EXHIBIT 10.4
LEASE
By this Lease, made in multiple copies the day of , 1994, between CENTRAL
AVENUE PARTNERS, a New Mexico general partnership, hereinafter called
"Landlord," and WALGREEN CO, an Illinois corporation, hereinafter called
"Tenant"; Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, for the term commencing October 1, 1994, and continuing to and
including September 30, 2044, subject to prior termination as hereinafter
provided, the premises to include both a building and other improvements and
certain real estate located at the northeast corner of Coors Boulevard and
Sequoia Road, in the City of Albuquerque, State of New Mexico, the building to
be erected and completed by Landlord to include not less than 115 feet of
frontage facing Coors Boulevard and not less than 135 feet of depth, being an
area containing 15,525 square feet of first floor area (the "Building"), and
together with all improvements, appurtenances, easements and privileges
belonging thereto, said Building and improvements being all as shown on the plan
attached hereto and made a part hereof as Exhibit "A," all as legally described
in Exhibit "B" attached hereto and made a part hereof and the Building, real
estate and other improvements to be constructed thereon are hereinafter
collectively referred to as the "Leased Premises "
THE TERMS, COVENANTS AND CONDITIONS OF SAID LETTING ARE AS FOLLOWS: USE
1. Subject to Article 13 of this Lease and so long as Tenant shall operate
in the Leased Premises, Tenant shall operate a store similar in nature to a
majority of its other stores in the Albuquerque metropolitan area, with the
right to sell such merchandise and provide such services, as Tenant may, from
time to time, sell and provide in a majority of its other stores in the
Albuquerque metropolitan area. Nothing contained herein shall be construed so as
to prohibit Tenant from expanding or eliminating any department(s) or from
expanding or eliminating any line(s) of merchandise in the Leased Premises,
provided, however, the liquor department shall not exceed twenty-five percent
(25%) of the gross floor area of the Leased Premises.
2. Tenant shall pay rent for the Leased Premises, as follows:
(a) A fixed rent of $19,173.37 per month, commencing on the date provided
in Article 6 hereof. Fixed rent shall be payable on the first day of each and
every month in advance and shall be properly apportioned for any period less
than a full calendar month.
(b) If a sum equal to - -
2.0% of the Gross Sales, as hereinbelow defined, except from the sale of
food, alcoholic beverages and prescriptions,
plus 1.0% of the Gross Sales from the sale of food and alcoholic beverages,
plus 0.5% of the Gross Sales from the sale of prescriptions
made by Tenant in the operation of Tenant's store in the Leased Premises in
any lease year [as defined in Section (c) of Article 3] shall exceed the total
fixed rent for such lease year, then and in such event, and within forty-five
(45) days after the end of each lease year, Tenant shall pay to Landlord the
amount of such excess as additional percentage rent. however, in no event shall
the total of fixed rent plus additional percentage rent (if any) payable by
Tenant in any lease year exceed $460,161.00 per lease year, which amount shall
be proportionately decreased for any lease year that is not comprised of a full
twelve (12) months. Within forty--five (45) days after the end of each lease
year Tenant shall furnish to Landlord a statement of the total amount of such
Gross Sales for such lease year. The aforesaid amount(s) shall be
proportionately adjusted in the case of a lease year of more or less than a full
twelve (12) calendar months.
(c) The term "Gross Sales" as used herein is defined as the total amount of
all receipts, whether for cash or on credit (less returns and refunds) from
sales of drugs, food, drinks, goods, wares and merchandise of every sort
whatsoever, made by Tenant in the operation of Tenant's store on the Leased
Premises, or made by any concessionaire on the Leased Premises. The following
shall be specifically excluded from Gross Sales: receipts from sales of
non-alcoholic beverages (including milk); receipts from sales of tobacco
products; receipts from the sale of prescription items pursuant to third party
prescription plans, as defined below; receipts and commissions from the
operation of public telephones; license fees received from the operation of
automatic teller machines to the extent such fees do not exceed five percent
(5%) of fixed rent paid in any lease year; credit card processing fees;
intercorporate and interstore sales or transfers; sales of government bonds,
savings stamps and other government securities; sales of postage stamps and
ready stamped postcards and envelopes; sales of government lottery tickets;
sales at a discount to employees; sales at a discount to doctors, dentists,
hospitals, nurses, drug stores or wholesale drug or supply houses; accounts
receivable written off as uncollectible. Tenant shall also have the right to
deduct and exclude from Gross Sales a sum equal to any approximate amounts which
may be paid by Tenant or which Tenant may add to or include in its selling
prices of various articles by reason of any sales taxes, use taxes, retailers'
occupation taxes, excise taxes at the retail level and the like, now or
hereafter imposed and however entitled, and which are based upon the amounts of
sales or the Units of sales.
Third party prescription plans shall be deemed to be those health benefit
plans wherein all or any portion of the cost of prescription items and
pharmaceuticals for any individual patient are paid or reimbursed by an
organization such as a governmental agency, an entity created by state or
federal law, an insurance carrier, a health maintenance organization, a union, a
trust or benefit organization or an employer or employer group pursuant to an
agreement between Tenant and such organization.
Tenant shall cause to be kept, in accordance with its customary accounting
procedure, records of the Gross Sales made by Tenant in the operation of
Tenant's store on the Leased Premises. Landlord and Landlord's duly authorized
representative, at reasonable times during business hours, shall have access to
such records at the place where the same are kept, for the purpose of inspecting
and auditing the same, provided that any such inspection and audit be made by
Landlord within six (6) months after the expiration of any lease year. If
Landlord does not object in writing to any statement above mentioned within said
time period, such statement shall be conclusively presumed to be correct, and
thereafter Tenant shall not be required to preserve the records from which such
statement was compiled. Landlord agrees not to divulge to anyone the information
obtained by Landlord and Landlord's representative from such records or from the
statements above mentioned, except to any mortgagee or prospective purchaser of
the property and except as may be necessary for the enforcement of Landlord's
rights under this Lease. Nothing herein contained, however, shall be deemed to
confer upon Landlord any interest in the business of Tenant on the Leased
Premises.
(d) Until further notice by Landlord to Tenant, rent checks shall be
payable to and mailed to:
Central Avenue Partners
c/o Peterson Properties
0000 Xxx Xxxxx, X.X., Xxxxx 0-X
Xxxxxxxxxxx, Xxx Xxxxxx 00000
INITIAL TERM. TERM. LEASE YEAR. OPTIONS
3. (a) The Initial Term of this Lease shall commence on the date that
Tenant accepts possession of the Building and shall continue to and include the
day immediately preceding the date that the Term of this Lease commences as
below provided. Tenant shall have no obligation to pay rents or other charges
during the Initial Tern nor shall any of the same accrue; all rents and other
charges specified in this Lease shall commence as of the date that the Term
commences, unless otherwise expressly provided herein.
(b) If the fixed rent shall not have begun to accrue on the date above
specified for the commencement of the Teen of this Lease, then the Term shall
not commence until the date on which the fixed rent begins to accrue and shall
continue for fifty (50) years thereafter; provided, however, that if such
commencement date be other than the first day of the calendar month then the
Term shall continue to and include the last day of the same calendar month of
the fiftieth year thereafter.
(c) The first lease year shall commence on the date fixed rent begins to
accrue and, if such commencement be on the first day of a calendar month shall
end twelve (12) months thereafter, or, if such commencement be other than the
first day of the calendar month, shall end on the last day of the same calendar
month of the first year thereafter, and each succeeding lease year shall be each
succeeding twelve (12) months period.
(d) Tenant shall have the right and option, at Tenant's election, to
terminate this Lease effective as of the last day of the two hundred fortieth
(240th) full calendar month of the Term, effective as of the last day of the
three hundredth (300th) full calendar month of the Term, effective as of the
last day of the three hundred sixtieth (360th) full calendar month of the Term,
effective as of the last day of the four hundred twentieth (420th) full calendar
month of the Term, effective as of the last day of the four hundred eightieth
(480th) full calendar month of the Term and effective as of the last day of the
five hundred fortieth (540th) full calendar month of the Term. If Tenant shall
elect to exercise any such option, Tenant Shall send notice thereof to Landlord,
at least six (6) months prior to the date this Lease shall so terminate, but no
notice shall be required to terminate this Lease upon the expiration of the full
term.
DELIVERY OF POSSESSION
4. (a) Landlord shall put Tenant into exclusive physical possession of the
Leased Premises on October 1, 1994 or as soon as possible thereafter, and in any
case not later than October 1, 1995, and at the same time deliver to Tenant a
full set of keys to the Building, provided that if Landlord shall so put Tenant
into possession between October 1 and December 1, then the Initial Term shall be
extended by the period between the date of such possession and December 1.
Landlord shall send written notice to Tenant, Attention: Director of
Construction, at least forty-five (45) days [but not more than sixty (60) days]
before such possession is to be delivered. Such notice shall set forth the date
of delivery of possession, which shall be on a Monday (unless such date is a
legal holiday, in which case possession shall be delivered the next business
day). If possession is not delivered by the latest date above mentioned, Tenant
may, in addition to Tenant's remedies at law, equity or under this Lease, cancel
this Lease by notice to Landlord. The Leased Premises upon delivery shall be in
good condition and repair, free of hazardous and toxic materials and substances,
and shall fully comply with all lawful requirements and shall be constructed in
accordance with Article 5 hereof. Tenant shall have the right, without being
deemed to have accepted possession, to enter upon the Leased Premises as soon
thereafter as practical, to take measurements and install its fixtures and
exterior signs (including, but not limited to, the installation of permanent and
temporary signs), but such entry or the opening for business shall not
constitute a waiver as to the condition of the premises or as to any work to be
done or changes to be made by Landlord, or as to any other obligations of
Landlord hereunder.
(b) Landlord represents that other than as disclosed in that certain report
dated March 22, 1994, prepared by Western Technologies, Inc. and entitled Phase
I Environmental Site Assessment, 1.58 Acre Property located at the northeast
corner of Coors Boulevard and Sequoia Road, N.W., Albuquerque, New Mexico (the
"Report"), Landlord has no knowledge concerning any current or previous use of
the land and/or Building comprising the Leased Premises which would lead a
reasonable person to suspect that hazardous wastes or hazardous substances were
deposited, stored, disposed of or placed upon, about or under said land and/or
buildings. In order to make the foregoing representation, Landlord states that
it has made due inquiry or investigation as appropriate. Landlord has provided
to Tenant, at Landlord's sole cost and expense, a copy of the Report. In the
event tile Report discloses the existence of any toxic or hazardous substances
in, on or under the Leased Premises, including, but not limited to, the
existence of any underground storage tanks, Landlord, at Landlord's sole cost
and expense, prior to the date Landlord delivers possession of the Leased
Premises to Tenant, as provided in Article 4, shall properly remove, and dispose
of any such underground storage tanks and shall properly remove and dispose of
any hazardous and toxic materials and substances. All such disposal and removal
shall be conducted in accordance with all federal, state and local laws,
ordinances, and rules or regulations, or other binding determinations of any
federal, state, local, or other governmental entity exercising executive,
legislative, judicial, regulatory, or administrative functions (whether now or
hereafter existing) pertaining to hazardous or toxic materials or substances or
underground storage tanks. In the event of any such removal and disposal by
Landlord hereunder, upon completion of the same the Leased Premises shall again
be tested by the environmental engineer and/or contractor and the results
delivered to Tenant; Landlord shall also deliver in such event all necessary
governmental inspections and approvals with respect to the removal, remediation
and disposal work. Tenant shall have no obligation to accept delivery of
possession of the Leased Premises until Landlord has complied with the
provisions of this Section.
(c) It shall be a condition precedent to the delivery of possession of the
Leased Premises to Tenant that Landlord shall have first delivered to Tenant
satisfactory evidence of Landlord's title together with each instrument, if any,
required by Section (b) of Article 18. Tenant's acceptance of possession of the
Leased Premises in the absence of full satisfaction of said condition precedent
shall in no manner be deemed a waiver thereof or of any of the requirements of
Article 18.
CONSTRUCTION BY LANDLORD
5. (a) Before delivering possession of the Leased Premises to Tenant,
Landlord shall obtain all required zoning and permits for the construction and
operation of the Leased Premises and the Building and shall erect and complete
the Building, which Building shall be a modern one-story structure. The Building
shall be of such exterior and structural design and character as is acceptable
to Tenant and as will also meet Tenant's requirements for its permanent exterior
signs, which may extend above the Building and shall be at locations visible
from the entire Parking Area The Leased Premises and Building shall be erected
and completed by Landlord, in accordance with the plans and specifications
described below, and shall contain Tenant's specific requirements for the
operation of Tenant's business, which requirements will include, among other
things, the items and installations listed in the Criteria Specifications for
Self-Serve Walgreen Store prepared by Walgreen Co., revised January 1, 1994, and
Criteria Plans, including the drawings referenced on Exhibit "C" attached
hereto, heretofore delivered to Landlord and incorporated herein by reference
and made a part hereof. All such work by Landlord shall be done by contractors
selected by Landlord and acceptable to Tenant and shall comply with the
requirements of public authorities. All such work shall be done in a firstclass,
good, and workmanlike manner, free and clear of all liens and encumbrances for
labor and materials furnished to Landlord. Tenant shall reimburse Landlord for
any cost increase resulting from constructing the Building in accordance with
the drawings referenced in Exhibit "C" instead of the drawings originally sent
to Landlord dated July 1, 1993 and referenced in Exhibit "C-1" attached to the
Lease (excluding the additional cost of brick veneer).
(b) Within one (1 ) month after the execution and delivery of this Lease,
Tenant shall furnish to Landlord a fixture plan and base sheets relative to the
Building, so that Landlord may be enabled to prepare and furnish to Tenant plans
and specifications covering Tenant's specific requirements. The plans (which
shall be on mylar or vellum) and specifications (the "Plans") prepared by
Landlord shall be furnished to Tenant for Tenant's approval within forty-five
(45) days after the execution and delivery of this Lease or the receipt of said
fixture plan and base sheets from Tenant, whichever is later. All areas of
design and engineering must be certified by and under the direct supervision of
architects and engineers licensed and registered in the State of New Mexico.
Tenant agrees to approve or reject said Plans, within thirty (30) days, and if
not approved or rejected within said period, said Plans shall be deemed
approved. In the event Tenant shall reject such Plans within the period provided
above, then Tenant shall return said Plans to Landlord indicating the items so
rejected. Landlord shall then have thirty (30) days to resubmit the Plans to
Tenant, and Tenant shall have thirty (30) days for approval or rejection. If not
approved or rejected within said period, said Plans shall be deemed approved;
provided, however, that in no event shall the standards of quality of approved
Plans, or of those deemed approved, be less than those required by the Criteria
Plans and Criteria Specifications above described, which shall control. If said
Plans are rejected after being resubmitted to Tenant, and the parties are unable
to agree on approved Plans within thirty (30) days thereafter, then either party
may cancel this Lease upon thirty (30) days written notice to the other. Any
such cancellation notice shall be null and void if the plans are approved during
the thirty (30) day notice period.
Thereafter, Tenant, at Tenant's sole cost and expense, shall have the right
to make changes, substitutions and eliminations in said Plans provided, however,
that Tenant shall pay all costs and expenses on account of any such changes,
substitutions and eliminations. Landlord and Tenant agree to cooperate with each
other and to diligently and in good faith make all reasonable modifications to
keep the cost of the Building and improvements as economical as is reasonably
practicable.
(c) Prior to delivery of possession of the Leased Premises to Tenant,
Landlord shall provide to Tenant a mylar sepia of the final Plans prepared by
Landlord as above provided.
(d) All plans and specifications shall be deemed to be Owned by Tenant
regardless of by whom prepared; Landlord shall take all actions as may be
appropriate or necessary at any time and from time to time in order to evidence
such ownership in Tenant. Such plans and specifications may be used by Tenant in
their approved form or as modified by Tenant in connection with any alteration
or renovation of the Leased Premises.
RENT COMMENCEMENT
6. Tenant shall commence paying fixed rents pursuant to Article 2 hereof as
of the date that is the earlier of (a) the date Tenant opens its store for
business in the Leased Premises, or (b) the date that is two (2) months after
Landlord has completed all construction and has delivered possession as above
provided. Such two (2) month time period shall be subject to extension equal to
any delays occasioned by strikes, casualties, governmental restrictions,
priorities or allocations, inability to obtain materials or labor, denial of
licenses to operate a pharmacy and to conduct its business, any cause the fault
of Landlord or other causes beyond Tenant's control. Anything to the contrary in
this Lease notwithstanding, Tenant shall have no obligation to pay rent or other
charges until Landlord has provided all of the information and instruments
required by Article 18 of this Lease and after such event, Tenant shall remit to
Landlord all monies withheld. Nothing contained in this Lease shall be construed
to obligate Tenant to open its store for business nor to obligate Tenant (or its
successors or assigns) to continue to operate its store in the Leased Premises.
PARKING
7. During the Term of this Lease, Tenant, at Tenant's cost and expense,
shall maintain the landscaping at the Leased Premises and maintain and repair
the parking areas located within the Leased Premises. However, Tenant shall have
no obligation for any replacements of the landscaping, light poles, parking
areas or other improvements thereon or any other item which under generally
accepted accounting principles are classified as a capital expense (the same to
remain Landlord's responsibility to perform). Tenant acknowledges that
maintenance of that portion of the Leased Premises situated within "25' Access
Road Area" shown on Exhibit "A" is more specifically described in the
"Declaration of Restrictions and Cross Easements" (hereinafter "Declaration"), a
copy of which is attached hereto as Exhibit "E". It is understood and agreed
that (a) Tenant shall comply with the restrictions contained in the Declaration
as such restrictions may affect the Leased Premises and (b) Landlord will
enforce the covenants contained in the Declaration and will not enter into any
agreements modifying the Declaration, or permitting blockage of access areas
serving the Leased Premises Without the prior written consent of Tenant.
Landlord shall provide Tenant with copies of all notices received by Landlord
pursuant to the Declaration within two (2) business days of Landlord's receipt
thereof, and at Tenant's request shall pursue all causes of action that Landlord
may be entitled to pursue under the Declaration.
EXCLUSIVES
8. (a) Landlord covenants and agrees that, during the term of this Lease
and any extensions or renewals thereof, no additional property which Landlord,
directly or indirectly, may now or hereafter own or control, and which is
contiguous to the Leased Premises will be used for any one or combination of the
following: (I) the operation of a drug store or a so-called prescription
pharmacy or for any other purpose requiring a qualified pharmacist or other
person authorized by law to dispense medicinal drugs, directly or indirectly,
for a fee or remuneration of any kind; (ii) tile sale of so called health and/or
beauty aids and/or drug sundries; (iii) the operation of a business in which
alcoholic beverages shall be sold for consumption off the premises, and/or (iv)
the operation of a business in which photofinishing services and/or photographic
film are offered for sale. In the event that Tenant files suit against any party
to enforce the foregoing restrictions, Landlord agrees to cooperate fully with
Tenant in the prosecution of any such suit.
Notwithstanding the foregoing, if Tenant closes its store to the public for
six (6) months or more, then all of the foregoing exclusive use restrictions
shall terminate, except in the event that Tenant discontinues business as a
result of fire or other casually beyond Tenant's control so long as Tenant
reopens its business within sixty (60) days after the Leased Premises have been
restored or the cause for such discontinuance has ceased. In no event shall said
restrictions terminate in the event that Tenant discontinues business and a
permitted assignee or sublessee of Tenant commences business operations in the
Leased Premises within six (6) months after taking possession of the Leased
Premises, selling any such item or items so restricted as a material part of
such assignee's or sublessee's business.
(b) In the event that any action, claim or suit is brought by any party
against Tenant alleging that Tenant's operations in the Leased Premises are in
violation of any use restriction contained in any instrument executed by
Landlord and in the event that a court of competent jurisdiction shall hold
that Tenant's operations in the Leased Premises are in violation of any use
restriction, Tenant, at Tenant's option shall have the right to terminate this
Lease upon thirty (30) days written notice thereof to Landlord.
UTILITIES
9. Tenant shall pay when due all bills for water, trash removal, sewer
rents, sewer charges, heat, gas and electricity and other utilities and services
used in or serving the Building or the Leased Premises from the commencement of
the Initial Term and until the expiration of the Term. The source of supply and
vendor of each such commodity shall be the local public utility company or
municipality commonly serving the area. Landlord shall furnish to said Building
and to the Leased Premises at all times sufficient gas and water service lines,
also sewer lines and sewer connections, all of the capacity initially specified
by Tenant, and electric service lines of the voltage and amperage initially
specified by Tenant, all connected to an adequate source of supply or disposal.
In addition, Landlord shall furnish to said Building conduit for telephone lines
of a capacity specified by Tenant. If Tenant shall require additional service
line capacity of any of such utilities and if same are available on Landlord's
premises, Tenant, at Tenant's expense, shall have the right to the use of the
same.
REPAIRS. Conformity WITH THE LAW
10. (a) Except as provided below, Tenant shall repair and replace heating
and cooling equipment and doors and door equipment serving the Building, and
shall make plate glass replacements unless required by fault of Landlord or its
agents, and shall make repairs to the interior of the Building. Tenant shall
also paint the exterior of the Building and make minor repairs (i.e., patching)
to the exterior. Landlord shall maintain and make all repairs to the exterior
and structural portions of the Building, roof, and to pipes, ducts, wires and
conduits leading to and from the Leased Premises and/or the Building. Landlord
shall make all repairs required by the fault of Landlord or its agents, by fire
or other insured casualty (as provided in Paragraph 14 below) or the elements.
In the event that any hazardous or toxic material or substance or any
underground storage tank is discovered at any tinge in, under or about the
Leased Premises and/or the Building (unless introduced by Tenant), Landlord
shall, at Landlord's expense, remove and dispose of the same in the manner
described in and provide all documentation required by Section (b) of Article 4.
Landlord hereby indemnifies and saves and holds Tenant harmless from and against
any liability, obligation, damage or cost, including, without limitation,
attorneys' fees and costs, resulting directly or indirectly from the presence,
removal or disposal of any such hazardous or toxic material or substance or any
underground storage tank. This indemnification shall survive the termination or
expiration of this Lease for any reason. The provisions of this paragraph shall
be complied with as required from time to time.
(b) If in an emergency situation, a repair to the Leased Premises and/or
the Building which Landlord is obligated to perform is required, Tenant shall
make all reasonable efforts to contact Landlord or Landlords managing agent by
telephone and/ or facsimile to advise Landlord of the need for the repair. If
after making reasonable efforts to contact Landlord, either Tenant is unable to
contact Landlord or Landlord's managing agent, or Tenant succeeds in contacting
Landlord or Landlord's managing agent and Landlord fails to undertake action to
correct the emergency situation within one business day, Tenant may perform the
repair, in such manner as Tenant deems reasonably necessary, on account of
Landlord. Upon completion of the repair, Landlord shall be required to reimburse
Tenant for the actual cost of the repair. Landlord's payment shall be due within
thirty (30) days after receipt of Tenant's xxxx accompanied by reasonable
evidence that Tenant has paid for the repair In the event Landlord fails to make
payment to Tenant for said repair within said thirty (30) days, such failure
shall be deemed a default under this Lease and Tenant shall have all remedies
set forth in Article 17 and those available at law or in equity, provided
however, Tenant shall not have the right to cancel this Lease as a result of
Landlord's failure to make such payment as herein provided.
For the purpose of this section, an emergency situation means a condition
or state of facts which if not corrected would result in further damage to the
Leased Premises, the Building or its contents or which would prevent Tenant from
conducting its business at the Leased Premises in a reasonable manner.
(c) Tenant shall comply with the valid requirements of public authorities
regarding the manner of the conduct of Tenant's particular business in the
Building and the Leased Premises including all changes or installations so
required. Except as required above, Landlord shall make all changes or
installations and pay the cost, if any, of all inspections required to comply
with valid requirements of public authorities as they apply to the Leased
Premises or the Building.
SIGNS. TENANT'S FIXTURES
11. (a) Tenant may, at Tenant's cost, install and operate interior and
exterior electric and other signs, and in so doing shall comply with all lawful
requirements. Subject to governmental regulations, and the provisions of the
Declaration, defined and referred to in Article 7 hereof, Tenant shall have the
right to install mechanical equipment, including a satellite dish .or other
antenna for telecommunications affixed to the roof of the said Building in
accordance with the Plans referenced in Article 5 of this Lease, but shall
indemnify Landlord from any costs and expenses (including the costs for repairs)
relating thereto. Tenant may, at Tenant's option install within the Leased
Premises pay telephones, ail commissions, fees and charges for which shall
remain the property of Tenant.
(b) Tenant shall at all times have the right to remove all fixtures,
machinery, equipment, appurtenances and other property furnished or installed by
Tenant or by Landlord at Tenant's expense, it being expressly understood and
agreed that said property shall not become part of the Building but shall at all
times be and remain the personal property of Tenant and shall not be subject to
any Landlord's lien.
(c) Landlord shall, as soon as is possible after the date hereof, install a
sign foundation with conduit at the location shown on Exhibit "A," upon which
Tenant may install its readerboard and sign panel. Landlord shall also install
sign foundations and conduit for Tenant's directional monument signs. Such pylon
sign and directional signs shall be electrified by Landlord as soon as is
practical thereafter. Tenant may install the same prior to the date that it
accepts possession of the Leased Premises and such installation of said
readerboard and sign panel shall be deemed neither acceptance of possession of
the Leased Premises nor a waiver of any condition precedent to the delivery of
possession of the Leased Premises.
ALTERATIONS
12. (a) Tenant, at Tenant's cost and expense, may make alterations and
additions to the Building. Tenant shall obtain Landlord's consent, which shall
not be unreasonably withheld or delayed, before making any structural changes to
the Building. Tenant may, without Landlord's consent, however, make changes to
storefronts, partitions, floors, electric, plumbing and heating, ventilating and
cooling systems or components thereof. Tenant, at Tenant's sole cost and in
compliance with governmental requirements, if any, shall have the right to
reconfigure or otherwise modify the parking areas on the Leased Premises
(including without limitation, curb cuts, entrances and exits) as Tenant deems
necessary or desirable. Landlord shall cooperate in securing necessary permits
and authority. Tenant shall not permit any mechanics' or other liens to stand
against the property for work or material furnished Tenant and shall indemnify
Landlord from any costs or expenses relating to any repairs or alterations
completed by Tenant. Notwithstanding the foregoing, Tenant shall not make any
changes to the exterior of the Building or the Parking areas on the Leased
Premises which violate the provisions of the Declaration.
(b) Landlord covenants and agrees that during the continuance of this
Lease, Landlord shall not, without Tenant's written consent, make any
alterations or additions to the Leased Premises, including, but not limited to,
any modifications to the storefront, signboard or fascia of the Building or to
the Parking Areas. Landlord shall not permit any mechanics' or other liens to
stand against the property for work or material furnished by or on behalf of
Landlord and shall indemnify Tenant from any costs or expenses relating to any
repairs or alterations completed by Landlord.
ASSIGNMENT AND SUBLETTING
13. (a) Tenant's interest under this Lease may, at. any time and from time
to time, be assigned and re-assigned, provided that any such assignment or
reassignment be only to a corporation which is subsidiary to or affiliated with
Tenant, or to a corporation resulting from any consolidation, reorganization or
merger to which Tenant, or any of its subsidiaries or affiliates, may be a
party. Tenant may also, at any time and from time to time, sublet or license or
permit a portion or portions of the Building to be used for concessions, leased
or licensed departments and demonstrations in connection with and as part of the
operation of Tenant's store, the Gross Sales therefrom to be included in the
Gross Sales of Tenant.
(b) At any time and from time to time, Tenant may sublet a portion of the
Leased Premises and/or Building, to any person, firm or corporation, other than
a corporation described in Section (a) hereof, for any lawful purpose. In such
case, the Gross Sales of such subtenant (but not the subrentals paid by such
subtenant) shall be included in the Gross Sales of Tenant.
(c) (I) At any time and from time to time, Tenant may discontinue the
operation of its store in the Leased Premises and/or Building. At any time
Tenant may assign this Lease or Tenant may sublet all or parts of the Leased
Premises and/or Building to any person, firm or corporation, for any lawful
purpose. In the event of any subletting, Tenant shall pay to Landlord the rent
provided in Article 2 of this Lease. Tenant shall notify Landlord in writing of
any proposed sublease or assignment, together with the name, address, phone
number, any financial information regarding the proposed sublessee or assignee
that Tenant may have in its possession, and the nature of the business of the
proposed sublessee or assignee. Within forty-five (45) days after Landlord's
receipt of Tenant's notice of a proposed assignee or sublessee, Landlord may
terminate this Lease by written notice to Tenant. If Landlord so terminates this
Lease, neither party shall have any further or unaccrued obligation or liability
to the other. Said termination shall be effective as of the last day of (he
calendar month immediately succeeding the month in which Landlord notifies
Tenant of the termination of this Lease. If Landlord fails to notify Tenant of
termination within said forty-five (45) day period, such termination right shall
be deemed waived but only as to such subletting or assignment. Notwithstanding
the above, if such sublease or assignment is in connection with Tenant's
sublease or assignment of three (3) or more of Tenant's other stores in
Albuquerque, New Mexico to a single or related entity, Landlord shall have no
such right to terminate.
(ii) In the event of a subletting pursuant to Section (c)(i) above, then at
any time thereafter, Landlord may, by written notice to Tenant, terminate this
Lease provided, however, Landlord shall concurrently with such termination agree
to attorn to and be bound by the terms of any such sublease. Upon such
termination, neither Landlord nor Tenant shall have any further or unaccrued
obligation or liability to the other. Prior to such termination, Landlord shall
reimburse Tenant the unamortized cost of any leasehold improvements made by
Tenant to the Leased Premises in connection with said subletting, together with
all costs and all brokerage fees incurred by Tenant as a result of such
subletting.
(d) If Tenant shall cease the conduct of business on the Leased Premises
for a continuous period in excess of six (6) months (except by reason of
strikes, fire, casualty or other causes beyond reasonable control of Tenant,
except by reason of repairs or remodeling and except by reason of assignment or
subletting as above provided) and the Leased Premises remain continuously vacant
during such period, Landlord shall have the right and option to terminate this
Lease upon written notice to Tenant, effective on the last day of the next
succeeding calendar month following receipt of such notice; provided, however,
that if Tenant shall send written notice to Landlord of Tenant's intent to
sublet the Leased Premises during such period when Landlord shall have the
Option, pursuant to this Section to terminate this Lease, Landlord shall have
the right within thirty (30) days after receipt of such notice from Tenant to
terminate this Lease upon written notice to Tenant effective on the last day of
the next succeeding calendar month following Tenant's receipt of such notice and
from and after such date, neither party shall have any liability or further
obligation to the other under this Lease. If Landlord shall not so notify Tenant
within thirty (30) days of receipt of Tenant's notice that Landlord has
exercised its option to cancel this Lease, the termination options contained in
this Section shall be void and of no further force and effect.
Notwithstanding any assignment of this Lease, Walgreen Co. shall not be
released from liability. However, in the event of a default by any such
assignee, Landlord shall give Walgreen Co. notice of such default, shall accept
cure of such default by Walgreen Co. within thirty (30) days after such notice
and shall permit Walgreen Co. to re-enter anal repossess the Leased Premises for
the then unelapsed portion of the Term of this Lease upon all of the provisions
of this Lease.
FIRE
14. (a) If the Building and/or Leased Premises and/or any improvements
thereon shall be damaged or destroyed by fire or other casualty, then Landlord,
shall repair and restore the Building and/or Leased Premises and/or any
improvements thereon to their condition immediately prior to such damage or
destruction; but only to the extent possible based upon the insurance proceeds
available to Landlord, and the fixed rent and all other charges shall xxxxx
proportionately according to the extent of such damage or destruction. Landlord
shall commence such restoration as soon as possible after such occurrence [but
in no event later than sixty (60) days thereafter] and shall diligently pursue
such repair or restoration to completion [which shall be not later than one
hundred eighty (180) days after such occurrence]. Subject to the payment of
proceeds by Tenant as expressly set forth in Section (b) below, under no
circumstances shall Tenant be liable for any loss or damage, (excluding Tenant's
property) including but not limited to damage to the Building or Leased Premises
resulting from fire or other casualty.
(b) If the damage or destruction referred to in Section (a) hereof amounts
to at least twenty-five percent (25%) of the Building and occurs during the last
three (3) years of the entire.Term of this Lease or during the last three (3)
years prior to any of Tenant's options to terminate, then and in such events,
Landlord and Tenant shall have the right and option, to terminate this Lease
effective as of the date of such happening; and any unearned rents paid in
advance shall be refunded. Landlord shall not have the right to exercise the
option under this Section during any period which shall be less than thirty-six
(36) months and more than twelve (12) months prior to any such optional
termination date if Tenant shall, within one (1) month after such happening,
advise Landlord that Tenant will not exercise Tenant's option to terminate this
Lease as of the next optional termination date thereunder, and further, Landlord
shall have the right to exercise the option under this Section during any period
which shall be twelve (12) months or less prior to any such optional termination
date only if Tenant shall have theretofore exercised Tenant's option to
terminate this Lease as of the next optional termination date. Notwithstanding
any termination of the Lease by Tenant hereunder, Tenant shall provide Landlord
with a sufficient amount of the proceeds of the insurance required to be
maintained by Tenant under Article 20 hereof and such other proceeds which may
be necessary to enable Landlord to reconstruct or repair the Building and/or
improvements on the Leased Premises to their condition immediately prior to
damage or destruction. In the event Tenant shall elect to cancel this Lease
hereunder, any proceeds payable by Tenant to Landlord under this Section (b)
Shall be exclusive of the cost of improvements made by or on behalf of Tenant to
the Leased Premises and/or Building. In the event Tenant shall elect not to
cancel this Lease hereunder, Landlord and Tenant shall enter into a construction
escrow agreement satisfactory to Landlord and Tenant appointing a third party as
escrow agent to disburse such proceeds as Landlord's repair and reconstruction
work progresses and to monitor the repair and reconstruction of the Building and
improvements by Landlord.
(c) If the fire or casualty is not an insurable casualty under Tenant's
fire and extended coverage insurance, Landlord or Tenant may cancel this Lease
upon notice to the other. Tenant may void Landlord's notice of termination by
notifying Landlord within thirty (30) days after receipt of such notice of
termination that Tenant shall provide Landlord with a sufficient amount of money
necessary for Landlord to reconstruct or repair the Building and/or improvements
on the Leased Premises, as required by this Article 14. Landlord may void
Tenant's notice of termination by notifying Tenant within thirty (30) days after
receipt of such notice of termination that Landlord intends to reconstruct or
repair the Building and/or Landlord's improvements of the Leased Premises as
required by this Article 14, at Landlord's own cost and expense.
LANDLORD'S RIGHT TO INSPECT
15. Landlord may at reasonable times during Tenant's business hours, and
after so advising Tenant, enter the Building for the purpose of examining and of
making repairs and during the last six (6) months of the Term may place the
usual "For Rent" signs in the Leased Premises, but not so as to interfere with
Tenant's business.
SURRENDER
16. At the expiration or termination of this Lease, Tenant shall surrender
immediate possession of the Leased Premises in as good condition as when
delivered to Tenant, reasonable wear and tear, changes and alteration, damage by
fire, casualty and the elements, and other repairs which are Landlord's
obligation excepted. Any holding over by Tenant shall not operate, except by
written agreement, to extend or renew this Lease or to imply or create a new
lease, but in such case Landlord's rights shall be limited to either the
immediate termination of Tenant's occupancy or the treatment of Tenant's
occupancy as a month to month tenancy, any custom or law to the contrary
notwithstanding. Tenant shall repair damage caused by the removal of Tenant's
fixtures and equipment.
DEFAULT AND REMEDIES
17. If any rent is due and remains unpaid for ten (10) days after receipt
of notice from Landlord, or if Tenant breaches any of the other covenants of
this Lease and if such other breach continues for thirty (30) days after receipt
of notice from Landlord, Landlord shall (then but not until then, have the right
(a) to xxx for rent, (b) to repenter without terminating this Lease, provided
that Landlord shall use its best efforts to relet the Leased Premises for
Tenant's account and otherwise to mitigate its damages [it being expressly
understood that Tenant shall remain liable on a monthly basis for the difference
between what Tenant's obligations under this Lease are and what Landlord
actually collects, and further provided that if Landlord elects to re-enter
without terminating this Lease, this Lease shall nonetheless expire as of the
next optional termination date as set forth in Article 3(d), or (c) to terminate
this Lease and re-enter the Leased Premises; but if Tenant shall pay said rent
within said ten (10) days, or in good faith within said thirty (30) days
commence to correct such other breach, and diligently proceed therewith, then
tenant shall not be considered in default. If Landlord shall from time to time
fail to pay any sum or sums due to Tenant and if such failure continues for
thirty days after receipt of notice from Tenant, Tenant shall have the right and
is hereby irrevocably authorized and directed to deduct such sum or Sails from
fixed and percentage rent and other sums due Landlord, together with interest
thereon at the so-called prime rate charged from time to time by The First
National Bank of Chicago, plus two per cent until fully reimbursed. If Landlord
shall from time to time fail to perform any act or acts required of Landlord by
this Lease and if such failure continues for thirty (30) days after receipt of
notice from Tenant, Tenant shall then have the right, at tenant's option, to
perform such act or acts, in such manner as Tenant deems reasonably necessary,
and the full amount of the cost and expense so incurred shall immediately be
owing by Landlord to Tenant, and Tenant shall have the right and is hereby
irrevocably authorized and directed to deduct such amount from fixed and
percentage rent and other sums due Landlord, together with interest thereon at
the so-called prime rate charged from time to tine by The First National Bank of
Chicago, plus two per cent until fully reimbursed. If Landlord shall in good
faith within said thirty (30) days commence to correct such breach, and
diligently proceed therewith to completion, then Landlord shall not be
considered in default. No delay on the part of either party in enforcing any of
the provisions of this Lease shall be considered as a waiver thereof. Any
consent or approval granted by either party under this Lease must be in writing
and shall not be deemed to waive or render unnecessary the obtaining of consent
or approval with respect to any subsequent act or omission for which consent is
required or sought.
TITLE AND POSSESSION
18. (a) Landlord covenants, represents and warrants that Landlord has
entered into a contract to acquire legal title to the Leased Premises and has
the right to make this Lease, that said entire property is now and shall be as
of the date of Tenant's recording of a Memorandum of this Lease, free and clear
of all liens, encumbrances and restrictions, except for those items set forth on
Exhibit "D" attached hereto and made a part hereof, none of which shall limit,
interfere with or prohibit Tenant's use and occupancy of the Leased Premises or
interfere with any of Tenant's rights under this Lease, and that upon paying the
rents and keeping the agreements of this Lease on its part to be kept and
performed, Tenant shall have peaceful and uninterrupted possession during the
continuance of this Lease. Upon acquisition of legal title, Landlord shall
execute an agreement prepared by Tenant, ratifying and adopting this Lease
("Ratification Agreernent") and Landlord, at Landlord's expense, shall furnish
Tenant evidence of Landlord's title and the status thereof as of the date of
such acquisition and as of the date of the recordation of such Ratification
Agreement.. Such evidence shall be in form and substance reasonably satisfactory
to Tenant.
(b) . If at the date of this Lease the Leased Prernises, or any part
thereof is subject to any mortgage, deed of trust or other encumbrance in the
nature of a mortgage, which is prior and superior to this Lease, it is a further
express condition hereof that Landlord shall thereupon furnish and deliver to
Tenant, in form and substance acceptable to Tenant, an agreement executed by
such mortgagee or trustee, either (i) making such mortgages deed of trust or
other encumbrance in the nature of a mortgage subject and subordinate to this
Lease and to the leasehold estate created hereby and to all of Tenant's rights
hereunder, or (ii) obligating such mortgagee or trustee and any successor
thereto to be bound by this Lease and by all of Tenant's rights hereunder,
provided that Tenant is not then in continued default, after notice, in the
payment of rents or otherwise under the terms of this Lease.
(c) It is understood and agreed that Tenant shall, in no event, be
obligated to accept possession of the Leased Premises until the Landlord has
complied with the provisions of this Article.
(d) (i) if required by Landlord's institutional lender, Tenant shall
subordinate the lien of this Lease to the lien of such mortgage encumbering the
Leased Premises, so long as such lender simultaneously with such subordination
and as a condition of the same, executes in recordable form a Subordination,
Non-Disturbance and Attornment Agreement in form and substance acceptable to
Tenant and agrees to be bound by all of the terms and conditions of this Lease.
In the event of a conflict between the terms of such mortgage and the terms of
this Lease, the terms of this Lease shall prevail.
(ii) Landlord and Tenant agree to execute and deliver to the other within
twenty (20) days from receipt of either party's written request, estoppel
certificates in a form acceptable to the party to whom such request is made,
which certificates shall include information as to any modification of this
Lease, and to the best of Tenant's or Landlord's knowledge, whether or not the
other party is in default of this Lease.
REAL ESTATE TAXES
19. (a) Landlord, upon execution of this Lease, shall make a mailing
address change on the property tax records so that the tax xxxx and tax notices
for only the Leased Premises will be mailed to Tenant at the following address:
Walgreen Co., 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Tax
Department. After said property tax records are changed, Tenant prior to
delivery, shall send to Landlord copies of all tax bills and tax notices
received by Tenant with respect to the Leased Premises if Landlord is obligated
to pay for such taxes. Prior to the date that the tax xxxx is mailed directly to
Tenant, Landlord, prior to delinquency, shall send to Tenant a copy of the tax
xxxx for the Leased Premises if Tenant is obligated to pay for such taxes.
(b) Upon receipt of the aforesaid tax bills, Tenant shall pay, when due and
before delinquency, the general real estate taxes (including all special benefit
taxes and special assessments but excluding so-called impact fees) levied and
assessed against the Leased Premises, commencing when Tenant is required to
commence paying fixed rents under this Lease and continuing for the remainder of
the Term. However, the general taxes levied or assessed for the year during
which Tenant commences paying fixed rent shall be prorated between Landlord and
Tenant so that Tenant shall pay only such part thereof as the period commencing
on such date and ending December 31st bears to such entire tax year, and the
general taxes levied or assessed for the year during which this Lease expires or
is terminated shall be prorated between Landlord and Tenant so that Tenant shall
pay only such part thereof as the period commencing on January 1st and ending on
the date this Lease expires or is terminated bears to such entire tax year.
Within thirty (30) days after payment of any such taxes, or as soon thereafter
as receipt bills are available, Tenant shall furnish to Landlord photocopies of
bills indicating such payments.
If Landlord is required to pay to its lender a monthly escrow for taxes
levied and assessed against the Leased Premises, Tenant shall pay to Landlord
its pro rata share of such taxes on a monthly basis. At the end of each tax year
for which said taxes are levied, Landlord shall furnish to Tenant a statement
from its lender and a copy of tile paid tax xxxx as furnished to Landlord by its
lender, and any overage paid by Tenant to Landlord shall be reimbursed to Tenant
and any shortage shall be paid to Landlord.
(c) Tenant shall have the right; and is hereby irrevocably authorized and
directed to deduct and retain amounts payable under the provisions of this
Article from additional percentage rents payable under Section (b) of Article 2
for such tax year, or in the alternative, if such taxes for any tax year are
payable after percentage rents under Section (b) of Article 2 for such tax year
are payable, then Tenant shall have no liability under this Article to the
extent of such percentage rents paid for such tax year. In such event, Landlord
shall refund to Tenant the amount of such overpayment of percentage rent.
(d) All special benefit taxes and special assessments shall be spread over
the longest time permitted and Tenant's liability for installments of such
special benefit taxes and special assessments not yet due shall cease upon the
expiration or termination of this Lease. In no event shall Tenant be obligated
to pay any impact fees whether or not billed by the taxing authority as a
special benefit tax or a special assessment.
(e) (i) Tenant shall have the right to contest the validity or the amount
of any tax or assessment levied against the Leased Premises or any improvements
thereon, provided that Tenant shall not take any action which will cause or
allow the institution of foreclosure proceedings against the Leased Premises.
Landlord shall cooperate in the institution of any such proceedings to contest
the validity or amount of real estate taxes and will execute any documents
required therefor.
(ii) Landlord covenants and agrees that if there shall be any refunds or
rebates on account of any tax, governmental imposition or levy paid by Tenant
under the provisions of this Lease, such refund or rebate shall belong to
Tenant. Any such refunds or rebates which shall be received by Landlord shall be
trust funds and shall be forthwith paid to Tenant. Landlord shall, on request of
Tenant, sign any receipt which may be necessary to secure the payment of any
such refund or rebate, and shall pay over to Tenant such refund or rebate as
received by Landlord.
INSURANCE
20. Tenant may self-insure or shall obtain an all risk fire and extended
coverage insurance policy covering the Building and the other improvements
constructed by Landlord on the Leased Premises to the extent of not less than
one hundred percent (100%) of the full insurable value less foundations, with
companies which are authorized to do business in the State of New Mexico and are
governed by She regulatory authority which establishes maximum rates in the
vicinity. Tenant, upon request of Landlord's lender shall also carry earthquake
and/or flood damage insurance to the same extent as may be acceptable to Tenant
and as customary for all risk coverage. Tenant shall also procure an continue in
effect public liability and property damage insurance with respect to the
operation of the Leased Premises. Such public liability insurance shall cover
liability for death or bodily injury in any one accident, mishap or casualty in
a sum of not less than One Million Dollars ($1,000,000.00), and shall cover
liability for property damage in one accident, mishap or casualty in the amount
of not less than One Hundred Thousand Dollars ($100,000.00). Tile proceeds from
Tenant's insurance shall be paid and applied only as set forth in Article 14
hereof. Any insurance carried or required to be carried by tenant pursuant to
this Lease may, at Tenants option, be carried under an insurance policy(ies),
self-insurance or pursuant to a master policy of insurance or so-called blanket
policy of insurance covering other locations of Tenant or its corporation
affiliates, or any combination thereof; provided, however, that in the event
Tenant carries any of such insurance under any policy, Tenant shall have the
right and is hereby irrevocably authorized and directed to deduct and retain the
amounts of said premiums in any lease year from percentage rents payable under
Section (b) of Article 2 for such lease year, provided such premiums are at
market rates and excludes premiums for Tenant's personal property. From time to
time and upon request from Landlord to Tenant's Tax Department, 000 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Tenant shall cause to be issued to Landlord a current
Certificate of Insurance naming Landlord as additional insured under Tenant's
property insurance policy.
Notwithstanding the foregoing, Tenant may self-insure only so long as the
consolidated net worth of Walgreen Co. is not less than Three I hundred Million
Dollars ($300,000,000.00). Proceeds of self-insurance shall be paid to the same
extent as would an all risk fire and extended coverage insurance policy issued
by a reputable insurance company authorized to do business in the State of New
Mexico and which is governed by the regulatory authority which establishes
maximum rates in the vicinity (such as Hartford Casualty insurance Company or
such other insurer as Landlord's lender may designate from tine to time by
notice to Landlord and Tenant), with such endorsements as Landlord's lender
would normally require with respect to such a policy covering property serving
as collateral for a loan by Landlord's lender. On Landlord's request, Tenant
will deliver to Landlord written confirmation of the coverage in a letter or
certificate of Insurance.
MUTUAL INDEMNITY
21. Except for loss, cost and expense caused by fire or other casualty,
Landlord and Tenant shall each indemnify and hold harmless the other against and
from any and all loss, cost and expense resulting from their own respective
negligent acts and omissions or the negligent acts and omissions of their
respective employees in the course of their employment.
CONDEMNATION
22. If the entire Leased Premises shall be taken by reason of condemnation
or under eminent domain proceedings, Landlord or Tenant may terminate this Lease
as of the date widen possession of the l.eased Premises is taken. If a portion
of the Leased Premises shall be taken under eminent domain or by reason of
condemnation and if in the opinion of Tenant, reasonably exercised, the
remainder of the Leased Premises are no longer suitable for Tenant's business,
this Lease, at Tenant's Option, to be exercised by notice to Landlord within
sixty (60) days of such taking, shall terminate; any unearned rents paid or
credited in advance shall be refunded to Tenant. If this Lease is not so
terminated, Landlord forthwith and with due diligence, shall restore tl-se
Leased Premises. Until so restored, fixed rent shall xxxxx to the extent that
the operation of the Leased Premises. Such public liability insurance shall
cover liability for death or bodily injury in any one accident, mishap or
casualty in a sum of not less than One Million Dollars ($1,000,000.00), and
shall cover liability for property damage in one accident, mishap or casualty in
the amount of not less than One Hundred Thousand Dollars ($100,000.00). The
proceeds from Tenant's insurance shall be paid and applied only as set forth in
Article 14 hereof. Any insurance carried or required to be carried by Tenant
pursuant to this Lease may, at Tenants option be carried under an insurance
policy(ies), self-insurance or pursuant to a master policy of insurance or
so-called blanket policy of insurance covering other locations of Tenant or its
corporation affiliates, or any combination thereof; provided, however, that in
the event Tenant carries any of such insurance under any policy, Tenant shall
have the right and is hereby irrevocably authorized and directed to deduct and
retain the amounts of said premiums in any lease year from percentage rents
payable under Section (b) of Article 2 for such lease year, provided such
premiums are at market rates and excludes premiums for Tenant's personal
property. From lime to time and upon request from Landlord to Tenant's Tax
Department, 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, Tenant shall cause to be
issued to Landlord a current Certificate of Insurance naming Landlord as
additional insured under Tenant's property insurance policy.
Notwithstanding the foregoing, Tenant may self-insure only so long as the
consolidated net worth of Walgreen Co. is not less than Three I Hundred Million
Dollars ($300,000,000.00). Proceeds of self-insurance shall be paid to the same
extent as would an all risk fire and extended coverage insurance policy issued
by a reputable insurance company authorized to do business in the State of New
Mexico and which is governed by the regulatory authority which establishes
maximum rates in the vicinity (such as Hartford Casualty Insurance Company or
such other insurer as Landlord's lender may designate from time to time by
notice to Landlord and Tenant), with such endorsements as Landlord's lender
would normally require with respect to such a policy covering property serving
as collateral for a loan by Landlord's lender. On Landlord's request, Tenant
will deliver to Landlord written confirmation of the coverage in a letter or
certificate of insurance.
MUTUAL INDEMNITY
21. Except for loss, cost and expense caused by fire or other casualty,
Landlord and Tenant shall each indemnify and hold harmless the other against and
from any and all loss, cost and expense resulting from their own respective
negligent acts and omissions or the negligent acts and omissions of their
respective employees in the course of their employment.
CONDEMNATION
22. If the entire Leased Premises shall be taken by reason of condemnation
or under eminent domain proceedings, Landlord or Tenant may terminate this Lease
as of the date when possession of the Leased Premises is taken. If a portion of
the Leased Premises shall be taken under eminent domain or by reason of
condemnation and if in the opinion of Tenant, reasonably exercised, the
remainder of the Leased Premises are no longer suitable for Tenant's business,
this Lease, at Tenant's option, to be exercised by notice to Landlord within
sixty (60) days of such taking, shall terminate; any unearned rents paid or
credited in advance shall be refunded to Tenant. If this Lease is not so
terminated, Landlord forthwith and with due diligence, shall restore the Leased
Premises. Until so restored, fixed rent shall xxxxx to tile extent that Tenant
shall not be able to conduct business, and thereafter fixed rent for the
remaining portion of the Term shall be proportionately reduced.
Tenant shall be entitled to the award in connection with any condemnation
insofar as the same represents compensation for or damage to Tenant's fixtures,
equipment, leasehold improvements or other property, moving expenses as well as
tile loss of leasehold (i.e. the unexpired balance of the lease term immediately
prior to such taking). Landlord shall be entitled to the award insofar as same
represents compensation for or damage to the fee remainder. Any mortgagee of
Landlord shall be compensated out of Landlord's award
For the purposes of this Article, the term "condemnation or under eminent
domain proceedings" shall include conveyances and grants made in anticipation of
or in lieu of such proceedings.
BROKERAGE
23. Landlord and Tenant represent that they have dealt with no broker or
agent with respect to this Lease except Retail Development Consultants, Inc.,
the commission and fee of whom shall be paid by Landlord. Landlord hereby
indemnifies and saves and holds Tenant harmless against any claims for brokerage
commissions or compensation or other claims of any kind (including reasonable
attorney's fees and costs) arising out of the negotiation and execution of this
Lease or Tenant's interest or involvement with respect to the Leased Premises.
PREVAILING PARTY
24. In the event of litigation between Landlord and Tenant in connection
with this Lease, the reasonable attorneys' fees and Court costs incurred by the
party prevailing in such litigation shall be borne by the nonprevailing party.
NOTICES
25. All notices hereunder shall be in writing and sent by United States
certified or registered mail, postage prepaid, or by overnight delivery service
providing proof of receipt, addressed if to Landlord, to the place where rent
checks are to be mailed, and if to Tenant, to 000 Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Law Department, and a duplicate to the Leased
Premises, provided that each party by like notice may designate any future or
different addresses to which subsequent notices shall be sent. Notices shall be
deemed given upon receipt or upon refusal to accept delivery.
RIGHT OF FIRST REFUSAL
26. From and after the date that is Ten (10) years after the date of this
Lease, in the event that Landlord shall receive a Bona Fide Offer to purchase
the Leased Premises at any time and from time to time during the Term of this
Lease or any extensions thereof from any person or entity, Landlord shall so
notify Tenant together with a true and correct copy of said Bona Fide Offer. For
purposes hereof, a "Bona Fide Offer" shall be deemed to be one made in writing
by a person or entity that is not related or affiliated with Landlord in which
Landlord intends to accept (subject to this Article). Tenant may, at Tenant's
option and within ten (10) working days after receipt of Landlord's notice of
said Bona Fide Offer and receipt of a copy thereof, offer to purchase the Leased
Premises at the price and upon the terms and conditions as are contained in said
Bona Fide Offer, in which event. Landlord shall sell the Leased Premises to
Tenant upon said terms and conditions and that said price; furthermore, in such
event, Landlord shall convey the Leased Premises to Tenant by warranty deed.
Landlord covenants that it shall accept no such Bona Fide Offer or convey the
premises Until it has complied with the terms of this Article. Any conveyance of
the Leased Premises made in the absence of full satisfaction of this Article
shall be void. Tenant may enforce this Article, without limitation, by
injunction specific performance or other equitable relief.
TRANSFER OF TITLES
27. (a) In the event that Landlord conveys its interest in the Leased
Premises to any other person or entity, Tenant shall have no obligation to pay
rents or any other charges under this Lease to any such transferee until Tenant
has been notified of such conveyance and has received satisfactory evidence of
such conveyance together with a written direction from such transferee as to the
name and address of the new payee of rents and other charges. It is understood
and agreed that Tenant's withholding of rent and other charges until its receipt
of such satisfactory evidence shall not be deemed a default under this Lease.
(b) In the event Landlord sells its interest in the Leased Premises,
Landlord shall be relieved of any and all liability under any of Landlord's
covenants and obligations contained in or derived from this Lease arising out of
any act, occurrence, or omission occurring thereafter, and the assignee or
purchaser at any such sale or any subsequent sale of the Leased Premises or
assignment of this Lease, shall be deemed without any further agreement between
the parties and any such assignee or purchaser, to have assumed and agreed to
carry out any and all of tire covenants and obligations of Landlord under this
Lease.
RENT TAX
28. In the event that any governmental authority imposes a tax, charge,
assessment or other imposition upon tenants in general which is based upon the
rents payable under this Lease, Tenant shall pay the same to said governmental
authority or to Landlord if Landlord is responsible to collect the same (in
which case Landlord shall remit the same in a timely manner and, upon request of
Tenant, evidence to Tenant said remittance). Tenant is hereby authorized and
directed to deduct the amount of such taxes, charges, assessments or impositions
from additional percentage rents payable under Section (b) of Article 2 for such
lease year or, in the alternative, in the event that such imposition or a
portion thereof is due after percentage rents, payable under Section (b) of
Article 2 have been paid, Tenant shall have no liability under this Article to
the extent that percentage rents for said lease year have been paid. Nothing
contained herein shall be deemed to obligate Tenant with respect to any income,
inheritance or successor tax or imposition.
LIQUOR LICENSE
29. Notwithstanding any other provisions herein, it is an express condition
of this Lease that Tenant shall be able to obtain licenses from appropriate
governmental authorities permitting the display and sale on the Leased Premises
of alcoholic liquor for consumption off the Leased Premises. Further, until
Tenant is able to obtain such licenses, Tenant shall have no obligation to
accept delivery of possession of the Leased Premises, and if Tenant shall not
secure such licenses on or before the date Tenant is to accept delivery of
possession, Tenant shall have the right and option to cancel this Lease. If
Tenant shall obtain the necessary licenses, or if Tenant elects to waive this
condition, Tenant shall accept delivery of possession promptly thereafter,
except that the two month period set forth in Article 6 shall not commence until
Tenant so accepts delivery of possession. Tenant shall be required to promptly
make proper application, pay the requisite fees, and diligently pursue tire
obtaining of the said liquor license.
MISCELLANEOUS
30. Captions of the several articles contained in this l ease are for
convenience only and do not constitute a part of this Lease and do not limit,
affect or construe the contents of such articles.
If any provision of this Lease shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
If more than one person or entity is Landlord, the obligations imposed on
Landlord under this Lease shall be joint and several.
All provisions of this Lease have been negotiated by both parties at arm's
length and neither party shall be deemed the scrivener of this Lease. This Lease
shall not be construed for or against either party by reason of the authorship
or alleged authorship of any provision hereof.
This instrument shall merge all undertakings between the parties hereto
with respect to the Leased Premises and shall constitute the entire lease unless
otherwise hereafter modified by both parties in writing. Tenant shall have the
right to cancel this Lease if satisfactory evidence of Landlord's title shall
not be received at 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, within thirty
(30) days after execution and recordation of the Ratification Agreement. This
instrument shall also bind and benefit, as the case may require, the heirs,
legal representatives, assigns and successors of the respective parties, and all
covenants, conditions and agreements herein contained shall be construed as
covenants running with the land. This instrument shall not become binding upon
the parties until it shall have been executed and delivered by both Landlord and
Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, under
seal, as of the day and year first above written. WALGREEN CO.
Vice President
Attest:
Witnesses:
By:
Assistant Secretary
CENTRAL AVENUE PARTNERS
By: Xxxxxxxx Properties Real
Estate Services, Inc., Managing
General Partner
Xxxxx X. Xxxxxxxx, President
By: Retail Development Consultants, Inc., General Partner
Xxxxx X.(Xxxxxxx,President
Witnesses:
.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, under
seal, as of the day and year first above written. WALGREEN CO.
By
Attest:
Witnesses:
Vice President
CENTRAL AVENUE PARTNERS
By: Xxxxxxxx Properties Real
Estate Services, Inc. Managing
General Partner
By: Retail Development
Consultants, Inc.,
General Partner
By
Witnesses:
STATE OF ILLINOIS
COUNTY OF LAKE
) SS )
On this day of l994, before me appeared Xxxxxx X. Xxxxxxxxx, to me
personally known, who, being by me duly sworn, did say that he is the Vice
President of WALGREEN CO., an Illinois corporation, and that the seal affixed to
said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of
its board of directors and said Xxxxxx Xxxxxxxxx acknowledged said instrument to
be the free act and deed of said corporation.
SEAL
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
(Signature)
(My commission expires 5-18-96)
On this 25th day of As)ril , 1994, before me appeared Xxxxx X. Xxxxxxxx,
President of XXXXXXXX PROPERTIES REAL ESTATE SERVICES, INC, a New Mexico
corporation, and that tide seal affixed to said instrument is the corporate seal
of said corporation, and that said instrument was signed and sealed in behalf of
said corporation by authority of its board of directors and said President
acknowledged said instrument to be the free act and deed of said corporation.
Seal
OFFICIAL SEAL
XXXXXXX X. XXXXXXX (Signature)
NOTARY PUBLIC - STATE OF NEW MEXICO
Notary Bond Filed With Secretary of State
My commission expires 10/18/97
NOTARY PUBLIC
(Title)
(My commission expires 10/18/97)
XXXXX XX XXXXXXXX
XXXXXX XX XXXX
Xx this 25th day of 1994, before me appeared Xxxxxx X. Xxxxxxx, to me
personally known, who, being by me duly sworn, did say that he is the Vice
President of WALGREEN CO., an Illinois corporation, and that the seal affixed to
said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed on behalf of said corporation by authority of
its board of directors and said President acknowledged said instrument to be the
free act and deed of said corporation.
OFFICIAL SEAL
XXXXXXX X. XXXXXXX (Signature)
NOTARY PUBLIC - STATE OF NEW MEXICO
Notary Bond Filed With Secretary of State
My commission expires 10/18/97
NOTARY PUBLIC
(Title)
(My commission expires 10/18/97)
STATE OF ILLINOIS
COUNTY OF LAKE
(Signature)
(STATE OF NEW MEXICO)
COUNTY OF BERNALILLO)
SS
On this 25th day of April , 1994, before me appeared Xxxxx X. Xxxxxxxx,
President of XXXXXXXX PROPERTIES REAL ESTATE SERVICES, INC., a New Mexico
corporation, and that the seal affixed to said instrument is the corporate seal
of said corporation, and that said instrument was signed and sealed in behalf of
said corporation by authority of its board of directors and said President
acknowledged said instrument to be the free act and deed of said corporation.
(signature)
NOTARY PUBLIC
(Title)
(My commission expires 10/18/97)
(STATE OF NEW MEXICO)
(COUNTY OF BERNALILLO)
SS
On this 25th day of April, 1994, before me appeared Xxxxxx X. Xxxxxxx, to
me personally known, whoa being by me duly sworn, did say that he is the
President of RETAIL DEVELOPMENT CONSULTANTS, INC, General Partner, and that the
seal affixed to said instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors and said President acknowledged said
instrument to be the free act and deed of said corporation.
Seal
OFFICIAL SEAL
XXXXXXX X. XXXXXXX
NOTARY PUBLIC - STATE OF NEW MEXlCO
Notary Bond Filed With Secretary of State
My commission expires 10/18/97
(Signature)
EXHIBIT "B"
Legal Description - Leased Premises
A tract of land situate within the Town of Xxxxxxx Xxxxx, projected section
0 , Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx , Xxx Xxxxxx Principal Meridian within the
City of Albuquerque, Bernalillo County, New Mexico being a southerly portion of
TRACT X-0, XXXXXXXXX XXXX, XXXX OF XXXXXXX XXXXX as the same is shown and
designated on said plat filed for record in the office of the County Clerk of
Bernalillo County, New Mexico on January 19, 1987 in Volume C32, Folio 150
together with a southerly portion of TRACT B-1, LAND OF E. FISH as the same is
shown and designated on said plat filed for record in the office of the County
Clerk of Bernalillo County, New Mexico on July 26, 1916 in Volume B11, Folio 154
and also being a portion of TRACT B-A, CIRCLE K CORPORATION as the same is shown
and designated on said plat filed for record in the office of the County Clerk
of Bernalillo County, New Mexico on May 26, 1987 in Volume C33, 152 and being
more particularly described as follows:
BEGINNING at the southeast corner of the herein described tract, said point
being the intersection of the westerly line of a 20 foot Public Alley and the
northerly rlght-of-way line of Sequoia Road N.W.;
THENCE 8 67 ' 3l ' 11" " , 26. 93 feet to a point of curvature;
THENCE 73.29 feet along a curve to the right whose radius is 366.07 feet
through a central angle of 11'28'16" and whose long chord bears S 73 15'19" W
73.17 feet to a point of compound curvature;
THENCE 64.56 feet along a curve to the right whose radius is 150.00 feet
through a central angle of 24'39'37" and whose long chord bears N 88'4O'44" W,
64.06 feet to a point of reverse curvature,
THENCE 33.27 feet along a curve to the left whose radius 19 150.00 feet
through a central angle of 12'42'31" and whose long chord bears N 82'42'11 W,
33.20 feet to a point of tangency,
THENCE N 89'03'27" W. 126.20 feet to a point of curvature;
THENCE 75.46 feet along a curve to the right whose radius 50.00 feet
through a central angle of 86'28'23" and whose long chord bears N 45 ' 49 ' 15"
W. 68.50 feet to a point of tangency;
THENCE N 02'35'04" W. 109.94 feet to the northwest corner;
THENCE 89'22'04" E, 59.28 feet to a point;
THENCE N 76 16' 41" E, 272.05 feet to the northeast corner;
THENCE S 13 43'19" E, 205.00 feet to the point. of beginning and
containing 1.4907 acres more or less.
SEE ATTACHMENT "A"
EXHIBIT "B"
Legal Description - Leased Premises
AT TACHMENT "A"
SCALE 1"=100'
TRACT X-x
NORTHEAST UNIT
TOWN OF ARlSCO GRANT
TRACT B 2
NORTHEAST UNIT
TOWN OF XXXXXXX XXXXX
EXHIBIT "C"
INDEX TO DRAWINGS
DRAWING NO. DATE
D1 January 1, 1994
A0.1 January 1, 1994
A1.1 January 1, 1994
CO.O January 1, 1994
Al.2 January 1, 1994
A2.1 January 1, 1994
A2.2 January 1, 1994
A2.3 January 1, 1994
A3.1 January 1, 1994
A4.1 January 1, 1994
A4.2 J January 1, 1994
A4.3 January 1, 1994
A4.4 January 1, 1994
A5.1 January 1, 1994
A5.2 January 1, 1994
S0.1 January 1, 1994
S0.2 January 1, 1994
MPO.1 January 1, 1994
M1.1 January 1, 1994
M2.1 January 1, 1994
M2.2 January 1, 1994
P1.1 January 1, 1994
P2.1 January 1, 1994
E0.1 January 1, 1994
E1.1 January 1, 1994
E1.2 January 1, 1994
E1.3 January 1, 1994
E1.4 January 1, 1994
E1.5 January 1, 1994
E1.6 January 1, 1994
E2.1 January 1, 1994
E3.1 January 1, 1994
E4.1 January 1, 1994
E4.2 January 1, 1994
E4.3 January 1, 1994
E4.4 January 1, 1994
E4.5 January 1, 1994
E4.6 January 1, 1994
E4.7 January 1, 1994
EXHIBIT "C1 "
DRAWING NO DATE
AO.1 July 1, 1993
A1.1 July 1, 1993
Al.2 July 1, 1993
A2.1 July 1, 1993
A2.2 July 1, 1993
A2.3 July 1, 1993
A3.1 July 1, 1993
A4.1 July 1, 1993
A4.2 July 1, 1993
A4.3 July 1, 1993
A4.4 July 1, 1993
A5.1 July 1, 1993
A5.2 July 1, 1993
SO.1 July 1, 1993
S0.2 July 1, 1993
MPO.1 July 1, 1993
M1.1 July 1, 1993
M2.1 July 1, 1993
M2.2 July 1, 1993
M1.1 July 1, 1993
M2.1 July 1, 1993
M2.2 July 1, 1993
P1.1 July 1, 1993
P2.1 July 1, 1993
EO.1 July 1, 1993
E1.1 July 1, 1993
E1.2 July 1, 1993
E1 3 July 1, 1993
E1.4 July 1, 1993
E1.5 July 1, 1993
E2.1 July 1, 1993
E3.1 July 1, 1993
E4.1 July 1, 1993
E4.2 July 1, 1993
E4.3 July 1, 1993
E4.4 July 1, 1993
E4 5 July 1, 1993
E4.6 July 1, 1993
E4.7 July 1, 1993
1. Reservations contained in Patent from United States of America filed
August 21, 1905, recorded in Book 35, Page 91, Records of Bernalillo County, New
Mexico.
2. Covenants, conditions, restrictions and easements as noted on Replat of
Tract A-43 of the N.E. Unit & Vacated Portions of Corona Drive & Xxxxxx Place,
N.W., Town of Xxxxxxx Xxxxx, recorded December 21, 1984 in Volume X00, Xxxxx
]00, as Document No. 84-97111, Records of Bernalillo County, New Mexico.
3. Access Easement Reserved Across the westerly portion of insured premises
and a buffer zone easement reserved across the northwesterly portion of the
insured premises, as shown Replat of Tract A-43 of the N.E. Unit & Vacated
Portions of Corona Drive & Xxxxxx Place, N.W., Town of Xxxxxxx Xxxxx, recorded
December 2l, 1984 in Volume C25, Folio 194, as Document No. 84-97111, Records of
Bernalillo County, Mew Mexico.
4. Easement granted to Public Service Company of New Mexico and Mountain
States Telephone and Telegraph Company, filed August 28, 1987, recorded in Book
Misc. 52gA, Page 579, as Document No. 87-9072S, Records of Bernalillo County,
New Mexico.
5. Easement granted to Public Service Company of New Mexico and Mountain
States Telephone and Telegraph Company, filed August 28, 1987, recorded in Book
Misc. 528R, Page 586, as Document No. 87-97034, Records of Bernalillo County,
New Mexico.
6. Covenants, conditions, restrictions and easements contained in
Declaration of Restrictions and Cross-Easements by Central Avenue Partners, a
New Mexico corporation, and Sequoia-Coors, Incorporated, a New Mexico
corporation, dated 1994, filed ~~~~ , 1994, recorded in Book , Page , as
Document No. , Records of Bernalillo County, New Mexico.
EXHIBIT "D"
Title Restrictions
1. Reservations contained in Patent from United States of America filed
August 21, 1905, recorded in Book 35, Page 91, Records of Bernalillo County, New
Mexico.
2. Covenants, conditions, restrictions and easements as noted on Replat of
Tract A-43 of the N.E. Unit & Vacated Portions of Corona Drive & Xxxxxx Place,
X.xX., Town of Xxxxxxx Xxxxx, recorded December 21, 1984 in Volume C25, Folio
194, as Document No. 84-97111, Records of Bernalillo County, New Mexico.
3. Access Easement Preserved Across tile westerly portion of insured
premises and a buffer zone easement reserved across the northwesterly portion of
the insured premises, as shown on Replat of Tract A-43 of the N.E. Unit &
Vacated Portions of Corona Drive & Xxxxxx Place, N.W., Town of Xxxxxxx Xxxxx,
recorded December 21, 1984 in Volume C25, Folio 194, as Document No. 84-97111,
Records of Bernalillo County, New Mexico.
4. Easement granted to Public Service Company of New Mexico and Mountain
States Telephone and Telegraph Company, filed August 28, 1987, recorded in Book
Misc. 528A, Page 579, as Document No. 87-90728, Records of Bernalillo County,
New Mexico.
5. Easement granted to Public Service Company of New Mexico and Mountain
States Telephone and Telegraph Company, filed August 28, 1987, recorded in Book
Misc. 528A, Page 586, as Document No. 87-97034, Records of Bernalillo County,
New Mexico.
6. Covenants, conditions, restrictions and easements contained in
Declaration of Restrictions and Cross-Easements by Central Avenue Partners, a
New Mexico corporation, and Sequoia-Coors, Incorporated, a New Mexico
corporation, dated , 1994, filed , 1994, recorded in Book , Page , as Document
No. , Records of Bernalillo County, New Mexico.
EXHIBIT "E"
Declaration of Restrictions
and Cross-Easements
This Declaration of Restrictions and Cross-Easements is executed as of the
day of , 1 9 , by and between Central Avenue Partners, a New Mexico General
partnership (hereinafter "Central") and SequoiaCoors, Incorporated, a New Mexico
Corporation (hereinafter "SC Inc.").
WHEREAS, Central is, or will become, the fee owner of that certain parcel
of real estate described as Parcel A located at the Northeast corner of Coors
Boulevard and Sequoia Road, NW in the City of Albuquerque, County of Bernalillo,
State of New Mexico, which parcel is more particularly described in Exhibit A
and shown on Exhibit "B" attached hereto and by this reference incorporated
herein;
WHEREAS, SC Inc. is, or will become, the fee owner of that certain parcel
of real estate described as Parcel B. adjoining parcel A at the Northeast corner
of Coors Boulevard and Sequoia Road, NW in the City of Albuquerque, County of
Bernalillo, State of new Mexico, which parcel is more particularly described in
Exhibit "A" and shown on Exhibit "B";
WHEREAS, Central and SC Inc. wish to make certain agreements and place
certain restrictions as to their respective parcels and to establish
cross-easements upon said parcels A and B within the "Common Areas" of each
parcel which shall for the purposes herein mean those areas used from time to
time for parking, ingress/ egress, pedestrian walkways, service drives and
landscaping, for the mutual benefit of Parcel A and Parcel B.
NOW, THEREFORE{, in consideration of the above premises and the mutual
covenants hereinafter expressed, Central and SC Inc. hereby declare, grant, and
establish the following restrictions, easements and covenants for the mutual
benefit of Parcel A and Parcel B:
1. Central hereby grants and establishes for the benefit of the owner of
Parcel B. their lessees, customers and invitees, mutual non-exclusive
cross-easements of ingress, egress and parking over an across the Common Areas
of Parcel A as such may exist from time to time.
2. SC Inc. hereby grants and establishes for the benefit of the owners of
Parcel A, their lessees, customers and invitees, mutual non-exclusive
cross-easements of ingress, egress and parking over and across the Common Areas
of Parcel "B" as such may exist from time to time.
3. Central and SC Inc. hereby establish and grant for the benefit of each
Parcel and the owners thereof and their successors and assigns, non-exclusive
mutual easements across, through and under the Common Areas of each respective
Parcel as such are maintained from time to time, for utility services including
but not limited to water, storm sewer, drainage, sanitary sewer, gas and
electrical distribution systems, currently existing, or to be constructed in the
future, in the Common Areas. Any installed utility line or system may, however,
be relocated, provided that such relocation shall not interfere with, or
increase the cost of, or diminish the other tract's utility services, and may
also be used and extended by the other tract. The aforesaid mutual utility
easements shall include the right, on prior notice given by one to the other, to
construct and to repair the facilities referred to therein to the extent
necessary to fully enjoy the benefits of the rights so granted, but nothing
contained in this sentence shall in any way modify, limit or lessen the
obligations of the respective party, elsewhere in the paragraph. The party
exercising any such construction or repair right shall repair any damage to the
Common Areas caused by such exercise, and further agrees to indemnify and hold
harmless the other party from and against any claims arising from or caused by
said construction and repair. The party exercising the aforementioned
construction or repair right shall give the other party at least thirty (30)
days prior written notice unless the repairs are caused by an "emergency", which
shall mean any sudden unexpected happening in which a failure to act immediately
by one party would cause appreciable damage to person or property, in which
event such repairs may be made as soon as is appropriate, but in a reasonable
manner. All construction or repairs shall be done in such a manner so as not to
interfere with or obstruct access to the other party's property and shall be
done in a careful and workmanlike manner.
4. No barriers shall be constructed along the common property lines in the
Common Areas of Parcels A and B. except for curbing, sidewalks, parking and
landscaping shown on Exhibit "B" hereto or as such may exist, or be replaced or
revised from time to time . No substantial change shall l be made to the grades
of each tract.
5. No buildings shall be constructed at any time within the land area of
Parcels A or B east of the "Building Setback Line" shown on Exhibit "B" hereto.
Canopies, footings or foundations which extend into the common area or "No
Building Area", together with any columns or posts supporting same shall not be
deemed a violation of any of the provisions of this Agreement and shall not be
deemed to be part of the Common Area.
6. Central and SC Inc. hereby declare that those portions of Parcels A and
B within the area which is striped and designated "25' Access Road Areas on
Exhibit "B" hereto shall be and forever remain a non-exclusive access road and
driveway for the benefit of the owners of Parcels A and B. their lessees,
customers and invitees for ingress and egress to and from said Parcels A and B.
The parties further agree as follows:
a) The Access Road Area shall be maintained equally by the owners of Parcel
A and Parcel A, provided however, if any damage to the Access Easement is caused
by the owner of either Parcel, or its lessees or employees, that party shall be
responsible for repairing any such damage at its sole expense.
b) Except in the event of any emergency, all decisions related to
maintenance and repair of the Access Road Area shall be mutually agreed upon by
the owners of Parcel A and Parcel B. in advance.
c) If emergency repairs to the Access Easement are undertaken by the owner
of one Parcel without the consent of the other, reimbursement by the
non-consenting owner shall be limited to reasonable costs under the
circumstances.
d) If the owner of either Parcel A or Parcel B is entitled to payment from
the other pursuant to the terms of this Agreement, the reimbursement shall be
made within thirty (30) days aster receipt of written request therefor, or
thereafter, interest shall accrue on any unpaid amount at the rate of one and
one-half percent (1.5%) per month until paid in full.
e) The Access Easement as shown on Exhibit "B" hereto, shall not be changed
without the mutual consent of the owners of Parcel A and Parcel B. which consent
shall not be unreasonably withheld.
f) If a dispute arises regarding the necessity for maintenance and repairs,
or the amount of reimbursement, any such dispute shall be settled through
binding arbitration in Albuquerque, New Mexico utilizing the Rules of the
American Arbitration Association for commercial transactions; all other matters
related to this Agreement may be enforced through judicial proceedings.
g) In the event any of the parties enforce the provisions hereof through
arbitration or judicial proceedings, the prevailing party shall be entitled to
reasonable attorney's fees and court costs from the non-prevailing party.
7. All notices required to be given pursuant to the provisions of this
Agreement shall be in writing and either delivered by courier or mailed postage
prepaid, by certified or registered mail, return receipt requested, addressed to
the parties as follows:
TO: Sequoia-Coors, Incorporated
c/o Xx. Xxxx Xxxxx, Secretary-Treasurer
0000 Xxxxx, XX
Xxxxxxxxxxx, XX 00000
TO: Central Avenue Partners
c/o Peterson Properties Real Estate Services, Inc.
0000 Xxx Xxxxx, XX, Xxxxx 0-X
Xxxxxxxxxxx, XX 00000
or to such address as is thereafter provided by the parties hereto. If any
notice is mailed, it shall be deemed received upon the earlier of actual receipt
or on the third business day following the date of mailing. If any written
notice is hand delivered or delivered by courier, it shall be deemed received
upon delivery.
8. The easements and covenants established by this Declaration shall run in
perpetuity and are intended to be and shall be construed as covenants running
with the land, binding upon, and inuring to the benefit of and enforceable by
the undersigned parties, and all subsequent owners of the respective Parcels or
any part thereof. The covenants and easements established hereby are not
intended and shall not be construed as a dedication of such rights in the Common
Area or Access Road Area for public use, and this Declaration shall not be
deemed to vest any rights in any customers, invitees or the public at large, but
are solely for the benefit of the owners of the respective tracts and their
lessees, customers and invitees to the extent heretofore established.
9. These covenants and easements may be modified, amended or cancelled by a
writing executed by the fee owner of Parcel A and by the fee owners of a
majority of tile land area of Parcel B at the time of such modification,
amendment or cancellation.
EXECUTED as of the date first above written.
CENTRAL AVENUE PARTNERS, a New Mexico general partnership
By: XXXXXXXX PROPERTIES REAL ESTATE
SERVICES, INC., a New Mexico Corporation, as Managing General Partner
By:
XXXXX X. XXXXXXXX, President
By: RETAIL DEVELOPMENT CONSULTANTS, INC., a New Mexico Corporation,
as General Partner
By:
.
XXXXXX X. XXXXXXX, President
Sequoia-Coors, Incorporated, a
New Mexico Corporation
XXXXXX X. XXXXX, President
EXHIBIT "E"
Declaration of Restrictions and Cross-Easements
By:
STATE OF NEW MEXICO )
)
COUNTY OF BERNALILLO)
of
XXXX XXXXX, Secretary-Treasurer
This instrument was acknowledged before me this day , 1994, by Xxxxx X.
Xxxxxxxx, President of Xxxxxxxx Properties Real Estate Services, Inc., a New
Mexico Corporation, Managing General Partner of Central Avenue Partners, a New
Mexico General Partnership, on behalf of said corporation and partnership.
My Commission Expires:
STATE OF NEW MEXICO )
)
COUNTY OF BERNALILLO)
NOTARY PUBLIC
This instrument was acknowledged before me this _ day of , 1994, by Xxxxxx
X. Xxxxxxx, President of Retail Development Consultants, Inc., a New Mexico
Corporation, General Partner of Central Avenue Partners, a New Mexico General
Partnership, on behalf of said corporation and partnership.
NOTARY PUBLIC
My Commission Expires:
STATE OF NEW MEXICO )
)
COUNTY OF BERNALILLO)
This instrument was acknowledged before me this day , 1994, by Xxxxxx X.
Xxxxx, President of Sequoia-Coors Inc., a New Mexico Corporation, on behalf of
said corporation.
NOTARY PUBLIC
My Commission Expires:
STATE OF NEW MEXICO )
)
C OUNTY OF BERNALILLO)
This instrument was acknowledged before me this day , 1994, by Xxxx Xxxxx,
Secretary-Treasurer of Sequoia-Coors Inc., a New Mexico Corporation, on behalf
of said corporation.
NOTARY PUBLIC
Hy Commission Expires:
EXHIBIT "E"
Declaration of Restrictions
and Cross-Easements
EXHIBIT "A"
LEGAL DESCRIPTION OF
PARCELS A & B
(to be inserted)
FIRST AMENDMENT TO_LEASE
AND MEMORANDUM OF LEASE
This FIRST AMENDMENT TO LEASE AND MEMORANDUM OF LEASE is made and entered
into this l2th day of December, 1994, by and between CENTRAL AVENUE PARTNERS, a
New Mexico general partnership, as Landlord, and WALGREEN HASTINGS CO., a
Nebraska corporation, as Tenant;
WITNESSETH:
WHEREAS, by lease dated April 25, 1994 (the "Lease"), recorded by
memorandum thereof of even date on October 25, 1994 in Book 94-29, Pages
9456-9464, in the Official Records of Bernalillo County, New Mexico, as Document
Number 94128271, Landlord leased to Walgreen Co., an Illinois corporation,
Tenant's predecessor in interest, certain premises (the "Leased Premises"),
located at the northeast corner of Coors Boulevard and Sequoia Road in the City
of Albuquerque, County of Bernalillo, State of New Mexico as legally described
in Exhibit"B" attached to the Lease and memorandum thereof, for the term and
upon the covenants and conditions therein set forth; and
WHEREAS, Landlord acquired legal title to portions of the Leased Premises
on October 13, 1994 and October 14, 1994; and
WHEREAS, an increased area acquired by Landlord shall be the new Leased
Premises; and
WHEREAS, Landlord and Tenant hereby desire to modify the Lease and
memorandum thereof accordingly as hereinafler provided;
NOW, THEREFORE, in consideration of the premises and of the terms and
conditions set forth herein, it is agreed by the parties as follows:
1. The legal description attached to the Lease and memorandum thereof as
Exhibit"B" is hereby deleted and a new legal description attached hereto as
Exhibit"/\" is inserted in lieu thereof.
2. In all other respects, the Lease and memorandum thereof and all of Use
applicable terms thereof shall remain unmodified and shall continue in full
force and effect.
3. This instrument shall also bind and benefit, as the case may require,
the heirs, legal representatives, assigns and successors of the respective
parties, and all covenants, conditions and agreements herein contained shall be
construed as covenants running with the land.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment
to Lease and Memorandum of Lease as of the day and year first above written.
WALGREEN HASTINGS CO. CENTRAL AVENUE PARTNERS
By Xxxxxxxx Properties Real Estate
Services, Inc., Managing General
Partner
By Vice President By Xxxxx X. Xxxxxxxx
President
By Retail Development Consultants,
Attest: Assistant Secretary Inc., General Partner
By Xxxxxx X. Xxxxxxx
President
Witnesses: Witnesses:
Print Name:Xxxxxxx X. XxXxxxx
Print Name: Xxx Xxxxxxxx
STATE OF ILLINOIS)
) SS.
COUNTY OF LAKE )
The foregoing instrument was acknowledged before me this day of , 1994 by ,
Vice President of WALGREEN HASTINGS CO., a Nebraska corporation, on behalf of
the corporation. He is personally known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged that he executed and
delivered the foregoing instrument for the purposes and consideration therein
expressed, as the act of said corporation.
Notary Public
(Seal)
STATE OF NEW MEXICO )
) SS.
COUNTY OF BERNALILLO)
The foregoing instrument was acknowledged before me this 1 vth day of
Decenter , 1994 by Xxxxx X. Xxxxxxxx, President of . XXXXXXXX PROPERTIES REAL
ESTATE SERVICES, INC., a New Mexico corporation, on behalf of the corporation.
He is known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged that he executed and delivered the foregoing
instrument for the purposes and consideration therein expressed, and Whereof
said corporation.
Xxxxx X. Xxxxxxxx
Notary Public
(Seal)
STATE OF NEW MEXICO )
) SS.
COUNTY OF BERNALILLO)
Notary Bond Filed with Secretary of State
My Commission Expires 2-16-97
The foregoing instrument was acknowledged before me this 12th day of
December , 1994 by Xxxxxx X. Xxxxxxx, President of RETAIL DEVELOPMENT
CONSULTANTS, INC., a New Mexico corporation, on behalf of the corporation. He is
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged that he executed and delivered the foregoing
instrument for the purposes and consideration therein expressed, and as the act
of said corporation.
Xxxxx X. Xxxxxxxx
Notary Public
(Seal)
OFFICIAL SEAL
XXXXX X. XXXXXXXX
NOTARY PUBLIC NEW MEXICO
Notary Bond Filed with Secretary of State
My Commission Expires 2-16-97
EXHIBIT "'A"
XXXXX XXXXXXXXXXX
Xxxxx X-0-X, XXXXXXXXX XXXX, XXXX Ol: ATRISCO, as the same is shown and
designated on the plat thereof filed for record in the office of the County
Clerk of Bernalillo County, New Mexico on October 21, 1994, in Volume 94-C,
Folio 359, and being more particularly described by metes and bounds as follows:
BEGINNING at the southeast corner of the herein described tract, said point
being the intersection of the westerly line of a 20 foot Public Alley and the
northerly right-of-way line of Sequoia Road N.W.;
THENCE S 67 31' 11" W. 26.93 feet to a point of curvature;
Thence 73.39 feet along a curve to Use right whose radius is 366.07 feet
through a central angle of 11 29' 15" and whose long chord bears S 73O 15' 49"
W. 73.27 feet to a point of non-tangency;
THENCE N 89 20' 17" W. 130.83 feet to a point;
THENCE N 78 14' 22" W. 50.37 feet to a point;
THENCE N 88 23' 37" W. 49.91 feet to a point of curvature;
THENCE 81.69 feet along a curve to the right whose radius is 50.00 feet
through a central angle of 93 36' Z0" and whose long chord bears N 41 35' Z7" W.
72.90 feet to a point of tangency;
THENCE N 05 12' 43" E, 59.38 feet to a point of curvature;
THENCE 24.90 feet along a curve to the right whose radius is Z5.00 feet
through a central angle of 57 03' 49" and whose long chord bears N 33 44' 38" E,
23.88 feet to a point of non-tangency;
THENCE N 00 40' 24" E, 35.00 feet to the northwest corner;
THENCE S 89 19' 36" E, 72.69 feet to a point;
THENCE N 76 16' 41" E, 238.22 feet to the northeast corner;
THENCE S 13 43' 19" E, 212.00 feet to the point of beginning and containing
1.5441 acres more or less.
STATE OF ILLINOIS
COUNTY OF LAKE
This instrument was acknowledged before me this 25th day of August, 1994,
by Xxxxx X. Xxxxxxx, of WALGREEN HASTINGS CO., a Nebraska corporation.
Notary Public
My commission expires:
5-18-96
.
OFFICIAL SEAL
XXXXX XXXXX
NOTARY PUBLIC. STATE OF ILLINOIS
MY COMMISSION EXPIRES 5/ lRl9fi
STATE OF NEW MEXICO )
) SS.
COUNTY OF BERNALILLO)
This instrument was acknowledged before me this 1st day of September ,
1994, by Xxxxx X. Xxxxxxxx, President of Xxxxxxxx Properties Real Estate
Services, Inc., a New Mexico corporation, Managing Partner of CENTRAL AVENUE
PARTNERS, a New Mexicewneral partnership.
My commission expires: February 16, 0000
XXXXX XX XXX XXXXXX )
) SS.
COUNTY OF BERNALILLO)
This instrument was acknowledged before me this 2d day of September , 1994,
by Xxxx Xxxxx, Vice President of Retail Development Consultants, Inc., a New
Mexico corporation, General Partner of CENTRAL AVENUE PARTNERS, a New Mexico
general partnership.
Notary Public
My commission expires: February 16, 1997
OFFICIAL SEAL
XXXXX X XXXXXXXX
NOTARY PUBLIC NEW MEXICO
Notary Bond Filed with Secretary of State
My Commission Expires: February 16, 1997
EXHIBIT "A"
Legal Description
A tract of land situate within the Town of Xxxxxxx Xxxxx , projected
Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian within
the city of Albuquerque, Bernalillo County, New Mexico being a southerly portion
of TRACT X-0, XXXXXXXXX XXXX, XXXX OF XXXXXXX XXXXX as the same is shown and
designated on said plat filed for record in the office of the County Clerk of
Bernalillo County, New Mexico on January 19 , 1987 in Volume C32. Folio 150
together with a southerly portion of TRACT B-1, LAND OF E. FISH as the same is
shown and designated on said plat tiled for record in the office ox the County
Clerk of Bernalillo County, New Mexico on July 26, 1976 In Volume B11, Folio 154
and also being a portion of TRACT B-A, CIRCLE R CORPORATION as the same is shown
and designated on said plat filed for record in the office of the County Clerk
of Bernalillo County, New Mexico on May 26, 1987 in Volume C33, 152 and being
more particularly described as follows:
BEGINNING at the southeast corner of the herein described tract, said point
being the intersects on of the westerly line of a 20 foot Public Alley and the
northerly right-of-way line of Sequoia Road N . W .
THENCE 8 67'31'11" W. 26.93 feet to a print of curvature;
THENCE 73.29 feet along a curve to the right whose radius is 366.07 feet
through a central angle of 11'28'16" and whose long chord bears S 73"15'19" W.
73.17 feet to a point of compound curvature
THENCE 64.56 feet along a curve to the right whose radius 49 150.00 feet
through a central angle of 24g39'37" and whose long chord bears to 88 ' 4o ' 44"
W. 64.06 feet to a point of reverse curvature
THENCE 33.27 feet along a curve to the left whose radius is 150.00 feet
through a central angle of 12f42'31" and whose long chord boars N 82-42'11" W.
33.20 feet to a point of tangency
THENCE N 89'03'27" W. 126.20 feet to a point of curvature
THENCE 75.46 feet along a curve to the tight whose radius is 50,00 feet
through a central angle of 86'28'23" and whose long chord boars N 4S'49'15" W.
68.50 feet to a point of tangency
THENCE N 02'35'04" W. 109.94 feet to the northwest corner)
THENCE N 89o22'04" E, S9,28 feet to a point;
THENCE N 76416'41" E, 272.05 feet to the northeast cornet
THENCE S 13'43'19" E, 208.00 feet to the point OF beginning and containing
1.4901 aorta more or leas. ,
RELEASE OF MEMORANDUM OF LEASE
The undersigned, CENTRAL AVENUE PARTNERS, a New Mexico General Partnership,
as Landlord, and WALGREEN HASTINGS CO., a Nebraska corporation, successor in
interest to Walgreen Co., as Tenant, executed a Memorandum of Lease dated April
25, 1994, recorded on July 26, 1994 in Book 94-22, Page 1891, as Document No.
94093623, in the official records of Bernalillo County, New Mexico
("Memorandum") encumbering the real property located in the County of
Bernalillo, State of New Mexico, legally described in Exhibit "A" attached
hereto and made a part hereof.
The undersigned parties hereby declare that the Memorandum is released from
the real estate described above.
IN WITNESS WHEREOF, the undersigned have set their hands and seals
effective on the 25th day of August, 1994.
CENTRAL AVENUE PARTNERS WALGREEN XXXXXXX CO., a
a New Mexico general partnership Nebraska Corporation
By: Xxxxxxxx Properties Real
Estate Services, Inc.,
a New Mexico corporation, Its
Managing Partner
By: Retail Development Consultants,
Inc., a New Mexico corporation,
General Partner
After recording, return to:
WESTLAND DEVELOPMENT CO., INC.
000 Xxxxx Xxxx., XX
Xxxxxxxxxxx, XX 00000
EXHIBIT 10.5
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE is entered into as of _ day of ,
1995, by and between CENTRAL AVENUE PARTNERS, a New Mexico general partnership
("Assignor") and WESTLAND DEVELOPMENT CO., INC., a New Mexico corporation
("Assignee").
RECITALS:
WHEREAS, pursuant to that certain Deposit Receipt and Real Estate Purchase
Contract ("Purchase Agreement"), dated August 22, 1994, between Assignor and
Assignee, covering that certain real property more particularly described on
Exhibit "A" attached hereto and by this reference incorporated herein ("Real
Property"), Assignor is concurrently, with the execution of this Assignment and
Assumption, conveying to Assignee all of its right, title and interest in and to
said Real Property;
WHEREAS, Assignor, as Landlord, and Walgreen Co., Inc., an Illinois
corporation, as Tenant, executed that certain Lease dated April 25, 1994
("Lease"), covering said Real Property;
WHEREAS, by Assignment of Lease Agreement dated June 21, 1994, Walgreen Co.
assigned all of its right, title and interest under the Lease to Walgreen
Hastings Co., a Nebraska corporation, and Walgreen Hastings Co. assumed all of
such right, title and interest; and
WHEREAS, pursuant to the aforesaid Purchase Agreement and as a part of the
conveyance of its interest in said Real Property to Assignee by Assignor, the
parties are executing this Assignment and Assumption of Lease. NOW, THEREFORE,
in consideration of the above premises, the mutual covenants hereinafter
expressed, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns, transfers and conveys to Assignee all of its
right, title and interest as Landlord, under, in and to the aforesaid Lease.
2. Assignor hereby represents and warrants that as of the date hereof:
a. The Lease is in full force and effect;
b. default by the
c. default from
d. To the best of Assignor's actual knowledge, no circumstance or condition
exists which with the giving of notice or the passage of time, or both, would
constitute a default by the Landlord under the Lease;
e. To the best of Assignor's actual knowledge, no default by the Tenant
under the Lease exists as of the date hereof; and
f. To the best of Assignor's actual knowledge, no circumstance or condition
exists which with the giving of notice or the passage of time, or both, would
constitute a default by the Tenant under the Lease.
3. Assignee hereby agrees to and hereby accepts the foregoing assignment,
and, in addition, expressly assumes and agrees to keep, perform and fulfill all
of the terms, covenants, obligations and conditions required to be kept,
performed and fulfilled from and after the date hereof by the Landlord under or
with respect to the aforesaid Lease, and Assignee further agrees to indemnify,
defend and hold harmless Assignor from and against any and all liability, loss,
cost, damage or expense (including, without limitation, attorney's fees and
costs) directly or indirectly arising out of or related to its obligations
arising from and after the date hereof as Assignee of the Lease.
4. Assignor agrees to indemnify, defend, and hold harmless Assignee from
and against any and all liability, loss, cost, damage, or expenses (including
without limitation, attorneys' fees and costs) directly or indirectly arising
out of or related to the failure of Assignor to perform the obligations of the
Landlord under the Lease prior to the date hereof.
5. This Assignment and Assumption of Lease shall be binding upon and inure
to the benefit of the parties, their respective heirs, personal representatives,
successors and assigns.
6. This Assignment and Assumption of Lease may be executed in a number of
identical counterparts. If so executed, each such counterpart is to be deemed an
original for all purposes, and all such counterparts shall collectively
constitute one agreement, but for the purpose of proving the existence of this
Assignment and Assumption of Lease it shall not be necessary to produce or
account for more than one such counterpart except for the purpose of
demonstrating that any party is a signatory thereto.
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
of Lease to be executed as of the date first above written.
ASSIGNOR: CENTRAL AVENUE PARTNERS,
a New Mexico general partnership
By: Xxxxxxxx Properties Real Estate
Services, Inc., a New Mexico corporation,
as Managing General Partner
By:
Xxxxx X. Xxxxxxxx, President
By: Retail Development Consultants,
Inc., a New Mexico corporation, as
General Partner
By:
Xxxxxx X. Xxxxxxx, President
ASSIGNEE: WESTLAND DEVELOPMENT CO., INC., a New
Mexico corporation
By:
Xxxxxxx Xxxx, President/CEO
ACKNOWLEDGMENTS
STATE OF NEW MEXICO )
)SS.
COUNTY OF BERNALILLO)
The foregoing instrument was acknowledged before me this day of , 1995, by
Xxxxx X. Xxxxxxxx, President of Xxxxxxxx Properties Real Estate Services, Inc.,
Managing General Partner of Central Avenue Partners, a New Mexico general
partnership, on behalf of said partnership.
STATE OF NEW MEXICO )
)SS.
COUNTY OF BERNALILLO)
The foregoing instrument was acknowledged before me this day of , 1995, by
Xxxxxx X. Xxxxxxx, President of Retail Development Consultants, Inc., General
Partner of Central Avenue Partners, a New Mexico general partnership, on behalf
of said partnership.
My commission expires:
STATE OF NEW MEXICO )
)SS.
COUNTY OF BERNALILLO)
The foregoing instrument was acknowledged before me this day of , 1995, by
Xxxxxxx Xxxx, President/CEO of Westland Development Co., Inc., a New Mexico
corporation, on behalf of said corporation.
Notary Public
for the purpose of proving the existence of this Assignment and Assumption
of Lease it shall not be necessary to produce or account for more than one such
counterpart except for the purpose of demonstrating that any party is a
signatory thereto.
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
of Lease to be executed as of the date first above written.
ASSIGNOR: CENTRAL AVENUE PARTNERS,
a New Mexico general partnership
By: Xxxxxxxx Properties Real Estate
Services, Inc., a New Mexico
corporation, as Managing General
Partner
By: Xxxxx X. Xxxxxxxx, President
By: Retail Development Consultants,
Inc., a New Mexico corporation, as
General Partner
By:
Xxxxxx x. Xxxxxxx, President
ASSIGNEE: WESTLAND DEVELOPMENT CO., INC., a New
Mexico corporation
By:
Xxxxxxx Xxxx, President/CEO
ACKNOWLEDGMENTS
STATE OF NEW MEXICO )
)SS.
COUNTY OF BERNALILLO)
The foregoing instrument was acknowledged before me this 29th day of March,
1995, by Xxxxx X. Xxxxxxxx, President of Xxxxxxxx Properties Real Estate
Services, Inc., Managing General Partner of Central Avenue Partners, a New
Mexico general partnership, on behalf of said partnership.
My commission expires:
Februarv 16. 0000
XXXXX XX XXX XXXXXX )
)SS.
COUNTY OF BERNALILLO)
The foregoing instrument was acknowledged before me this 29th day of March
, 1995, by Xxxxxx X. Xxxxxxx, President of Retail Development Consultants, Inc.,
General Partner of Central Avenue Partners, a New Mexico general Partnership,
on, behalf of said partnership.
My commission expires:
February 16. 0000
XXXXX XX XXX XXXXXX )
)SS.
COUNTY OF BERNALILLO)
The foregoing instrument was acknowledged before me this _ day of , 1995,
by Xxxxxxx Xxxx, President/CEO of Westland Development Co., Inc., a New Mexico
corporation, on behalf of said corporation.
Notary Public
My commission expires:
LEGAL DESCRIPTION OF THE REAL PROPERTY
Tract B-2-B of Plat of Tracts B-2-A and X-0-X, Xxxxxxxxx Xxxx, Xxxx of
Atrisco, within the town of Xxxxxxx Xxxxx, Projected Section 2, Township 10
North, Range 2 East, N.M.P.M., City of Albuquerque, New Mexico, as the same is
shown and designated on the Plat of said Addition, filed in the Office of the
County Clerk of Bernalillo County, New Mexico, on October 21, 1994 in Volume
94C, Folio 359.
ASSIGNMENT OF LEASE AGREEMENT
THIS AGREEMENT, made as of the day of June, 1994, by and between WALGREEN
CO., an Illinois corporation, as Assignor and WALGREEN HASTINGS CO., a Nebraska
corporation, as Assignee.
RECITALS:
WHEREAS, Assignor and Central Avenue Partners., a New Mexico general
partnership, ("Landlord") entered into a lease agreement dated April 25, 1994
("Lease Agreement"), whereby Assignor leased from Landlord the premises located
in Albuquerque, New Mexico at the northeast corner of Coors Boulevard and
Sequoia Road; and
WHEREAS, Assignor desires to assign to Assignee all of assignor's right,
title and interest under the Lease Agreement and Assignee desires to assume all
of such right, title and interest.
NOW, THEREFORE, in consideration of the payment of Ten (10) Dollars from
Assignee to Assignor and other valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignor hereby assigns to assignee all of Assignor's right , title and
interest in and under the Lease Agreement, to have and to hold unto assignee,
its successors and assigns.
2. Assignee hereby accepts the assignment of the Lease Agreement and
assumes all of Assignor's obligation thereunder.
3. The provisions of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their legal representatives, successors
and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ASSIGNOR
WALGREEN CO.
By:
Vice President
ASSIGNEE
WALGREEN HASTINGS CO.
By:
Vice President
