pin on the East right xx xxx xx Xxxxx Xxxxx 00X; thence
proceed in a northerly direction along the East right of way of State Route 85E
in a curve which has a radius of 5,768.21 feet, an arc of 448.00 feet and a
chord of North 18 degrees 45 minutes 05 seconds East 447.89 feet to a right of
way monument; thence continue along the East right of way of Xxxxx Xxxxx 00X
Xxxxx 00 degrees 31 minutes 35 seconds East 152 feet to the iron pin which marks
the Point of Beginning.
Said property is bounded on the North by Delano Drive; on the East by an
unnamed street; on the South by Xxx 00 xx xxx Xxxxxxxxxx Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx Xxxx; and on the West by State Route 85E.
Said property is more particularly shown as Lot 12 on a plat of survey for the
Manchester Development Authority by Xxxxxx X. Xxxxxx, registered surveyor,
which plat is dated December 12, 1995, and recorded in plat Book 16, Page 223,
in the Office of the Clerk of Xxxxxxxxxx Superior Court.
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EXHIBIT "B" TO LEASE AGREEMENT
1. Rights or claims or parties in possession now shown by the public records.
2. Easements, or claims of easements, not shown by the public records.
3. Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate survey or inspection of the premises.
4. Any lien, or right to a lien, for services, labor, or material heretofore
or hereafter furnished, imposed by law and now shown by the public records.
5. Any adverse claim to any portion of said land which has been created by
artificial means or has accreted to any such portion so created and
riparian rights, if any.
6. Taxes or special assessments which are not shown as existing liens by
public records.
7. Any prior reservation or conveyance, together with release of damages, of
minerals of every kind and character, including, but not limited to oil,
gas, sand, and gravel in, on, an under subject property.
8. General and special taxes or assessments for 1997 and subsequent years not
yet due and payable.
9. An Easement to Georgia Power Company dated May 22, 1951, and recorded in
Deed Book 50, page 294, in the Office of the Clerk of Xxxxxxxxxx Superior
Court.
10. A Deed to Secure Debt from The Development Authority of the City of
Manchester to F&M Bank and Trust Company dated March 15, 1996, and recorded
March 20, 1996, in Deed Book 358, page 120, in the office of the Clerk of
Xxxxxxxxxx Superior Court.
11. A Deed to Secure Debt, Assignment of Rents and Leases and Security
Agreement dated July 1, 1996 from The Development Authority of the City of
Manchester to Synovus Trust Company, recorded at Deed Book 363, page 158,
in the office of the Clerk of Xxxxxxxxxx Superior Court.
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EXHIBIT "C" TO LEASE AGREEMENT
LESSOR WAIVER AND CONSENT
THIS WAIVER AND CONSENT is made as of this _____ day of July, 1997, by the
undersigned in favor of NATIONSCREDIT COMMERCIAL CORPORATION, a Delaware
corporation having offices at 201 Broad street, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, acting in its capacity as agent (the "Agent") for itself and
the other lending institutions which are or are to become lenders
(collectively, the "LENDERS") under the Credit Agreement described below.
STATEMENT OF FACTS
The undersigned are the owner and/or lessor of the real property and
related improvements and fixtures located at Xxx Xxxxxxx Xxx, Xxxxxxxxxx,
Xxxxxxx 00000, hereinafter collectively called the "REAL PROPERTY". Pursuant to
a Credit Agreement among HORIZON MEDICAL PRODUCTS, INC., a Georgia corporation
(the "BORROWER"), the Lenders and the Agent (the "CREDIT AGREEMENT"), the
Borrower, the lessee of the Real Property, and its subsidiary, HORIZON
ACQUISITION CORP., a Georgia corporation d/b/a Neostar Medical Technologies (the
"SUBSIDIARY") may now or hereafter enter into security agreements under which
the Agent may be granted a security interest in some or all of the Borrower's
and the Subsidiary's now owned or hereafter acquired accounts, contracts rights,
chattel paper, instruments, documents, general intangibles, inventory or
equipment and all proceeds of any or all of the foregoing (including without
limitation returned inventory), and all books and records (including without
limitation computer and accounting records) of the Borrower and the Subsidiary
pertaining to any or all of the foregoing, hereinafter collectively called the
"PERSONAL PROPERTY". Some or all of the Personal Property will be placed,
stored or otherwise located on the Real Property.
NOW, THEREFORE, for and in consideration of the foregoing premises, $5.00
in hand paid by the Agent to the undersigned, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the undersigned does hereby consent and agree in favor of the Agent as
follows:
STATEMENT OF TERMS
1. The undersigned consent to and acquiesce in the Borrower's grant of
a security interest in the Personal Property in favor of the Agent.
2. The undersigned hereby waive, relinquish and release any right,
privilege or power which the undersigned now have, or xxx hereafter have, under
or by virtue of any law or any agreement, instrument or other document, to claim
or assert any right, title or interest in or to the Personal Property, including
without limitation any right, privilege or power to (i) levy or distrain upon
the Personal Property for rent, in arrears, in advance or both, or (ii) claim or
assert any right, title or interest in or to the Personal Property as security
or collateral for any debt or obligations secured by the Real Property.
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3. The Agent may exercise any rights, privileges, options or powers
which it may have with respect to the Personal Property without regard to the
undersigneds' rights, titles or interests in and to the Real Property,
including, without limitation, any right, privilege or option which the Agent
may have to enter upon the Real Property and inspect, or to take possession of
and remove, the Personal Property, or any part thereof, pursuant to the terms
and conditions of any agreement between the Borrower and the Agent or pursuant
to any applicable law; provided, that the Agent shall reimburse the undersigned
for the reasonable costs of repairing any actual physical damage to the Real
Property caused by the Agent in removing the Personal Property (but the Agent
shall not be liable for any other diminution in the value of the Real Property
resulting from the removal of any of the Personal Property therefrom).
4. If the Agent elects to take possession of all or any part of the
Personal Property pursuant to the terms of any agreement between the Borrower
and the Agent or the Lenders or pursuant to any applicable law, the Agent shall
have access to the Real Property for the purposes of inspecting, preserving or
removing the Personal Property and the Agent may, in its discretion and without
liability to the undersigned except as expressly provided below, leave all or
any part of the Personal Property on the Real Property for a period of not more
than ninety (90) days after the Agent takes such possession; provided, that the
Agent shall pay to the undersigned pro-rated rent (based on the base rent rate
then payable by the Borrower to the undersigned) for the days that Agent is in
actual possession of the Real Property if and to the extent that the Borrower
fails to pay the same.
5. The undersigned agree to give the Agent prior written notice (at the
Agent's address set forth above or at such other address as the Agent may
hereafter designate by written notice to the undersigned) of any payment default
by the Borrower under its lease of the Real Property and the Agent shall have
the right (but not the obligation) to cure such payment default within thirty
(30) days after the Agent's receipt of such payment default notice and the
undersigned shall not terminate the Borrower's lease of the Real Property on
account of such payment default until the Agent's cure right expires.
6. The validity and enforceability of this Waiver and Consent shall not
be impaired, diminished, annulled or affected in any manner whatsoever by the
modification, alteration, extension or renewal of any debt or other obligation
of the Borrower to the Agent or the Lenders.
7. This Waiver and Consent shall be binding upon and enforceable against
the undersigned and their respective successors and assigns, and shall inure to
the benefit of the Agent and the Lenders and their respective successors and
assigns.
8. Words importing the singular number hereunder shall include the
plural number and vice versa, and any pronoun used herein shall be deemed to
include all genders.
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IN WITNESS WHEREOF, the undersigned have executed this Waiver and Consent
and affixed its seal hereto as of the day and year first written above.
SYNOVUS TRUST COMPANY,
AS TRUSTEE
By:
-----------------------------
Title:
------------------------
Attest:
------------------------
Title:
------------------------
(SEAL)
Signed, sealed and delivered this ___ day
of July, 1997 in the presence of:
-----------------------------------------
Notary Public
[NOTARIAL SEAL]
THE DEVELOPMENT AUTHORITY OF
THE CITY OF MANCHESTER
By:/s/ Xxx Xxx
-----------------------------
Xxx Xxx
Title: CHAIRMAN
------------------------
Attest: /s/ Xxxx X. Xxxxxx
-----------------------------
Title: Secretary
------------------------
Xxxx X. Xxxxxx
(SEAL)
Signed, sealed and delivered this 23rd day
of October, 1997 in the presence of:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Notary Public
My Commission Expires July 22, 1999
[NOTARIAL SEAL]
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17
CLERK SUPERIOR COURT DATE RECEIPT NUMBER
XXXXXXXXXX COUNTY, GEORGIA 11/03/97 39315
XXXXXX XXXXXX XXXXXXX
RECEIVED OF: XXXXXXXXX & VIRGIN P C
ATTORNEYS AT LAW
0000 XXXXXXXXX XX XX
XXXXXXX, XX 00000
FOR:
RECORDING FEE 40.00
-------
TOTAL 40.00
/s/
-----------------------
XXXXXX XXXXXX XXXXXXX
CLERK SUPERIOR COURT
XXXXXXXXXX COUNTY, GEORGIA
1 LEASE AGREEMENT MANCHESTER DEV AUTHORITY TO HORIZON MEDICAL
