EXHIBIT 10-4
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LEASE
This Lease is made the 23rd day of September 1991 BETWEEN Her Majesty
Xxxxxxxxx the Second, by the Grace of God, of the United Kingdom of Great
Britain and Northern Ireland and of Anguilla and of all Her other
Territories, Queen, acting by Xxxxx Xxxxxx Xxxx Xxxxx, OBE, Governor of
Anguilla, under and by virtue of section 75 of the Constitution of Anguilla
(hereinafter in this Lease referred to as "the Crown") of the ONE PART and
Casablanca Resorts Development of Anguilla Limited a company incorporated
under the laws of Anguilla having its registered office at Merrywing,
Anguilla (hereinafter in this Lease called "the Lessee") of the OTHER
PART.________________________________________
WHEREAS The Government is desirous of having all that property commonly
referred to as Merrywing developed into a luxury tourist resort in accordance
with its established developmental policies_________
AND WHEREAS The Lessee has indicated to the Government its willingness to
lease and develop Merrywing into a luxury tourist resort in accordance with
the Government's developmental policies and the Government has resolved to
advise the Governor of Anguilla in right of the Crown to grant a lease of the
said land to the Lessee, subject to the terms, covenants and conditions
hereinafter set forth__________
NOW THEREFORE THIS LEASE WITNESSETH:
Demise 1. (a) In consideration of the expenses to be incurred by the
Lessee in the erection of the buildings and the carrying
out of the works hereinafter mentioned and of the rents and
covenants on the part of the Lessee hereinafter reserved
and contained the Crown hereby demises unto the Lessee ALL
THAT land situate at Merrywing, Anguilla as is more
particularly described in the First Part of the Schedule
hereto and as shown for the purposes of identification
edged in red on the plan marked `A' attached hereto having
an area of thirty seven (37) acres or thereabouts and also
the partly constructed buildings now thereon (hereinafter
called the demised premises) together with all rights of
way or easements appurtenant thereto excepting and
reserving unto the Crown, its servants and
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licensees and the public in general the right to pass
and xxxxxx with or without vehicles or animals for all
purposes and at all times over and along the roads marked
in green on the said plan marked `A' and reserving unto the
Crown all mines and minerals including sand and gravel and
all timber and other trees under or upon the demised
premises TO HOLD the same unto the Lessee from the Date
Hereof for a term of ninety
Habendum nine years Paying Therefor the rents reserved and described
in the Second Part of the Schedule Hereto:
Proviso Provided that no estate or interest in the road or roads or
footpaths on or adjacent to the demised premises is or
shall be deemed to be included in this demise.______________
(b) The Lessee shall pay at the execution of this Lease hereof
the sum of US$350,000 for the purchase of the buildings (as
is) on the demised premises receipt whereof of the said sum
the Crown hereby acknowledges:_______________________________
Lessee's 2. The Lessee hereby covenants with the Crown as follows:
Covenants (1) To pay the said reserved rents on the days and in the
manner set forth in the Second Part of the Schedule.
(2) To pay all existing and future rates, taxes, assessments
and outgoings now or hereafter imposed upon the demised
premises, or any part thereof._______________________________
(3) Not less than one month before commencement of the works
described as "Phase I" of the development works in the
Third Part of the Schedule hereto to submit for approval by
the Crown the plans drawings and specifications in respect
of Phase I and thereafter to submit plans, drawings and
specifications in respect of each successive Phase of the
development works described as aforesaid.____________________
(4) At its own expense to erect the buildings and carry out the
works (hereafter referred to as the development works) on
the demised premises described in the Third Part of the
Schedule hereto and to comply at all times during the term
of this demise with all the requirements as to the time,
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manner and nature of the development works set out in the
said part of the Schedule, and in accordance with plans
designs and drawings submitted to the Crown for
approval.____________
(5) Upon completion of the part of the development works
comprised in "Phase I", "Phase II" and "Phase III"
respectively, individually and as the case may be jointly
of the development as described in the Third Part of the
Schedule hereto and at all times thereafter during the term
of this demise to operate on the demised premises a luxury
resort complex comprising a hotel of not less than 114
rooms, private homes for permanent residence and villas,
providing tourist accommodation of a type and nature
commensurate with internationally accepted standards
required of luxury tourist accommodation provided that the
Lessee shall not construct and operate any private homes
for permanent residence or villas until at least 114 hotel
rooms shall have been completed and are
operational.__________________________________________
(6) Not to use or permit or suffer the demised premises or any
part thereof, or any building or part thereof for the time
being thereon to be used otherwise than as a luxury resort
complex, and for purposes ancillary thereto (as defined in
sub clause (20)(c)(i) of this clause) and not to do, permit
or suffer anything to be done upon any part of the demised
premises which may be or may become a nuisance or annoyance
or cause damage or inconvenience to the tenants or
occupiers of adjoining premises;
Provided that the Lessee shall not be in breach of this
covenant by reason only of building or construction works
properly carried out in accordance with the Lessee's
covenants contained in sub-clause (4) of this
clause.________________________________________________
(7) Not to use or suffer or permit the use of any part of the
demised premises or any building for the time being thereon
for any illegal or immoral purpose.__________________________
(8) Not to install in or erect on or attach to the demised
premises or any part thereof or building thereon any
television satellite reception device or any television
broadcast or cable transmission
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equipment without the prior written consent of the Crown
which consent if granted may be granted subject to such
conditions as to the Crown may seem fit.____________________
(9) To permit the duly authorized agents of the Crown with or
without workmen and others to enter upon the demised
premises or any part thereof or any building for the time
being erected thereon at any reasonable time to examine the
condition thereof and to ascertain that there has been or
has not been any breach or non-compliance by the Lessee of
or with the several covenants herein
contained._____________________________________________
(10) At all times during the said term to keep all buildings or
erections which may be upon the demised premises insured
from loss or damage by fire, flood, hurricane and all other
usual insurable risks in some insurance office approved by
the Crown to the full value thereof from time to time
together with two years minimum rent as reserved in the
Second Part of the Schedule hereto and to notify the
insurance off ice of the Crown's interest in the policy as
a beneficiary and to make all payment's necessary for the
above purposes immediately the same shall become payable
and to produce to the Crown on demand the several policies
of such insurance and the receipts for every such
payment._____________________________________
(11) As often as the buildings or erections on the demised
premises shall be destroyed or damaged as aforesaid
forthwith to rebuild and reinstate the same to the
satisfaction of the Crown it being hereby agreed that all
monies to be received by virtue of any such insurance as
aforesaid (save monies received in respect of loss or rent)
shall be applied in rebuilding and reinstating the said
buildings or erections and in case the said monies shall be
insufficient for that purpose the Lessee shall make up any
deficiency out of its own money: PROVIDED that if the
rebuilding or reinstatement of the buildings or any part
thereof shall be frustrated all the insurance monies
relating thereto shall be shared as may be agreed between
the Crown and the Lessee in proportion with their
respective loss: PROVIDED FURTHER that where by reason of
damage or destruction to the demised premises by hurricane
or flood or other similar natural phenomena it
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is impracticable to rebuild or reinstate any building or
erection on its former site the Lessee may choose a new
site or make such modifications for any such building or
erection as may be requisite subject to planning permits
and building permits being granted by the appropriate
authorities.___________________________________________
(12) Not to erect on the demised premises any building within
one hundred feet of the seaward boundary of the demised
premises and not to prevent, hinder or obstruct the access
of all persons at all times over and along the land between
the seaward boundary of the demised premises and the sea,
on the said plan marked `A' to allow such access as
aforesaid over a space of land not less than six feet in
width from the seaward boundary of the demised
premises._______________
(13) To keep and maintain the demised premises and any buildings
for the time being erected thereon and all sanitary and
water apparatus in or under the premises and appertaining
thereto in good and substantial repair and
condition._____________________________________________
(14) Not to cut down, lop, fell or up-root any timber or other
trees without the prior written consent of the
Crown._________________________________________________
(15) To keep the demised premises clean tidy and in proper
condition and not to suffer or permit the accumulation
of any rubbish or filth thereupon;
Provided always that the Lessee shall not be in breach of
this covenant by reason only of the proper carrying out on
the demised premises of the development works described in
subclause (4) of this clause.__ ___________________________
(16) Not to discharge or suffer or permit the discharge of any
sewage, waste or noxious or polluting matter in to the sea
or the ponds on the demised premises or adjacent to the
demised premises._____
(17) In the execution of the development works to conform at all
times at its own expense to all provisions of any written
law for the time being which is applicable thereto and in
particular to
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obtain the permissions required under the Building
Ordinance (Cap. 284) and Building Regulations made
thereunder, The Land Development Control Ordinance and
Regulations made thereunder or any statutory modification
or reenactment thereof prior to commencement of any of the
development works on the demised premises.___________________
(18) To remove any building, erection or works made otherwise
than under and in accordance with the provisions of this
Lease or without prior written consent of the Crown and to
make good all damage caused by such removal and to restore
all parts of the demised premises affected thereby to a
good and tenantable condition._______________________________
(19) Not to do or suffer or permit to be done on or in
connection with the demised premises anything which may be
in contravention of any provision of any written law
relating to planning or to the development of
land.__________________________________________________
(20) (a) Not to transfer or assign this Lease without the prior
written consent of the Crown, which consent shall not
be unreasonably withheld.______________________________
(b) Not to encumber the demised premises by way of charge,
mortgage, debenture or otherwise without the prior
written consent of the Crown._________________________
(c) Not to underlet or part with possession of the demised
premised or any part thereof save to the extent of -
(i) a sublease or license of a building or part thereof
to a person or company not requiring an Aliens Land
Holding License or (with the prior written consent
of the Crown) to a person requiring an Aliens Land
Holding License, for a term or terms (including any
option for renewal) which does not exceed in the
aggregate twenty one years for use for a purpose
ancillary to the operation on the demised premises
of a luxury resort complex: and for the avoidance
of doubt it is hereby declared and agreed that
retail shops (other than food and
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liquor) sporting facilities and restaurant or
catering facilities intended for use by persons who
are guests or visitors of or to the demised
premises are purposes ancillary to the use of the
demised premises as aforesaid: PROVIDED always
that no such sublease or license shall be granted
in respect of any building or a part thereof which
is used or intended to be used for the
accommodation of guests: or
(ii) a sublease or license in relation to a completed
building or a part thereof as it relates to villas
(except any part of Phase I which will be used and
managed solely as a hotel and an integral part of
the luxury resort complex) which are used or
intended to be used for the accommodation of guests
provided that any such subletting or license shall
be subject to an agreement or arrangement
enforceable in law by the Lessee against the
sublessee or licensee that the part of the demised
premises concerned shall be available as
commercially let holiday or vacation accommodation
to persons other than the sublessee or licensee for
not less than ten months in each period of twelve
months following the commencement of the sublease
or license and that the parts of the demised
premises concerned shall be used and managed as an
integral part of the luxury resort complex and
provided further that the two months in which the
part of the demised premises is not available as
commercially let holiday or vacation accommodation
under this paragraph shall comprise one month in
the period May to November and one month in the
period December to April in each year: and provided
further that this sub-clause shall not apply to any
units constructed as private homes for permanent
residence as provided for in Phase 4 of the Third
Part of the Schedule._______________________________
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(21) On the expiration or earlier determination of the said term
peaceably to yield up to the Crown the demised premises
together with the buildings and erections thereon in
tenantable repair and condition in accordance with the
Lessee's covenants herein contained.______________________
(22) To charge all guests staying at the demised premises a full
and proper rate for their accommodation and to keep proper
accounts thereof and otherwise to act in accordance with
the provisions of the Accommodation Tax Ordinance 1973 or
any statutory modification or re-enactment of the
same.__________________________________________________
Crown's 3. The Crown hereby covenants with the Lessee as follows -
Covenants (1) That the Lessee paying the rents reserved and performing
and observing the covenants on the part of the Lessee and
the conditions herein contained shall peacefully hold and
enjoy the demised premises during the term hereby granted
without any interruption or disturbance by the Crown or any
person rightfully claiming under or in trust for the
Crown.____________________
(2) If the Lessee by reason of any act or omission shall cease
to be such then any assignee or sublessee of the Lessee may
remain in possession upon compliance with the terms of its
assignment or sublease including payment of rents provided
therein directly to the Crown:
Provided always that any assignee or sublessee agrees to
attorn to the Crown.________________
(3) That the Lessee paying the rents reserved and performing
and observing the covenants on the part of the Lessee and
the conditions herein contained the Crown will not
willfully do anything whereby the trade or goodwill of the
luxury resort complex shall be materially injured._________
(4) The Government shall indemnify, defend and hold the Lessee
harmless from and against any and all costs, expenses
(including, without limitation, attorney's fees and
disbursements) and damages arising out of any claims that
may be brought of any person or company in relation to the
existing buildings or otherwise on the demised premises and
in relation to any interest such
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person may have had or has up to the moment of execution of
this Lease Agreement in relation to any project previously
associated with demised premises.
Provisos 4. Provided always and it is hereby agreed and declared as follows:
Crown's (1) IF:
right to (a) the rents hereby reserved or any part of them shall
remain unpaid for sixty days after the
re-enter same shall have become due (whether formally demanded
or not): or
(b) the Lessee shall fail to perform and observe or
diligently pursue any of the covenants herein contained
and on the Lessee's part to be performed and observed
or fail to remedy the breach of any of the said
covenants within two months after receipt of notice in
writing to that effect: or
(c) the Lessee, being a company shall enter into
liquidation whether compulsory or not (except for the
purpose of amalgamation or reconstruction) or being an
individual shall become bankrupt: or
(d) the Lessee shall enter into an arrangement or
composition with its creditors or suffer any distress
or execution to be levied on its goods on the demised
premises:
then and in any such case it shall be lawful for the Crown
at any time thereafter (but subject always to the
provisions of sections 56 and 57 of the Registered Land
Ordinance) to enter upon the demised premises or any part
thereof in the name of the whole and take possession of the
demised premises and all buildings works or erections on
the demised premises and all chattels building materials
plant and other equipment thereon (other than the property
of any independent contractor engage in works of
construction) with power to hold and dispose of the same as
absolute owners and thereupon this demise shall absolutely
determine but without prejudice to
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the right of action of the Crown in respect of any arrears
of rent or any breach of covenant.__________________________
(2) Any notice of determination or any other notice required to
be given by the Crown shall (so long as the reversion
immediately expectant on the term hereby created shall
remain vested in the Crown) be given either under the hand
of the Governor of Anguilla or the Attorney General of the
Government of Anguilla for the time being and shall be
sufficiently served if sent by registered post addressed to
the Lessee at its registered office and any notice required
to be given by the Lessee shall be sufficiently served if
handed to the Attorney General or if sent by registered
post to the Attorney General at his last known office
address._____________________
(3) If the Lessee shall be in breach of the covenant on its
part to be performed and observed as set out in clause 2(4)
hereof there shall be payable to the Crown as liquidated
damages and in respect each breach of the covenant as
aforesaid the sum of one hundred dollars United States
currency for each day upon which any such breach of
covenant as aforesaid shall continue provided however that
any action taken by the crown pursuant to the provisions
hereto shall be without prejudice to the Crown's rights in
relations to any conditions imposed under an Aliens Land
Holding License granted to the Lessee in connection
herewith and the rights of the Crown thereunder with
respect to any breaches of conditions and the Crown's
remedies thereunder in accordance with the provisions of
the Alien Landholding Regulation Ordinance.______________
Arbi- 6. Any dispute or difference between the parties hereto arising
under or in connection with this Lease shall
tration be arising under or in connection with this Lease shall be
referred to arbitration in accordance with the law for the time
being of England, but any such arbitration shall be heard and
determined in Anguilla.___
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Nation- 7. In the event that any part or the whole of the demised premises
or any buildings thereon or any property of
alisation the Lessee shall be compulsorily acquired or in any other
manner expropriated or acquired by the Crown the Crown shall
make prompt payment of adequate compensation therefore in
United States Currency or in such other form as may be agreed
between the parties._______________________________________
Execut- 8. This Lease shall be executed with two counterparts.______________
ion
Margin 9. The marginal notes hereto and the headings in the Schedule
hereto shall not affect the construction of this
Agreement.__________________________________________________
IN WITNESS whereof the said Xxxxx Xxxxxx Xxxx Xxxxx has set his
hand and seal on behalf of the Crown and the common seal of
Casablanca Resorts Development of Anguilla Limited has been
affixed as authorized in manner requisite by law the day and
year first before written.
Signed Sealed and Delivered
by XXXXX XXXXXX XXXX XXXXX /S/____________________ Signature
Governor
In the Presence of: /S/____________________
(name of witness)
SEAL
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Signed Sealed and Delivered
by Casablanca Resorts Development
of Anguilla Limited /S/______________________
Signature of Director
/S/______________________
Signature of Secretary
SEAL
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THE SCHEDULE
FIRST PART
(Demised Premises)
SECTION: BLOCK NO: PARCEL NOS. AREA
West Central 28110 B Part of 21 37 acres
SECOND PART
(Rents)
1. The rents payable for the demised premises shall be: US$1,000 per acre
per annum for the first five (5) years; US$1,500 per acre per annum for
years 6-15 and thereafter the rent shall increase by US$500 per acre per
annum in the next ten year period and in each successive ten year period
thereafter up to a maximum of US$3,500 per acre, and the rental for the
first five years shall be paid in advance being the sum of US$185,000;
the sum of $55,000 ($185,000 - 130,000) being paid at the execution
hereof (and receipt of the total sum of $185,000 whereof is hereby
acknowledged) and thereafter the rent shall be paid yearly in advance at
the rate set out above on or before the anniversary date in each and
every year.
2. For the purpose of this Part of this Schedule the expression re-claimed
includes the carrying out of any works which render any land useable for
a commercial purpose and includes but shall not be limited to dredging
landfilling or the construction of any building or other erection in on
or above any land.
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THIRD PART
(Development Works)
PART A PRELIMINARY
1. The Lessee shall carry out the building construction or development
works described in this Schedule in accordance with the Scheme herein
described.
2. The development shall be carried out in four separate Phases.
3. Phases I to IV (inclusive) are referred to in this Schedule as "the
Merrywing development" and shall be carried out in accordance in all
respects with the provisions of this Schedule.
4. Subject to the exercise of his option under Phase IV of Part B of this
Part the Lessee shall not be obliged to construct more than an aggregate
of one hundred and fourteen guest rooms on the demised premises.
5. The Lessee shall notify the Crown in writing of the date of the actual
commencement of work on each Phase of the development and the date of
completion of the work on each Phase.
PART B THE MERRYWING DEVELOPMENT
6. The Lessee shall commence the building and development on the demised
premises and shall continue until the same is completed and ready for
use and occupation in all respects in accordance with the plans drawings
and site layouts previously approved by the Crown, and further in all
respects in accordance with the provisions of this Part of this Schedule
and at the times and manner herein provided and development shall be in
accordance with the following Phases:
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PHASE I
COMMENCEMENT: within three months of the date of this Lease.
COMPLETION: within 15 months from the date of signing of this
Lease.
DEVELOPMENT WORKS: - 42 Hotel Rooms
- Restaurant
- Hotel Lobby
- Beauty Salon
- Boutique
- Laundry & Storage Facility
- Management Offices
PHASE II
COMMENCEMENT: within six months of completion of Phase I
COMPLETION: within eighteen (18) months of commencement of
this phase.
DEVELOPMENT - Swimming Pool
- Tennis Courts (2)
- 42 Hotel Rooms
- Meeting Rooms
- Ancillary Works
- Second Restaurant (if circumstances justify)
- Bar
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PHASE III
COMMENCEMENT: within six months of completion of Phase II.
COMPLETION: within two years after commencement of this phase.
DEVELOPMENT: - 30 Hotel Rooms
PHASE IV
COMMENCEMENT: This Phase shall be optional at the instance of
the Lessee, provided that such option is exercised
by the Lessee within (18) eighteen months of the
completion of Phase III.
COMPLETION: Within two years after commencement of this Phase
if said option is exercised.
DEVELOPMENT: - Villas
- Private homes for permanent Residence - Number
of Units - as determined by the Lessee and
approved by the Government provided that all
necessary building and planning permission is
obtained from the relevant authorities.
