LEASE AGREEMENT
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THIS LEASE is made and entered into as of the 9th day of March, 1994 and by
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and between Ottoville Development Company ("Landlord") having an address of X.X.
Xxx 000, Xxxx Xxxx, Xxxxxxxx Xxxxx 00000 and COST-U-LESS, a Washington
Corporation ("Tenant") having an address of 00000 XX 00 Xx. Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000.
In consideration of the rents and mutual covenants set forth herein,
Landlord and Tenant agree as follows:
AGREEMENT
1. PREMISES
Landlord does hereby lease and demise to Tenant and Tenant does hereby
lease from Landlord for the term and under the terms and conditions set forth
herein that certain real property located at Ottoville, American Samoa, more
particularly described on "EXHIBIT A", attached hereto and incorporated herein,
together with any and all improvements thereon, including, but not limited to, a
building of approximately 30,000 square feet to be constructed in accordance
with Section 3 of this Lease ("Premises").
2. TERM
The term of this Lease shall be approximately ten (10) years plus two (5)
year options and shall commence on the first to occur of the following dates,
referred to herein as the "Commencement Date".
(a) Thirty (30) days after the date on which Tenant receives a permanent
Certificate of Occupancy for the Premises.
(b) The term of this Lease shall end on March 8th, 2004, subject to the
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options to extend as set forth in Section 5 of this Lease. The parties further
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agree that when the Commencement Date becomes certain, they shall complete and
execute a supplement to this Lease to reflect the actual Commencement Date and
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if necessary, amend the date the Lease herein shall end.
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3. CONSTRUCTION OF PREMISES
3.1 LANDLORD'S CONSTRUCTION
Landlord shall, subject to the conditions set forth below, proceed with all
due diligence to prepare the Premises at Landlord's sole cost and expense,
substantially in accordance with the plans, outlines and specifications prepared
by Landlord and approved by Tenant, copies of which are attached
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as EXHIBIT B to this Lease. All labor and materials required to prepare the
Premises for Tenant's use other than those described on EXHIBIT B shall be
furnished by Landlord at Landlord's sole cost and expense. All such preparation
shall be accomplished in compliance with all applicable laws, ordinances,
regulations and restrictions. Landlord shall be responsible to obtain any
construction loan financing sufficient to make timely payments of all costs of
construction of the Landlord's work in accordance with all of the cost estimates
for such work, plus related costs such as professional fees, bond and insurance
premiums, interest on and charges for borrowed money, service and escrow fees,
real estate taxes and assessments and similar costs. Landlord shall be
responsible to obtain all final administrative approvals necessary to, and as
conditions precedent for the issuance of building permits by the appropriate
jurisdiction or authority.
3.2 COMMENCEMENT OF WORK
If Landlord's work has not been commenced by that day which is one hundred
eighty (180) days from the date of this Lease, Tenant may cancel this Lease upon
not less than ninety (90) days written notice to Landlord; provided, however,
that if Landlord shall commence such construction during the notice period,
Tenant's cancellation shall have no further force or effect and this Lease shall
remain in force between the parties. If Landlord shall not commence work or, if
at any time prior to the above date Landlord shall notify Tenant in writing that
Landlord has been unable to obtain the final approvals described in Section 3.1
above, from and after the date of such notice to Tenant, Tenant shall have the
right to terminate this Lease, and upon such termination, the parties shall have
no further rights or liabilities hereunder.
3.3 COMPLETION OF WORK
Landlord shall not be held liable or responsible for delays in construction
or Landlord's work arising out of or occasioned by strikes, accidents, acts of
God, extreme weather conditions, unforeseen restrictions imposed by any
government or any governmental agency or other delays beyond Landlord's control.
Subject to the foregoing, Landlord agrees to deliver the Premises to Tenant for
commencement of Tenant's business not later than December, 1994 ("Completion
Date"), unless extended by written agreement by Landlord and Tenant.
3.4 WARRANTY
3.4.1 WARRANTY OF LANDLORD'S WORK
Landlord warrants that Landlord's work on the Premises under this Section
3, (i) shall be performed in a workmanlike and skillful manner, (ii) shall in
all respects be of a first
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class quality, free from all faults and defects in workmanship, material,
design and title, and (iii) shall be in strict compliance with the requirements
of the plans, outlines and specifications provided to Landlord by Tenant.
Landlord further warrants that all materials, equipment and other items
incorporated (or to be incorporated) in Landlord's work on the Premises or
consumed (or to be consumed) in the performance of Landlord's work on the
Premises shall be new and of the most suitable grade for the purpose intended.
Subject to any extension pursuant to Section 3.4.2 below, this warranty shall
continue until that date which is twenty-four (24) months after the Completion
Date ("Warranty Period").
3.4.2 CORRECTION OF DEFECTS
If, at any time during the Warranty Period, Landlord receives from Tenant
notice of any failure to comply with the warranty set forth in this Section 3.4,
Landlord shall promptly and, at such times as Tenant directs, satisfactorily
correct such noncompliance and remedy any damage to other items of Landlord's
work or Tenant's property resulting from such noncompliance. The Warranty
Period shall then be extended as to any corrected work performed by the Landlord
until the expiration of twelve (12) months after acceptance by Tenant of the
corrected work. All costs incidental to such correction and remedy shall be
borne by Landlord.
3.4.3 TENANT'S RIGHT TO CORRECT
If Landlord fails to satisfactorily correct or remedy any noncompliance or
damage in accordance with Section 3.4.2, then Tenant shall have the right, but
not the obligation, to perform, on behalf and at the expense of Landlord, any
correction or remedy which Landlord has failed to perform and of which Tenant
has given Landlord notice. Tenant shall be permitted to offset the cost of any
such correction or remedy against any rent or other sums payable to Landlord
under this Lease.
4. RENT
Commencing on the Commencement Date, Tenant shall pay rent to Landlord in
the amount of 1.00 per sq. ft. Three Hundred Sixty Thousand ($360,000.00) per
year payable in equal monthly installments of Thirty Thousand Dollars
($30,000.00) on or before the first day of each calendar (see attached schedule)
month commencing attached schedule). All rental payments to be made hereunder
shall be made to Landlord at its offices in Pava'ia'l, or at such other place as
Landlord may direct in writing. If the term of this Lease
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does not commence on the first day of the month, then the rental payment for
such month shall be prorated.
In addition, a Stand By Letter of Credit is to be established with Amerika
Samoa Bank by Tenant in the name of Landlord for $360,000. Said letter of credit
shall be in place for a term not less than seven (7) years. After the seven (7)
year period annual reductions of $100,000 per year is allowed by Landlord. By
year ten (10) the Stand By Letter of Credit shall be discontinued and it is
further agreed, that the Tenant will bear the cost to have this credit facility
in place for the first four (4) years; thereafter, the Tenant shall invoice the
Landlord for the following four (4) years for the cost of maintaining this
credit facility in a sum not to exceed $1,600.00 a year or $6,400.00, for four
(4) years.
5. OPTION TO EXTEND
Tenant shall have the right to extend the term of this Lease for one (1)
successive term of five (5) years ("Option to Extend"), such extension to be
upon the covenants, terms and conditions as set forth in this Lease, except that
rent for such extension shall be established as described below. Tenant shall
exercise the Option to Extend by written notice to Landlord of Tenant's election
to exercise such Option to Extend given not less than ninety (90) days prior to
the end of the current term.
6. TENANT'S RIGHT OF FIRST REFUSAL
If at any time during the term or any extended term of this Lease Landlord
shall receive a bona fide offer for the purchase of the Premises which Landlord
desires to accept, Landlord shall give written notice thereof (the "Offering
Notice") to Tenant. The Offering Notice shall contain:
(i) The name and address of the proposed purchaser;
(ii) A copy of the terms and conditions of the offer; and
(iii) An offer to sell the Premises to Tenant in preference to the
proposed purchaser and upon the same terms and conditions contained in the
offering Notice.
Tenant shall be entitled to purchase the Premises offered by giving written
notice thereof to Landlord within thirty (30) days after receipt of the Offering
Notice. If Tenant fails to agree to purchase the Premises within the time
aforesaid, Landlord shall have the right to complete the sale of the Premises to
the proposed purchaser who shall then hold the Premises subject to the
provisions of this Lease,
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including the right of first refusal stated herein, to the same force and effect
as if purchaser had been in the original party hereto.
7. TAXES AND ASSESSMENTS
7.1 TENANT'S PAYMENT
Tenant covenants and agrees to bear, pay and discharge, before delinquency
thereof, all taxes and assessments, general and special, which may be taxed,
charged, levied, assessed or imposed upon or against or be payable for or in
respect of the Premises or any part thereof or the improvements at any time
thereon, except for Landlord's income and franchise taxes. Taxes and
assessments for the year in which the term of this Lease commences, and for the
year in which this Lease expires or terminates, shall be prorated between
Landlord and Tenant as of such date of commencement, expiration or termination.
In the event the amount of such taxes and assessments for the year of
termination cannot be ascertained as of said date of termination, proration
shall be made on the basis of the taxes and assessments for the preceding year.
7.2 RIGHT TO CONTEST
Tenant shall have the right, in its or Landlord's name, to contest the
validity of any tax or assessment which Tenant is required to bear, pay and
discharge hereunder, by appropriate legal proceeding, provided that Tenant,
before instituting any such contest, gives Landlord written notice of its
intention to do so. Landlord agrees to cooperate fully with Tenant in good
faith during the course of such contest. Tenant shall diligently prosecute any
such contest, at all times effectually stay or prevent any official or judicial
sale therefor, under execution or otherwise, and pay any final judgment
enforcing the tax or assessment so contested and thereafter promptly procure
record satisfaction thereof.
8. INSURANCE
Tenant shall, at its sole expense, maintain in force fire and extended
coverage insurance with respect to the Premises, subject to the approval by the
Landlord and is further agreed that the Landlord and Amerika Samoa Bank shall be
named as additional insureds on all such policies. The policies shall provide
that they may not be canceled or modified for any reason without fifteen (15)
days' prior written notice to Landlord. In connection with such insurance,
Tenant shall apply to such insurer to have such insurer waive in writing all
rights and subrogations which such insurer might have otherwise acquired, if at
all, against Landlord and/or Tenant. Landlord and Tenant each herewith and
hereby releases and relieves the other and waives its entire right of
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recovery against the other for loss or damage arising out of or incident to the
perils described in such policies which occur in, on or about the Premises,
whether due to the negligence of either party, their agents or employees or
otherwise and whether or not such insurance is in effect as of the date of any
damage. The waivers provided for herein shall be applicable and effective only
in the event such waivers are obtainable from the insurance carriers concerned.
9. MAINTENANCE - REPAIR OF DAMAGE - DESTRUCTION
9.1 MAINTENANCE
Tenant covenants and agrees that it will during the term of this Lease keep
and maintain the Premises and all improvements thereon, equipment, fixtures and
appliances therein, and all appurtenances thereto in good condition and repair,
ordinary wear and tear excepted, and keep the same free from trash, nuisance or
danger of fire and in all respects and at all times use and maintain the
Premises so as to fully meet and comply with all health and policy regulations
and the ordinances and all other laws now in force or which may hereafter be
enacted which affect the Premises.
9.2 REPAIRS
In the event of damage to or destruction of the Premises by fire or other
casualty, Tenant, at its sole expense, shall promptly restore the Premises as
nearly as possible to the condition thereof prior to such damage or destruction.
All insurance proceeds received by Tenant pursuant to the provisions of this
Lease, less the cost of recovery, if any, shall be held in trust and applied to
the payment of such restoration as such restoration progresses; provided,
however, if Tenant determines, in its sole discretion, that restoration is not
economically feasible then Tenant shall have the right to terminate this Lease
and shall have no further obligations hereunder provided Tenant assigns to
Landlord all insurance proceeds received by Tenant as described above.
10. ALTERATIONS
Tenant shall have the right to make changes or alterations in the building
located on the Premises, or to construct improvements on the Premises; provided,
however, that Tenant shall not make any alterations, additions or deletions to
the building located on the Premises if such alteration, addition or deletion
shall (i) convert the building located on the Premises to a structure which is
not complete, self-contained, operating unit; (ii) be a structural change in the
building; (iii) diminish or reduce the parking area of the Premises below that
required by local ordinances. Notwithstanding the foregoing, Tenant may make
such structural changes, alterations, additions or deletions as are ap-
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proved in advance by Landlord, which approval may not be unreasonably withheld
or delayed. If Landlord fails to respond within thirty (30) days to any request
submitted by Tenant under this Section 11, such request shall be deemed approved
by Landlord.
11. LIENS
Tenant shall not do or suffer anything to be done whereby the Premises or
any part thereof may be encumbered by any mechanic's or similar lien and if,
whenever and as often as any mechanic's or similar lien is filed against said
Premises, done by, for or under the authority of Tenant or anyone claiming by,
through or under Tenant, Tenant shall discharge the same of record, within
twenty (20) days after the date of filing.
12. CONTEST OF LIEN CLAIMS
Tenant shall have the right to contest any such mechanic's or other lien
claim filed against the Premises or any part thereof, if within such (20) day
period it notifies Landlord of its intention to do so, provided that Tenant
shall diligently prosecute any such contest, at all times effectually stay or
prevent any official or judicial sale of the Premises under execution or
otherwise, and pay or otherwise satisfy any final judgment adjudicating or
enforcing such contested mechanic's or other lien claim and thereafter promptly
procure record release and satisfaction thereof. Landlord agrees to cooperate
fully with Tenant in good faith during the course of such contest.
13. UTILITIES
All light, power, water, sewerage, trash removal, and other utilities and
utility services used in, on or about the Premises shall be paid for by Tenant
and shall be contracted for by Tenant in its own name.
14. INDEMNITY
14.1 INDEMNIFICATION OF LANDLORD
Tenant agrees to indemnify and save Landlord harmless from and against all
liability, and all loss, cost and expense, including reasonable attorneys' fees,
arising out of Tenant's operation, maintenance, management and control of the
Premises or in connection with (i) any loss, injury or damage whatsoever caused
to or by any person, including, but not limited to, Tenant, its employees,
agents or business invitees, or property, including Tenant's property, arising
out of any occurrence on the Premises, (ii) any breach of this Lease by Tenant,
(iii) any act or omission of Tenant, its em-
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ployees, agents or business invitees occurring in, on or about the Premises.
14.2 INDEMNIFICATION OF TENANT
Landlord agrees to indemnify and save Tenant harmless from and against all
liability and all loss, cost and expense, including reasonable attorneys' fees,
arising out of Landlord's operation, maintenance, management and control of the
property on which the Premises are located or in connection with (i) any loss,
injury or damage whatsoever caused to or by any person, including, but not
limited to, Landlord, its employees, agents or business invitees, or property,
including Landlord's property arising out of any occurrence on the property on
which the Premises are located, (ii) any breach of this Lease by Landlord or
(iii) any act or omission of Landlord, its employees, agents or business
invitees occurring in, on or about the property on which the Premises are
located.
15. FIXTURES
Tenant may install on the Premises its fixtures, improvements and/or
equipment and, at the termination of this Lease, Tenant shall have the right to
remove fixtures, improvements and/or equipment owned by Tenant.
16. CONDITION OF PREMISES AT END OF TERM
At the end of the lease term, Tenant shall leave and deliver the Premises
in as good a condition and substantial repair as they now are with the exception
of usual wear and tear, fire, the elements, acts of God, civil riot, war,
insurrection or other unavoidable casualty.
17. USE
Tenant shall not use or occupy or permit the Premises or any part thereof
to be used or occupied for any unlawful business, use or purpose.
18. QUIET ENJOYMENT
Landlord covenants and warrants that it has good and marketable fee simple
title to the Premises, that it has full right and lawful authority to enter into
this Lease for the full term hereof, that Tenant will be put in possession of
the Premises when Tenant desires and is entitled hereunder, and that Tenant,
upon paying the rent and performing all of the terms, conditions and provisions
of this Lease to be performed by Tenant, shall peacefully and quietly have, hold
and enjoy the Premises for the full term of this Lease, and any extension
thereto, subject to the provisions herein contained; provided, however, that
the Premises may be subject
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to the easements, covenants, agreements, encumbrances and restrictions of record
on the date of this Lease.
19. SIGNS
Tenant may, at Tenant's own risk, lawfully erect signs concerning the
business of Tenant or displaying Tenant's name on the parking area and building
on the Premises, and the roof thereof, if permitted by local regulations, but in
doing so Tenant agrees to maintain said signs in a good state of repair, save
Landlord harmless from any loss, cost or damage as a result of the erection,
maintenance, existence or removal of the same and shall repair any damage which
may have been caused by the erection, existence, maintenance or removal of such
signs.
20. PERSONAL PROPERTY
All personal property of every kind or description that may at any time be
in the Premises shall be at Tenant's sole risk, or at the risk of those claiming
under Tenant, and Landlord shall not be liable for any damage to said property
or loss suffered by the business or occupation of Tenant caused in any manner
whatsoever, except as may result from and be caused by the negligence of
Landlord or its agents or employees.
21. WASTE
Tenant shall use and occupy the Premises in a careful, safe and lawful
manner and not commit waste therein.
22. NON-WAIVER
No waiver of any breach of any covenant or condition of this Lease shall be
taken to constitute a waiver of any subsequent breach of such covenant or
condition nor to justify or authorize the nonobservance on any other occasion of
the same or of any other covenant or condition hereof.
23. DEFAULT
The following shall constitute a default under this Lease:
(i) Failure by Tenant to pay an installment of rent or other sums
required by Tenant to be paid under this Lease within ten (10) days after
written notice from Landlord;
(ii) Failure by Tenant or Landlord to perform any nonmonetary covenant
under this Lease within thirty (30) days after written notice from the non-
defaulting party stating the nature of the default, provided that if the
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nature of such default, other than for nonpayment of rent or other sums, is
such that the same cannot reasonably be cured within such thirty-day
period, such shall not be deemed to be a default if, within such period, a
cure of such default is commenced and thereafter diligently prosecuted to
completion.
If default shall be made by Tenant in the payment of rent or in the
performance of any of the conditions of this Lease, Landlord shall have the
right to reenter said Premises and remove Tenant and all other persons
therefrom, and shall have the option of terminating this Lease; provided,
however, that such rights of reentry and termination may be exercised by
Landlord in accordance with law, and only in the event that the breach or other
default of Tenant shall have continued for thirty (30) days after written notice
thereof and Landlord's intention to terminate has been furnished to Tenant in
writing at the foregoing address, by registered or certified mail. If default be
made by Tenant and if Landlord exercises its option to terminate as herein
provided, then Landlord shall proceed to rerent the Premises at the highest and
best offer received by it for the unexpired portion of this Lease and if the
amount of rental herein agreed to be paid by Tenant is more than the amount
received, then Tenant shall thereupon pay said difference to Landlord, in cash
as the same becomes due on the first day of each month, as Landlord's liquidated
damages for such breach.
If default shall be made by Landlord in the performance of the conditions
of this Lease, and shall have continued for thirty (30) days after written
notice thereof has been furnished to Landlord in writing by registered mail,
then Tenant, in addition to all other remedies now or hereafter afforded or
provided by law, may cancel this Lease or may at its election perform such
condition on behalf of Landlord, or make good any such default, and any amount
tenant shall advance pursuant thereto shall be repaid by Landlord to Tenant on
demand together with interest at the rate of 12% per annum and if Landlord shall
not repay any such amount, Tenant may deduct the same from the next installment
or installments of rent to accrue under this Lease.
24. CONDEMNATION
If the whole of the Premises, or if such portion of the facilities and
building improvements comprising part of the Premises as may be required for the
reasonable use of the Premises, shall be taken by virtue of any condemnation or
eminent domain proceeding, this Lease, at the option of Tenant, shall
automatically terminate as of the date of any final judgment entered under such
condemnation, or as of the date possession is taken by the condemning authority,
whichever is earlier. In the event Tenant does not exercise such right to
terminate this Lease, this Lease shall continue and Tenant
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shall continue in possession of the remainder of the Premises under the terms
herein provided, except that the monthly rent payable herein shall be reduced in
proportion to the amount of land area of the Premises so taken. Tenant shall
have the right to recover from any condemning authority that portion of any
award attributed to Tenant's leasehold interest.
25. NOTICES
All notices required hereunder shall be in writing and may be personally
delivered or mailed by certified or registered mail, addressed to the respective
parties, and all notices, demands or other writing to be made, given or sent
hereunder, or which may be so given or made or sent by any party to the other
shall be deemed to have been fully given or made when personally delivered or if
mailed, three (3) days following the deposit thereof in the United States mail,
registered or certified, postage prepaid, and addressed to the respective
parties as follows:
Landlord: Ottoville Development Co.
Attention: Xxxx X. Xxxxxx
X.X. Xxx 000
Xxxx Xxxx, Xxxxxxxx Xxxxx 00000
Tenant: Cost-U-Less
Attention: Xxx Xxxx
00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Any party may change the address to which notices are to be given by giving
notice as above provided.
26. ASSIGNMENT AND SUBLEASE
Tenant shall have the right to sublease or assign all or any part of the
Premises without the consent of Landlord, as long as the Sublessee or Assignee
is in the same or similar retail business as the Tenant. Any violation of this
provision shall be a default under section 23, of this Lease.
27. SUCCESSORS AND ASSIGNS
This Lease shall run with the land and shall be binding upon and inure to
the benefit of the heirs, successors, administrators and assigns of the parties
hereto.
28. NON-MODIFICATION
It is mutually agreed that the covenants and conditions herein contained
are the full and complete terms of this Lease and that no alterations,
amendments or modifications of the same shall be binding unless first reduced to
writing and signed by both parties hereto.
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29. MEMORANDUM OF LEASE
It is mutually agreed that this Lease will not be recorded, but that the
parties will execute a written memorandum acknowledging the tenancy which may be
recorded in the records of Territorial Registrar.
30. ATTORNEYS' FEES
In the event of any action or proceeding to enforce any provision of this
Lease, the prevailing party shall be entitled to reasonable attorneys' fees and
all costs and expenses expended or incurred in connection with such action or
proceeding.
31. EFFECT OF INVALIDITY
If any term or provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of the terms and provisions to
persons and circumstances other than those to which it had been held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
32. APPLICABLE LAW
This Lease shall be governed by and construed in accordance with the laws
of the Territory of American Samoa.
33. HOLD-OVER
The Tenant shall, with the written consent of Landlord, hold over after the
expiration of the term of this Lease, such tenancy shall be for an indefinite
period of time on a month-to-month tenancy, which tenancy may be terminated as
provided by the laws of the Territory of American Samoa. During such tenancy
Tenant agrees to pay to Landlord the same rate of rental as set forth herein,
unless a different rate is agreed upon, and to be bound by all of the terms,
covenants, and conditions as herein specified, so far as applicable.
34. ENVIRONMENTAL
34.1 LANDLORD'S WARRANTIES
Landlord warrants and represents that any use, storage, treatment, or
transportation of Hazardous Substances, as defined in Section 35.4 below, which
has occurred in or on the Premises prior to the date hereof has been in
compliance with all applicable federal, state and local laws, regulations and
ordinances. Landlord additionally warrants and represents
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that no release, leak, discharge, spill, disposal or emission of Hazardous
Substances has occurred in, on or under the Premises, and that the Premises are
free of Hazardous Substances as of the date hereof.
34.2 LANDLORD'S INDEMNITY
Landlord agrees to indemnify and hold harmless Tenant from any and all
claims, damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, any and all sums paid for settlement of claims,
attorneys' fees, consultant and expert fees) arising during or after the lease
term from or in connection with the presence of Hazardous Substances in or on
the Premises, unless Hazardous Substances are present solely as a result of
negligence, willful misconduct or other acts of Tenant, Tenant's agents,
employees, contractors or invitees. Without limitation of the foregoing, this
indemnification shall include any and all costs incurred due to any
investigation of the site or any cleanup, removal or restoration mandated by a
federal, state or local agency or political subdivision, unless the Hazardous
Substances are present solely as a result of negligence, willful misconduct or
other acts of Tenant, Tenant's agents, employees, contractors or invitees. This
indemnification shall specifically include any and all costs due to Hazardous
Substances which flow, diffuse, migrate or percolate into, onto or under the
Premises after the lease term commences.
34.3 TENANT'S INDEMNITY
Tenant agrees to indemnify and hold harmless Landlord from any and all
claims, damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation any and all sums paid for settlement of claims,
attorneys' fees, consultant and expert fees) arising during or after the lease
term, from or in connection with the presence or suspected presence of Hazardous
Substances in or on the Premises as a result of the operation of Tenant's
business, unless the Hazardous Substances are present solely as a result of
negligence, willful misconduct or other acts of Landlord, Landlord's agents,
employees, contractors or invitees. Without limitation of the foregoing, this
indemnification shall include any and all costs incurred due to any
investigation of the site or any cleanup, removal or restoration mandated by a
federal, state or local agency or political subdivision, unless the Hazardous
Substances are present solely as a result of negligence, willful misconduct or
other acts of Landlord, Landlord's agents, employees, contractors or invitees.
Without limitation of the foregoing, this indemnification shall include any and
all costs incurred due to any investigation of the site or any cleanup, removal
or restoration mandated by a federal, state or local agency or political
subdivision, unless the Hazardous Substances are
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present solely as a result of negligence, willful misconduct or other acts of
Landlord, Landlord's agents, employees, contractors or invitees.
34.4 HAZARDOUS SUBSTANCES
As used herein, "Hazardous Substances" shall mean any substance or material
defined or designated as hazardous or toxic waste, hazardous or toxic material,
a hazardous, toxic or radioactive substance or other similar term by any
federal, state or local environmental statute, regulation or ordinance presently
in effect or that may be promulgated in this future as such statutes,
regulations and ordinances may be amended from time to time.
35. NEGOTIATION AND CONSTRUCTION
This Agreement and each of the terms and provisions hereof are deemed to
have been explicitly negotiated between the parties, and the language in all
parts of this Agreement shall, in all cases, be construed according to its fair
meaning and not strictly for or against either party.
DATED this 28th day of April, 1994.
LANDLORD:
OTTOVILLE DEVELOPMENT COMPANY
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
TENANT
COST-U-LESS, A WASHINGTON CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: C.E.O.
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)
TERRITORY OF AMERICAN SAMOA )
) ss.
COUNTY OF TUALAUTA )
____________________________)
On this 28th day of April, 1994, before me, the undersigned, a Notary
Public in and for the Territory of American Samoa, duly commissioned and sworn,
personally appeared Xxxx X. Xxxxxx, to me known to be the person who signed as
Vice President of Ottoville Development Company, the corporation that executed
the within and foregoing instrument, and acknowledged said instrument to be the
free and voluntary act and deed of said corporation for the uses and purposes
therein mentioned, and on oath stated that he was duly elected, qualified and
acting as said officer of the corporation, that he was authorized to execute
said instrument and that the seal affixed, if any, is the corporate seal of said
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
/s/ Xxxxxxxxx X. Tholosega
----------------------------
(Signature of Notary)
XXXXXXXXX X. THOLOSEGA
----------------------------
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the
Territory of American Samoa
My Appointment Expires: 12/31/94
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-15-
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
__________________ )
On this 15 day of April, 1994, before me, the undersigned, a Notary Public
in and for the State of Washington duly commissioned and sworn, personally
appeared Xxxxxxx X. Xxxx, to me known to be the person who signed as CEO of
COST-U-LESS, the corporation that executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of
said corporation for the uses and purposes therein mentioned, and on oath stated
the uses and purposes therein mentioned, and on oat, stated that he was duly
elected, qualified and acting as said officer of the corporation, that he was
authorized to execute said instrument and that the seal affixed, if any, is the
corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
/s/ Xxxxxx Xxx
----------------------------
(Signature of Notary)
XXXXXX XXX
----------------------------
(Print of stamp name of Notary)
NOTARY PUBLIC in and for the
State of Washington
My appointment Expires: 03-25-98
--------
-16-
December 23, 1993 Revised: Jan. 2.1995
--------------------
Mr. Xxx Xxxx
Chairman
Cost U Less
0000 00xx Xxxxx X.X.
Xxxxx 000
Xxxxxxxx, Xx 00000
Dear Xxx,
I propose the following changes to our agreed terms of a ten (10) year lease and
two (2) five (5) year options. New proposed lease term is a fifteen (15) year
lease with one (1) five (5) year option.
A 32,055 sq. ft. building is proposed.
------
Lease payments will be set up as follows.
Year 1-2 or 24 months.. $1.00 per square foot x 32,055 s.f. = $32,055. per
------ -------
month.
Year 3-5 or 36 months.. $1.10 per square foot x 32.055 s.f. = $35,260.50 per
------ ----------
month.
Year 6-7 or 24 months.. $1.20 per square foot x 32,055 s.f. = $38,466. per
------ --------
month.
Year 8-10 or 36 months.. $1.30 per square foot x 32,055 s.f. = $41,671.50 per
------ ----------
month.
Year 11-12 or 24 months.. $1.40 per square foot x 32,055 s.f. = $44,877. per
------ --------
month.
Year 13-15 or 36 months.. $1.50 per square foot x 32,055 s.f. = $48,082.50 per
------ ----------
month.
Year 16-17 or 24 months.. $1.60 per square foot x 32,055 s.f. = $51,288. per
------ -------
month.
Year 18-20 or 30 months.. $1.70 per square foot x 32,055 s.f. = $54,493.50 per
----------
month.
In addition, a Stand By Letter of Credit is to be established with Amerika Samoa
Bank by Cost U Less in the name of Ottoville Dev. Co. for $384.660. The Letter
--------
of Credit shall be in place for a term not less than seven (7) years. After the
seven (7) year period, annual reductions of $100,000 per year is allowed by
Ottoville Dev. Co. By year ten (10) the Stand By Letter of Credit shall be
discontinued.
I look forward to your early reply.
Regards,
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Vice President
-17-
LEASE AGREEMENT SUPPLEMENT
----------------------------
This Lease Supplement dated April 10th, 1997, between Ottoville Development
Company ("Landlord) having an address of X.X. Xxx 000, Xxxx Xxxx, Xxxxxxxx Xxxxx
00000 and COST U LESS, a Washington Corporation ("Tenant") having an address of
00000 XX 00 Xx. Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
In consideration of the rents and mutual covenants, as set forth in the
primary lease herein between the Landlord and Tenant entered March 1, 1995, it
is hereby further agreed as follows:
That the actual commencement date as set forth on 2. Term, of the said Lease
Agreement shall be March 1, 1995 and the term of the lease shall end on
February 28, 2005.
(2) That the actual floor space leased herein is 32,055 square feet.
(3) That the rent schedule herein shall be based upon the floor space of
32,055 square feet and paid as follows:
. Year 1-2 or 24 months. $1.00 per square foot x
32,055 s.f. = $32,055.00 per month.
. Year 3-5 or 36 months. $1.10 per square foot x
32,055 s.f. = $35,260.50 per month.
. Year 6-7 or 24 months. $1.20 per square foot x
32,055 s.f. = $38,466.00 per month.
. Year 8-10 or 36 months. $1.30 per square foot x
32,055 s.f. = $41,671.50 per month.
. Year 11-12 or 24 months. $1.20 per square foot x
32,055 s.f. = $44,877.00 per month.
. Year 13-15 or 36 months. $1.30 per square foot x
32,055 s.f. = $48,082.50 per month.
. Year 16-17 or 24 months. $1.20 per square foot x
32,055 s.f. = $51,288.00 per month.
. Year 18-20 or 36 months. $1.30 per square foot x
32,055 s.f. = $54,493.50 per month.
(4) The Stand By Letter of Credit is to be established with Bank of
Hawaii by Cost U Less in the name of Ottoville Development Company for
$384,660.00. The Letter of Credit shall be in place for a term not less than
seven (7) years. After the seven (7) years period, annual reductions of $100,000
per year is allowed by Ottoville Development Company and by year ten (10) the
Stand By Letter of Credit shall be discontinued and it is further agreed, that
the Tenant will bear the cost to have this credit facility in place for the
first four (4) years; thereafter, the Tenant shall invoice
-1-
the Landlord for the following four (4) years for the cost of maintaining this
credit facility in a sum not to exceed $1,600.00 a year or $6,400.00 for four
(4) years.
LANDLORD:
OTTOVILLE DEVELOPMENT COMPANY
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
President
TENANT
COST-U-LESS, A WASHINGTON CORPORATION
/s/ Xxxxxxx X. Xxxx
----------------------------
XXXXXXX X. XXXX
Chief Executive Officer
TERRITORY OF AMERICAN SAMOA )
) ss.
COUNTY OF TUALAUTA )
____________________________)
On this 10th day of April, 1997, before me personally appeared XXXX XXXXXX,
President of OTTOVILLE DEVELOPMENT COMPANY, to me known to be the person
described in and who executed the foregoing instrument and acknowledged to me
that he executed the same as his free act and deed, in behalf of OTTOVILLE
DEVELOPMENT COMPANY.
In Witness Whereof I have hereunto set my hand and official seal.
/s/ Xxxxxxxxx X. Tholosega
----------------------------
NOTARY PUBLIC
My Commission Expires: 12/31/98
--------
-2-
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
__________________ )
On this 7th day of April, 1997, before me personally appeared XXXXXXX X.
XXXX, Chief Executive officer of COST U LESS, A WASHINGTON CORPORATION, to me
known to be the person described in and who executed the foregoing instrument
and acknowledged to me that he executed the same as his free act and deed, in
behalf of COST U LESS, A WASHINGTON CORPORATION.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxx X. Xxxx
----------------------------
NOTARY PUBLIC
My Commission Expires:
[OFFICIAL SEAL OF XXXX X. XXXX]
-3-
