Exhibit 10.34
SUBLEASE AGREEMENT
This SUBLEASE (the "Sublease") is entered into as of the 9th day of October,
2000, between IDEAS FOR MEDICINE, INC., formerly known as CryoLife Acquisition
Corporation, a Florida corporation (herein called "IFM") and HORIZON MEDICAL
PRODUCTS, INC., a Georgia corporation (herein called "Horizon"), both hereafter
called the "Parties".
1. DEMISE
IFM hereby sublets to Horizon and Horizon subleases from IFM the Premises
described in Paragraph 2 herein, which is the Demised Premises leased by IFM, as
Tenant, from Secret Promise, Ltd., as successor-in-interest to J. Crayton Pruitt
Family Trust u/t/a 9/17/76, ("Landlord") under that certain lease dated March 5,
1997, as amended, which is incorporated herein, by reference, and which is
hereinafter, collectively with any and all amendments, referred to as the
"Lease." Defined terms used herein but not otherwise defined herein shall have
the meaning set forth in the Lease.
2. DESCRIPTION OF SPACE
The premises (the "Premises") subject to this Sublease consists of that certain
tract or parcel of land more particularly described on Exhibit A attached hereto
and made a part hereof, together with all improvements erected thereon and all
appurtenances thereunto belonging.
3. TERM OF SUBLEASE
The term (the "Sublease Term") of this Sublease shall be for a period ending on
the date that the Lease Term expires or is earlier terminated, if earlier.
Notwithstanding anything to the contrary expressed or implied in this Sublease
or in the Lease, Horizon hereby acknowledges and agrees that it shall have no
right to exercise any election, right or opportunity of Tenant under the Lease
to renew or extend the term of the Lease, nor shall Horizon have any right to
holdover or continue in occupancy of the Premises after termination of the
Lease, except as expressly set forth herein to the contrary. At the expiration
of the initial Term of the Lease, Horizon shall be entitled to request IFM to
extend the Term of the Lease in accordance with the terms of Section 5 of the
Lease. Horizon shall provide such request to IFM in writing not more than ninety
(90) nor less than thirty (30) days prior to the last date by which IFM is
permitted to provide to Landlord a notice of election to extend under the Lease.
If IFM refuses to so extend it shall so notify Horizon within fifteen (15) days
after receipt of Horizon's notice, and then, with Landlord's prior consent, and
provided that Landlord agrees in writing that (i) IFM is or shall be released as
of the expiration of the then current Lease Term and shall not be or remain
liable during the succeeding Extension Option Term or Terms, and (ii) CryoLife,
Inc. ("CryoLife"), IFM's sole shareholder, is or shall be released from its
obligations under the Guaranty executed by CryoLife in favor of Landlord in
connection with the Lease as of the expiration of the then current Lease Term
and shall not be liable during the succeeding Extension Option Term or Terms.
IFM shall assign all of its right, title and interest in and to the Lease and
the Premises to Horizon upon the expiration or termination of the then current
Lease Term. Alternatively, if IFM does not elect to extend then Horizon shall be
free to negotiate with Landlord for a new, direct lease of the Premises. Horizon
hereby acknowledges that IFM has no duty or obligation to extend the lease for
the benefit of Horizon, that Landlord has no duty or obligation to negotiate
with Horizon with respect to a new lease, and that Landlord's consent to any
assignment to Horizon may be granted or withheld by Landlord in accordance with
the provisions of Section 23 of the Lease.
4. SUBLEASE RENT
Horizon agrees to pay to IFM as "Rent" for the Premises all amounts due by IFM
to Landlord under the Lease including, but not limited to, monthly "Base Rental"
(as defined and prescribed in the Lease), together with any and all other
"Additional Rental", rents, sums and other charges due and payable under the
Lease as set forth therein. With respect to Base Rental payments and any and all
other payments due on or before the first (1st) day of the month under the
Lease, under this Sublease such payments shall be due and payable monthly in
advance on the twentieth (20th) day of each calendar month immediately preceding
the calendar month of the term of this Sublease for which such Rent is due. The
payment of Rent for the month of October 2000 shall be due and payable as and
when this Sublease is executed by Horizon, and shall be pro rated on a per diem
basis for the partial month. As to any and all other payments due and payable
under the Lease, for purposes of this Sublease such payments shall be due and
payable to Horizon to IFM on the date which is ten (10) days prior to the
applicable due date for such payment under the Lease.
If any payment or installment of Rent is not paid as and when due under this
Sublease, and if such failure is not cured within ten (10) days thereafter, then
such Rent payment shall be due and payable together with an administrative late
charge handling fee equal to One Hundred Dollars ($100.00). Horizon hereby
acknowledges and agrees that (i) IFM shall not be obligated to accept any late
payment, (ii) IFM shall not be deemed to have waived such late charge by
acceptance of any subsequent Rent payment which fails to include such charge,
and (iii) any and all past due Rent shall, in addition, bear interest from the
date which is ten (10) days after the date due until the date paid at a rate
("Default Interest Rate") equal to the lesser of eighteen percent (18%) simple
interest per annum or the highest rate allowed by law.
5. HOLDOVER
There shall be absolutely no holdover permitted by Horizon after the expiration
or termination of this Sublease. Any holdover after the expiration of this
Sublease concurrently with the expiration of the term of the Lease shall be
conclusively deemed to be as a tenant at will or at sufferance of Landlord under
the Lease, and not by, through or under IFM under this Sublease. Any holdover
after the earlier termination of the term hereof prior to the expiration or
termination of the term of the Lease shall be conclusively deemed to be as a
tenant at will or at sufferance of IFM under this Sublease. Any such holdover
tenancy under Landlord may thereafter be terminated by Landlord, and any such
holdover tenancy under IFM may be thereafter terminated by IFM, at any time from
and after the date it commences and/or as provided by the laws of the State of
Florida. Notwithstanding the foregoing, the Rent during the period of any
holdover under IFM shall increase to one hundred twenty-five percent (125%)
times the Rent due payable under the Lease. Further, Horizon hereby acknowledges
and agrees that its indemnity of IFM and of Landlord under Section 6 below shall
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include, without limitation, any and all claims, demands, causes of action,
damages, costs and expenses (including without limitation reasonable actual
attorneys' fees and costs) arising out of or resulting directly or indirectly
from Horizon's holdover. Notwithstanding the foregoing, Horizon shall not be
liable to IFM for any consequent, special, indirect, or punitive damages
hereunder, except to the extent that damages (if any) owed by IFM to Landlord
may be so characterized.
6. HORIZON TO COMPLY WITH LEASE AGREEMENT TERMS, INDEMNITIES
6.1 Horizon agrees to perform and observe the covenants, conditions, and
terms set forth in the Lease on the part of the tenant to be performed and
observed (including without limitation Sections 9-11 thereof), except the
covenant for the payment of Base Rental (and any rent tax imposed thereon)
reserved in the Lease, and to indemnify, defend (using counsel selected by or
acceptable to IFM for such purpose) and hold the Landlord and IFM each harmless
from and against any and all claims, demands, causes of action, damages, costs
and expenses (including without limitation reasonable actual attorneys' fees and
costs) arising out of or resulting directly or indirectly from IFM's breach of
or default under the Lease or this Sublease, unless caused by or resulting from,
directly or indirectly, any act or omission, breach or default of Horizon.
7. SERVICES AND UTILITIES
Horizon shall pay any and all charges for utilities and services as set forth in
the Lease. In the event that IFM has any utility deposits or other deposits for
services, Horizon shall reimburse IFM for the amounts thereof or shall replace
the same with deposits funded by Horizon within thirty (30) days after written
request from IFM to do so.
8. USE FOR BUSINESS PURPOSES
The premises subleased herein are to be used for the business purposes set out
in the Lease and for no other use or purpose whatsoever.
9. ALTERATIONS
Horizon shall not undertake or commence any alterations, additions or
improvements to the Premises without having first obtained the prior written
consent of IFM hereunder and, to the extent applicable, the consent or approval
of Landlord under the Lease.
10. WAIVER OF ONE BREACH NOT WAIVER OF OTHERS
Waiver of one breach of a term, condition, or covenant of this Sublease by
either party hereto shall be limited to the particular instance and shall not be
deemed to be a waiver of future breaches of the same or other terms, conditions,
or covenants.
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11. TERMINATION AND REENTRY BY IFM ON HORIZON'S DEFAULT
11.1 Horizon shall be in default under this Sublease upon the occurrence of
any of the following acts, events or conditions:
(a) The Base Rental, Additional Rental or any other sum of money payable
under this Sublease is not paid when due, and such failure is not cured within
ten (10) days after written notice from IFM to Horizon thereof (provided,
however, that IFM shall not be obligated to provide to Horizon a notice of such
failure to the opportunity to cure same after such notice more than three (3)
times in any period of twelve (12) consecutive months;
(b) Horizon shall abandon or vacate all or any portion of the Premises and
ceases paying Rent;
(c) The failure or refusal of Horizon, at any time during the Sublease
Term, to fulfill or perform any other covenant, agreement or obligation of
Horizon hereunder if such failure or refusal shall continue without correction
for a period of twenty (20) days after notice thereof to Horizon (provided,
however, that if such covenant, agreement or obligation shall be of such nature
that it can be fulfilled or performed and if Horizon in good faith commences to
fulfill or perform same within said twenty (20) day period exercising due
diligence, a default by Horizon shall not be deemed to have occurred if Horizon
commences to diligently pursue the fulfillment or performance of the covenant,
agreement or obligation during such 20-day period and shall thereafter
continuously and diligently proceed therewith until completion within sixty (60)
total days);
(d) An attempt to assign, sub-sublease or further transfer Horizon's rights
or interests hereunder shall occur without the prior written approval of IFM,
except as set forth in that certain Assignment of Sublease of even date herewith
among Horizon, Bank of America, N.A., and IFM.
(e) The initiation of any proceeding whereupon the estate or interest of
Horizon in the Premises, or any portion thereof, or in this Sublease is levied
upon or attached if such proceeding is not vacated, discharged or bonded within
thirty (30) days after the date of such levy or attachment;
(f) The entry of any decree or order for relief by a court having
jurisdiction in the Premises in respect of Horizon in an involuntary case under
the federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of Horizon or for any substantial part of the
assets of Horizon, or the entry of any decree or order with respect to
winding-up or liquidation of the affairs of Horizon, if any such decree or order
continues unstayed and in effect for a period of sixty (60) consecutive days;
(g) The commencement by Horizon of a voluntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, or the consent by
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Horizon to the appointment of or possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of Horizon or for
any substantial part of the assets of Horizon, or any assignment made by Horizon
for the benefit of creditors, and such case or proceeding is not dismissed
within sixty (60) days; or
(h) A default by Horizon under that certain Promissory Note from Horizon in
favor of IFM dated as of even date herewith in the principal amount of
$5,945,216 (as that note may be amended or replaced) and a failure to cure such
default as set forth therein.
11.2 Upon the occurrence of a default by Horizon as described in this
Sublease, IFM shall have the option to pursue any one or more of the following
remedies without notice or demand whatsoever, and in addition to, and not in
limitation of any other remedy or right permitted to it by law of in equity or
by this Sublease:
(a) IFM, with or without terminating this Sublease and without waiving such
default, may perform, correct or repair any condition which shall constitute a
failure on Horizon's part to keep, observe, perform or satisfy such condition,
and IFM may take, on behalf of Horizon, whatever steps IFM deems necessary to
cure such default. IFM may reenter the Premises for such purposes without being
liable for prosecution or any claim for damages therefor, and Horizon shall
fully reimburse and compensate IFM on demand for all costs and expenses incurred
by IFM in such performance, correction or repair, including without limitation,
accrued interest from the date of demand until date of payment at the Default
Interest Rate, and such sums shall be deemed to be Additional Rental hereunder;
(b) IFM may terminate this Sublease, in which event Horizon shall
immediately surrender the Premises to IFM, and if Horizon fails to do so, IFM
may, without prejudice to any other remedy it may have, enter upon and take
possession of the Premises and expel or remove Horizon and any other person who
may be occupying said premises or any part thereof in accordance with all
applicable laws and without breaching the peace;
(c) IFM may recover possession of the Premises, with or without terminating
this Sublease, at IFM's option, in the manner prescribed by any applicable
statute, including without limitation, statutes relating to summary process. Any
demand for the Rent, reentry for conditions broken, and any and all notices to
quit, including without limitation, the notice required by the provisions of
Section 83.20, Florida Statutes, or any similar statutes, or other formalities
of any nature, to which Horizon may be entitled, are hereby specifically waived.
In any possessory action for nonpayment of Rent or other charge due hereunder,
Horizon expressly waives any defense other than payment. Horizon's obligation to
pay Rent is independent of any duty or obligation of IFM under this Sublease;
(d) IFM may relet the Premises upon such terms and conditions and for such
rental as IFM deems advisable, without thereby avoiding or terminating this
Sublease, and Horizon shall remain liable for any and all Rent and other charges
and expenses hereunder. For the purpose of reletting, IFM is authorized to make
such repairs or alterations to the Premises and/or to remove or store Horizon's
or other occupants' possessions as may be necessary in the sole discretion of
IFM for the purpose of such reletting, and if a sufficient sum is not realized
from such reletting (after payment of all costs and expenses of such repairs,
alteration or storage and the expense of such reletting and the collection of
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rent accruing therefrom) each month to equal the Rent, then Horizon shall pay
such deficiency each month upon demand therefor. Actions to collect such amounts
may be brought from time to time, on one or more occasions, without the
necessity of IFM's waiting until the expiration of the Sublease Term. In the
event of termination of the Sublease or repossession of the Premises for default
as described in this Sublease, IFM shall use commercially reasonable efforts to
relet the Premises, or a portion thereof, and to collect rental after reletting;
and in the event of reletting, IFM may relet the whole or any portion of the
Premises, as agent for Horizon or for IFM's own account, for any period to any
sublease and for any use and purpose;
(e) IFM may declare immediately due and payable the then present value
(calculated with a discount factor or eight percent (8%) per annum) of the
difference between (x) the entire amount of Base Rental. Additional Rental and
other charges and assessments which in IFM's reasonable determination would
become due and payable during the remainder of the Sublease Term (in the absence
of the termination of this Sublease), and (y) the then fair market value of the
Premises for the remainder of the Sublease Term. Upon the acceleration of such
amounts, Horizon agrees to pay the same at once, in addition to all Rent, costs,
charges, assessments, and reimbursements theretofore due: provided, however,
that such payment shall not constitute a penalty or forfeiture, but shall
constitute liquidated damages for Horizon's failure to comply with the terms and
provisions of this Sublease (IFM and Horizon agreeing that IFM's actual damages
in such event are difficult to ascertain and that the amount set forth above is
a reasonable estimate thereof). In computing such liquidated damages, there
shall be added to such deficiency any reasonable expenses as IFM may incur in
connection with reletting, such as court costs, reasonable attorneys' fees and
disbursements, brokerage fees and preparing the Premises for reletting.
Furthermore, such amount shall be construed as liquidated damages and shall
constitute a debt provable in bankruptcy or receivership; and/or
(f) Alter all locks and other security devices at the Premises without
terminating this Sublease.
In the event that IFM shall have taken possession of the Premises pursuant
to the authority herein granted, then IFM shall have the right to keep in place
and use all of the furniture, fixtures and equipment at the Premises, including
without limitation that which is owned by or subleased to Horizon, and at all
times prior to any foreclosure thereon by IFM or repossession thereof by any
lessor thereof or third party having a lien thereon. IFM shall also have the
right to remove from the Premises (without the necessity of obtaining a distress
warrant, writ of sequestration or other legal process) all or any portion of
such furniture, fixtures, equipment and other property located thereon and place
same in storage at any premises within the county in which the Premises is
located; and in such event, Horizon shall be liable to IFM for costs incurred by
IFM in connection with such removal and storage and shall indemnify and hold IFM
harmless from all loss, damage, cost, expense and liability in connection with
such removal and storage. IFM shall also have the right to relinquish possession
of all or any portion of such furniture, fixtures, equipment and other property
to any person ("Claimant") claiming to be entitled to possession thereof who
presents to IFM a copy of any instrument represented to IFM by Claimant to have
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been executed by Horizon (or any predecessor of Horizon) granting Claimant the
right under various circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of IFM
to inquire into the authenticity of said instrument's copy of Horizon's
signature thereon and without the necessity of IFM's making any investigation or
inquiry as to the validity of the factual or legal basis upon which Claimant
purports to act. Horizon agrees to indemnify and hold IFM harmless from all
costs, expense, loss, damage and liability incident to IFM's relinquishment of
possession of all or any portion of such furniture, fixtures, equipment or other
property to Claimant. The rights of IFM herein stated shall be in addition to
any and all other rights which IFM has or may hereafter have at law or in
equity, and Horizon stipulates and agrees that the rights herein granted IFM are
commercially reasonable. IFM shall in no event be liable to Horizon, including,
without limitation, liability for trespass or conversion, with respect to any
actions taken pursuant to this Section 11.2 so long as same are taken in
accordance with all applicable laws.
11.3 No course of dealing between IFM and Horizon or any failure or
delay on the part of IFM in exercising any rights of IFM under Section 11.2
hereof or under any other provisions of this Sublease shall operate as a waiver
of any rights of IFM hereunder, at law or in equity or under any other
provisions of this Sublease, nor shall any waiver of a default on one occasion
operate as a waiver of any subsequent default or of any other default. No
express waiver shall affect any condition, covenant, rule, or regulation other
than the one specified in such waiver and that one only for the time and in the
manner specifically stated. The exercise by IFM of any one or more of the rights
and remedies provided in this Sublease shall not prevent the subsequent exercise
by IFM of any one or more of the other rights and remedies herein provided. All
remedies provided for in this Sublease are cumulative and may, at the election
of IFM, be exercised alternatively, successively, or in any other manner and are
in addition to any other rights provided for or allowed by law or in equity.
After default, the acceptance of Rent (or any portion thereof) or failure to
re-enter by IFM shall not be held to be a waiver of its rights to terminate this
Sublease or of any other rights under this Sublease or applicable statue, and
IFM may re-enter and take possession of the Premises, or exercise any other
right and remedy, as if no Rent had been accepted after such default.
11.4 Exercise by IFM of any one or more remedies under Section 11 or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Horizon whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
IFM and Horizon or otherwise as permitted by law. No alteration of locks or
other security devices and no removal or other exercise of dominion by IFM over
the property of Horizon or others at the Premises shall be deemed unauthorized
or constitute a conversion, Horizon hereby consenting, after any default, to the
aforesaid exercise of dominion over Horizon's property within the Premises so
long as IFM complies with all Florida laws pertaining to distraint,
dispossessory, detainer or other remedial actions of landlords not waived under
this Sublease. All claims for damages by reason of such re-entry and/or
repossession and/or alteration of locks or other security devices and hereby
waived, as are all claims for damages by reason of any distress warrant,
forcible detainer proceedings, sequestration proceedings or other legal process
so long as IFM complies with all Florida laws pertaining to distraint,
dispossessory, detainer or other remedial actions of landlords not waived under
this Sublease. No such reentry or taking possession of the Premises by IFM shall
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be construed as an election on IFM's part to terminate this Sublease, unless a
written notice of such intention be given by IFM to Horizon or unless the
termination thereof be decreed by a court of competent jurisdiction. Horizon
agrees that any re-entry by IFM which is made pursuant to a judgment obtained in
forcible detainer proceedings or other legal proceedings will not make IFM
liable for trespass.
12. LITIGATION COSTS
If any legal action is filed to enforce this Sublease, or any part thereof, the
prevailing shall be entitled to recover reasonable actual attorneys' fees and
costs of the action.
13. APPLICABLE LAW, VENUE, AND SERVICE
In interpreting this Sublease and in determining the right of the Parties under
it, the laws of the State of Florida shall apply. Venue shall lie in the county
in which the Premises is located.
Personal service either within or without such state shall be sufficient to give
personal jurisdiction to any court in which an action is filed for litigation of
rights under this Sublease.
14. SURRENDER OF PREMISES AND KEYS
Horizon agrees that at the expiration or termination of this Sublease, it will
quit and surrender the Premises in the condition set forth in the Lease upon an
expiration or termination, without notice, and will deliver to IFM all keys
belonging to the Premises.
15. REMOVAL OF PROPERTY BY IFM
If IFM re-enters the Premises or takes possession of them before normal
expiration of this Sublease in accordance with its terms, any and all personal
property of Horizon not removed within ten (10) days of such re-entry or
repossession (and to the extent IFM has changed the locks, it will permit
Horizon access to the Premises for such purposes) shall be conclusively deemed
to have been abandoned by Horizon and IFM shall have the right to cause the same
to be removed and disposed of in any manner it deems necessary or appropriate,
including without limitation throwing the same away, at Horizon's sole cost and
expense.
16. HORIZON'S INSOLVENCY, BANKRUPTCY, RECEIVERSHIP OR ASSIGNMENT FOR CREDITORS
If IFM cannot terminate this Sublease or Horizon's right of possession because
of the application of bankruptcy or similar laws, then Horizon, as a debtor in
possession or on behalf of any trustee for Horizon, shall: (i) within the
statutory time, assume or reject this Sublease and (ii) not seek or request any
extension of adjournment of any application to assume or reject this Sublease by
IFM. In such event, Horizon or any trustee for Horizon may only assume this
Sublease if (A) it cures or provides adequate assurance that it will promptly
cure any default hereunder, (B) it compensates or provides adequate assurance
that it will promptly compensate IFM for any actual pecuniary loss to IFM
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resulting from Horizon's defaults, including without limitation accrued interest
at the Default Interest Rate and attorneys' fees as a result of such default,
and (C) it provides adequate assurance or performance during the Sublease Term
of all of the terms, covenants and provisions of this Sublease to be performed
by Horizon. In no event after the assumption of this Sublease shall any
then-existing default remain uncured for a period in excess of the earlier of
ten (10) days or the time period set forth herein. Adequate assurance of
performance shall include, without limitation, adequate assurance (1) of the
source of payment of Rent reserved hereunder, and (2) that the assumption of
this Sublease will not breach any provision hereunder, and will not cause a
breach of any other sublease, financing agreement or master agreement relating
to the Building.
17. NOTICES
All notices, demands, requests, elections, consents or other communications
required or permitted to be given pursuant to the terms of this Sublease shall
be in writing, signed by the party making the same, and shall be delivered
personally or by overnight mail service or courier, or by certified mail, return
receipt requested, postage or other delivery costs prepaid, to the other party
hereto, at the addresses set forth below. The date of such notice or other
communication shall be the date of personal delivery, the date of delivery if
deposited with Federal Express or other overnight or same day mail service or
courier, or the date delivery, refusal to accept delivery or inability to
deliver as evidenced on the return receipt, if sent by certified mail. If any
date on which any notice or election is required to be given or made hereunder
falls on a Saturday, Sunday or legal holiday, then, the date on which such
notice or election is required to be given or made hereunder shall, for all
purposes, be deemed to be the next following business day. Any notice to IFM
shall be addressed as follows:
Ideas for Medicine, Inc.
c/o CryoLife, Inc.
1655 Roberts Boulevard
Kennesaw, Georgia 30144
Attn: Vice President of Finance
with a copy to: Arnall Golden & Gregory, LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
Attn: Clinton D. Richardson, Esq.
and if given to Horizon, shall be addressed to:
Horizon Medical Products, Inc.
Seven North Parkway Square
4200 Northside Parkway, N.W.
Atlanta, Georgia 30327
Attn: Robert M. Dodge,
Chief Financial Officer
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with copies to: Slaughter & Virgin, P.C.
400 Colony Square, Suite 1110
1201 Peachtree Street, N.E.
Atlanta, Georgia 30361
Attn: Nat G. Slaughter, III
and King & Spalding
191 Peachtree Street, N.E.
Suite 4600
Atlanta, Georgia 30303-1763
Attn: Jon R. Harris, Jr., Esq.
or such other address(es) as IFM or Horizon may from time to time designate in
writing on not less than twenty (20) days prior to written notice to the other.
18. SUBLEASE APPLICABLE TO HEIRS, SUCCESSORS AND ASSIGNS
The terms, conditions, and covenants of this Sublease shall inure to and be
binding on the heirs, successors, and administrators, executors, and assigns of
the Parties hereto, except as otherwise herein provided.
19. NO ASSIGNMENT OR FURTHER SUBLEASE WITHOUT CONSENT
Horizon shall not sell or assign this Sublease or any part thereof, or any
interest therein, or further sublease the same (collectively, a "Transfer"),
without written consent of both IFM and Landlord. Any attempt to do so without
such consent shall be conclusively deemed to be void and/or shall be a breach of
this Sublease. IFM agrees that it shall not unreasonably withhold, condition or
delay its consent to a proposed Transfer, provided that the following conditions
have been satisfied: (i) Horizon is not then in breach or default under this
Sublease, nor has any event or condition occurred which, with the giving of
notice or the passage of time, or both, could constitute a default by Horizon
under this Sublease, (ii) Landlord has given its consent in writing (or is
deemed to have given its consent) to the proposed Transfer for all purposes
under the Lease, (iii) provided that Bank of America, N.A. ("Bank"), is still
the holder and assignee of the assignment instrument discussed in the
parenthetical in item (iv) below. Bank has given its consent in writing to the
proposed Transfer, and (iv) that certain Promissory Note referred to in Section
11.1 (h) above has been paid in full by Horizon to IFM (provided, however, if
the proposed Transfer is to Bank pursuant to that certain "Assignment of
Sublease (Sublessee's Interest)" by and between Horizon and Bank which is
attached as Exhibit A to that certain "Lessor Subordination and Consent" being
executed and delivered substantially of even date herewith by IFM in favor of
Bank, then this condition (iv) shall not be applicable). Horizon acknowledges
that IFM is obligated to give to Landlord thirty (30) days' prior written notice
of any proposed Transfer. Horizon agrees to give IFM at least thirty-five (35)
days' prior written notice of any proposed Transfer, and to provide to Landlord
and to Bank a concurrent copy of any notice given by Horizon to IFM hereunder
with respect to a proposed Transfer.
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20. CONDITION OF THE PREMISES
The Premises are delivered to Horizon in an "as-is" condition, with no work to
be performed by, or at the cost of, IFM, and no representations or warranties of
any kind, express or implied, by IFM to Horizon. Horizon hereby acknowledges and
agrees that it has had such time and opportunity as it has deemed necessary or
appropriate to visit, examine and inspect the Premises, and has received and
reviewed a copy of the Lease, and hereby approves the same in all respects.
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals and have caused this Sublease to be executed by their duly authorized
officers as of the day and year first above written.
IFM:
IDEAS FOR MEDICINE, INC.
/s/ D.A. Lee
-------------------------------------
By: D.A. Lee
---------------------------------
Its:VP - Finance and CFO
---------------------------------
Horizon:
HORIZON MEDICAL PRODUCTS, INC.
/s/ William E. Peterson, Jr.
-------------------------------------
By: William E. Peterson, Jr.
---------------------------------
Its:President
---------------------------------
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LEGAL DESCRIPTION
EXHIBIT "A"
A tract of land located in and being a portion of the Northwest 1/4 of Section
11 Township South, Range 16 East, and also being portions of the following
subdivision recorded in the Public Records of Pinelias County, Florida:
NORTON'S SUBDIVISION NO. 2, Plat Book 9, page 2;
PONCE De LEON PARK, Plat Book 12, page 47;
RIDGE CREST, Plat Book 8, page 23;
Said tract being more particularly described as follows:
Beginning at the Northeast corner of lands described in Official Records Book
4755, page 2019, thence North 89(0)51'39(0) West along the North line thereof,
175.74 feet to a point on the Westerly line of Block 4 of said NORTON'S
SUBDIVISION NO. 2 as extended Southeasterly; thence North 44(0)23'39(0) West
along said line 240.10 feet to a point of intersection with the Southerly line
of Block 6 of said NORTON'S SUBDIVISION NO. 2 as extended Easterly; thence
leaving said Westerly line North 89(0)59'22(0) West along said Southerly line
225.24 feet; thence leaving said line North 00(0)05'38(0) East along a Westerly
line of lands described in Official Records Book 1703, page 158, a distance of
125.20 feet to a point on the Northerly line of Lot 2, Block 6 of said NORTON'S
SUBDIVISION NO. 2; thence North 89(0)59'22(0) West along said line, 1.98 feet to
the Northwest corner of said Lot 2; thence North 45(0)15'52(0) West along a
Westerly line of lands described in Official Records Book 1703, page 158, a
distance of 85.26 feet to a point on the Southerly line of Lot 1, Block 5 of
said NORTON'S SUBDIVISION NO. 2; thence North 89(0)54'30(0) West along said
line, 169.73 feet to the Southwest corner of Lot 2 of said block; thence North
00(0)23'59(0) East along the Westerly line of said lot, 8.18 feet to a point of
intersection with the Southerly line of Block 8 of said RIDGE CREST as extended
Easterly; thence North 89(0)36'33(0) West along said line, 62.76 feet to the
Southeast corner of Lot 14, Block 8 of said RIDGE CREST; thence North
00(0)17'36(0) East along the Easterly line of said lot. 125.02 feet to the
Northeasterly corner thereof; thence North 89(0)57'46(0) West along the
Northerly line of said Block 8, a distance of 103.00 feet, thence leaving said
line North 00(0)57'57(0) East along a Westerly line of lands described in
Official Records Book 1703, page 158, a distance of 20.02 feet to a point on the
Southerly line of Lot 12, Block 7 of said RIDGE CREST, thence South
89(0)59'01(0) East along said line, 102.95 feet to the Southeasterly corner of
Lot 14 of said block; thence North 00(0)21'03(0) East along the Easterly line
thereof, 75.94 feet; thence leaving said line and along an Easterly line of
lands described in Official Records Book 4051, page 1262 the following two
courses: 1) North 44(0)22'59(0) West, 467.97 feet; 2) North 38(0)16'33(0) West,
41.51 feet; thence North 43(0)48'04(0) West along a Westerly line of lands
described in Official Records Book 1703, page 158, a distance of 86.68 feet,
thence leaving said line and along an Easterly line of lands described in
Official Records Book 4051, page 1262 the following two courses: 1) North
44(0)06'45(0) West, 110.12 feet; 2) North 45(0)34'36(0) East, 219.50 feet to a
point 29.85 feet Southwesterly of the centerline of an existing railroad track;
thence South 44(0)23'31(0) East. 1728.97 feet along a line parallel to and 29.85
feet Southwesterly of the centerline of said railroad track said line also
parallel to and 19.20 feet Southwesterly of the Northeasterly edge of an
existing concrete platform; thence leaving said line South 45(0)36'29(0) West,
19.97 feet to the Point of Beginning.
END OF LEGAL DESCRIPTION
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