EXHIBIT 10.16
SECOND AMENDMENT TO LEASE
THIS AGREEMENT, made as of and entered as of this 6th day of June 1998, by
and between Newmarket Partners I, Ltd., a Georgia Limited Partnership, whose
general partners are Xxxxx Properties, Inc. and Xxxxx Management Company
(hereinafter called "Landlord") and Cryolife, Inc., a Florida corporation
(hereinafter called "Tenant").
WITNESSETH THAT:
WHEREAS, Landlord and Tenant entered into a certain Lease Agreement dated
July 23, 1993, as amended June 9, 1994 (collectively, hereinafter "Lease") for
Xxxxx 000, Xxxxxxxx 0, (hereinafter "Premises") at 0000 Xxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxx 00000.
WHEREAS, Landlord and Tenant desire to amend the Lease in order to modify
some of the terms and conditions of the Lease; and
WHEREAS, Tenant desires to extend the Term of the Lease an additional three
(3) years for the period of November 16, 1998 through November 15, 2001
(hereinafter "Renewal Term").
NOW, THEREFORE in consideration of the mutual agreements of the undersigned
and other good and valuable consideration, this Lease is hereby amended,
effective November 16, 1998, as follows:
47. BROKER DISCLOSURE
Pursuant to Georgia Real Estate Commission Regulation 520-1-08, Xxxxx
Marketing Company makes the following disclosures concerning this Lease
transaction:
a) In this transaction, Xxxxx Marketing Company represents Landlord and
not Tenant.
b) In this transaction, Xxxxxxx Xxxxxx & Company represents Tenant and
not Landlord.
c) In this transaction, both Xxxxx Marketing Company and Xxxxxxx Xxxxxx &
Company shall receive their compensation from Landlord exclusively.
Both Tenant and Landlord acknowledge, agree with and consent to the
representation and compensation disclosed above.
48. ENVIRONMENTAL MATTERS
Tenant will be subject to the provisions contained in Exhibit "E" entitled,
"Environmental Matters', attached hereto and by this reference made a part
hereof.
49. TERM
Xxxxxxxxx 0, Xxxx, of the Lease shall be amended to read:
To have and to hold the same for the term to commence on the sixteenth
(16th) day of November 1998 and ending on the fifteenth (15th) day of
November 2001, at midnight, unless sooner terminated as hereinafter
provided.
50. RENTAL
Paragraph 3, Rental, of the Lease shall be amended to read:
The Tenant agrees to pay to the Landlord promptly on the first day of each
month in advance, during the term of this Lease, a monthly rental of:
November 16, 1998 through November 15, 1999 @ $7,952.46 per month
November 16, 1999 through November 15, 2000 @ $8,270.56 per month
November 16, 2000 through November 15, 2001 @ $8,601.38 per month
Page 2 of Second Amendment to Lease by and between Newmarket Partners I Ltd., a
Georgia Limited Partnership, whose general partners are Xxxxx Properties, Inc.
and Xxxxx Management Company and Cryolife Inc., a Florida corporation, dated
June 6, 1998.
Payments received after the tenth day of the month may be assessed an
additional five percent (5%) charge as agreed liquidated damages due
Landlord. Acceptance by Landlord of a rental payment in an amount less
than that which is currently due shall in no way affect Landlord's
rights under this Lease and in no way be an accord and satisfaction.
51. TENANT IMPROVEMENTS
The Premises will be leased "as-is" during the Renewal Term and any and all
improvements shall be at Tenant's sole cost and expense.
Except as herein amended, all terms and conditions of the Lease shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereunto have executed this Second
Amendment to Lease as of the day and year first above written.
Signed, sealed and delivered LANDLORD: Newmarket Partners I, Ltd. a
in the presence of: Georgia Limited Partnership,
whose general partners are Xxxxx
Properties, Inc. and Xxxxx
Management Company
BY: Xxxxx Properties, Inc.
Managing General Partner
/s/ Xxxxxxxx X. Xxxxxxx BY: /s/ Xxxxx X. Xxxxxxxxx
-------------------------- -------------------------------------
Witness Xxxxx X. Xxxxxxxxx
TITLE: Executive Vice President
/s/ Xxxxx X. Xxxxxx ATTEST: /s/ Xxxxxx X. Xxxxxx
-------------------------- -------------------------------------
Notary Public Xxxxxx X. Xxxxxx
TITLE: Vice President & Secretary
-------------------------------------
(CORPORATE SEAL)
Signed, sealed and delivered TENANT: Cryolife, Inc., a Florida Corporation
in the presence of:
/s/ Xxxxxxx X. Xxxxx BY: /s/ Xxxxxx X. Xxxxxx
-------------------------- -------------------------------------
Witness
TITLE: V.P. Laboratory Operations
-------------------------------------
/s/ Xxxxxxx X. Xxxxxxx ATTEST: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- -------------------------------------
Notary Public
TITLE: Assistant Corporate Secretary
-------------------------------------
Notary Public, Xxxx County, Georgia (CORPORATE SEAL)
My Commission Expires:
September 13, 2000
2
EXHIBIT "E"
ENVIRONMENTAL MATTERS
A. Tenant covenants that it will not cause or permit, knowingly or
unknowingly, any Hazardous Wastes (as hereinafter defined) to be brought
upon, disposed on or stored in or on the Premises or any Hazardous Material
(as hereinafter defined) to be released in, on or about the Premises and
that it will comply with any and all applicable laws, ordinances, rules,
regulations and requirements respecting the presence, use or release of
Hazardous Materials in, on or about the Premises.
B. Tenant covenants that it will immediately notify Landlord, in writing, of
any existing, pending or threatened (i) investigation, inquiry, claim or
action by any governmental authority in connection with any Environmental
Laws (as hereinafter defined); (ii) third party claims; (iii) regulatory
actions; and/or (iv) contamination of the Premises.
C. Tenant shall, at Tenant's expense, investigate, monitor, remediate, and/or
clean up any Hazardous Material, Hazardous Waste, or other environmental
condition on, about, or under the Premises required as a result of Tenant's
use or occupancy of the Premises.
D. Tenant covenants that it shall keep the Premises free of any lien imposed
pursuant to any Environmental Laws.
E. Tenant shall indemnify, defend and hold Landlord harmless from and against
any and all claims, judgments, damages, penalties, fines, costs (including
without limitation, attorney's fees and court costs), liabilities or losses
(collectively, the "Tenant Indemnified Claims") resulting from (i) the
presence of Hazardous Wastes in or about the Premises or the release of
Hazardous Materials in, on or a bout the Premises on or after the date of
this Lease, and (ii) any Hazardous Waste placed or any Hazardous Materials
released elsewhere in Newmarket Business Park by Tenant, its agents,
invitees, employees and contractors.
F. The provisions of this Exhibit "E" shall survive the expiration or
termination of this Lease.
G. For purposes of this Lease, the term Hazardous Waste has the same meaning
as the term is defined in the Resource Conservation and Recovery Act, as
amended, 42 U.S.C.ss.6901 et. seq. ("RCRA").
H. For the purposes of this Lease, the term Hazardous Material, is defined to
include those matters described in the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C.ss.9601 et.
seq. ("CERCLA"). As used herein the term Hazardous Materials shall also
mean (i) asbestos, or any substance containing asbestos; (ii)
polychlorinated biphenyls; (iii) lead; (iv) radon; (v) pesticides; (vi)
petroleum or any other substance containing hydrocarbons; (vii) any
substance which, when on the Premises, is prohibited by any Environmental
Laws; and (viii) any other substance, material or waste which, (x) by any
Environmental Laws requires special handling or notification of any
governmental authority in its collection, storage, treatment, or disposal
or (y) is defined or classified as hazardous, dangerous or toxic pursuant
to any legal requirement.
I. For purposes of this Lease, Environmental Laws shall mean: any and all
federal, state and local laws, statutes, codes, ordinances, regulations,
rules or other requirements relating to human health or safety or to the
environment including, but not limited to, those applicable to the storage,
treatment, disposal, handling and release of any Hazardous Waste or
Hazardous Materials, all as amended or modified from time to time.
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