EXHIBIT 10.24
LEASE AGREEMENT
STANDARD OFFICE LEASE
METRO CENTER ASSOCIATES, L.P.
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This Lease made as of this September 12, 1995 by and between METRO CENTER
ASSOCIATES, L.P., A NEW MEXICO LIMITED PARTNERSHIP, (hereinafter "Landlord")
and DR. XXXXXXX XXXXXX, D/B/A ALBUQUERQUE CORRECTIVE EYE SURG [UNREADABLE]
VISION SCULPTING (hereinafter "Tenant").
1. PREMISES. Landlord does hereby lease to Tenant, and Tenant does hereby
take from Landlord, those certain premises to be known as Suite 100
comprising approximately 2144 square feet of rentable area hatched
in red on Exhibit A attached hereto (hereinafter the "Leased Premises").
The Leased Premises is located in a complex known as the METRO CENTER,
which is located at 0000 XXXXXXXXX XXXX., X.X., Xxxxxxxxxxx, Xxx Xxxxxx
and which includes surface parking, walking areas, landscaped areas and
certain common areas and facilities that are shared with other occupants
under rules and regulations as initiated by Landlord from time to time.
2. LEASE TERM. The Lease Term shall commence upon occupancy (hereinafter
"Commencement Date") and shall continue thereafter to include sixty (60)
months of occupancy. When the date for the end of the Lease term has been
determined, such date shall be set forth in a document, (in substantially
the form of Exhibit "B"), executed by Landlord and Tenant. The
Commencement Date for the Lease shall be SIX (6) WEEKS FROM THE DATE OF
[UNREADABLE] LEASE EXECUTION, APPROXIMATELY NOVEMBER 1, 1995.
3. ANNUAL BASE RENT AND RENTAL ADJUSTMENT. Tenant shall pay to Landlord
during the lease term an annual base rent in monthly installments
pursuant to the following Schedule (hereinafter "Annual Base Rent"):
An annual Base Rent in the first year of the Lease Term, the sum of
THIRTY THOUSAND FIVE HUNDRED NINETY-FOUR AND 84/100 DOLLARS ($30,594.84),
payable in equal monthly installments of TWO THOUSAND FIVE HUNDRED
FORTY-NINE AND 57/100 DOLLARS ($2,549.57) on the first day of each month.
An annual Base Rent in the second year, the sum of THIRTY-ONE THOUSAND
NINE HUNDRED EIGHTY-EIGHT AND 40/100 DOLLARS ($31,988.40) payable in
equal monthly installments of TWO THOUSAND SIX HUNDRED SIXTY-FIVE AND
70/100 DOLLARS ($2,665.70) on the first day of each month.
An annual Base Rent in the third year, the sum of THIRTY-THREE THOUSAND
FOUR HUNDRED FORTY-SIX AND 40/100 DOLLARS ($33,446.40) payable in equal
monthly installments of TWO THOUSAND SEVEN HUNDRED EIGHTY-SEVEN AND
20/100 DOLLARS ($2,787.20) on the first day of each month.
An annual Base Rent in the fourth year, the sum of THIRTY-FOUR THOUSAND
NINE HUNDRED SIXTY-EIGHT AND 60/100 DOLLARS ($34,968.60) payable in
monthly installments of TWO THOUSAND NINE HUNDRED FOURTEEN AND 05/100
DOLLARS ($2,914.05) on the first day of each month.
An annual Base Rent in the fifth year, the sum of THIRTY-SIX THOUSAND
FIVE HUNDRED NINETY-EIGHT AND 08/100 DOLLARS ($36,598.08) payable in
monthly installments of THREE THOUSAND FORTY-NINE AND 84/100 DOLLARS
($3,049.84) on the first day of each month.
The monthly installments of Annual Base Rent shall be due and payable in
advance on the 1st day of each month.
Should the Tenant fail within five (5) days of the date due, to pay all
of the rents provided for herein at the time and in the manner hereto
provided, Landlord may, at his option, impose a collection fee of 10% of
the amount then due.
A. Cost Adjustment. In the event that the "building operating costs" of
the Building shall increase during any calendar year over the "basic
operating costs", then the fixed rental for said premises shall be
adjusted commencing with the first day of the calendar year next
following such increase and each year thereafter in the manner
hereinafter provided. Building operating costs means the actual
expense incurred and paid by the Landlord for the operating
maintenance of the Building in accordance with accepted principles of
sound management and accounting practices as applied to office
buildings, including, without limitation:
*1. janitor labor and supplies;
*2. maintenance and engineering labor and supplies;
3. insurance applicable solely to the Building and it's operation;
4. water, gas and other fuels;
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5. electricity used in the operation and maintenance of the Building;
*6. salaries and wages of employees other than employees above the
grade of Building Superintendent whose time is spent directly and
solely in the operation of the Building; and
7. all real property taxes paid by the Landlord.
*8. expenses incurred in connection with the maintenance and operation
of any parking area.
*LANDLORD'S "CONTROLLABLE" EXPENSES WHICH SHALL NOT EXCEED 5% ANNUAL
INCREASES.
Notwithstanding anything to the contrary, the following expenses are excluded
from Building Operating Costs:
1. expenses for any capital improvements made to the land or Building;
2. expenses for painting, redecorating or other work which Landlord
performs for any tenant of the Building;
3. expenses for repairs or other work occasioned by fire, windstorm,
or other insurable casualty;
4. expenses incurred in leasing or procuring new tenants;
5. expenses incurred in enforcing the terms of this Lease;
6. interest or amortization payments on any mortgage;
Promptly after January 1st of each calendar year of this Lease, Landlord
shall determine the building operating costs for the preceding calendar year.
In the event that the building operating costs for said preceding calendar
year shall exceed the basic operating costs, then the percentage of such
increase shall be computed and the Tenant's share determined. Landlord agrees
to promptly notify Tenant in writing of the amount of Tenant's share of such
increase. Tenant agrees to pay to Landlord monthly Tenant's share of such
increase. Such additional rental payments shall commence as of the first day
of January next following each calendar year in which such operating costs
have exceeded said basic operating costs.
"Basic Operating Costs" shall mean the building operating costs for the
calendar year 1996. Landlord shall determine the basic operating costs and
shall notify Tenant in writing of the amount thereof.
Tenant's percentage share of the increasing costs shall be determined by
dividing the total number of square feet then currently leased by Tenant by
the total gross leasable square feet of the buildings comprising of
approximately 47,044 SQUARE FEET.
B. Other Adjustments. If Landlord's expenses increase due to any fees,
levies or other taxes imposed by any governmental agency effecting the
operations of this property subsequent to execution of this Lease, then
Tenant shall pay his percentage share of such fee, levy or tax.
1. Determining Base Year Tax: If the amount of Taxes payable for the
Calendar Tax Year 1996 ("Base Year Tax") is reduced by final
determination of legal proceedings, settlement, or otherwise, such
reduced amount as finally determined shall be the Base Year Tax and
shall determine the amount of the Tax Payments pursuant to this
Clause.
2. Recompute Taxes. The Tax Payments theretofore paid or payable under
this Clause shall be computed on the basis of such reduction, and
the Tenant shall pay to Owner as Additional Rent within ten (10)
days after being billed therefor, any deficiency between the amount
of the Tax Payments computed prior to the reduction and the amount
therefor due as a result of such recomputation.
C. Payment of Additional Rent. Any and all increases in rental pursuant
to this paragraph shall be additional rent payable by Tenant hereunder
and in the event of non-payment thereof, Landlord shall have similar
rights with respect to such non-payment as it has with respect to any
other non-payment of rent hereunder.
D. Security Deposit. Tenant has deposited with Landlord the sum of
TWO THOUSAND FIVE HUNDRED FORTY-NINE AND 57/100 DOLLARS ($2,549.57)
receipt of which is hereby acknowledged by Landlord, as security for
the performance by Tenant and all of the terms, covenants, and
conditions of this Lease. Security Deposit shall be returned to Tenant
upon the termination of this Lease, without interest, provided Tenant
has complied with all the terms, conditions and covenants hereof, and
that the Tenant's premises are left in good condition, cleaned and
restored to the condition of the premises at the time of the
commencement of the Lessee, usual wear and tear excepted.
5. USE AND INSURANCE RATING. Tenant shall use the Leased Premises for the
following purposes and for no other purposes whatsoever. EYE CLINIC AND
RELATED EYE PROFESSIONAL OFFICES. Tenant will not construct or permit to
be conducted any activity or place any equipment in or about the Leased
Premises, which will in any way increase the rate of fire insurance or
other insurance on the Building, and if any increase in the rate of fire
insurance or other insurance is stated by any insurance company or by the
applicable insurance rating bureau
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to be due to activity or equipment of Tenant in or about the Leased
Premises, such statement shall be conclusive evidence that such increase
in such rate is due to such activity or equipment, and as a result
thereof, Tenant shall be liable for each increase and shall reimburse
Landlord therefor.
6. NO WARRANTIES BY LANDLORD AND AGENTS ACCEPTANCE OF PREMISES. Neither
Landlord nor any agents or employees of Landlord has made any
representations or promises with respect to the Leased Premises or the
Building, except as expressly set forth herein and no rights, privileges,
easements or licenses are required by Tenant, except as expressly set
forth herein.
If for any reason Landlord cannot deliver possession of the Premises to
Tenant by the Commencement Date, Landlord shall not be subject to any
liability therefor, nor shall failure affect the validity of this Lease,
or the obligations of Tenant hereunder, or extend the terms hereof, but
such case, Tenant shall not, except as otherwise provided herein, be
obligated to pay rent or perform any other obligation of Tenant under the
terms of this Lease until Landlord delivers possession of the Premises to
Tenant. If possession of the Premises is not delivered to Tenant within
sixty (60) Days after the Commencement Date, Tenant may, at its option,
by notice in writing to Landlord within ten (10) days after the end of
said sixty (60) day period, cancel this Lease, in which event the parties
shall be discharged from all obligations hereunder; provided further,
however, that if such written notice of Tenant is not received by
Landlord within said ten (10) day period, Tenant's rights to cancel this
Lease hereunder shall terminate and be of no further force or effect.
Except as may be otherwise provided, and regardless of when the Original
term actually commences. If possession is not rendered to Tenant when
required by this Lease and Tenant does not terminate this Lease, as
aforesaid, the period free of obligations to pay Base Rent, if any,
that Tenant would otherwise ??? under the terms hereof, but minus any
days of delay caused by the acts, changes or omissions of Tenant.
The taking of a possession of the Leased Premises by Tenant shall be
conclusive evidence that, except for minor "punch list" items, if any,
the Leased Premises were on each date of possession in good, clean and
tenable condition and that the Tenant accepts the Leased Premises IN
ACCORDANCE WITH EXHIBIT "A" LANDLORD'S LEASE CONTRIBUTION SHALL NOT
EXCEED FORTY-TWO THOUSAND EIGHT HUNDRED EIGHTY AND 00/100 DOLLARS
($42,880.00). AN EXCESS OF THIS AMOUNT SHALL BE DONE SOLELY BY TENANT.
7. ASSIGNMENT AND SUB-LETTING. Tenant shall the right to assign this Lease
or sub-let all or any part of the Leased Premises with the prior written
consent of the Landlord provided as follows:
A. the Landlord may in its sole discretion withhold its consent to an
assignment or a sub-lease (i) to any present tenant of Landlord in the
Building or any other location or (ii) to any tenant whose occupancy
would be inconsistent with the type of tenant in the METRO CENTER.
B. such assignment or sublease shall not relieve Tenant of its
obligations under this Lease;
C. any profit received from such assignment or sub-lease shall promptly,
upon receipt thereof, be paid by Tenant to Landlord; "Profit" as used
hereto shall mean any amount paid by an assignee or sub-tenant in
excess of the Base Annual Rent and additional rent attributable to the
Lease Premises being assigned or sublet after deducting therefrom any
amounts Tenant has paid for outside leasing commissions and reasonable
tenant improvements occasioned by such assignment or sub-letting;
D. Tenant shall provide Landlord with notices of any assignment or
sub-lease in writing together with a copy of each assignment or
sub-lease, and Landlord shall have thirty (30) days from receipts
thereof to make a decision concerning such assignment or sub-lease;
E. each assignment or sub-lease shall not violate rules, from time to
time adopted by Landlord for general application throughout the
Building;
F. the financial condition and credit record of the assignee shall be
reasonably acceptable to Landlord; and
G. any assignment or sub-letting made in violation of the provisions
contained herein shall be ineffective.
8. ALTERATIONS. Tenant will not make any alterations of or additions to the
Leased Premises without the prior written approval of Landlord. All work
to be performed in the Leased Premises shall be performed by competent
contractors and subcontractors, approved by Landlord, which approval
shall not be unreasonably withheld by Landlord, except that Landlord may
in any event condition its approval of such contractors and
subcontractors on the Tenant's furnishing separate performance and
payment surety bonds covering any work to be performed by such
contractors or subcontractors on the Leased Premises, and Landlord may,
in any event, require that contractors and subcontractors normally
employed by Landlord be engaged for any mechanical or electrical work and
thus any alterations be done by contractors or subcontractors compatible
with those workmen, contractors and subcontractors employed from time to
time in the Building by Landlord. All alteration work performed by or for
Tenant hereunder must be performed in such manner to avoid disruption of
the Building operations or disturbance of other tenants in the Building.
Unless Landlord requires the Tenant to restore the Leased Premises as set
forth in this Lease, all alterations, additions or improvements which may
be made by either of the parties hereto upon the Leased Premises, except
office furnishings purchased by Tenant which may be removed without
damage or destruction to the Leased Premises, shall be the property of
Landlord and shall remain upon and be surrendered with the Leased
Premises as a part thereof
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at the termination of this Lease or any calculation thereof. Tenant will
not permit any mechanics, laborers or materialmen's liens to stand against
the Leased Premises and will immediately remove all such liens. Landlord
may remove such liens and Tenant shall immediately reimburse Landlord upon
demand for all costs and expenses, including attorney's fees, incurred by
Landlord in removing such mechanic's or materialmen's lien.
9. TENANT EQUIPMENT AND FURNISHINGS. Tenant may install or operate in the
Leased Premises any electrically operated equipment or other machinery
which uses standard 110 volt current and which Landlord determines in its
reasonable judgment to constitute standard office equipment. LANDLORD
HEREBY AGREES TO THE INSTALLATION OF A 220 VOLT CIRCUIT, THE COST OF
METERING SHALL BE PART OF TENANT IMPROVEMENT ALLOWANCE AND ELECTRICITY
COSTS SHALL BE PAID BY TENANT. Tenant shall not install any other equipment
of any kind or nature whatsoever which will or may require any changes,
replacements or additions to or in the use of the heating, air
conditioning, electrical or plumbing systems of the Leased Premises of the
Building without first obtaining the prior written consent of the Landlord.
No plumbing fixtures of any type shall be installed within the Leased
Premises without Landlord's written approval. If Tenant's business machines
and mechanical equipment cause noise or vibration that may be transmitted to
the structure of the Building or to any space therein to such a degree as to
be reasonably objectable to Landlord or to any tenant in the Building, then
Tenant shall install vibration eliminators or other devices sufficient to
eliminate such noise and vibration at Tenant's cost. If Tenant uses heat
generating machines or equipment (other than standard office equipment
designated by Landlord as set forth above) in the Leased Premises which
affect the temperature in the Leased Premises otherwise maintained by the
air conditioning system furnished by Landlord as set forth in Section 12,
Landlord reserves the right to install or to require Tenant to install
adequate supplementary air conditioning equipment in the Leased Premises
at Tenant's cost.
No furniture, equipment or other bulky items of any description will be
received into the Building or carried in the elevators except as approved
by Landlord. All moving of furniture, equipment and other materials shall
be done during hours previously approved by Landlord or Landlord's agent,
be under the direct control and supervision of Landlord or its agent which
shall not be responsible for any damage to or charges for moving the same.
Tenant shall promptly remove from the public and common area in the Building
any of the Tenant's furniture, equipment or other material then delivered or
deposited. Landlord shall have the right to limit the weight and prescribe
the position of sales and other heavy equipment or fixtures. In no event
will Tenant be allowed to place a load exceeding fifty (50) pounds per
square foot on any floor of the Building (except a floor on grade) without
prior written consent of Landlord. Any and all damage or injury to the
Leased Premises or the Building caused by moving the property of Tenant in
or out of the Leased Premises, or due to the same being on the Leased
Premises, shall be repaired by and at the sole cost of Tenant.
If any electrical equipment, machinery, plumbing fixtures or other
mechanical equipment installed or used by Tenant in the Leased Premises
commence or require utility service in addition to those services to be
furnished by Landlord pursuant to Section 12, Tenant shall promptly pay, as
additional rent, all charges for such additional utilities and utility
service furnished to the Leased Premises during the term of this Lease. If
such utilities are separately metered to the Leased Premises, Tenant shall
pay all such additional charges directly to the utility company furnishing
the same. To the extent that utilities are furnished to the Leased Premises
without separate metering, the amount which may be specially charged to
Tenant for additional utility usages shall be determined by Landlord on the
basis of Landlord's reasonable estimates of consumption by Tenant of such
utilities in the Leased Premises, and on the basis of the costs incurred by
Landlord in purchasing such additional utilities for use in the Building.
PERSONAL PROPERTY TAX. Tenant shall pay all taxes levied against Tenant's
personal property, of every description, maintained on and used by the
Tenant in connection with the Leased Premises.
10. SERVICES FURNISHED BY LESSOR. Landlord agrees to furnish the following
services to Tenant upon the terms and conditions set forth herein with the
costs for such services being part of the Operating Costs.
A. HEATING AND AIR CONDITIONING. Landlord agrees to furnish sufficient
heat and air conditioning to provide a temperature condition required
in Landlord's reasonable judgment for comfortable occupancy of the
Leased Premises under normal business operations between 7:00 a.m. and
6:00 p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. Saturdays
except holidays. Upon request of Tenant, Landlord will furnish air
conditioning and heating at other times (that is, at times other than
the times specified above); provided, however, Tenant must request
such additional services before 2:00 p.m. on the business day prior
to the day Tenant desires the same. If such services are furnished by
Landlord in any such other times, Tenant shall reimburse Landlord for
furnishing such services at the rate of $25.00 per hour for each hour
Tenant is present.
B. LAVATORY SERVICE. Landlord will provide reasonable sewer service and
water for drinking, lavatory and toilet purposes in the Building.
C. ELECTRICITY. Landlord agrees to provide 110 volt current electricity to
the Leased Premises.
D. ELEVATOR SERVICE. Landlord will provide passenger elevator service at
all times.
E. JANITOR SERVICE. Landlord will provide daily janitor service.
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F. KEYS AND LOCKS. Landlord shall furnish Tenant with two (2) keys for
the lock on each corridor door entering the Premises. Additional keys will
be furnished at a charge by Landlord on an order signed by Tenant or Tenant's
authorized representative. All such keys shall remain in the property of
Landlord. No additional locks shall be allowed on any door of the Premises
without Landlord's permission, and Tenant shall not make or permit to be made
any duplicate keys except those furnished by Landlord. Upon termination of
this Lease, Tenant shall surrender to Landlord all keys to the Premises and
give to Landlord the explanation of the combination of all locks for safes,
safe cabinets and vault doors, if any, in the Premises provided, however,
Tenant shall place no safes, safe cabinets or vaults within the Premises
without the prior written consent of Landlord.
G. GRAPHICS. Landlord shall provide and install, at Tenant's cost all
letters or numerals on entrance doors to the Premises; all such letters and
numerals shall be in the building standard graphics, and no others shall be
used or permitted on the exterior of, or which may be visible from outside,
the Premises, without Landlord's consent.
11. NO WARRANTY AS TO SERVICES. Landlord does not warrant that any of the
services it is required to provide under the terms of this Lease will be free
from interruption. Interruption of service shall never be deemed an eviction
or disturbance of Tenant's ??? and possession of the Leased Premises or any
part thereof, or render Landlord or Landlord's agents or employees liable to
Tenant for damages, or relieve Tenant from performance of Tenant's
obligations under this Lease. Provided, however, that Landlord will use due
diligence to restore the interrupted service as soon as reasonably possible
and, to the extent that, the interruption of service is under the control of
Landlord, such interruption will be during non-business hours as much as
possible.
12. COMPLIANCE WITH LAW - ENERGY POLICIES. Wherever in this Lease any terms,
covenants or conditions are required to be performed by the Landlord, the
Landlord shall be deemed to have kept and performed such terms, covenants and
conditions notwithstanding any action taken by the Landlord, if such notice
is pursuant to any governmental regulations, requirements or directives.
Without limiting the generality of the foregoing, the Landlord may reduce the
quantity and quality of all utility and any other service and impose such
regulations as the Landlord deems necessary in order to preserve energy.
Landlord agrees that its determination hereunder shall in all instances be
reasonable.
13. PERSONAL INJURY - LIMITATION OF LIABILITY AND INDEMNIFICATION OF
LANDLORD. Landlord shall not be liable to Tenant for any personal injury as
a result of any act, omission or negligence (excluding gross negligence) of
the Landlord, the condition of the Leased Premises or the Building or any
other case whatsoever, including but not limited to, fire and other perils.
Tenant furthers agrees that it will indemnify and hold Landlord harmless from
any and all claims for injury or damage to persons resulting from any act,
omission or neglect by Tenant, or any other cause which arises from or is
connected with the Tenant's possession or use of the Leased Premises of the
Building.
14. PROPERTY DAMAGE - MUTUAL WAIVER OF LIABILITY. Except for specific
obligations to repair damage or destruction to the Leased Premises as set
forth in this Lease, Landlord and Tenant are hereby minimally released from
any and all claims of any nature now or hereafter arising from or on account
of damage or destruction to the Leased Premises of the Building or to any
personal property of any of the foregoing contained therein or thereon,
whether such damage or destruction is caused by, arises or results from fire,
other perils or any other cause whatsoever. Landlord and Tenant each agree
to look to their respective insurance carriers for protection against any
such damages or destruction to any of their respective real or personal
property and do hereby waive all rights of subrogation.
15. LIABILITY OF LANDLORD LIMITED TO INTEREST IN PROPERTY. In the event of
a default, breach or violation by Landlord (which term includes Landlord's
officers, directors, employees, agents or representatives) of any of
Landlord's obligations under this Lease, Landlord's liability to the Tenant
shall be limited to its ownership interest in the Property.
16. TENANT INSURANCE. Tenant agrees to purchase, in advance, and to carry
in full force and effect, adequate insurance with a carrier acceptable to
Landlord including at a minimum the following interest:
A. "All Risk" fire and casualty insurance, including endorsements for
extended coverage, vandalism and malicious mischief and water damage
covering the full replacement value of all Tenant's fixtures and
personal property owned by Tenant that Tenant has a right to remove
from the Leased Premises at the termination of the Lease.
B. Liability Insurance covering all acts of Tenant, within the Leased
Premises and the Building in a local combined single limit coverage
amount of not less than $1,000,000 for personal injury, death and
property damage.
C. Such other or additional insurance coverage as Landlord shall, from
time to time, deem reasonably necessary, notice of which shall be
given to Tenant.
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D. Such insurance policies shall, unless Landlord shall otherwise agree,
include a waiver of subrogation endorsement.
All such insurance shall name Landlord as an additional insured and
shall not be cancelable with less than thirty (30) days written notice
to Landlord by the insurer. Certificates of all such insurance shall be
delivered to the Landlord prior to the occupancy of the Leased Premises
by Tenants at least thirty (30) days prior to the termination date of
any existing policy.
17. FIRE OR OTHER CASUALTIES. If the Building is substantially damaged or
destroyed by fire or other casualty, the Landlord shall have the right to
terminate this Lease, provided it gives written notice thereof to the Tenant
with ninety (90) days after such damage or destruction. If a portion of the
Leased Premises is damaged by fire or other casualty, and Landlord elects not
to terminate this Lease, the Landlord shall within a reasonable time and at
its own expense, restore the Leased Premises, exclusive of any alterations or
other changes made to the Leased Premises at any time by or at the direction
or request of Tenant, to as near the condition which existed immediately
prior to such damage or destruction as reasonably possible. In the event
Landlord so elects to restore the Leased Premises, rent shall xxxxx during
such period of time as the Leased Premises are unusable in proportion that
the unusable portion of the Leased Premises shall bear to the entire Leased
Premises. If the substantial destruction to the Building or to that portion
of the Building subject to this Lease and the Leased Premises cannot be
substantially restored within 180 days from the time of such damage or
destruction, then the Tenant shall have the right to terminate this Lease.
The Landlord shall not be responsible to the Tenant for damages to or
destruction of any furniture, equipment, alterations or other changes made or
installed in, on or about the Leased Premises regardless of the cause or the
damage or destruction.
18. EMINENT DOMAIN. If the entire Building or that portion of the Building
which includes all or substantially all of the Leased Premises is permanently
taken by eminent domain, this Lease shall automatically terminate as of the
date of such taking. If any portion of the Building is taken by eminent
domain, Landlord shall also have the right to terminate this Lease by giving
written notice thereof to Tenant within ninety (90) days after the date of
taking. If only a portion of the Leased Premises is taken by eminent domain
and Landlord elects not to terminate this Lease, Landlord shall, at its
expense, restore the Leased Premises, exclusive of any improvements or other
changes made to the premises by Tenant, to as near the condition which
existed immediately prior to the date of taking as reasonably possible. Rent
shall xxxxx during such period of time as the Leased Premises are unusable in
proportion that the unusable portion of the Leased Premises shall bear to the
entire Leased Premises and upon completion of restoration necessary
adjustments shall be made in the Annual Base Rent, additional rent or other
costs to reflect a reduction in the size of the Leased Premises and/or the
total rentable area of the Building. Tenant shall have no right to any of the
award or payment made in connection with such taking provided, however, that
Tenant shall be entitled to recover any separate amount for Tenant fixtures
and/or relocation costs provided under appropriate statutes, ordinances or
regulations.
19. RULES AND REGULATIONS. Tenant shall use the Leased Premises and the
public and common areas in the Building in accordance with such rules,
regulations and procedures as may, from time to time, be made by the Landlord
for the general safety, comfort and convenience of the owners, occupants and
tenants of the Building and shall cause Tenant's employees and invitees to
abide by such rules and regulations.
20. WASTE. Tenant shall use due care in the use of heat, water and
electricity, the use of the Leased Premises and the public and common areas in
the Building and without qualifying the foregoing, shall not neglect or
misuse water fixtures, electric lights and heating.
21. RUBBISH AND DEBRIS. No rubbish, dirt, overshoes, mats, umbrellas or
objects of any kind shall be put in the public or common areas in the
Building by Tenant.
32. HAZARDOUS SUBSTANCES.
A. Tenant hereby represents that Tenant uses only those Hazardous
Materials (as defined below) set forth on Exhibit C herein, in the
conduct of its business on the Premises. Otherwise, Tenant does not
and shall not use or permit the use of the Premises for any purpose
relating to the storage and use of Hazardous Materials. Tenant shall
not, in any event, generate, manufacture, produce, release, discharge
or dispose of on, in or under the Premises or the property of which
the Premises are a part (the "Property"), or transport to or from the
Premises or the Property, any Hazardous Materials, or allow any other
person or entity to do so.
B. Tenant shall comply with all local, state or federal laws, ordinances
or regulations relating to Hazardous Materials and above ground and
underground storage tanks on, in, under or about the Premises.
C. Tenant shall promptly notify Landlord should Tenant receive notice of
or otherwise become aware of any (i) pending or threatened
environmental regulatory action against Tenant, the Premises or the
Property; (ii) claims made or threatened by any third party relating
to any loss or injury resulting from any Hazardous Material; or
(iii) release or discharge or threatened release or discharge of any
Hazardous Material in, on, under or about the Premises or the Property.
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D. Tenant shall promptly deliver copies of any documents relating to any
governmental proceeding relating to Hazardous Materials and all
engineering reports, test reports and laboratory analyses concerning
the Hazardous Materials to Landlord.
E. Tenant shall promptly and thoroughly investigate suspected Hazardous
Materials contamination of the Premises or the Property or the ground
water of the Property, resulting from Tenant's use of the Premises.
F. Upon reasonable request, Landlord has the right to investigate
Tenant's operations. In Landlord's sole reasonable discretion,
Landlord may, if it deems it necessary, requires an audit of Tenant's
operation on the premises, at Tenant's expense, to ensure compliance
with environmental laws and regulations and this section 22. Upon
receipt of written notice from Landlord, tenant shall promptly
correct any violations and/or deficiencies cited in the audit. IF
TENANT IS FOUND TO BE IN TOTAL COMPLIANCE, ALL REASONABLE COSTS
ASSOCIATED WITH THE AUDIT SHALL BE REIMBURSED TO TENANT BY LANDLORD.
G. If an Event of Default occurs, Landlord, at Tenant's expense, shall
have the right to cause to be conducted an investigation of the
Premises for Hazardous Materials and Tenant shall forthwith remove,
repair, clean up or detoxify any Hazardous Materials from the
Premises, the Property, or ground water of the Property resulting
from Tenant's use, whether or not such actions are required by law.
H. Tenant shall permit Landlord or its agents to inspect the Premises at
any reasonable times and agree to fully cooperate with Landlord in
determining compliance with this Section 22.
I. Tenant shall protect, indemnify and hold harmless Landlord, its
directors, officers, employees, agents, successors and assigns from
and against any and all loss, damage, cost, expenses or liability
(including attorney's fees and costs) arising directly or indirectly
out of Tenant's use of the Premises, or from the conduct of Tenant's
business or attributable to Tenant's failure to comply with this
Section 22, including without limitation (i) all foreseeable
consequential damages; and (ii) the costs of any required or
necessary repair, clean up, or detoxification of the Premises or the
Property and the preparation and implementation of any closure,
remedial or other required plans. This indemnity shall survive
termination or cancellation of this Lease for any reason.
J. "Hazardous Materials" shall mean any flammable explosives, radioactive
materials, hazardous wastes, toxic substances or related materials,
including, without limitation, any substance defined as or included
in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "toxic substances", "contaminants" or
"pollutants" under any applicable federal or state laws or
regulations.
23. VENDING MACHINES. No vending machines shall be installed in the Leased
Premises without the written consent of Landlord.
24. LESSOR'S RIGHT TO ENTER PREMISES. Landlord, or its authorized agents or
attorneys, may at any reasonable time enter the Leased Premises to
inspect, make repairs and improvements and/or changes in the Leased
Premises or other premises in the Building as Landlord may deem proper.
Landlord's reserved rights hereunder shall include, without limitation,
free unhampered and unobstructed access to Building airways, equipment
ducts, under floor heater ducts, stairways, access panels and all
cleaning and utility services. There shall be no diminution of real or
injury to business caused by Landlord's exercise of the rights reserved
by Landlord in this paragraph.
25. SECURITY OF LEASED PREMISES. Tenant assumes full responsibility for
protecting the Leased Premises from theft, robbery and pilferage, which
includes keeping doors locked and other access of entry to the Leased
Premises closed and secured after normal business hours.
26. REPAIRS. Tenant shall promptly pay to Landlord upon request an amount
equal to any cost incurred by Landlord in repairing the Leased Premises
and/or public and common areas in the Building when such repairs were
made necessary by the negligence or of misuse by the Tenant.
27. LEASE TO BE SUBORDINATE. Landlord may cause this Lease to be made subject
and subordinate to all ground or underlying leases, mortgages and
restrictions which may now or hereafter affect the Building and to all
renewals and extensions thereof. For confirmation of such subordination,
Tenant shall execute promptly any subordination agreement requested by
Landlord. Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's agent to execute any such subordination agreement or agreements
for or on behalf of Tenant. Such subordination is subject to Tenant
enjoying the quiet possession of the Leased Premises if any Ground
Landlord or Mortgagee becomes landlord hereunder provided that Tenant is
not then in default hereunder or does not default in the future.
28. BROKERAGE. Tenant and Landlord respectively represent and warrant to the
other that no brokers were retain, used or referred to with respect to
this Lease and/or Leasing, except for BGK Asset Management Corp., who
represents Landlord and CB Commercial Real Estate Group, Inc., who
represents Tenant and no other claims for commission or fees are valid or
warranted with respect to our connection with this Lease and that each
shall defend, indemnify and hold the other harmless from any and all
costs, claims or causes of action for such commissions or fees resulting
from its own acts.
-7-
29. ESTOPPEL CERTIFICATE. Tenant agrees that at any time and from time to
time upon not less than five (5) days prior written notice by Landlord,
to execute, acknowledge and deliver to Landlord a statement in writing:
A. Certifying that this Lease is unmodified and in full force and
effect if there have been modifications, that this Lease is in full
force and effect as modified and stating the modifications.
B. Stating the dates in which the rent and other charges hereunder
have been paid by Tenant.
C. Stating whether or not, to the best knowledge of Tenant, Landlord
is in default in the performance of any covenants, agreements or
conditions contained in this Lease and if so, specifying each such
default of which Tenant may have knowledge.
D. Responding to such other matters as Landlord reasonably requests.
Any such statement delivered pursuant hereto may be relied upon by
any owner or prospective purchasers of the Building, any prospective
mortgage of the Building or Landlord's Interest therein or any
prospective assignee of any such mortgage.
30. TENANT TO SURRENDER PREMISES IN GOOD CONDITION. Upon the expiration or
termination of the lease term, Tenant shall at its expense:
A. Remove Tenant's goods and effects and those of all persons claiming
through Tenant:
B. Quit and deliver up the Leased Premises in Landlord peaceably and
quietly in as good order and condition as the same were on the date
the lease term commenced or were thereafter in place by Lessor,
reasonable wear and tear and damages from fire and other casualties
excepted; and
Any property left in the Leased Premises after the expiration or
termination of the Lease Term shall be deemed to have been abandoned
and shall be deemed the property of Landlord to be disposed of as
Landlord sees fit.
31. HOLDING OVER. Tenant agrees that no holding over by Tenant after the
expiration of this Lease Agreement whether with or without the consent
of Landlord, shall operate to extend and renew this Lease Agreement. The
monthly rental which had been payable at the time immediately prior to
such holding over times 1.50 shall be the monthly rental rate for any
additional period. Such tenancy shall be subject to all the terms and
conditions of this Lease. Upon holding over, Tenant's month-to-month
tenancy shall continue until such tenancy shall be terminated by
Landlord or until said Tenant shall have given to Landlord a written
notice of at least one (1) month prior to the date of the termination of
such monthly tenancy of his intention to terminate such tenancy and
shall, at the expiration of such month, have vacated and surrendered
possession of said premises to said Landlord.
32. DEFAULT. The occurrence of any of the following events shall constitute
a default by Tenant under this Lease:
A. If Tenant shall fail to pay any amounts to be paid by it hereunder,
including but not limited to Base Annual Rent and additional rent
and such default shall continue for a period of seven (7) days
after Landlord has given Tenant written notice of such failure to
pay; or
B. If Tenant fails to perform or observe any of Tenant's other
obligations, covenants or agreements herein or hereunder, and such
failure shall continue for a period of twenty (20) days after
Landlord has given Tenant written notice thereof; or
C. If Tenant makes a general assignment for the benefits of creditors,
or, subject to the rights of a Trustee in Bankruptcy files, or has
filed against it, a petition in bankruptcy under the Bankruptcy
Reform Act of 1978 or under any other applicable law of the United
States of America or any state thereof, consents to this
appointment of a trustee or receive for Tenants or for its
property, or if Tenant takes any action for the purpose of
effecting or consenting to any of the foregoing; or
D. The abandonment or vacating of the Premises by Tenant.
Upon the occurrence of any of the foregoing defaults, Landlord may, but
with no obligation to do so, immediately re-enter the Leased Premises
and remove all persons and property therefrom. Landlord shall have the
right to keep this Lease in full force and effect, or, at its option,
terminate this Lease as to all future rights of Tenant. Tenant hereby
expressly waives the service of any notice in writing of Landlord's
intent to re-enter the Leased Premises. Tenant shall be liable to
Landlord against all loss of rents and other damages which it may incur
by reason of such default, including all attorney's fees and expenses
incurred in enforcing any of the terms of this Lease. If Tenant defaults
before expiration or termination of the term of this Lease, and Landlord
elects to terminate this Lease, Landlord may accelerate Tenant's
financial obligation hereunder, upon such acceleration, the entire
Annual Base Rent and additional rent and other costs as reasonably
determined by the Landlord due for the balance of the term hereof shall
be immediately due and payable. In the event Landlord re-enters the
Leased Premises as set forth herein, and, whether it elects to keep this
Lease in effect or terminate it, Landlord may re-let the Leased Premises
for such rent and upon such terms as are not
-8-
unresumable under the circumstances. In such event, Tenant shall be
liable for all costs, expenses and damages incurred or sustained by
Landlord in re-letting the Leased Premises including, without
limitation, deficiency in rent, attorney's fees, expenses for placing
the Leased Premises in first class rentable condition, brokerage fees,
tenant allowances, improvements or payment of any other tenant
inducement. Landlord shall have the right to commence one or more
actions to enforce the terms hereof and the commencement and prosecution
of one action shall not be deemed a waiver or an estoppel from commencing
one or more actions from time to time in the future. Provisions
contained in this section shall be in addition to and shall not prevent
the enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired term of this Lease. All rights and
remedies of Landlord under this Lease shall be cumulative and shall not
be exclusive of any other rights and remedies provided to Landlord under
applicable law.
33. RIGHT TO CURE DEFAULTS. If Tenant defaults in the observance or
performance of any of Tenant's covenants, agreements, or obligations
hereunder wherein the default can be cured by the expenditure of money,
Landlord may, but without obligation, and without limiting any other
remedies which it may have by reason of such default, cure the default,
charge the cost thereof to Tenant and Tenant shall pay the same
forthwith upon demand. If Landlord is required to commence a legal
action to recover such sums from the Tenant, Landlord shall also have
the right to recover all Interest costs and attorney's fees in
connection with such litigation.
34. USE OF THE TERMS "LANDLORD" AND "TENANT". The terms "Landlord" and
"Tenant" wherever used in this Lease, shall be construed to mean plural
in all cases where there is more than one Landlord or Tenant, and the
necessary grammatical changes required to make the provisions hereof
apply to corporations, partnerships or individuals, men or women, shall
in all cases be assumed as though in each case fully expressed. In
addition, where relevant in this Lease and especially in connection with
the provisions of this Lease relating to personal injury, limitation of
liability, indemnification, property damage and insurance, "Landlord"
shall mean Landlord, its respective employees, agents, invitees,
licensees, customers, clients, partners and shareholders and "Tenant"
shall mean its employees, agents, business invitees, licensees,
customers and clients, family members, guests, trespassers, partners and
shareholders.
35. LANDLORD'S CONSENT. Unless it is expressly stated herein that, as in any
particular required consent, Landlord's consent shall not be
unreasonably withheld. Landlord's consent need be given only at
Landlord's sole discretion.
36. EXECUTION BY LESSOR. Submission of this instrument to Tenant, or Tenant's
agents or attorneys, for examination or signature does not constitute or
imply an offer to lease, reservation of space, or option in lease and
this Lease shall have no binding effect until execution hereof by both
Landlord and Tenant.
37. CONTINUANCE OF AGREEMENT. This Agreement shall be binding upon and inure
for the benefit of the parties hereto and subject to the restrictions
and limitations herein contained, their respective heirs, successors and
assigns.
38. PROTECTION OF LANDLORD IN THE EVENT OF SALE OF THE PROPERTY. "Landlord",
as that term is used in this Lease, means only the owner of the
mortgage in possession or granted in possession under a deed of trust,
or the owner of this Lease, or in the event of any sale or sales of such
land and/or building or of this Lease, or in the event of a granted lease
of such land, the Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder, and it
shall be deemed and construed without further agreement between the
parties or their successors-in-interest that the purchaser of the lessor
or assignee of the land and/or building has assumed and agreed to
carry out any and all covenants and obligations of the Landlord
hereunder.
39. SEVERABILITY. The provisions of this Lease are expressly severable, and
the unenforceability of any provision or provisions hereof shall not
affect or impair the enforceability of any other provision or provisions.
40. MEMORANDUM LEASE. Tenant and Landlord shall, upon the written request of
the other, execute a memorandum or short form lease, in a form suitable
for recording. Said Memorandum Lease shall be dated on the date and year
of the execution of this Lease and shall disclose the parties, the terms
of the Lease, the legal description of the Demised Premises and may
contain, in addition to the foregoing, each other terms and conditions
as Landlord or Tenant, as the case may be, may require.
41. WAIVER OF COVENANTS. Failure of Landlord to insist, in any one or more
instances, upon strict performance of any term, covenant or condition of
this Lease, or to any exercise any option herein contained, shall not be
construed as a waiver, or a relinquishment for the future of such term,
covenant, condition or option, but the same shall continue and remain in
full force and effect. The receipt by Landlord of rents with knowledge
of a breach in any of the terms, covenants and conditions of this Lease
to be kept or performed by Tenant shall not be deemed a waiver of such
breach, and Landlord shall not be deemed to have waived any provision of
this Lease unless expressed in writing and signed by Landlord.
42. NOTICES. Any notice or demand which, under the terms of this Lease or
under any statute must or may be given or made by the parties hereto,
shall be in writing and may be given or made by personal delivery or
mailing the same by registered mail, addressed to the other party at the
address mentioned below. Either party, however, may designate in writing
such new or other address to which such notice or demand shall hereafter
be so given, made or mailed. Any notice given hereunder by mail shall be
deemed delivered when
9
deposited in the United States mails, certified mail, return receipt
requested, postage prepaid, and addressed as herein provided:
Landlord: METRO CENTER ASSOCIATES, L.P.
BGK ASSET MANAGEMENT CORP.
0000 Xxxxxx Xxxxxx Xxxx XX. Xxx. 000
Xxxxxxxxxxx, XX 00000
If to Tenant, at the Leased Premises unless notice of change of address
is given pursuant to this section.
43. RIGHT TO RELOCATE. If the Premises are less than 2,000 square feet in
area, Landlord reserves the right, as its option and upon given thirty
(30) days notice to Tenant, in transfer and remove Tenant from the
Premises to any other available space in the Building of equal size and
area. Landlord shall bear the expense of moving Tenant's furniture,
fixtures, telephone service, and other personal property as well as the
expense of any renovations or alteration necessary to make the new space
similar in arrangement and layout to the original Premises.
44. AMENDMENTS. This Lease may be amended only by a writing executed by both
parties herein.
45. MISCELLANEOUS. This Lease shall be construed according to the laws of
the State of New Mexico. The captions in this Lease are for convenience
only and are not part of this Lease.
46. REPRESENTATIONS. This Lease conditions the final agreement of the parties
hereto and supersedes all negotiations, representations or agreements,
whether written or oral, made prior to the execution hereof. Landlord
makes no representations or warranties regarding the Leased Premises or
of Landlord's or Tenant's rights, obligations, or duties with respect
thereto other than those expressly set forth in this Lease. By execution
of this Lease, Tenant acknowledges that no representations or warranties
have been made by Landlord (or Landlord's agents, representatives, or
employees, or by anyone acting on behalf of Landlord or under contract
with Landlord) upon which Tenant has relied is executing this Lease other
than such representations or warranties that are expressly set forth
herein.
47. ATTORNEY'S FEES. If the Tenant defaults in the performance of any of the
covenants of this Lease and by reason thereof the Landlord employs the
services of an attorney to enforce performance of the covenants by the
Tenant, to advise the Tenant, to collect moneys due by the Tenant, or to
perform any service based upon said default, then in any of said events
the Tenant does agree to pay a reasonable attorney's fees and all
expenses and costs incurred by the Landlord pertaining thereto and in
enforcement of any remedy available to the Landlord. In any proceeding
brought by either Landlord or Tenant against the other relating to this
Lease, a reasonable attorney's fee, to be fixed by the court in such
proceeding, shall be added in and made a part of the costs recovered in
such proceeding by the successful party therein.
48. TIME. It is understood and agreed between the parties herein that time is
of the essence in all of the terms and provisions of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant respectfully have duly signed and
sealed these presents the day and year first above written.
LANDLORD
BGK ASSET MANAGEMENT CORP.
Agent for Metro Center Associates, L.P.
DATE: Nov. 27, 1995 By: /s/ XXXXX X. [ILLEGIBLE]
------------- ------------------------------
Xxxxx X. [ILLEGIBLE]/President
TENANT
ALBUQUERQUE CORRECTIVE EYE
SURGERY/
DATE: Nov. 27, 1995 By: /s/ XXXXXXX XXXXXX
------------- ------------------------------
Xxxxxxx Xxxxxx
-00-
Xxxxx xx Xxx Xxxxxx )
) ss.
County of Bonnadillo )
It is hereby acknowledged that the above Lease was sworn to and executed
before me on this 27th day of November, 1995 by Xxxxxxx Xxxxxx as Individual
of or and on behalf of ALBUQUERQUE CORRECTIVE EYE SURGERY, Tenant.
/s/ XXXXX XXXXXXX XXXXXXXXX
--------------------------------------------
NOTARY PUBLIC
My Commission Expires:
7-7-99 [NOTARY SEAL]
----------------------
State of New Mexico )
) ss.
County of Bonnadillo )
It is hereby acknowledged that the above Lease was sworn to and executed
before me on this 27th day of November, 1995 by Xxxxx X. Xxxxxxxxx as
President of or and on behalf of BGK ASSET MANAGEMENT CORP. AS AGENT FOR
METRO CENTER ASSOCIATES, L.P., A NEW MEXICO PARTNERSHIP.
/s/ XXXXX XXXXXXX XXXXXXXXX
--------------------------------------------
NOTARY PUBLIC
My Commission Expires:
7-7-99 [NOTARY SEAL]
----------------------
11
GUARANTY
In consideration of the making of the attached lease by the Landlord with
Tenant at the request of the undersigned and in reliance on this Guaranty,
the undersigned hereby guarantees the payment of the rent to be paid by
Tenant and the performance by the Tenant of all terms, conditions, covenants
and agreements of the Lease, and the undersigned promises to pay all the
Landlord's expenses, including reasonable attorney's fees, incurred by the
Landlord in enforcing this Guaranty. Landlord's consent to any assignment or
assignments, shall in no way or manner release the undersigned from Liability
as Guarantor.
The foregoing Guaranty relates to that certain lease dated SEPTEMBER 12,
1995, covering premise located at 0000 XXXXXXXX XXXX. X.X., Xxxxxxxxxxx,
Xxxxxx of Bonnadillo, State of New Mexico in which METRO CENTER ASSOCIATES,
LP., A NEW MEXICO LIMITED PARTNERSHIP is Landlord and BGK ASSET MANAGEMENT
CORPORATION is Agent for Landlord and DR. XXXXXXX XXXXXX, d/b/s ALBUQUERQUE
CORRECTIVE EYE SURGERY is Tenant.
By: /s/ XXXXXXX XXXXXX
----------------------------------------
Xxxxxxx Xxxxxx
12
[GRAPHIC]
VISION SCULPTING - ALBUQUERQUE METRO CENTER - XXXXX 000
XXXXXXXXXXX-XXXXXXXXX XXXX
XXXXX 0/0" = 1'-0"
