EXHIBIT 10.44
STATE OF NORTH CAROLINA
COUNTY OF XXXXXXXX
THIS LEASE, made and entered into as of the 31st day of August, 1994, by
and between XXXXXXX X XXXXXXXX and wife, XXXX X. XXXXXXXX ("Landlord") and
OPTOMETRIC EYE CARE, P.A. ("Tenant").
SECTION ONE
DEMISE, DECRIPTION, AND USE OF PREMISES
In consideration of the agreements and covenants hereinafter set forth,
Landlord does hereby demise and lease unto the Tenant, a certain parcel of land,
together with the buildings and other improvements situated thereon (hereinafter
referred to as "Premises") located at 1201 Brightleaf (Selma) Road in the City
of Smithfield, Xxxxxxxx County, North Carolina, and presently occupied by Xx.
Xxxxxxx X. Xxxxxxxx and being the office building previously owned by Xx.
Xxxxxxx X. Xxxxxxxxx, said property being more particularly described on Exhibit
A attached hereto.
SECTION TWO
INITIAL TERM AND RENEWAL TERMS
The term of this lease shall be for five years, commencing on September 1,
1994 and ending on August 31, 1999.
Landlord grants to Tenant the right and option to renew this lease for an
additional period of five years beginning September 1, 1999 and ending August
21, 2004, subject to all the same terms and conditions of this lease except an
adjustment of rent. If the first option is exercised, Tenant shall have a
further right and option to new for a second renewal term of five years
beginning September 1, 2004 and ending August 21, 2009, subject to all the same
terms and conditions except the adjustment of rent. Each option must be
exercised by the Tenant giving the Landlord a notice, written or verbal, at
least 90 days prior to the end of the preceding term. Tenant shall in no event
have the right to renew unless Tenant shall have performed all of its
obligations and shall not be in default of any of the terms of this lease.
SECTION THREE
RENT
As rental for the Premises, the Tenant shall pay to the Landlord, without
notice or demand, the sum of $4,400 per month, paid on or before the 5th day of
each calendar month, in advance.
In the event the first option to renew is exercised, the rental rate shall
adjust to $4,800. In the event the second option to renew is exercised, the
rental rate shall adjust to $5,200 per month.
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SECTION FOUR
TAXES AND ASSESSMENTS
Landlord shall pay, as such shall become due and payable, all taxes and
assessments and other general, special, ordinary, and extraordinary governmental
charges which are assessed, levied, or charged against or imposed upon the
Premises. Tenant shall pay all taxes assessed on any equipment or contents
contained on the Premises.
SECTION FIVE
REPAIRS AND DESTRUCTION OF IMPROVEMENTS
(a) Tenant shall, throughout the term of this lease, at its own cost, and
without any expense to Landlord, keep and maintain the interior of the
Premises, in good, sanitary, and neat order, condition and repair,
ordinary wear and tear excepted. Landlord shall keep and maintain the
exterior of the Premises, including roof, windows, doors, sidewalks,
awnings, and heating and air conditioning systems ("HVAC") in neat
order, condition and repair. Tenant shall pay the premiums on
maintenance contract for the alarm system and HVAC similar to that
currently carried. Landlord will pay for all repairs, including parts,
not paid for by the maintenance contracts.
(b) In the event of the total destruction of the Premises, either party
shall have the option to terminate this Lease. In the event of the
partial destruction of the Premises, the Landlord shall at its own
expense promptly repair or restore same to the condition as good or
better than that which existed prior to such damage or destruction.
(c) In the event of the partial destruction of the Premises rendering the
Premises solely or partially untenantable, the rent shall xxxxx
proportionately until the repair or restoration of such damage. In the
event the Landlord is unable to furnish (within ten (10) days of the
damage) to the Tenant a commitment that the Landlord or his contractor
will be able to restore or repair the premises to the prior condition
within ninety (90) days after the casualty, the Tenant may by written
notice within five (5) days immediately following such ten (10) day
period, terminate this Lease.
(d) The Tenant shall be entitled to place, at Tenant's expense, signage
about the Premises; provided, said signage shall be in accordance with
appropriate local sign ordinances. All signage placed upon the Premises
by the Tenant shall be removed by the Tenant upon expiration of the
Lease.
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SECTION SIX
UTILITIES
Tenant shall fully and promptly pay for all water, gas, heat, light, power,
telephone service, and other public utilities of every kind furnished to the
Premises.
SECTION SEVEN
INSURANCE
(a) Landlord shall, at all times during the term of this Lease and any
renewal term and at the Landlord's sole expense, keep all improvements
which are now or hereafter a part of the Premises insured for the
benefit of the Landlord against loss or damage by fire and extended
coverage hazards.
(b) Tenant shall maintain in effect at its sole expense throughout the terms
of this Lease and any renewal general public liability insurance
covering the Premises and its appurtenances in an amount not less than
$500,000 per occurrence, without any right of subrogation against
Landlord.
(c) All insurance policies shall be issued by insurers of recognized
responsibility authorized to do business in North Carolina. All policies
which shall contain provisions requiring ten days' written notice to
Landlord and Tenant of cancellation. All policies insuring Landlord
shall provide that the Tenant is an additional party insured, and all
policies insuring Tenant shall provide that the Landlord is an
additional party insured.
SECTION EIGHT
WARRANTIES OF TITLE AND QUIET POSSESSION
Landlord covenants that it is seized of the Premises in fee simple and has
full right to make this Lease and that Tenant shall have quiet and peaceable
possession of the Premises.
SECTION NINE
LANDLORD'S RIGHT TO ENTRY
Tenant shall permit Landlord and its agents to enter into and upon the
Premises at all reasonable times for the purpose of inspecting the same, or for
the purpose of posting notices of non-responsibility for alterations, additions,
or repairs, without any rebate of rent and without any liability to Tenant for
any loss of occupation or quiet enjoyment of the Premises and shall permit
Landlord and its agents at any time within ninety (90) days prior to the
expiration of this Lease, to place on the Premises any usual or ordinary "To
Lease" signs and exhibits the Premises to prospective tenants at reasonable
hours.
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SECTION TEN
USES PROHIBITED
Tenant shall not use or permit the Premises to be used for any purpose
other than the practice of optometry and primary eye care as normally rendered
in the practice of optometry, so long as the Landlord is maintaining an office
on the Premises for the active practice of ophthalmology as provided in Section
Nineteen.
Tenant shall comply with all applicable laws affecting the Premises, the
breach of which might result in any penalty on Landlord or forfeiture of
Landlord's title to the Premises. Tenant shall not commit, or suffer to be
committed, any waste or nuisance on the Premises.
SECTION ELEVEN
SUBLETTING AND ASSIGNMENT
Tenant may not sublet the Premises in whole or in part without the
Landlord's prior written consent, which consent may not be unreasonable withheld
except that Landlord may unreasonably prohibit the subleasing for the purposes
of practicing ophthalmology so long as the Landlord is maintaining an office on
the Premises for the active practice of ophthalmology as provided in Section
Nineteen. The making of any such sublease shall not release Tenant from or
otherwise affect in any manner any of Tenant's obligations hereunder. Any such
subleasing or assignment without such consent shall be void and shall, at the
option of the Landlord, terminate this Lease. Neither this Lease not the
leasehold estate of Tenant nor any interest of Tenant hereunder in the Premises
shall be subject to involuntary assignment, transfer, or sale, or to assignment,
transfer, or sale by operation of law in any manner whatsoever, and any such
attempted involuntary assignment, transfer, or sale shall be void and of no
effect and shall, at the option of Landlord, terminate this Lease.
SECTION TWELVE
ABANDONMENT OF PREMISES
Tenant shall not vacate or abandon the Premises at any time during the term
or renewal hereof; but if Tenant shall abandon, vacate or surrender the Premises
or be dispossessed by process of the law, or otherwise, any personal property
belonging to Tenant and left on the Premises shall be deemed to be abandoned, at
the option of Landlord.
SECTION THIRTEEN
LIENS
Tenant shall keep all of the Premises free and clear of any and all
mechanics', materialmen's, and other liens arising out of or in connection with
work or labor done, services performed, or materials or
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appliances used or furnished for or in connection with any operations of Tenant,
any alterations, improvement, or repairs or additions which Tenant may make or
permit or cause to be made, or any work or construction, by, for, or permitted
by Tenant on or about the Premises, or any obligation of any kind incurred by
Tenant, and at all times promptly and fully to pay and discharge any and all
claims on which any such lien may or could be based, and to indemnify Landlord
against all such liens and claims of liens and suits or other proceedings
pertaining thereto.
SECTION FOURTEEN
CONDEMATION
In the event that all or such a substantial portion of the Premises as
would impair the ability of Tenant to transact its business are taken in a
condemnation proceeding or by exercise of any right of eminent domain or are
voluntarily conveyed in lieu of such taking, the Tenant may, at its option,
terminate this lease on the date of such taking. If the taking does not
substantially affect the Premises so as to impair the ability of the Tenant to
continue its business, this lease shall continue in full force and effect.
SECTION FIFTEEN
INDEMNIFICATION OF LESSOR
Landlord shall not be liable for any loss, injury, death, or damage to
persons or property which at any time may be suffered or sustained by Tenant or
by any person whosoever may at any time be using or occupying or visiting the
Premises or be in, on, or about the same, whether such loss, injury, death, or
damage shall be caused by or in any way result from or arise out of any act,
omission, or negligence of Tenant or any occupant, subtenant, visitor, or user
of any portion of the Premises, and Tenant shall indemnify and hold harmless
Landlord against all claims, liability, loss, or damage whatsoever on account of
any such loss, injury, death or damage excepting loss, injury, death, or damage
caused by the act or omissions or negligence of the Landlord, his agents or
invitees.
SECTION SIXTEEN
ATTORNEY'S FEES
If any action at law or in equity shall be brought to recover any rent
under this lease, or for or on account of any breach of, or to enforce or
interpret any of the covenants, terms, or conditions of this lease, or for the
recovery of the possession of the Premises, the prevailing party shall be
entitled to recover from the other party as part of the prevailing party's costs
reasonable attorney's fees, the amount of which shall be fixed by the court and
shall be made a part of any judgement or decree rendered.
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SECTION SEVENTEEN
REDELIVERY OF PREMISES
Tenant shall pay the rent and all other sums required to be paid by Tenant
hereunder in the amounts, at the times, and in the manner herein provided, and
shall keep and perform all the terms and conditions hereof on its part to be
kept and performed, and, at the expiration or sooner termination of this lease,
peaceably and quietly quit and surrender to Landlord the Premises in good order
and condition subject to the other provisions of this lease. In the event of the
non-performance by Tenant of any of the covenants of Tenant undertaken herein,
this lease may be terminated as herein provided.
SECTION EIGHTEEN
PROHIBITED OF INVOLUNTARY ASSIGNMENT: EFFECT OF BANKRUPTCY OR INSOLVENCY
(a) Neither this lease nor the leasehold estate of Tenant nor any interest
of Tenant hereunder in the Premises or in the building shall be subject
to involuntary assignment, transfer, or sale, or to assignment,
transfer, or sale by operation of law in any manner whatsoever and any
such attempt at involuntary assignment, transfer or sale shall be void
and of no effect.
(b) Tenant agrees that in the event any proceedings under the Bankruptcy Act
are commenced by or against Tenant, and, if against Tenant, such
proceedings shall not be dismissed before either an adjudication in
bankruptcy or the confirmation of a plan of reorganization and or in the
event Tenant is adjudged insolvent or makes an assignment for the
benefit of its creditors, or if a receiver is appointed for Tenant and
such receiver is not discharged within a period of thirty days after his
appointment, any such event or any involuntary assignment shall be
deemed to constitute a breach of this lease by Tenant and shall, at the
election of Landlord, but not otherwise, without notice or entry or
other action of Landlord terminate this Lease and also all rights of
Tenant under this lease and in and to the Premises and also all rights
of any and all persons claiming under the Tenant.
SECTION NINETEEN
USE BY LANDLORD
Landlord shall have the right to use a designated office on the Premises
for use as a medical office to see ophthalmology patients for one-half day each
week during regular business hours. The day of the week shall be by mutual
agreement of Landlord and Tenant with reasonable consideration and coordination
of the business needs and schedules of Landlord and Tenant. For such use,
Landlord shall pay to Tenant the sum of $180 for each one-half day actually used
each week for the initial term and first renewal term. During the second renewal
tern, the rental shall be $200 per one-half day. Tenant shall provide all
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janitorial services, utilities, receptionist, use of all equipment on the
Premises necessary to provide optical eye care, and local telephone service for
the benefit of Landlord during such times. Tenant shall have no duty to buy any
new ophthalmology equipment.
SECTION TWENTY
NOTICES
All notices, demands, or other writings in this lease provided to be given or
made or sent, or which may be given or made or sent, by either party hereto to
the other, shall be deemed to have been fully given or made or sent when made in
writing and deposited in the United States mail, registered and postage prepaid,
and addressed as follows:
TO LANDLORD: Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, X.X. 00000
TO TENANT: Optometric Eye Care, P.A.
X.X. Xxx 0000
Xxxxx Xxxxx, X.X. 00000
Attn: Xxxxxx Xxxxxxxx
The address to which any notice, demand, or other writing may be given or
made or sent to any party as above provided may be changed by written notice
given by such party as above provided.
SECTION TWENTY-ONE
DEFAULT
If Tenant shall fail to pay the rent or fail to cure any breach of any
other covenant for ten days after having been notified by Landlord, or
should Tenant be adjudged a bankrupt or make assignment for benefit of
creditors, Tenant shall be deemed in default of this Lease, and Landlord shall
be entitled to terminate this Lease.
SECTION TWENTY-TWO
COVENANT NOT-TO-COMPETE
The parties hereto acknowledge that prior to the execution of this Lease,
the parties entered into a certain Optometry Practice Purchase Agreement
("Purchase Agrement") wherein the Landlord agreed for a term of five years not
to compete with the optometry practice purchased by Tenant under said Purchase
Agreement, which is hereby incorporated by reference. It is expressly agreed by
the Tenant that in the event the Tenant shall abandon the Premises during the
initial term of this Lease, or the Tenant shall during the initial term be held
in default resulting in a termination of the Lease, then in such event, the
aforesaid covenant not-to-compete in the Purchase Agreement shall no longer be
of any force or effect.
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It is further agreed that after the initial term, and in the event the
Tenant shall renew the Lease and as an inducement to said renewal, the Landlord
shall not during such renewal term on his own account, or directly or
indirectly, on the account of any other entity, engage in or have a financial
interest in "primary eye care" business (as defined in the Purchase Agreement)
in competition with Tenant from a located situation within a ten mile radius of
the municipal city limits of the Town of Smithfield, North Carolina.
SECTION TWENTY-THREE
RIGHT OF PURCHASE
In the event that during the initial or renewal term of this Lease,
Landlord desires to sell the Premises to any person other than the Tenant,
Landlord shall give Tenant notice, written or verbal, of such intent. Tenant
shall have the option for a period of ten days thereafter to elect to
purchase the Premises for its fair market value, cash at closing. Upon the
receipt of such election, the parties will have the Premises appraised by an MAI
appraiser mutually agreeable to both Landlord and Tenant. The appraised price
determined by such appraiser shall be binding upon both parties, and both
parties agree to buy or sell, as the case may be, in accordance with such
appraised price. Closing shall occur with ten days of the delivery of such
appraisal.
SECTION TWENTY-FOUR
MEMORANDUM OF LEASE
The parties will at any time at the request of the other promptly execute
duplicate originals of any instrument constituting a memorandum of lease for
recording purposes.
SECTION TWENTY-FIVE
APPLICABLE LAW
This Lease is being executed and intended to be performed in the State of
North Carolina and shall be construed and enforced in accordance with the law of
the State of North Carolina despite that any party, successor or assign shall
now or in the future be a resident of any other state.
SECTION TWENTY-SIX
ENTIRE AGREEMENT
This Lease expresses the entire understanding and agreement between
Landlord and Tenant. This Lease cannot be modified, changed, discharged or
terminated expect by a writing signed by the Landlord and Tenant. Time is of the
essence of this Lease, and of each and every covenant, term, condition and
provision hereof. This Lease and all the covenants, conditions and provisions
herein shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, executors, administrators,
successors and assigns.
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IN WITNESS WHEROF, the parties have executed this Lease on the day and year
first written.
LANDLORD:
By: /s/ Xxxxxxx X. Xxxxxxxx (SEAL)
-----------------------
Xxxxxxx X. Xxxxxxxx
By: /s/ Xxxx X. Xxxxxxxx (SEAL)
-----------------------
Xxxx X. Xxxxxxxx
TENANT:
OPTOMETRIC EYE CARE CENTER, P.A.
By: /s/ D. Xxxxx Xxxxxxx
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D. Xxxxx Xxxxxxx
(Corporate Seal)
ATTEST:
/s/ Xxxxx Xxxxxx
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Secretary
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STATE OF NORTH CAROLINA
COUNTY OF ________________
This is to certify that XXXXXXX X. XXXXXXXX and wife, XXXX X. XXXXXXXX
personally appeared before me this 31st day of August, 1994, and acknowledged
the due execution of the foregoing Lease.
WITNESS my hand and Notarial Seal.
/s/
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Notary Public
My commission expires:
July 7, 1998
--------------------------------
STATE OF NORTH CAROLINA
COUNTY OF ________________________
I, ___________________________________, a Notary Public of
___________________ County, North Carolina, certify that
____________________________ personally came before me this day and acknowledged
that he is Secretary of OPTOMETRIC EYE CARE, P.A., a professional corporation,
and that by authority duly given and as act of the corporation, the foregoing
instrument was signed in its name by its President, sealed with its corporate
seal, and attested by himself as its Secretary.
WITNESS my hand and Notarial Seal.
------------------------------------
Notary Public
My commission expires:
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