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EXHIBIT 10.43
LEASE AGREEMENT
THIS LEASE made and entered into as of August 17, 1998, between HP
AVIATION, INC., of Wilmington, Delaware (the "Lessor"), and HORIZON MEDICAL
PRODUCTS, INC. of Manchester, Georgia (the "Lessee").
1. LEASE. Lessor leases to Lessee the following described
aircraft (the "aircraft") for use by Lessee from time to time, when needed by
Lessee and at such times as is determined by Lessee, subject to the limitations
described below in this paragraph 1:
One 1981 King Air 200, Aircraft Serial
No. BB-824, U.S. Registration N824TT
Lessor reserves the right to lease the aircraft to other users from
time to time and to use the aircraft from time to time for the owners of Lessor;
provided, however, that Lessee shall have the right to request the aircraft for
use solely by Lessee hereunder on a "first come, first served" basis.
2. TERM. Subject to the provisions of paragraph 6 hereof, the
term of this Lease shall be one (1) year, commencing on August 17, 1998, and
shall be renewed for successive terms of one year unless terminated by either
party by written notice within thirty (30) days prior to the end of any one year
term.
3. RENTAL. Rental shall be determined based upon Lessee's actual
usage of the aircraft and charged solely on a trip by trip basis with such
charges invoiced for each trip. For each trip in which Lessee uses the aircraft,
the rental charge shall be determined as follows: the normal or regular hourly
rate in the same airplane that would be charged by Xxxx Aviation at Peachtree
DeKalb Airport, Atlanta Georgia to a charter customer shall be multiplied by the
number of hours for use of the aircraft during the
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trip as determined by the Xxxxx meter in the aircraft, and the rental charge for
the trip will be ninety percent (90%) of the result of such multiplication. When
the aircraft is used by Lessee, Lessee will also be responsible for and pay
catering expenses and travel expenses of pilots for the aircraft, but only to
the extent travel expenses are charged by the pilots for the particular trip.
Other than the rental and expenses described herein, Lessee shall not be liable
for other charges or expenses in using the aircraft.
4. LESSEE'S COVENANTS. Lessee and Lessor agree as follows:
(a) Conforming Use. When using the aircraft pursuant to this
Lease, Lessee will use the aircraft only for the purposes and in the manner set
forth in any application for insurance executed in connection with the aircraft
(a copy of which will be provided by Lessor to Lessee), and will abide by and
conform to, and cause others occupying the aircraft when used by Lessee to abide
by and conform to, all present and future federal, state, municipal, and other
laws, ordinances, orders, rules, and regulations, controlling or in any way
affecting the operation, use, or occupancy of the aircraft or the use of any
airport premises by the aircraft.
(b) No Lien or Assignment. Lessee will keep safely, and use
carefully, the aircraft, and will not sell, or attempt to sell, or assign or
dispose of the aircraft, or of any interest therein, or of any part thereof, or
equipment necessary thereto, or suffer or permit any charge, lien, or
encumbrance of any nature upon the aircraft, or any part thereof, or lend or
rent the same, or remove or permit the aircraft to be removed from its
designated home airport for periods in excess of five (5) days, without the
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prior approval of Lessor, designating in advance the contemplated location of
the aircraft.
(c) Sublease. Only with the written approval of the Lessor,
Lessee may sublease the aircraft, provided, however, the aircraft is maintained
in conformance with all applicable rules and regulations pertaining to the use
to which the aircraft shall be subjected.
(d) Maintenance. Lessor will be responsible for maintaining
and keeping the aircraft and all its components in good order and repair, in
accordance with the requirements of the Federal Aviation Agency or any other
governmental authority having jurisdiction, and within a reasonable time replace
in or on the aircraft any and all parts, equipment, appliances, instruments, or
accessories which may be worn out, lost, destroyed, confiscated, or otherwise
rendered unsatisfactory or unavailable for use in or on the aircraft; provided,
however, that Lessee will be responsible for any breakage or damages to the
interior of the aircraft caused by the intentional acts of Lessee's employees,
officers, directors, or guests who are passengers in the aircraft. Such
replacement by Lessor shall be (1) in good operating condition and have a value,
utility, and quality at least equal to that which the property replaced
originally had, and (2) at the time affixed to the aircraft and made subject to
this Lease. Lessor will perform all major overhaul on the aircraft, whenever
deemed necessary and as may be required by the Federal Aviation Agency or any
other governmental authority during the term of this Lease, and all engine
overhaul and inspection and maintenance service.
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(e) Insurance. At its expense, Lessor will keep the aircraft
insured against all risk of loss or damage, with companies selected by Lessor,
for such amounts and against such hazards as the Lessor may determine,
including, but not limited to, hull damage and liability for personal injuries,
death or property damages, arising from or in any manner occasioned by the acts
or negligence of Lessor or Lessee or others in the possession, operation or use
of aircraft, with losses under such policies payable to Lessor and the
additional insureds, as their respective interests may appear. Insurance
coverage for casualty and liability losses shall be in a minimum of
$20,000,000.00. All insurance policies will name Lessee and its officers,
directors, employees, and guests as additional insureds if not covered by the
policy.
(f) Lessor's Right of Inspection. Lessee will permit Lessor,
or its duly authorized agent or representative, to inspect the aircraft at any
reasonable time when the aircraft is used by Lessee, either on the land or
aloft, and to furnish any information in respect to the aircraft and its use
that Lessor may reasonably request.
(g) Delivery to Lessor. At all times when the aircraft is not
being used by Lessee, the aircraft will be returned to Lessor at Xxxxxxx Xxxxx
Airport, Atlanta, Georgia or such other location as designated by Lessor.
(h) Further Assurances. Lessee agrees to execute and deliver
to Lessor all additional or supplemental instruments or documents as Lessor may
reasonably request in connection with the aircraft or this Lease.
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5. NO IMPLIED REPRESENTATIONS OR WARRANTIES. The parties
acknowledge that Lessor is not a manufacturer or engaged in the sale or
distribution of airplanes. Lessor makes no representations, promises,
statements, or warranties, expressed or implied, with respect to the
merchantability, suitability, or fitness for purpose of the aircraft or
otherwise. Lessor shall not be liable to Lessee for any loss, claim, demand,
liability, cost, damage, or expense of any kind, related to any interruption or
loss of service or use of the aircraft, or any loss of business resulting
therefrom.
6. IRREVOCABILITY. This Lease is irrevocable for its full term
and until all rentals have been paid by Lessee; provided, however, that Lessor
may terminate this Lease on thirty (30) days prior notice to Lessee in the event
Lessor sells the aircraft.
7. LESSOR'S ASSUMPTION OF LESSEE'S OBLIGATIONS. If Lessee shall
fail to perform any obligation of Lessee under this Lease, Lessor, at its
option, may perform such obligation, and all such advances by Lessor in
performing such obligation shall be added to the unpaid balance of the rentals
due under this Lease and shall be repayable by Lessee to Lessor on demand.
8. TERMINATION UPON DEFAULT. If Lessee shall fail to pay any
rental or any other amounts payable pursuant to this Lease, when the same is due
and payable, or if Lessee shall breach any other provision of this Lease, or if
Lessee becomes insolvent, or files a voluntary, or has filed against it an
involuntary, proceeding in bankruptcy for either discharge of indebtedness or
other protection from creditors or if a receiver is appointed for Lessee's
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property or an arrangement is made with or committee is formed for Lessee's
creditors, then Lessor, at its option, and in addition to and without prejudice
to any other remedies, may terminate this Lease Agreement by written notice to
Lessee.
9. TIME OF ESSENCE. Time is of the essence of this Lease.
10. NO PASSAGE OF TITLE. This agreement is a lease, and Lessee
does not acquire hereby any right, title, or amount whatsoever, legal or
equitable, in the aircraft or to the proceeds of the sale of the aircraft.
11. MISCELLANEOUS.
(a) Lessor warrants that, if Lessee performs its obligations
under this Lease, Lessee shall peaceably and quietly hold, possess and use the
aircraft during the lease term in the manner provided in paragraph 1 above, free
of any interference or hindrance but subject to Lessor's right to lease the
aircraft to others as provided in paragraph 1 above.
(b) The relationship between Lessor and Lessee is only that of
lessor and lessee. Lessee shall never at any time during the term of this Lease
for any purpose whatsoever be or become the agent of Lessor, and Lessor shall
not be responsible for the acts or omissions of Lessee or its agents.
(c) Lessor's rights and remedies with respect to any of the
terms and conditions of this Lease shall be cumulative and not exclusive, and
shall be in addition to all other rights and remedies available to Lessor.
12. SEVERABILITY. The invalidity of any portion of this Lease
shall not affect the remaining valid portions thereof.
13. ENTIRE AGREEMENT. This Lease constitutes the entire agreement
between the parties hereto concerning the subject matter hereof, and any
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change or modification to this Lease must be in writing and signed by the
parties hereto.
14. NOTICES. All notices or other documents under this Lease shall
be in writing and delivered personally or mailed by certified mail, postage
prepaid, addressed to the parties at their last known addresses.
15. NON-WAIVER. No delay or failure by either party to exercise
any right under this Lease, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
16. HEADINGS. Headings in this Lease are for convenience only and
shall not be used to interpret or construe its provisions.
17. GOVERNING LAW. This Lease shall be construed in accordance
with and governed by the laws of the State of Georgia.
18. COUNTERPARTS. This Lease may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
19. BINDING EFFECT. The provisions of this Lease shall be binding
upon and inure to the benefit of both parties and their respective legal
representatives, successors, and assigns.
IN WITNESS WHEREOF the parties have duly executed this Lease as of the
date first set forth above.
HP AVIATION, INC.
By:
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Title:
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HORIZON MEDICAL PRODUCTS, INC.
By:
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Title:
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