EXHIBIT 10.11
LEASE ELPASO.LSE
By this Lease., made in multiple copies the 21 day of April
1999, between CAP II, 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 June 1, 2000, and continuing to and including
May 31, 2060, subject to adjustment pursuant to Article 3 herein and subject to
prior commencement and 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 Avenue of the Americas (Loop 375) and
Alameda Avenue in the City of El Paso, County of El Paso, State of Texas,
together with all improvements, appurtenances, easements and privileges
belonging thereto. The building to be erected and completed by Landlord shall
include not less than 112 feel of frontage facing Alameda Avenue and not less
than 135 feet of depth, being an area containing approximately 15,120 square
feet of first floor area (the "Building"). All of the foregoing shall be as
shown on the plan attached hereto and made a part hereof as Exhibit "A," and
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 Adjoining Property is shown on Exhibit "A" and is legally
described on Exhibit "B-1" attached hereto (hereinafter called "Adjoining
Property").
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 State of Texas, 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 State of Texas.
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.
RENT
2. Tenant shall pay rent for the Leased Premises, as follows:
(a) A fixed rent of $28,166.66 per month, commencing on the
Rent Commencement Date (as defined in Article 6 hereof) and continuing
thereafter for the remainder of the Term (as defined in Article 3[b) 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
items and prescription items, if any;
0.5% of the Gross Sales from the sale of food items and prescription items, if
any, except prescriptions filled pursuant to third party prescriptions plans
defined below
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 $676,000.00, 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 milk and
all other non-alcoholic beverages; 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 and transaction fees received from the
operation of automatic teller machines and any other electronic consumer service
apparatus 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 pharmaceuticals and any
other items obtained by a prescription 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 (or Tenant's parent or any other corporation or entity
that is a subsidiary of or affiliated with Tenant or Tenant's parent) and such
organization.
(d) 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 final, and thereafter Tenant shall not be required
to preserve the records from which such statement was compiled. Landlord agrees
not to divulge to any person or entity 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 Leased
Premises and except as may be necessary to enforce 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.
(e) Until further notice by Landlord to Tenant, rent checks shall be
payable to and mailed to:
CAP 11
c/o Peterson Properties
2325 San Pedro NE, Suite 2-A
Albuquerque, NM 87110
Attention: James A. Peterson
(f) Landlord shall, prior to the Rent Commencement Date, provide Tenant
(Attn: Fixed Assets Department, 300 Wilmot Road, Deerfield, IL
60015) with a completed IRS Form W-9. Any successor to Landlord shall likewise
provide Tenant with such completed IRS Form W-9 as a condition precedent to any
rent or other payment from Tenant, however rent and other required payments
shall accrue and shall be paid by Tenant upon receipt of the completed IRS Form
W-9.
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 Leased Premises and shall continue to and
include the day immediately preceding the date that the term of this Lease
commences as below provided (the "Initial Term"). Tenant shall have no
obligation to pay rents or other charges during the Initial Term 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) The term shall commence on the Rent Commencement Date (as
defined in Article 6) and shall continue for sixty (60) years thereafter (the
"Term"); provided, however, that if the Rent 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 sixtieth (60th) year
thereafter.
(c) The first lease year shall commence on the Rent
Commencement Date and, if such date be on the first day of a calendar month,
shall end twelve (12) months thereafter, or, if such date 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) month 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,
effective as of the last day of the five hundred fortieth (540th) full
calendar month of the Term, effective as of the last day of the six hundredth
(600th) full calendar month of the Term and effective as of the last day of the
six hundred sixtieth (660th) 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 Term.
DELIVERY OF POSSESSION
4. (a) Landlord shall put Tenant into exclusive possession of the Leased
Premises on or before April 1, 2000 or as soon as possible thereafter, and in no
case not later than November 1, 2001, and at the same time deliver to Tenant a
full set of keys to the building. Tenant may, but shall not be required to
accept possession of the Leased Premises between November 1 and January. If
Tenant accepts physical possession of the Leased Premises during this period
Rent Commencement shall occur as set forth in Article 6. Landlord shall send
written notice to Tenant, Attention: Director of Construction, with a copy to
the Law Department, 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). Additionally, as a condition precedent to the delivery of possession of
the Leased Premises to Tenant, Landlord shall send written notice to Tenant
which shall be certified by Landlord's architect, at least seven (7) but not
more than twenty-one (21) days prior to the date of delivery of possession,
which notice shall confirm the date that possession shall be delivered and that
the Leased Premises is (or in the architect's judgment will be as of the date of
delivery of possession) substantially complete and ready for occupancy. If
possession is not delivered by November 1, 2001, Tenant, in addition to Tenant's
remedies at law, equity or under this Lease, may cancel this Lease by notice to
Landlord. The Leased Premises upon delivery shall be in good condition and
repair, free of Hazardous Substances (as defined below) whether or not disclosed
by the study and report referred to in Section (b) below, and shall fully comply
with all lawful requirements and shall be constructed in accordance with Article
5 hereof. In the event that there are punchlist items as of the date of delivery
of possession of the Leased Premises to Tenant, Landlord shall promptly and
properly complete the same. For purposes hereof "punchlist items" shall be those
minor items, the incompletion of which shall not impair Tenant's ability to
fixture and/or merchandise and operate the Leased Premises in the normal course.
None of the items listed on Exhibit "D" (Walgreens New Store Requirements),
shall be considered punchlist items and all of the same must be satisfactorily
completed prior to the date of delivery of possession of the Leased Premises to
Tenant. Tenant shall have the right, without being deemed to have accepted
possession, to enter upon the Leased Premises as soon hereafter 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 Leased 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. If
available from appropriate governmental authorities, Landlord shall secure from
the appropriate governmental authority and provide to Tenant prior to the
delivery of possession of the Leased Premises, a Certificate of Occupancy (or a
Temporary Certificate of Occupancy permitting occupancy pending the issuance of
a Certificate of Occupancy in which event the delivery to Tenant of a
Certificate of Occupancy shall be deemed a condition subsequent) subject only to
those items to be completed by Tenant.
(b) (i) Landlord represents that other than as disclosed in that certain
report dated November 17, 1998 prepared by Sunbelt Laboratories, Inc. and
entitled "Phase I Environmental Site Assessment for Commercial Property,
Northeast corner of Intersection of Americas Avenue & Alameda Avenue, El Paso,
El Paso County, Texas 79836" (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 Substances (as defined below) were deposited, stored, disposed of or
placed upon, about or under the Leased Premises. The report shall be certified
to Tenant prior to delivery of possession of the Leased Premises. In order to
make to 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 a Phase I Environmental Report. In the event
the Report discloses the existence of any Hazardous Substances in, on or under
the Leased Premises, including, but not limited to, the existence of any
underground storage tanks and/or petroleum or petroleum by-products, 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 Substances and/or petroleum or
petroleum by-products. 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). 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; provided,
however, that Tenant may, at Tenant's option, accept possession of the Leased
Premises prior to the completion of any remediation if Landlord provides Tenant
with final remediation plans and Tenant determines that the effectuation of said
remediation will not adversely impact Tenant's full use and enjoyment of the
Leased Premises.
(ii) "Hazardous Substances" shall mean any hazardous or toxic chemical,
waste, byproduct, pollutant, contaminant, compound, product or substance,
including, without limitation, asbestos, polychlorinated byphenyls, petroleum
(including crude oil or any fraction or byproduct thereof), and any material the
exposure to, or manufacture, possession, presence, use, generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal,
remediation or handling of which is prohibited, controlled or regulated by any
Environmental Law.
(iii) "Environmental Law" shall mean any federal, state, regional, county
or local governmental statute, law, regulation, ordinance, order or code or any
consent decree, judgment, permit, license, code, covenant, deed restriction,
common law, or other requirement pertaining to protection of the environment,
health or safety of persons, natural resources, conservation, wildlife, waste
management, and pollution (including, without limitation, regulation of releases
and disposals to air, land, water and ground water), including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. 9601 et seq., Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and Solid and Hazardous Waste
Amendments of 1984, 42 U.S.C. 6901 et seq., Federal Water Pollution Control Act,
as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act
of 1966, as amended, 42 U.S.C. 7401 et seq., Toxic Substances Control Act of
1976, 15 U.S.C. 2601 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. 651 et sea., Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. 300(f) et seq., and all amendments as well as any similar
state or local statute or code and replacements of any of the same and rules,
regulations, guidance documents and publications promulgated thereunder.
(c) It shall be a condition precedent to the delivery of the possession of
the Leased Premises to Tenant that Landlord shall have first delivered to Tenant
not later than seven (7) business days prior to the date for delivery of
possession as described in Section (a) of this Article 4 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.
(d) Landlord shall, prior to the delivery of possession of the
Leased Premises to Tenant, cause Landlord's architect to certify to Tenant the
square foot floor area contained in the Building.
CONSTRUCTION BY LANDLORD
5. (a) Before delivering possession of the Leased Premises to Tenant,
Landlord shall obtain all required zoning and permits (other than Tenant's
business licenses) for the construction and operation of the Leased Premises.
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 and of a size permitted by appropriate governmental authorities and
reasonably acceptable to Tenant. If local statute, ordinance, rule or regulation
prohibits or requires modifications to Tenant's sign drawings, as set forth in
the below described Plans, Landlord or its architect shall (i) so advise Tenant
(ii) revise the Plans as necessary to comply with governmental requirements and
(iii) submit the revised Plans to Tenant for its review and approval. 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 July 1998, 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 (including but not limited to a
double lane drive-through window with a canopy). All such work by Landlord shall
be done by contractors selected by Landlord and acceptable to Tenant. Such work
shall comply with the requirements of public authorities and shall be done in a
first-class, good, and workmanlike manner, free and clear of all liens and
encumbrances for labor and materials furnished to Landlord. Except as otherwise
shown on Exhibit "A" or in the Plans, the Leased Premises shall contain no grade
elevation changes in excess of five percent (5%); there shall be no steps or
ramps (excepting ramps to serve the handicapped) in any exterior portion of the
Leased Premises. Landlord shall secure the manufacturer's warranties as required
by the Criteria Specifications described above and shall assign to Tenant each
such warranty that pertains to any item or component thereof which Tenant is
responsible to maintain or repair under this Lease.
(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 (collectively 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
Texas. Tenant agrees to approve or reject said Plans, within thirty (30) days of
Tenant's receipt thereof, 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, 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 after
resubmittal to approve or reject the same. 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.
After approval of Plans, 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. In addition,
Tenant shall be solely responsible for paying all costs and expenses for
changes, substitutions and additional requirements in the Plans which deviate
from the Criteria Plans dated July 1998 and further detailed on Exhibit "C"
attached hereto. 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.
Landlord shall, at Landlord's sole cost and expense, obtain all of the
necessary approvals required under the Declaration required to construct the
Leased Premises in accordance with the terms and provisions of this Lease.
(c) As soon' as the final Plans are available to Landlord
from Architect after Tenant has returned the final set of Plans to Landlord
stamped "approved as noted" pursuant to Section (b) of this Article but in any
event prior to the 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 provided above.
(d) All Plans 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 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. Landlord may use the Plans only in connection with a
Walgreens Drug Store.
(e) Should a survey or title commitment reveal any utility easements or
setback lines that must be released or relocated in order for Landlord to
construct the Leased Premises, it shall be an express condition of this Lease
that such utility easements or setback lines be released or relocated in a
manner reasonably acceptable to Tenant. Landlord shall provide to Tenant copies
of all documents relative thereto, and Tenant shall have no obligation to accept
delivery of possession of the Leased Premises until Landlord shall have complied
with the provisions of this Section.
6. Tenant shall commence paying fixed rents pursuant to Article 2
hereof as of the date that is two (2) months after Landlord has completed all
construction and has delivered possession as above provided (the "Rent
Commencement Date"). The Rent Commencement Date 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/or 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 for business nor to
obligate Tenant (or its successors or assigns) to continue to operate its
business in the Leased Premises.
PARKING
7. (a) During the Term of this Lease, Tenant, at Tenant's cost and
expense, shall maintain the landscaping at the Leased Premises and the
contiguous right of way area shown on Exhibit "A" between the Leased Premises
and Alameda Avenue and Loop 375, if any, and only if the Landlord is obligated
by the public authorities to maintain and repair said right of way area, and
maintain and repair the parking areas located within the Leased Premises.
During the Term of this Lease, Tenant, at Tenant's cost and expense, shall
maintain and repair the Access Driveway Area shown on Exhibit "A" located on
the Adjoining Property until the commencement of construction of improvements
on the Adjoining Property. However, Tenant shall have no obligation to perform
nor pay any costs in connection with the following: (i) any replacements of the
landscaping, light poles, parking areas or other improvements thereon; (ii) any
other item which under generally accepted accounting principles are classified
as a capital expense; (iii) any repair for which the need for repair is a
result of the acts or negligence of Landlord or its agents, employees or
licensees; (iv) any items for which Landlord is reimbursed by insurance,
warranty or otherwise; (v) any item which is Landlord's obligation under
Article 5, 10, and/or 14 hereof; and (vi) any defects in the construction of
the Leased Premises by Landlord discovered during the first twelve (12) months
of the Lease Term. The foregoing items (i) through (vi) shall remain Landlord's
responsibility to perform. The parking spaces located on the Leased Premises
shall be for the exclusive use of Tenant and Tenant's customers, employees,
invitees, successors, assigns and sublessees. Upon the commencement of
construction of improvements on the Adjoining Property, Tenant shall no longer
be responsible to maintain and repair the Access Driveway Area.
(b) Prior to delivering possession of the Leased Premises to Tenant,
Landlord shall enter into a certain Declaration of Covenants, Conditions and
Restrictions and reservation of Easements (in form approved bv tenant,
hereinafter referred to as "the Declaration" in which Tenant, its customers,
employees, agents, invitees, successors and assigns have been granted the
non-exclusive easement and right to use the driveway partially located on the
Adjoining Property (as defined below) within the area striped on the attached
Exhibit "A" (hereinafter called "Access Driveway Area"). Tenant acknowledges
that the Leased Premises and that certain property (the "Adjoining Property")
located adjacent to the Leased Premises which is legally described on Exhibit
"B-1 " attached hereto and incorporated herein shall be subject to the
provisions of the Declaration. The Declaration shall provide for reciprocal
ingress and egress rights over and across the Leased Premises and the Adjoining
Property all as more particularly described in the Declaration. Landlord hereby
agrees that it shall not enter into any agreement or modification of the
Declaration which interferes with Tenant's use and enjoyment of the Access
Driveway Area and the Leased Premises without Tenant's prior written consent
thereto. Landlord covenants that Landlord will, upon Tenant's request,
cooperate with Tenant who shall have the right, at Tenant's cost and expense,
to enforce all rights, covenants and agreements granted Landlord and Tenant
pursuant to the Declaration.
(c) Tenant hereby indemnifies and holds harmless Landlord
from any claim, damage or liability arising out of Tenant's use of the ingress
and egress rights provided for in the Declaration over the Adjoining Property.
(d) Tenant shall be responsible for any maintenance or repairs of the
Adjoining Property resulting from the use of the Adjoining Property by Tenant.
(e) That portion of the Access Driveway Area located on the
Adjoining Property shall be improved by Landlord concurrently with the
construction of the Leased Premises, and shall be completed prior to Landlord
delivery of possession of the Leased Premises to Tenant.
EXCLUSIVES
8. (a) Landlord covenants and agrees that, during the Term 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,
or within five hundred (500) feet of any boundary of 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) the
operation of a medical diagnostic lab and/or the provision of treatment
services; (iii) the sale of so called health and/or beauty aids and/or drug
sundries; (iv) the operation of a business in which photofinishing services
and/or photographic film are offered for sale; (v) the operation of a business
in which food items are sold for consumption off the premises (other than a
restaurant selling take-out food items) and/or (vi) the operation of a business
in which greeting cards or wrapping paper are offered for sale.. For purposes
hereof "contiguous" shall mean property that is either adjoining the Leased
Premises or separated from the Leased Premises only by a public or private
street, alley or right-of-way. 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) Unless otherwise restricted by the documents set forth in
Exhibit "E" (Permitted Title Exceptions), 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 or recorded against the Leased
Premises prior to the delivery of possession of the Leased Premises to Tenant
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, provided that if
more than one utility vendor serves the area Landlord shall cause the vendor
selected by Tenant to serve the Leased Premises. Landlord shall furnish to said
Building and to the Leased Premises at ail 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 the Leased 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, at Tenant's sole cost and
expense, shall, (i) repair and replace heating and cooling equipment and doors
and door equipment serving the Building, (ii) make plate glass replacements
unless required by fault of Landlord or its agents, and (iii) 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, at
Landlord's sole cost and expense, shall maintain and make all repairs to the
exterior and structural portions of the Building, roof, and all utility lines,
including but not limited to sewers, sewer connections, 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, or by
fire or other insured casualty (as provided in Paragraph 14 below unless Tenant,
at Tenant's sole option, chooses to make repairs necessitated by casualty) or
the elements. In the event that any Hazardous Substance or any underground
storage tank is discovered at any time in, under or about the Leased Premises
and/or the Building (unless introduced by Tenant, or Tenant's agents, employees
or licensees acting within the scope of their respective agency, employment or
license), 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 Substance (unless introduced
by Tenant, or Tenant's agents, employees or licensees acting within the scope of
their respective agency, employment or license) or any underground storage tank.
Tenant hereby indemnifies and saves and holds Landlord 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 Substance introduced on, in or under
the Leased Premises by Tenant, or Tenant's agents, employees or licensees acting
within the scope of their respective agency, employment or license. These
indemnifications shall survive the termination or expiration of this Lease for
any reason. The provisions of this Section 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
Landlord's 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 bill 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 make all changes and installations necessary
to comply with the valid requirements of public authorities regarding the
conduct of Tenant's particular business in the Building and the Leased
Premises. Except as required above, Landlord shall make all changes and/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) Subject to the provisions of the Declaration, Tenant may, at
Tenant's sole cost and expense, 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 any other restrictions
which apply to the Leased Premises, Tenant shall have the right to install
mechanical equipment, including satellite dishes or other antennae for
telecommunications affixed to the roof or other portions of the Building or
other portions of the Leased Premises, but shall indemnify Landlord from any
costs and expenses (including without limitation the costs for repairs and
improvements) relating thereto. Subject to compliance with any and all lawful
requirements or restrictions, Tenant may, at Tenant's option install within the
Leased Premises pay telephones, automatic teller machines and other electronic
consumer service apparatus.
(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
or the Leased Premises but shall at all times be and remain the personal
property of Tenant and shall not be subject to any Landlord's lien.
(c) If permitted by applicable governmental rules and
regulations, Landlord shall, as soon as is possible after the date hereof,
install a sign foundation with conduit (per A5.1 as shown on Exhibit "C") at
the location shown on Exhibit "A", upon which Tenant may install its
readerboard and sign panel. Such pylon sign shall be electrified by Landlord as
soon as is practical. 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) Subject to governmental rules and regulations and any
restrictions which apply to the Leased Premises, including without limitation
the Declaration, at any time and from time to time, Tenant, at Tenant's cost
and expense, may make alterations and additions to the Building including, but
not limited to, structural changes necessary to conform the Leased Premises to
Tenant's then current prototype (provided that the structural integrity of the
Building is not th6reby impaired). Tenant shall obtain Landlord's consent,
which shall not be unreasonably withheld or delayed, before making any other
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, in compliance with applicable restrictions and 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 approvals. Tenant shall not
permit any mechanics' or other liens to stand against the Leased Premises for
work or material furnished Tenant and shall indemnify Landlord from any costs
or expenses relating to any repairs or alterations completed by Tenant.
(b) Landlord covenants and agrees that 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, signband 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.
13. (a) At any time and from time to time, Tenant may discontinue the
operation of its store in the Leased Premises and/or Building.
(b) At any time and from time to time, Tenant's interest
under this Lease may be assigned and re-assigned, without Landlord's consent,
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, parent or affiliates, may be a party. At any time and from time
to time, Tenant may also 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.
Tenant shall deliver written notice to Landlord in the event of any assignment
or subletting under this Section (b).
(c) At any time and from time to time, without Landlord's
consent, 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
(b) 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.
(d) (i) At any time and from time to time, without Landlord's consent
except as set forth below, Tenant may assign this Lease or Tenant may sublet all
of the Leased Premises and/or Building to any person, firm or corporation, other
than a corporation described in Section (b) above, for any lawful purpose which
does not violate the provisions of this Lease. 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. Such termination shall be effective as of the earlier
of the following to occur: (x) thirty (30) days after Tenant closes its store on
the Leased Premises, or (y) two (2) years after the date Landlord delivers the
termination notice required by this Section In any event, Tenant shall deliver
to Landlord at least ninety (90) days' prior written notice of the date on which
possession of the Leased Premises will be delivered to Landlord. If Landlord so
elects to terminate this Lease, neither party shall have any further or
unaccrued obligation or liability to the other as of the termination date of the
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 assianment of three (3) or
more of Tenant's other stores in the State of Arizona 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 third party out-of-pocket costs and all brokerage
fees incurred by Tenant as a result of such subletting, prorated over the
unexpired sublease term.
(e) 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.
(f) Notwithstanding any assignment of this Lease, Walgreen
Co., an Illinois corporation 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 and repossess the Leased Premises for the then unelapsed portion of
the Term of this Lease upon all of the provisions of this Lease.
CASUALTY
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 Tenant,
shall, within thirty (30) days after such casualty, elect to either (i) repair
and restore the Building and/or Leased Premises and/or improvements thereon to
their condition immediately prior to such damage or destruction or (ii) notify
Landlord that Landlord shall effectuate such repair and restoration but only to
the extent possible based upon the insurance proceeds available to Landlord. If
Landlord is effectuating such repair and restoration, unless the Building and/or
Leased Premises is completely restored to such condition within twelve (12)
months of the date of such casualty, the rent and all other charges shall abate
proportionately according to the extent of such damage or destruction from and
after the first day of the thirteenth (13th) month after such casualty until
such restoration is completed. Landlord shall commence such restoration as soon
as is possible after Tenant's election to require Landlord to do so, but in any
event not later than sixty (60) days thereafter and shall diligently pursue such
repair or restoration to completion. In the event that such repair or
restoration by Landlord is not completed within two hundred seventy (270) days
after such occurrence Tenant may, at Tenant's option, cancel this Lease. 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
including, but not limited to, damage to the Building or Leased Premises
resulting from fire or other casualty.
(b) In the event the Building and/or improvements on the
Leased Premises are damaged to the extent of twenty-five percent (25%) or more
thereof, or destroyed by fire or other casualty, and such casualty occurs after
the first day of the 216th month of the Term, Tenant may, cancel this Lease by
notice to Landlord. If Tenant has so canceled this Lease and the fire or other
casualty is an insurable casualty under Tenant's special form coverage
insurance, Tenant shall provide Landlord with the proceeds of such insurance in
an amount required by Article 20 of this Lease and such other proceeds which
are necessary to enable Landlord to reconstruct or repair the building and
improvements as required herein. Any proceeds payable by Tenant to Landlord
under this Section (b) shall be exclusive of the cost of improvements made on
or on behalf of Tenant to the Leased Premises and/or Building.
(c) In the event Tenant shall elect not to cancel this Lease
under this Article 14 and Landlord is effectuating such reconstruction or
repair, Landlord and Tenant shall enter into a construction escrow agreement
satisfactory to Tenant and Landlord appointing either Tenant or third party as
escrow agent to disburse such proceeds as Landlord's repair and reconstruction
work progresses and to monitor repair and reconstruction of the Building and
improvements by Landlord.
(d) 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 on
the Leased Premises as required by this Article 14, at Landlord's own cost and
expense.
(e) Landlord, at Landlord's expense, shall install a fire alarm system
and/or sprinkler system to serve the Leased Premises and if required by statute,
ordinance, governmental rule or regulation, cause the fire alarm and sprinkler
system serving the Building to be monitored and maintained by a reputable alarm
service company and/or the local fire department. Landlord shall (i) provide
Tenant with a copy of the above service contract, and (ii) notify Tenant's
Construction Department that such monitoring is required (as of the date that
Landlord notifies Tenant of delivery of possession pursuant to Article 4 of this
Lease). Provided that Tenant has approved alarm service company selected by
Landlord, and provided that Landlord arranges to have the approved alarm service
company bill Tenant directly, Tenant shall pay for governmentally required
monitoring and maintenance services. Landlord shall be responsible for any costs
incurred for permits, inspections and false alarms (if caused by the fault of
the Landlord). Tenant shall, at Tenant's expense, install and maintain any phone
line(s) required in connection with such fire alarm and sprinkler system.
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 required of Landlord under this Lease 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 good condition,
subject to reasonable wear and tear, changes and alteration, damage by fire,
casualty and the elements, and other repairs which are Landlord's obligation .
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. (a) 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,
as its sole legal remedies but in addition to its remedies in equity, if
available, have the right (a) to sue for rent, (b) to re-enter 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 defau!t.
(b) If Landlord shall from time to time fail to. pay any sum or sums due to
Tenant and if such failure, continues for thirty (30) days after receipt of
notice from Tenant, Tenant shall have the right and is hereby irrevocably
authorized and directed to deduct such sum or sums 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, or its successor, 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 time by The First National Bank of
Chicago, or its successor, 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.
(c) 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 fee simple legal title to the Leased
Premises and has the right to enter into 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 and a Ratification Agreement as below defined free and clear of all
liens, encumbrances and restrictions, except for those items set forth on
Exhibit "E" attached hereto and made a part hereof, none of which shall
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 fee title, Landlord shall
execute an agreement in the form attached hereto as Exhibit 7", ratifying and
adopting this Lease ("Ratification Agreement"). Landlord shall deliver to
Tenant, at Landlord's cost and expense, not later than fourteen (14) days prior
to the Initial Term, a current ALTA leasehold policy of title insurance,
together with such endorsements that Tenant may reasonably require, issued by a
title insurance company of Tenant's choice insuring Landlord's fee ownership,
Tenant's leasehold estate and the easements referenced in Article 7 hereof, in
an amount not less than $1,000,000.00, unless the title insurance guidelines
for the State of Texas require a higher amount in the Leased Premises, subject
only to this Lease and such other covenants, restrictions and encumbrances as
Tenant may approve. Such title insurance policy shall be effective as of the
recordation date of a Memorandum of Lease and Ratification Agreement. Landlord
shall also provide Tenant with an as-built survey of the Leased Premises drawn
per ALTA standards and certified to Tenant.
(b) If at the date of the recording of the Memorandum of this Lease or the
Ratification Agreement, whichever is later, theLeased Premises, 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 reasonably acceptable to Tenant, an agreement
executed by such mortgagee or trustee, either (i) making such mortgage, 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 or rents or otherwise under the terms of this Lease.
(c) If as of the date of the recordation of the Declaration, the Leased
Premises, or the Adjoining Property, 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 the Declaration, 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 mortgage, deed of trust or other encumbrance in
the nature of a mortgage subject and subordinate to the Declaration and to all
of Tenant's rights thereunder, or (ii) obligating such mortgagee or trustee and
any successor thereto to be bound by",he Declaration and by all of Tenant's
rights thereunder.
(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.
(e) 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.
REAL ESTATE TAXES
19. (a) Landlord, prior to the Rent Commencement Date, shall make a
mailing address change on the property tax records so that as of the Rent
Commencement Date the tax bill and tax notices for only the Leased Premises
will be mailed to Tenant at the following address: Walgreen Co., 300 Wilmot
Road, Deerfield, Illinois 60015, Attention: Tax Department. Prior to the date
that the tax bill is mailed directly to Tenant pursuant hereto, Landlord, prior
to delinquency, shall send to Tenant a copy of the tax bill for the Leased
Premises if Tenant is obligated to pay for such taxes. In no event shall Tenant
be required to pay real estate taxes pertaining to any period prior to the Rent
Commencement Date or subsequent to the expiration or earlier termination of the
Lease.
(b) Upon receipt of the aforesaid tax bills, Tenant shall pay, when due and
before delinquency, the ad valorem 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 with the Rent
Commencement Date and continuing for the remainder of the Term. However, the ad
valorem taxes levied or assessed for the year in which Tenant commences paying
fixed rent shall be prorated between Landlord and Tenant so that Tenant shall
pay only such part thereof as pertains to the period commencing on the Rent
Commencement Date and ending December 31st bears to such entire tax year, and
the ad valorem 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. 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 the paid tax bill 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
held in trust for the benefit of Tenant 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. Commencing with the Initial Term and continuing until the last day of
the 240th month of the Term, Tenant shall carry an all risk fire and extended
special form coverage insurance (which shall include all risk and extended
coverage) covering the Building and the other improvements on the Leased
Premises to the extent of not less than 100% of replacement value, less
foundations, with companies which are authorized to do business in the State of
Texas and are governed by the regulatory authority which establishes maximum
rates in the vicinity. Tenant, if requested by Landlord's lender, shall also
carry (or reimburse Landlord for the cost thereof) earthquake and/or flood
insurance to the extent as may be reasonably required and as customary for like
projects. Commencing with the first day of the 241st month of the Term, such
coverage shall be on an actual cash value basis. Tenant shall also procure and
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 $1,000,000.00, and sha!l cover liability for
property damage in one accident, mishap or casualty in the amount of not less
than $100,000.00. The proceeds from Tenant's casualty insurance hereunder 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 , at Tenant's
option may, be carried under an insurance policy(ies), self-insurance (provided
that Tenant or Tenant's parent company maintains a net worth of $300,000,000.00)
or pursuant to a master policy of insurance or so-called blanket policy of
insurance covering other locations of Tenant or its corporate 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. Any requests for insurance certificates shall be
sent to Tenant at 300 Wilmot Road, Insurance Department, Deerfield, IL 60015.
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 abate to the 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
the 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. 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
non-prevailing 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 200 Wilmot Road,
Deerfield, Illinois 60015, 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. (a) From and after the date that is two (2) 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 (Attn: Law Department with a duplicate notice to the Real
Estate Department) 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
(or any of Landlord's Partners or principal owners) in which Landlord intends to
accept (subject to this Article) otherwise known as a letter of intent. 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. Notwithstanding the foregoing, the price that Tenant
shall pay for the Leased Premises shall be reduced by an amount equal to
broker's fees or commissions (if any) that would have been payable by either the
purchaser of Landlord if the Leased Premises were sold pursuant to the said Bona
Fide Offer. Landlord shall provide Tenant evidence of the amount of broker's
fees or commissions payable in connection with any such Bona Fide Offer.
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.
(b) Tenants election not to exercise any right of first
refusal as provided for in this Article 26 shall not prejudice Tenant's rights
hereunder as to any future Bona Fide Offer. The terms and conditions contained
in this Article 26 shall be binding upon the heirs, successors and/or assigns
of Landlord.
TRANSFER OF TITLE
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 the covenants and obligations of
Landlord under this I-ease.
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, 'n 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.
MISCELLANEOUS
29. (a) Captions of the several Articles contained in this Lease 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.
(b) 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.
(c) If the Landlord is comprised of more than one person or
entity, the obligations imposed on Landlord under this Lease shall be joint and
several.
(d) 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.
(e) This instrument shall merge all undertakings,
representations, understandings, and agreements whether oral or written,
between the parties hereto with respect to the Leased Premises and the
provisions of this Lease and shall constitute the entire Lease unless otherwise
hereafter modified by both parties in writing.
(f) 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.
(g) Landlord has been afforded a full and fair opportunity to
seek advice from legal counsel and Landlord acknowledges that Tenant's attorney
represents Tenant and not Landlord.
(h) Notwithstanding any provision of this Lease to the
contrary, the Term shall commence, if at all, not later than twenty-one (21)
years after the date of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease,
under seal, as of the day and year first above written.
WALGREEN CO. an CAP II
Illinois corporation a New Mexico General Partnership
By: Peterson Properties
Estate Services, Inc.
Managing General Partner
By Allan M. Resnick James A. Peterson
---------------- -----------------
Allan M. Resnick James A. Peterson
Vice-President President
By: Steven Johnson Development
Ltd. Liability Co., General Partner
Steven J. Johnson
-----------------
Steven J. Johnson
General Partner
Witnesses: Witnesses:
Terry Keenan Mae Peterson
------------ ------------
Louis M Went Colleen McGrath
------------ ---------------
STATE OF ILLINOIS
)SS
COUNTY OF LAKE
On this 22nd day of April, 1999, before me appeared Allan M. Resnick, 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 corporation, acknowledged said instrument to be
the free act and deed of said corporation.
SEAL Hilary Junge
------------
____________________
(Title)
(My commission expires_________________)
ELPASOISE
NEC Avenue of the Americas (L--p 375) and Alameda Avenue ElPaso,Texas
STATE OF_______________)
)SS
COUNTY OF______________)
On this 23rd day of April, 1999, before me appeared James A. Peterson,
President of Peterson Properties Real Estate Services, Inc., Managing General
Partner of CAP 11, a New Mexico General Partnership, and signed said instrument
on behalf of said General Partnership and said General Partner acknowledged said
instrument to be the free act and deed of said General Partnership.
Seal Betty L. Peterson
OFFICIAL SEAL
BETTY L. PETERSON
NOTARY PUBLIC - NEW MEXICO
Notary Bond Filed with Secretary of State_____________________________
My Commission Expires________ (Title)
(My commission expires_____________________)
OFFICIAL SEAL
BETTY L. PETERSON
NOTARY PUBLIC - NEW MEXICO
Notary Bond Filed with Secretary, of State
My Commission Expires
STATE OF NEW MEXICO)
)SS
COUNTY OF BERNALILLO
On this 23rd day of April, 1999, before me appeared Steven J. Johnson,
Managing Member of Steve Johnson Development Ltd. Liability Co., General Partner
of CAP II, a New Mexico General Partnership, and signed said instrument on
behalf of said General Partnership and said General Partner acknowledged said
instrument to be the free act and deed of said General Partnership.
Seal Betty L. Peterson
-----------------
(Signature)
OFFICIAL SEAL
BETTY L. PETERSON
NOTARY PUBLIC - NEW MEXICO
Notary Bond Filed with Secretary of State ________________________
My Commission Expires________ (Title)
(My commission expires__________)
[GRAPHIC OMITTED]
EXHIBIT"B"
Legal Description Leased Premises
PARCEL 1: Lot 1, Block 1, BOYS SUBDIVISION UNIT 1, City of El Paso, El Paso
County, Texas, according to the plat thereof, recorded in Volume 74, Page 39,
Plat Records of El Paso County, Texas, and being more particularly described by
metes and bounds as follows:
FIELDNOTE DESCRIPTION of a parcel of land being Lot 1, Block 1, Boys
Subdivision Unit 1, City of El Paso, El Paso County, Texas, and is a portion of
that certain parcel conveyed to Boys Joint Venture by Plat of record in Volume
74 at Page 39, Plat Records, El Paso County, Texas, and being more particularly
described by metes and bounds as follows:
COMMENCING for reference at a TXDOT brass disk found at Avenue of the Americas
(Loop 375) centerline PI Station 155+85.75; Thence with the centedine of Loop
375, North 59045'39" East (TXDOT record N 59 046'26"E), 1784.68 feet to the
intersection with the centerline of Alameda Avenue (from this intersection
point, for reference a brass TXDOT disk found at Loop 375 centerline PI Station
86+03.59 bears the following two courses: 1) North 59045'39" East (TXDOT record
N 59046'26"E), 1775.75 feet; and 2) North 63'52' 39" East (TXDOT record N 630
53' 26"E), 3443.83 feet;
THENCE, with the centerline of Alameda Avenue (80'wide ROW), South 360 58'56"
East (Carter 1928 Map record S 37" OO'E), 187.47 feet to the southeast
right-of-way line of Loop 375 (from this point, for reference, a 3/4" diameter
steel rod found at the intersection of the centerline of Ivey Road with the 10
foot offset monument line of Alameda Avenue bears the following two courses: 1)
with the centerline of Alameda Avenue, South 36058'56" East, 547.42 feet; and 2)
with the centerline of Ivey Road, South 52'24'40" West (Carter record S
52023'36"), 10.02 feet); Thence with the southeast right-of-way line of Loop
375; North 59*45'39" East, 40.28 feet to a Y2" diameter rebar with plastic cap
found on the northeast right-of-way line of Alameda Avenue for the POINT OF
BEGINNING.
THENCE, with the southeast right-of-way line of Loop 375, North 59"45'39" East,
317.21 feet to a %" diameter rebar with plastic cap found;
THENCE, South 30*14'21" East, 250.42 feet to a Y2" diameter rebar with plastic
cap found;
THENCE, South 53001'04" West, 285.62 feet to a Y2" diameter rebar with plastic
cap found on the northeast right-of-way line of Alameda Avenue;
THENCE, with the north right~of-way Line of Alameda Avenue, North 36058'56"
West, 285.93 feet to the POINT OF BEGINNING of the herein described tract and
containing 80,552 square feet or 1.85 acres.
PARCEL 2: Easement rights in and to portions of Lots 2 and 3, Block 1, BOYS
SUBDIVISION UNIT 1 and Tract 4A, Block 51, YSLETA GRANT, City of El Paso, El
Paso County, Texas, as created by that certain Declaration of Covenants,
conditions and Restrictions and Reservation of Easements dated June 9, 1999,
filed on June 10, 1999, recorded in Clerk's File No. 99044913, and refiled on
June 13, 1999, in Clerk's File No. 99047023, Real Property Records of El Paso
County, Texas.
EXHIBIT"B-1"
Legal Description Adjoining Property
FIELD NOTE DESCRIPTION of a parcel of land being Tract 4A, Block 51 and a Road
Easement (Recorded in Book 1474, Page 1557), Ysleta Grant, City of El Paso, El
Paso County, Texas and being more particularly described by metes and bounds as
follows:
COMMENCING FOR REFERENCE at the intersection of the Northeasterly right-of-way
line of Alameda Avenue and the Southerly right-of-way line of Avenue of the
Americas (Loop 375), THENCE, along said Southerly right-of-way line, North 59'
45' 39" East, a distance of 317.21 feet to the POINT OF BEGINNING of the herein
described parcel;
THENCE, continuing along said right-of-way line, North 590 45' 39" East, a
distance of 726.20 feet to a point on the Easterly right-of-way line of a Road
Easement (Recorded in Book 1474, Page 1557, Deed Records El Paso County,
Texas);
THENCE, along said right of way line, South 37' 08' 21 " East, a distance of
388.76 feet to a point on the Northerly right-of-way line of Ivey Road;
THENCE, along said right-of-way line, South 52* 24'40" West, a distance of
787.30 feet to a point;
THENCE, leaving said right-of-way line, North 36* 58' 56" West a distance of
233.68 feet to a point;
THENCE, North 530 01' 04" East, a distance of 35.62 feet to a point;
THENCE, North 30* 14'21" West, a distance of 250.42 feet to the POINT OF
BEGINNING of the herein described tract and containing 332,911 square feet or
7.643 Acres of land more or less.
