SUBLEASE
THIS Sublease is made and entered into as of the 15th day of July, 1994
and by and between TAMUNING CAPITAL INVESTMENT, INC., a Guam corporation
("Sublessor"), and COST-U-LESS, a Washington corporation ("Sublessee").
WITNESSETH:
WHEREAS, Sublessor entered into two (2) Subleases, both dated July, 1994 as
shown with any amendments in EXHIBIT C, attached hereto and made a part hereof
by reference (collectively the "Master Subleases") with Pacific Tyre Capital
Investment, Inc. ("PTCI") under the terms of which PTCI, as sublessor, subleased
to Sublessor a certain tract of land consisting of Parcels 3 and 4 as shown on
EXHIBIT A, attached hereto and by reference made a part hereof (the "Real
Property"). The Real Property is a parceling for leasehold purposes only of the
property or lots under the Ground Leases described below;
WHEREAS, PTCI acquired its leasehold interest in the Real Property from the
fee owners of the Real Property by entering into the following two ground leases
as shown with any amendments in EXHIBIT D, attached hereto and made a part
hereof by reference (collectively, the "Ground Leases"):
(i) That certain Lease, dated November 13, 1992, between XXXXXXX X.
XXXXXXX and XXXXX X. XXXXXXX (HUSBAND AND WIFE), AND XXXXXXXX X. XXXXXX (A
WIDOW), collectively referred to therein as "Lessors", and PTCI, referred
to therein as the Lessee, as recorded in the Department of Land Management,
Government of Guam, under Instrument No. 479858; and
(ii) That certain Lease, dated April 6, 1992, by Xxxxxxxxx X. Xxxxx
(Lessor) and PTCI (Lessee), as recorded in the Department of Land
Management, Government of Guam, under instrument no. 469677;
WHEREAS, Sublessor is willing to construct a building of approximately
35,000 square feet (the "Building") on the Real Property in accordance with the
plans, outlines and specifications (collectively the "Plans") which shall be
provided to Sublessor by Sublessee and shall be substantially similar to the
plans attached hereto as EXHIBIT B, but shall differ from the attached plans as
set forth in the letter dated July 11, 1994, which is also attached as
EXHIBIT B. The Real Property and the Building, collectively, are referred to
herein as the "Premises"; and
WHEREAS, Sublessor desires to sublease the Premises to Sublessee and
Sublessee desires to sublease the Premises from Sublessor on the terms set forth
in this instrument.
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NOW THEREFORE, in consideration of the above and foregoing premises which
are made a contractual part hereof, and in consideration of the rents and mutual
covenants set forth herein, Sublessor and Sublessee agree as follows.
1. PREMISES
Sublessor does hereby lease and demise the Premises together with any and
all improvements thereon, including, but not limited to, the Building, to
Sublessee and Sublessee does hereby accept the sublease of the Premises and such
improvements from Sublessor for the term and under the terms and conditions set
forth herein.
2. RECIPROCAL EASEMENTS
2.1 GRANT OF PARKING AREA EASEMENT
Sublessor grants to Sublessee for the term of this Sublease and all
extensions thereof, a nonexclusive easement for ingress, egress and passage,
both vehicular and pedestrian, and vehicle parking, in the respective areas from
time to time established therefor, including any and all service roads,
driveways, driveway entrances and exits, vehicle approaches, sidewalks,
pedestrian walkways and vehicle parking areas, which now are or hereafter may be
located on Parcels 1 and 2 as shown on EXHIBIT A (the "Parking Area"), such use
to be made solely in connection with the conduct of the user's lawful business
on the Real Property or any portion thereof. Sublessee shall have the right to
extend the benefit of the foregoing easement to its employees, suppliers,
customers, invitees, assigns and licensees during the term of this Sublease.
2.2 SUBLESSEE'S GRANT EASEMENT
Sublessee grants to Sublessor for the term of this Sublease and all
extensions a nonexclusive easement for ingress, egress and passage, both
vehicular and pedestrian, and vehicle parking, in the respective areas from time
to time established therefor, including any and all service roads, driveways,
driveway entrances and exits, vehicle approaches sidewalks, pedestrian walkways
and vehicle parking areas, which now are or hereafter may be located on the Real
Property. Sublessor shall have the right to extend the benefit of the foregoing
easement to any other party including but not limited to its employees,
suppliers, customers, invitees, assigns, tenants, predecessors in interest, and
licensees.
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2.3 DUTY TO DEVELOP THE PARKING AREA
Sublessor shall initially construct and pave the roads and parking areas
that comprise the Parking Area and the parking area on the Real Property, which
together shall contain no less than the parking spaces required by applicable
law.
2.4 UNIMPEDED ACCESS
Sublessee and Sublessor each agree to maintain unimpeded access at all
times between and among all vehicle parking areas from time to time located on
the Real Property and the Parking Area, or any portion thereof; and no fence,
wall, hedge, or other barrier (other than reasonable devices for the regulation
of traffic flow and the delineation of parking areas) shall be constructed or
installed on the Real Property and the Parking Area, or any portion thereof, in
such a manner as to interfere with such access between and among the Real
Property and the Parking Area. Notwithstanding any other provision hereof,
Sublessor shall have the right to erect and maintain a construction fence for a
period of thirty (30) calendar days for each building or other improvement to be
constructed on Parcels 1 and 2 as shown on Exhibit A attached hereto.
2.5 NO PUBLIC DEDICATION
Nothing contained in this Sublease shall constitute, or be construed to
constitute, a dedication of any portion of the Real Property or the Parking Area
to the general public or for the benefit of the general public or for any public
purposes whatsoever. The easements herein granted shall be for the exclusive
use of the parties hereto and those whom the parties permit to enter upon their
respective premises.
2.6 EASEMENTS RUN WITH LAND
The easements herein granted shall run with the land.
2.7 NO ENCROACHMENT
Sublessor shall have the right to construct such permanent buildings and
improvements on land abutting the Premises, whether now owned or subleased or
hereafter acquired or subleased by Sublessor, and such buildings and
improvements shall not be deemed to encroach on the easements created by this
instrument, provided Sublessor provides the parking required by Paragraph 2.3
and Sublessee has ingress and egress from the Premises to and from a public
thoroughfare.
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3. TERM
The term of this Sublease is fifteen (15) years, subject to the Options to
Extend set forth in Paragraph 6. This Sublease shall commence three (3) days
after the day Sublessor notifies Sublessee in writing that the Premises are
ready for Sub1essee's occupation, but only if i) a Certificate of Occupancy has
been issued with respect to the Building and ii) service roads, driveways,
driveway entrances and exits, vehicle approaches, sidewalks, pedestrian
walkways, vehicle parking areas have been built, paved and are operational and
comply with all applicable laws and ordinances (the "Commencement Date").
4. CONSTRUCTION OF PREMISES
4.1 SUBLESSOR'S CONSTRUCTION
Sublessor shall, subject to the conditions set forth below, use best
efforts to construct and prepare the Premises at Sublessor's sole cost and
expense, substantially in accordance with the Plans ("Sublessor's
Construction"). All labor and materials which Sublessee shall require to
prepare the Building for Sublessee's use other than those described in the Plans
shall be furnished by Sublessee at Sub1essee's sole cost and expense.
Sublessor's Construction shall be accomplished in compliance with all applicable
laws, ordinances, regulations and restrictions. Sublessor shall make timely
payments of all costs of Sublessor's Construction, 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. Sublessor shall, at its own expense, obtain all final
administrative approvals, permits or other documentation necessary to legally
perform Sublessor's Construction.
4.2 COMMENCEMENT OF CONSTRUCTION
If Sublessor's construction has not been commenced by that day which is one
hundred eighty (180) days from the date of this Sublease, Sublessee may cancel
this Sublease. If, after using its best efforts, Sublessor is unable to obtain
the final administrative approvals, permits or other documents described in
Paragraph 4.1 above, Sublessor may terminate this Sublease, and upon such
termination, the parties shall have no further rights or liabilities hereunder.
4.3 COMPLETION OF WORK
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Sublessor shall not be liable or responsible for delays in Sublessor's
Construction arising out of or occasioned by strikes, accidents, acts of God,
extreme weather conditions, non-delivery or a delay in delivery of materials
from an off island supplier as a result of acts of God or events beyond the
control of the supplier, inability or change of zoning which prohibits
commercial use of the Premises, unforeseen restrictions imposed by any
government or any governmental agency or other delays beyond Sublessor's
control. Subject to the foregoing, Sublessor agrees to complete Sublessor's
Construction not later than that day which is the same number of days after
November 15, 1994 as the number of days between June 30, 1994 and the date of
this Sublease ("Completion Date"). In the event any event of force majeure
described above shall occur and result in delay, the Completion Date shall be
extended by the number of days of excused delay. If for any reason Sublessor
fails to complete Sublessor's Construction by the Completion Date (including
all extensions thereof) this Sublease shall not be void or voidable, but as
liquidated damages and as Sublessee's sole remedy, Sublessor shall grant
Sublessee two (2) months free rent from and after the Commencement Date. If
Sublessor fails to complete Sublessee's Construction by a date sixty (60) days
after the Completion Date, then in addition to the two months free rent, as
liquidated damages and as Sublessee's sole remedy, Sublessor shall pay to
Sublessee five hundred dollars ($500) per day for each day after the sixtieth
day following the Completion Date that Sublessor's Construction is not complete
provided, however Sublessor shall not be liable for any liquidated damages for
delays past May 1, 1995. If Sublessor fails to complete Sublessor's
Construction by May 1, 1995, then Sublessee may terminate this Sublease and
Sublessor shall have no further liability to Sublessee other than the liability
to pay liquidated damages in the amounts provided above. If Sublessor completes
Sublessor's Construction on or before the Completion Date, Sublessee shall, on
the Commencement Date, pay Sublessor a completion bonus in the amount of one
month's rent. For purposes of this paragraph, Sublessor shall be deemed to
complete Sublessor's Construction at the point construction on the Premises is
sufficiently complete for the Commencement Date to occur and the fifteen year
term to commence in accordance with Paragraph 3.
4.4 ASSIGNMENT OF WARRANTY
Sublessor shall, and by these presents does hereby assign to Sublessee all
warranties (whether express or implied) Sublessor obtains from the contractors,
suppliers and manufacturers who provide labor and materials for the construction
of the Premises. Upon termination of this
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Sublease, Sublessee shall reassign back to Sublessor all such warranties.
4.4.1 WARRANTY OF SUBLESSOR'S CONSTRUCTION
Sublessor warrants that Sublessor's Construction shall be performed in a
good workmanlike manner in compliance with the Plans. This warranty shall
continue until that date which is twenty-four (24) months after the Commencement
Date ("Warranty Period").
4.4.2 CORRECTION OF DEFECTS
If, at any time during the Warranty Period, Sublessor receives from
Sublessee notice of any failure to comply with the warranty set forth in
Paragraph 4.4.1, Sublessor shall promptly and, at such times as Sublessee
reasonably directs, satisfactorily correct such noncompliance and remedy any
damage resulting from the noncompliance. All costs of correction under this
paragraph shall be borne by Sublessor.
4.4.3 SUBLESSEE'S RIGHT TO CORRECT
If Sublessor fails to satisfactorily correct or remedy any noncompliance or
damage in accordance with Paragraph 4.4.2 within thirty (30) days of Sub1essee's
notification of Sublessor or commence such correction within such thirty (30)
day period, then Sublessee may, but is not obligated to, perform on behalf and
at the expense of Sublessor, any correction or remedy which Sublessor fails to
perform in accordance with Paragraph 4.4.2. Sublessee may offset the costs of
any correction under this paragraph against rent or any other sum payable to
Sublessor.
5. RENT
5.1 PAYMENT OF RENT
Throughout the term of this Sublease, Sublessee shall pay monthly rent to
Sublessor as rent for the Premises ("Monthly Rent"). Monthly Rent shall be paid
in advance on or before the first day of each calendar month of the term of this
Sublease. If the term of this Sublease commences on a day other than the first
day of a calendar month or ends on a day other than the last day of a calendar
month, then the Monthly Rent will be appropriately pro rated by the Sublessor
based on the amount of rent due in the month immediately following or preceding
the Commencement Date or termination day, as the case may be, of this Sublease
and based on the actual number of calendar days in the commencement or
termination month, as
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the case may be. If the Commencement Date falls on a day other than the first
day of a calendar month, then the prorated monthly rent for such month shall be
paid on or before the Commencement Date. Monthly Rent shall be paid to
Sublessor, without written notice or demand, in lawful money of the United
States of America at Sublessor's address or to such other address as Sublessor
may from time to time designate in writing.
5.2 AMOUNT OF RENT
The rent for the Premises shall be Six Hundred Thirty Thousand and No/100
Dollars (US$630,000.00) in the first Rent Year (as defined below) and $1,726.00
per day for each calendar day of the term prior to the first Rent Year, if any;
in every subsequent Rent Year, the Rent for the Premises shall be two percent
(2%) higher than the rent for the immediately preceding Rent Year. (Example: for
the first Rent Year the rent is $630,000.00 payable in monthly installments of
$52,500.00 per month; for the second Rent Year the rent is $642,600.00, payable
in monthly installments of $53,550.00; and in the third Rent Year the rent is
$655,452.00, payable in monthly installments of $54,621.00). If the Commencement
Date falls on the first day of the calendar month, then the Rent Year shall
begin on the Commencement Date and end one calendar year later; if the
Commencement Date does not fall on the first day of a calendar month, then the
Rent Year shall begin on the first day of the first calendar month beginning
after the Commencement Date and shall end one calendar year later.
Notwithstanding the foregoing, the monthly rent for the first Rent Year (with a
resulting adjustment in the annual rent for the first Rent Year and a resulting
adjustment in the monthly and annual rents for the subsequent Rent Years) shall
be adjusted as follows in the following events:
i) if the total cost of the Building and all site improvements, including
without limitation, the cost of the construction of the parking lot in
the rear of the Building, soil testing and site preparation expenses,
costs of permits, construction period interest and taxes, but
excluding land lease payments (the "Total Cost") exceeds the sum of
One Million Two Hundred Thousand Dollars ($1,200,000), the monthly
rent for the first Rent Year shall be increased by adding to the sum
of Fifty Two Thousand Five Hundred Dollars ($52,500) the product
derived by multiplying a fraction, the numerator of which is the
excess of the Total Cost over the sum of One Million Two Hundred
Thousand Dollars ($1,200,000) and the denominator of which is One
Million Two
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Hundred Thousand Dollars ($1,200,000) times the sum of Fifteen
Thousand Four Hundred Sixteen Dollars ($15,416.00), provided such
increase shall in no event cause the monthly rent for the first Rent
Year to be more than Fifty-Five Thousand Five Hundred and Eighty-Four
Dollars ($55,584) per month; and
ii) if the Total Cost is less than the sum of One Million Two Hundred
Thousand Dollars ($1,200,000), the monthly rent for the first Rent
Year shall be decreased by subtracting from the sum of Fifty Two
Thousand Five Hundred Dollars ($52,500) the product derived by
multiplying a fraction, the numerator of which is the excess of One
Million Two Hundred Thousand Dollars ($1,200,000) over the Total Cost
and the denominator of which is One Million Two Hundred Thousand
Dollars ($1,200,000) times the sum of Fifteen Thousand Four Hundred
Sixteen Dollars ($15,416.00), provided such decrease shall in no event
cause the monthly rent for the first Rent Year to be less than Forty-
Nine Thousand Four Hundred and Seventeen Dollars ($49,417) per month.
5.3 ACCOUNTING FOR RENT
No payment by Sublessee or receipt by Sublessor of a lesser amount than the
full amount of all rent due under this Sublease shall be deemed to be other than
on account of the earliest rent or other amounts then due hereunder, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction. Sublessor may accept
such check or payment without prejudice to Sublessor's right to recover the
balance of such rent or pursue any other remedy provided for in this Sublease,
or at law or in equity.
5.4 LATE PAYMENT OF RENT
In the event Sublessee fails to pay any portion of the rent or additional
charges (as defined in Paragraph 5.6 below) by the date due or within seven (7)
calendar days after Sublessor notifies Sublessee of the delinquent rent or
delinquent additional charge, a late charge of five percent (5%) of the
delinquent rent and delinquent additional charge shall be added to the
delinquent rent and delinquent additional charge and paid to Sublessor together
therewith. In addition to such late charge, any rent payment or additional
charge delinquent for more than seven (7) calendar days after Sublessor notifies
Sublessee, together with
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applicable late charges, shall bear interest at the rate of eighteen percent
(18%) per annum from the original due date until fully paid (including late
charge and interest).
5.5 RENT OFFSETS
Except as expressly provided in this Sublease, rent and additional charges
and all other sums payable by Sublessee hereunder shall be paid without notice,
demand, counterclaim, setoff, deduction or defense and without abatement,
suspension, deferment, diminution or reduction, and the obligations and
liabilities of Sublessee hereunder shall in no way be released, discharged or
otherwise affected by reason of: (i) any title defect in or encumbrance upon the
Premises or any part thereof which shall not limit or interfere with Sub1essee's
use of the Premises; (ii) any claim which Sublessee has or might have against
Sublessor; or (iii) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing and whether or not Sublessor or Sublessee shall have
notice or knowledge of any of the foregoing.
5.6 ADDITIONAL CHARGES
All taxes, assessments, insurance premiums, charges, costs and expenses
which Sublessee assumes or agrees to pay under this Sublease, together with all
interest and penalties that may accrue thereon in the event of Sub1essee's
failure to pay the same as provided in this Sublease, and all other damages,
costs and expenses which Sublessor may suffer or incur, and any and all other
sums which may become due, by reason of any default of Sublessee or failure on
Sub1essee's part to comply with the agreements, terms, covenants and conditions
of this Sublease on Sub1essee's part to be performed shall be referred to in
this Sublease as additional charges and, in the event of their nonpayment,
Sublessor shall have with respect thereto all rights and remedies provided in
this Sublease in the event of nonpayment of rent.
5.7 NET LEASE
After completion of Sublessor's Construction, all rent shall be absolutely
net to Sublessor, so that this Sublease shall, except as expressly provided to
the contrary in this Sublease with respect to maintenance of the Parking Area,
yield net to Sublessor the rent to be paid in accordance with this Sublease.
Accordingly, Sublessee hereafter shall pay, as they become due and payable, all
costs, expenses, and obligations of every kind and nature, relating to the
Premises (other than costs and expenses relating to the maintenance of the
Parking Area), or any improvements thereon, which may
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arise or become due during the term of this Sublease including without
limitation, additional charges as provided in Paragraph 5.6, all taxes and
assessments as provided in Paragraph 8, all insurance premiums as provided in
Paragraph 9, all maintenance, repair and restoration expenses as provided in
Paragraph 10.1, and all utilities as provided in Paragraph 14. Sublessee shall
furnish to Sublessor for inspection, within fifteen (15) days after payment,
official receipts of the appropriate authority or other proof satisfactory to
Sublessor evidencing payment of the matters referred to in this paragraph.
6. OPTION TO EXTEND
6.1 OPTION
Sublessee shall have the right to extend the term of this Sublease for two
(2) successive terms of five (5) years each ("Renewal Terms"), such extensions
to be upon the covenants, terms and conditions as set forth in this Sublease,
except that rent for each such extension shall be established as described
below. Sublessee may exercise any Option to Extend only by written notice to
Sublessor of Sub1essee's election to exercise such Option to Extend given not
less than one hundred and twenty (120) days prior to the end of the then-current
term, time being of the essence.
6.2 EXTENSION RENT
(a) The annual rent for the first Rent Year of each Renewal Term shall be
equal to the fair market rental value of the leased premises at the commencement
of the Renewal Term, provided however, in no event shall the fair rental value
----------------
of the Premises for the first Rental Year of any Renewal Term be less than the
rent for the immediately preceding Rental Year ("Fair Market Rental Value").
Thereafter, the rent shall increase for each successive one year period during
the Renewal Term by two percent (2%), computed in the same manner as provided
above for the base term and shall continue to be paid on a monthly basis in
advance on the first day of each calendar month.
(b) Sublessor and Sublessee shall seek to agree as to the Fair Market
Rental Value within thirty (30) days after Sublessee gives Sublessor notice of
its election to renew this Lease. If Sublessor and Sublessee shall not agree as
to the Fair Market Rental Value within such thirty (30) day period, the Fair
Market Rental Value shall be determined by appraisal as follows:
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Within fifteen (15) days after the expiration of the above-mentioned thirty
(30) day period, Sublessor and Sublessee shall each give notice to the other
stating the name and address of an impartial person to act as appraiser
hereunder. The appraiser specified in each of such notices shall be a qualified
M.A.I. appraiser doing business in the Territory of Guam and having not less
than ten (10) years' active experience as an appraiser in Guam.
The named appraisers shall together determine the Fair Market Rental Value
within thirty (30) days after their appointment; provided, however, if either
party fails to appoint an appraiser within such fifteen (15) day period, then
the determination of the appraiser first appointed shall be final, conclusive
and binding upon both parties. In making such determination, the appraisers
shall consider the rentals at which leases are being concluded for comparable
buildings in the general vicinity of the building. If the appraisers shall fail
to agree upon the Fair Market Rental Value within thirty (30) days of their
appointment, but the difference in their conclusions as to Fair Market Rental
Value is ten percent (10%) or less of the lower of the two appraisals, the Fair
Market Rental Value shall be the average of the two.
If the two appraisers fail to agree on the Fair Market Rental Value, and
the difference between the two appraisals exceeds ten percent (10%) of the lower
of the two appraisals, then the appraisers shall, within ten (10) days after the
expiration of such thirty (30) day period, appoint a third appraiser, similarly
impartial and qualified, to determine the Fair Market Rental Value. Such third
appraiser shall determine the Fair Market Rental Value within thirty (30) days
of his or her appointment, and the average of the appraisals of the two closest
appraisers shall be final, conclusive and binding upon Sublessor and Sublessee.
Upon the determination of the annual rent for the Renewal Term, Sublessor and
Sublessee shall execute and deliver to each other an agreement specifying the
amount of the annual rent for the Renewal Term.
Sublessor and Sublessee shall each pay the fees of any appraiser appointed
by Sublessor and Sublessee, respectively, and Sublessor and Sublessee shall each
pay one-half (1/2) of the fees of any third appraiser appointed pursuant to the
provisions of this option to renew.
7. SUBLESSEE'S FURTHER COVENANTS
Sublessee further covenants as follows:
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(a) That Sublessee is a valid and existing corporation under the laws of
the State of Washington, that it is duly qualified to do business in the
Territory of Guam, and that it has full right and authority to enter into this
Sublease. Sublessee further covenants that it shall, throughout the term of this
Sublease, continue to be a valid and existing corporation in good standing under
the laws of the State of Washington or under the laws of another state in the
United States and shall continue to be duly qualified to do business in the
Territory of Guam.
(b) Sublessee acknowledges that neither Sublessor nor any agent of
Sublessor has made any representation or warranty not contained herein with
respect to the Premises or the Building or the suitability of either for the
permitted use.
8. TAXES AND ASSESSMENTS
8.1 SUBLESSEE'S PAYMENT
Sublessee covenants and agrees to pay Sublessor as additional rent an
amount equal to the Premises' Portion (as hereinafter defined) of all taxes and
assessments, general and special, payable for or in respect of Parcels 1, 2, 3
and 4 described on Exhibit A (the "Entire Leasehold"), which first become due
during the term of this Sublease, except for Sublessor's income and franchise
taxes, unless the Real Property and/or the Building are separately assessed as a
separate parcel in which event Sublessee shall pay Sublessor as additional rent
the amount of all taxes and assessments, general and special, payable for or in
respect of the Real Property and/or the Building which first become due during
the term of this Sublease, except for Sublessor's income and franchise taxes.
Sublessee shall pay Sublessor the Premises' Portion of all taxes and special
assessments payable in respect of the Entire Leasehold or the actual amount of
the taxes and special assessments separately assessed against the Premises only,
within ten (10) days of presentation of a tax statement and a computation of the
Premises Portion thereof (if the Premises are not separately assessed). The
Premises Portion of the taxes and special assessments payable for or in respect
of the Entire Leasehold including land taxes and building taxes (the "Total
Taxes and Assessments") shall be computed in the following manner:
i) the portion of the Total Taxes and Assessment attributable to the
land included in the Premises shall be determined by multiplying
a fraction, the numerator of which is the total square footage of
the land included in the
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Premises (including without limitation the land on which any
improvements are constructed) and the denominator of which is the
total square footage of all land included in the Entire Leasehold
(including without limitation all land on which improvements are
constructed) times the portion of the Total Taxes and Assessments
attributable to the land value (the "Land Portion");
ii) the portion of the Total Taxes and Assessment attributable to the
improvements included in the Premises shall be determined by
multiplying a fraction, the numerator of which is the total
square footage of the gross leasable area of the improvements
included in the Premises and the denominator of which is the
total square footage of the gross leasable area of the
improvements included in the Entire Leasehold times the portion
of the Total Taxes and Assessments attributable to the
improvements (the "Improvements Portion"); and
iii) the Land Portion and Improvements Portion thus computed shall be
added together to arrive at the Premises Portion of the taxes and
special assessments payable for or in respect of the Entire
Leasehold.
If a special assessment, whether general or special, is levied, assessed or
imposed upon or against or is payable for or in respect of the Premises or any
part thereof or the improvements at any time thereon, during the period
commencing with the Commencement Date and ending with the expiration of the term
of this Sublease for which the taxing authority allows payments to be made over
a period of time, but which accrues at the time the assessment is imposed,
Sublessee shall be obligated to pay only the installments maturing during the
term of this Sublease.
8.2 RIGHT TO CONTEST
Sublessor shall institute proceedings, at Sublessor's option, to contest
the validity of any tax or assessment imposed upon the Premises. Sublessor
shall remit to Sublessee, Sub1essee's pro rata share of any net tax refunds
received by Sublessor, if any, after deducting reasonable expenses incurred in
connection therewith. Sublessee shall have the right, in its or Sublessor's
name, to contest the validity of any tax or assessment which Sublessee is
required
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to pay hereunder, by appropriate legal proceeding, provided that Sublessee,
before instituting any such contest, receives Sublessor's prior written consent.
Such contest shall be made at Sub1essee's expense and Sublessor shall remit to
Sublessee any refund after deducting all reasonable expenses incurred by
Sublessor and Sublessor's pro rata share of any such refund; provided, however,
that such action shall not relieve Sublessee of its obligations hereunder.
Sublessor agrees to cooperate fully with Sublessee in good faith during the
course of such contest. Sublessee 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.
8.3 RENT TAXES
Sublessee shall pay to Sublessor, with each payment of rent the amount of
all federal, state and local (and any subdivision thereof) excise taxes, gross
proceeds taxes, gross receipts taxes, transaction taxes, privilege taxes, sales
taxes or like taxes now or hereafter levied or assessed upon rent, or the
payment or receipt thereof, except that Sublessee shall not be obligated to pay
to Sublessor any amount on account of any income tax of Sublessor.
8.4 PERSONAL PROPERTY
During the term of this Sublease, Sublessee shall pay prior to delinquency
all taxes assessed against and levied upon fixtures, furnishings, equipment and
all other personal property of sublessee contained in the Premises, and when
possible sublessee shall cause said fixtures, furnishings, equipment and other
personal property to be assessed and billed separately from the Premises.
8.5 FUTURE TAXES
It is acknowledged by Sublessee and Sublessor that property tax legislation
may be adopted by the Territory of Guam and that assessments, taxes, fees,
levies and charges may be imposed by governmental agencies for such purposes as
fire protection, street, sidewalk and road maintenance, refuse removal and other
governmental services formerly provided without charge to the property owners or
occupants. It is the intention of Sublessee and Sublessor that all such new and
increased assessments, taxes, fees, levies and charges be included within the
definition of real property taxes for purposes of this Sublease.
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9. INSURANCE
9.1 KINDS AND AMOUNTS
As additional rent for the Premises, Sublessee shall procure and maintain
policies of insurance, at its own cost and expense, insuring:
(a) The Building and all improvements at any time situated upon the
Premises against loss or damage by fire, lightning, wind storm, hail storm,
aircraft, vehicles, smoke, explosion, riot or civil commotion as provided by the
Standard Fire and Extended Coverage Policy, all other risks of direct physical
loss as insured against under Special Extended Coverage Endorsement and all loss
or damage by flood, typhoon, and earthquake to the extent not covered under the
Standard Fire and Extended Coverage and Special Endorsement. The insurance
coverage shall be for not less than one hundred percent (100%) of the full
replacement cost of the Building and such improvements, with all proceeds of
insurance payable to Sublessor and with Sublessor being a named insured under
such policies. The full replacement cost of the Building and all improvements
shall be determined every three (3) years by an insurance appraiser selected and
hired by Sublessor and paid for by Sublessee. The insurance appraiser shall
submit a written report of his appraisal and if said report shows that the
Building and the improvements are not insured as herein required, Sublessee
shall promptly obtain such additional insurance as is required;
(b) Sublessor, Sublessee and the lessors under the Ground Leases and the
Master Subleases against all claims, demands or actions to the limit of not less
than $2,000,000.00 for injury to or death of more than one person in any one
occurrence, to the limit of not less than $1,000,000.00 for injury or death of
one person and to the limit of not less than $200,000.00 for damage to property,
made by, or on behalf of, any person or persons, firm or corporation, arising
from, related to or connected with the Premises. Said liability insurance shall
comprehend full coverage of the indemnity set forth in Paragraph 15.1 and 36.3.
The limits of said liability insurance shall be reviewed every ten years during
the term of this Sublease and all extensions for adequacy and shall be increased
by such amount as may provide the same protection at the end of each ten year
period as the above limits provide at the Commencement Date, taking into account
the difference in the purchasing power of the dollar and the size of damage
awards prevailing in Guam at the end of each ten year review period;
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(c) Sublessor, Sublessee, the lessors under the Ground Leases and the
Master Subleases, with the same limits of coverage as provided in subsection
(b), against loss or damage by boiler or internal explosion or break down of
boilers;
(d) Sublessee against all workmen's compensation claims; and
(e) Sublessor and Sublessee against breakage of all plate glass utilized
in the Building and improvements on the Premises.
9.2 FORM OF INSURANCE
The aforesaid insurance shall be in companies authorized to do business in
the Territory of Guam and in such form, substance and amount (where not stated
above) as shall be reasonably satisfactory to Sublessor and any mortgagee of
Sublessor, and shall contain standard mortgage clauses satisfactory to
Sublessor's mortgagee. The aforesaid insurance shall not be subject to
cancellation except after at least thirty (30) days' prior written notice to
Sublessor and any mortgagee of Sublessor. The original insurance policies (or
certificates thereof satisfactory to Sublessor) together with satisfactory
evidence of payment of the premiums thereon, shall be deposited with Sublessor
at the Commencement Date and renewals thereof not less than thirty (30) days
prior to the end of the term of each such coverage. All public liability,
property damage and other casualty insurance policies required hereunder, shall
be written as primary policies, not contributing with, or in excess of, coverage
which Sublessor may carry.
9.3 MUTUAL WAIVER OF SUBROGATION RIGHTS
Whenever (a) any loss, cost, damage or expense resulting from fire,
explosion or any other casualty or occurrence is incurred by either of the
parties to this Sublease in connection with the Premises, and (b) such party is
then covered in whole or in part by insurance with respect to such loss, cost,
damage or expense, then the party so insured hereby releases the other party
from any liability it may have on account of such loss, cost, damage or expense
to the extent of any amount recovered by reason of such insurance and waives any
right of subrogation which might otherwise exist in or accrue to any person on
account thereof, provided that such release of liability and waiver of the right
of subrogation shall not be operative in any case where the effect thereof is to
invalidate such insurance coverage or increase the cost thereof (provided that
in the case of increased cost the
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liable party shall have the right, within thirty (30) days following written
notice, to pay such increased cost for the remainder of the term of this
Sublease, thereby keeping this release and waiver in full force and effect).
Sublessee further releases and waives subrogation rights against the lessors
under the Ground Leases and the Master Subleases on the same terms provided in
this paragraph.
10. MAINTENANCE
10.1 SUBLESSEE'S MAINTENANCE AND REPAIRS
Sublessee covenants and agrees, at Sub1essee's sole cost and expense, that
during the term of this Sublease it will keep and maintain (i) the Premises and
all improvements thereon (including without limitation the curbs, sidewalks, and
parking areas adjacent to and in the rear of the Building), and (ii) all
equipment, fixtures and appliances therein, in an attractive, good and safe
condition and repair, ordinary wear and tear excepted, and will keep the same
free from trash, nuisance or danger of fire, and provide and maintain adequate
drainage and lighting thereon, and in all respects and at all times use and
maintain the Premises so as to fully meet and comply with all applicable health
and policy regulations and the ordinances and all other laws now in force or
which may hereafter be enacted. Sublessee shall hold Sublessor free and
harmless of and from all costs and liabilities for such maintenance work, and
from any costs, expenses and liabilities arising from any mechanic's, laborer's
or materialmen's liens arising from such maintenance work.
10.2 SUBLESSOR'S MAINTENANCE AND REPAIRS
Sublessor covenants and agrees that, at Sublessor's sole cost and expense,
during the term of this Sublease it will keep and maintain (i) the Parking Area
and (ii) all equipment, fixtures and appliances therein in an attractive, good
and safe condition and repair, ordinary wear and tear excepted, and will keep
the same free from trash, nuisance or danger of fire and in all respects and at
all times maintain the Parking Area so as to fully meet applicable health and
policy regulations and ordinances and all other applicable laws now in force or
which may hereafter be enacted. Sublessor shall hold Sublessee free and
harmless of and from all costs and liabilities for such maintenance work, and
from any costs, expenses and liabilities arising from any mechanics', laborers'
or materialmen's liens arising from such maintenance work.
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10.3 FAILURE TO PERFORM MAINTENANCE
If Sublessor or Sublessee fails to perform its maintenance duties with
respect to any area covered by the reciprocal easements set forth in Paragraph
2, then the other party may, but is not required to, perform the maintenance
duties on behalf of, and at the expense of the party failing to perform its
maintenance duties.
10.4 SUBLESSEE'S OBLIGATION TO RESTORE OR REBUILD
In the event of damage to or destruction of the Premises by fire or other
casualty then, Sublessee, at its sole expense, shall promptly restore or rebuild
the Premises as nearly as possible to the condition thereof prior to such damage
or destruction, provided that, upon the completion of such repairs, restoration
or rebuilding, the value and rental value of the improvements upon the Premises
shall be substantially equal to or greater than the value and rental value of
the Building and other improvements thereon immediately prior to the happening
of such fire or other casualty.
10.5 RENT AFTER DAMAGE OR DESTRUCTION
Rent shall not be reduced or abated during the period of such repair,
restoration or rebuilding even if either the Building or other improvements are
not tenantable.
10.6 PRECONDITIONS TO REPAIR, RESTORATION OR REBUILDING
Before Sublessee commences such repairing, restoration or rebuilding
involving an estimated cost of more than Ten Thousand Dollars ($10,000.00),
plans and specifications therefor, prepared by a licensed architect satisfactory
to Sublessor shall be submitted to Sublessor for approval and Sublessee shall
furnish to Sublessor (a) an estimate of the cost of the proposed work, certified
to by said architect; (b) satisfactory evidence of sufficient contractor's
comprehensive general liability insurance covering Sublessor and the lessors
under the Ground Leases and Master Subleases, builder's risk insurance and
workmen's compensation insurance; and (c) a performance and payment bond
satisfactory in form and substance to Sublessor.
10.7 PAYMENT FOR RESTORATION OR REBUILDING
All sums arising by reason of loss under the insurance referred to in
Paragraph 9.1 shall be available to the
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Sublessee for restoration or rebuilding of the Premises. Sublessee shall pay any
excess cost of the work over the amount of insurance proceeds. Sublessee shall
diligently pursue the repair or rebuilding of the improvements in a good and
workmanlike manner, using only high quality workmen and materials. Sublessor
shall pay out construction funds from time to time upon receipt of appropriate
contractors' statements, with supporting affidavits and lien waivers.
10.8 EXCESS INSURANCE PROCEEDS
Any excess of money received from insurance remaining with Sublessor after
the repair or rebuilding of improvements shall be paid to Sublessee.
10.9 FAILURE TO REBUILD
If Sublessee shall not enter upon the repair or rebuilding of the
improvements within a period of ninety (90) days after damage or destruction by
fire or otherwise, and prosecute the same thereafter with such dispatch as may
be necessary to complete the same within a reasonable period after said damage
or destruction occurs, not to exceed one hundred eighty (180) days from the date
of commencement of such repair or rebuilding, then, in addition to whatever
other remedies Sublessor may have either under this Sublease, at law or in
equity, Sublessor may retain insurance proceeds, or the balance thereof
remaining in the hands of Sublessor, as security for the continued performance
and observance by Sublessee of Sub1essee's covenants and agreements hereunder,
or Sublessor may terminate this Sublease and then retain the amount so held as
liquidated damages resulting from the failure on the part of Sublessee to comply
with the provisions of this Paragraph.
11. ALTERATIONS
Sublessee shall have the right to make changes or alterations in the
Building, or to construct improvements on the Premises; provided, however, the
Sublessee shall not make any alterations, additions or deletions to the Building
if such alteration, addition or deletion shall (i) convert the Building to a
structure which is not a complete, self-contained, operating unit; (ii) be a
structural change in the Building; or (iii) diminish or reduce either the
parking area on the Real Property or Sublessor's ingress and egress from the
Real Property. Notwithstanding the foregoing, Sublessee may make such
structural changes, alterations, additions or deletions as are approved in
advance by Sublessor, which approval may not be unreasonably withheld or
delayed. If
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Sublessor fails to respond within thirty (30) days to any request submitted by
Sublessee under this Paragraph 11, such request shall be deemed approved by
Sublessor.
12. LIENS
Sublessee 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 Sublessee or anyone claiming
by, through or under Sublessee, Sublessee shall discharge the same of record,
within twenty (20) days after the date of filing.
13. CONTEST OF LIEN CLAIMS
Sublessee shall have the right in good faith and with reasonable diligence
to contest any mechanic's or other lien claim filed against the Premises or any
part thereof, if within twenty (20) days of the date of the filing of such lien,
it notifies Sublessor of its intention so to do, PROVIDED, HOWEVER, Sublessee
shall give to Sublessor such security as may be deemed satisfactory to Sublessor
to insure payment thereof and to prevent any sale, foreclosure, or forfeiture of
the Premises by reason of non-payment thereof; and PROVIDED FURTHER that on
final determination of the lien or claim for lien, Sublessee shall immediately
pay any judgment rendered, with all proper costs and charges, and shall have the
lien released and any judgment satisfied. Sublessor agrees to cooperate fully
with Sublessee in good faith during the course of such contest.
14. UTILITIES
All heat, telephone, light, power, water, sewerage, trash removal, and
other utilities and utility services used in, on or about the Premises shall be
paid for by Sublessee prior to delinquency and shall be contracted for by
Sublessee in its own name.
15. INDEMNITY
15.1 INDEMNIFICATION OF SUBLESSOR
Sublessee agrees to protect, indemnify and save Sublessor and the lessors
under the Ground Leases and the Master Subleases, and each of them, harmless
from and against all liability, obligations, penalties, causes of action,
claims, loss, cost, damage and expense (including without limitation
Cost-U-Less Sublease
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reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Sublessor and the lessors under the Ground Leases and the Master
Subleases or any one or more of them by reason of (i) any accident, injury to or
death of persons or loss of or damage to property occurring on or about the
Building and the Premises or any part thereof arising out of Sub1essee's
possession, use, operation, maintenance, management or control of the Premises,
(ii) any breach of this Sublease by Sublessee and (iii) performance of any labor
or services or the furnishing of any materials or other property in respect of
the Premises or any part thereof.
15.2 INDEMNIFICATION OF SUBLESSEE
Sublessor agrees to protect, indemnify and save Sublessee harmless from and
against all liability, obligations, penalties, causes of action, claims, loss,
cost, damage and expense (including without limitation reasonable attorneys'
fees and expenses) imposed upon or incurred by or asserted against Sublessee by
reason of (i) any accident, injury to or death of persons or loss of or damage
to property occurring on or about the Parking Area arising out of Sublessor's
possession, use, operation, maintenance, management or control of the Parking
Area, (ii) any breach of this Sublease by Sublessor and (iii) performance of any
labor or services or the furnishing of any materials or other property in the
respect of the Parking Area or any part thereof. Nothing contained in this
paragraph shall affect Sublessee's obligation to provide the liability
insurance described in Paragraph 9.1.
16. SUBLESSEE'S TRADE FIXTURES AND EQUIPMENT
Sublessee may install on the Premises its trade fixtures and equipment and,
at the termination of this Sublease, Sublessee shall have the right to remove
trade fixtures and equipment (other than property described in Paragraph 17)
installed by Sublessee within thirty (30) days of the termination of this
Sublease, provided, Sublessee is not then in default and Sublessee repairs any
damage to the Premises resulting from such removal. If Sublessee does not
remove Sublessee's furniture, machinery, equipment, trade fixtures and all
other items of personal property of every kind and description from the Premises
within thirty (30) days of Sublessor's request after the termination of the
Sublease, however ended, Sublessor may, at its option, remove the same and
deliver the same to any other place of business of Sublessee or warehouse the
same, and Sublessee shall pay Sublessor's cost of such removal (including the
repair of any injury or damage to the Premises resulting from such removal),
Cost-U-Less Sublease
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delivery and warehousing on demand, or Sublessor may treat such property as
having been conveyed to Sublessor with this Sublease operating as a Xxxx of
Sale, without further payment or credit by Sublessor to Sublessee.
17. CONDITION OF PREMISES AT END OF TERM
At the end of the term of this Sublease, Sublessee shall leave and deliver
the Building and the Premises in as good a condition and substantial repair as
they were when delivered to Sublessee with the exception of usual wear and tear.
The Building shall include, without limitation, all plumbing, lighting,
electrical, heating, cooling and ventilating fixtures and equipment, together
with all duct work. All additions, hardware, non-trade fixtures and all
improvements, temporary or permanent, in or upon the Premises placed there by
Sublessee shall become Sublessor's property and shall remain upon the Premises
upon such termination of this Sublease by lapse of time or otherwise, without
compensation or allowance or credit to Sublessee, unless Sublessor requests
their removal in writing at or before the time of such termination of this
Sublease. If Sublessor so requests removal of said additions, hardware, non-
trade fixtures and all improvements and Sublessee does not make such removal
within ten (10) days after said termination, Sublessor may remove the same and
deliver the same to any other place of business of Sublessee or warehouse the
same, and Sublessee shall pay the cost of such removal, delivery and warehousing
to Sublessor on demand.
18. USE
(a) Sublessee shall use and occupy the Premises only to operate a discount
retail store, and other uses commonly associated therewith, including, but not
limited to, a tire shop, a bakery and a butcher shop (the "Permitted Business").
No other use of the Premises may be made without the prior written consent of
Sublessor. Sublessee agrees not to commit or permit any waste of the Premises.
Sublessee agrees to comply with all laws, ordinances, regulations and
conditions, covenants, and restrictions, public or private, affecting the
Premises and not to suffer or permit any act to be done in or about the Premises
in violation thereof.
(b) In addition to and not in limitation of the foregoing, Sublessee shall
neither use, generate, manufacture, produce, store or Release (as hereinafter
defined) on, or dispose of, under or about the Premises, or transfer to or from
the Premises, any amount of any Hazardous Substance (as hereinafter defined) nor
knowingly permit any third party to
Cost-U-Less Sublease
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do so, except in compliance with all applicable Environmental Law (as
hereinafter defined), and Sublessee will indemnify and hold Sublessor and its
successors in interest and assigns harmless from all claims, expenses, costs,
including attorneys' fees, and actions which may result or be asserted from or
in connection with any Hazardous Substance (as hereinafter defined) arising out
of Sub1essee's possession, use, operation, maintenance, management or control of
the Premises
(c) The term "Release" as used in this Sublease shall mean any releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection,
escaping, leaching, disposing, or dumping, or the threat of any of the
foregoing.
(d) The term "Environmental Law" as used in this Sublease shall mean any
federal, territorial, state or local statute, ordinance, or regulation
pertaining to the environment, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et seq. ("CERCLA"); the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Section 6901, et seq. ("RCRA"); and any Guam
environmental law presently in effect or hereafter enacted, and all successor
statutes and amendments and all rules adopted and guidelines promulgated
pursuant to the foregoing.
(e) The term "Hazardous Substance" as used in this Sublease shall include:
(i) those substances included within the definitions of "hazardous
substances," "hazardous material," or "toxic substances" in CERCLA, RCRA,
and the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq., as same may hereafter be amended from time to time, and in the
regulations promulgated pursuant thereto, as same may be amended from time
to time;
(ii) those substances defined as "hazardous substances" in any Guam
environmental law presently in effect or hereafter enacted, as same may be
amended from time to time, and in rules adopted or guidelines promulgated
pursuant thereto, as same may be amended from time to time;
(iii) those substances listed in the United States Department of
Transportation Table (49 CFR 172.101 and amendments thereto) or by the
Environmental
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Protection Agency as hazardous substances (40 CFR Part 302 and amendments
thereto), as same may be amended from time to time; and
(iv) all other substances, materials, and wastes that are, or that
become, regulated under, or that are classified as hazardous or toxic
under, any Environmental Law. For such substances, materials, and wastes
that first become subject to regulation after the date hereof, Sublessee
shall have the period of time permitted by law or administrative decision,
or if no such period of time is specified (unless a period of time is
expressly prohibited), then a reasonable period of time not to exceed 180
days, within which to effect compliance with all applicable Environmental
Laws.
19. QUIET ENJOYMENT
Sublessor covenants and warrants that it has a good and marketable
leasehold interest in the Premises, that it has full right and lawful authority
to enter into this Sublease for the full term hereof, that Sublessee will be put
in possession of the Premises when Sublessee is entitled hereunder, and that
Sublessee, upon paying the rent and performing all of the terms, conditions and
provisions of this Sublease to be performed by Sublessee, shall peacefully and
quietly have, hold and enjoy the Premises for the full term of this Sublease,
and any extension thereto, subject to the provisions herein contained; provided,
however, that this Sublease and the Premises are subject to the easements,
covenants, agreements, encumbrances and restrictions of record on the date of
this Sublease, the reciprocal easement described in Paragraph 2 supra, and the
rights of the lessors under the Ground Leases and the Master Subleases. If
there is any conflict between this Sublease and the Master Subleases then the
Master Subleases and any future amendments shall control. If there is any
conflict between this Sublease and the Ground Leases then the Ground Leases and
any future amendments shall control.
20. SIGNS
Sublessee may, at Sub1essee's own risk, lawfully erect signs concerning the
business of Sublessee or displaying Sub1essee's name on the Building, and the
roof thereof, if permitted by local regulations, but in doing so Sublessee
agrees to maintain said signs in a good state of repair, save Sublessor harmless
from any loss, cost or damage as a result of the erection, maintenance,
existence or removal of the same at the end of the term of this Sublease and
shall repair any
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damage which may have been caused by the erection, existence, maintenance or
removal of such signs.
21. PERSONAL PROPERTY
All personal property of every kind or description that may at any time be
in the Premises shall be at Sub1essee's sole risk, or at the risk of those
claiming under Sublessee, and Sublessor shall not be liable for any damage to
said property or loss suffered by the business or occupation of Sublessee caused
in any manner whatsoever, except as may be caused by the negligence of Sublessor
or its agents or employees.
22. WASTE
Sublessee shall use and occupy the premises in a careful, safe and lawful
manner and not commit or permit any waste therein.
23. NON-WAIVER
No waiver of any breach of any covenant or condition of this Sublease 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 hereof. Acceptance of rent after a breach of
Sublessee of a provision of this Sublease shall not constitute a waiver of any
such breach.
24. DEFAULT
24.1 SUBLESSEE'S DEFAULT
The following shall constitute an event of default, as that term is used in
this Sublease:
(a) Sublessee shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed against
Sublessee asking reorganization of Sublessee under the Federal bankruptcy
laws as now or hereafter amended, or under the laws of any United States
Territory or State, shall be entered, and any such decree or judgment or
order shall not have been vacated or stayed or set aside within sixty (60)
days from the date of entry or granting thereof; or
(b) Sublessee shall file or admit the jurisdiction of the court and the
material allegations contained in, any petition in bankruptcy, or any
petition pursuant or
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purporting to be pursuant to the Federal bankruptcy laws now or hereafter
amended, or Sublessee shall institute any proceedings or give its consent
to the institution of any proceedings for relief of Sublessee under any
bankruptcy or insolvency laws of any jurisdiction or the laws of any
jurisdiction relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangements, composition or extension; or
(c) Sublessee shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Sublessee
or any of the property of Sublessee; or
(d) A decree or order appointing a receiver of the property of Sublessee
shall be made and such decree or order shall not have been vacated, stayed
or set aside within sixty (60) days from the date of entry or granting
thereof; and
(e) Sublessee shall vacate the Premises or abandon the same during the term
hereof; or
(f) Sublessee shall default in any monthly payments of rent required to be
made by Sublessee hereunder when due as herein provided with a grace period
of ten (10) days allowed; or
(g) Sublessee shall fail to contest the validity of any lien or claimed
lien and give security to Sublessor to insure payment thereof, or having
commenced to contest the same and having given such security, shall fail to
prosecute such contest with diligence, or shall fail to have the same
released and satisfy any judgment rendered thereon, and such default
continues for fifteen (15) days after notice thereof in writing to
Sublessee; or
(h) Sublessee shall default in any of the other covenants and agreements
herein contained to be kept, observed and performed by Sublessee, and such
default shall continue for thirty (30) days after notice thereof in writing
to Sublessee.
Upon the occurrence of any one or more of such events of default, Sublessor may
terminate this Sublease. Upon termination of this Sublease, Sublessor may re-
enter the Premises with or without process of law using such force as may be
necessary, and remove all persons, fixtures, and chattels therefrom and
Sublessor shall not be liable for any damages resulting therefrom. Such re-
entry and repossession
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shall not work a forfeiture of the rents to be paid and the covenants to be
performed by Sublessee during the full term of this Sublease. Upon such
repossession of the Premises, Sublessor shall be entitled to recover as
liquidated damages and not as a penalty a sum of money equal to the value of the
rent and other sums provided herein to be paid by Sublessee to Sublessor for the
remainder of the term of this Sublease, less the fair rental value of the
Premises for said period. Upon the happening of any one or more of the above-
mentioned events Sublessor may repossess the Premises by forcible entry or
detainer suit, or otherwise, without demand or notice of any kind to Sublessee
(except as hereinabove expressly provided for) and without terminating this
Sublease, in which event Sublessor may, but shall be under no obligation so to
do, relet all or any part of the Premises for such rent and upon such terms as
shall be satisfactory to Sublessor (including the right to relet the Premises
for a term greater or lesser than that remaining under the term of this
Sublease, and the right to relet the Premises as a part of a larger area, and
the right to change the character or use made of the Premises). For the purpose
of such reletting, Sublessor may decorate or make any repairs, changes,
alterations or additions in or to the Premises that may be necessary or
convenient. If Sublessor does not relet the Premises, Sublessee shall pay to
Sublessor on demand as liquidated damages and not as a penalty a sum equal to
the amount of the rent, and other sums provided herein to be paid by Sublessee
for the remainder of the term of this Sublease. If the Premises are relet and a
sufficient sum shall not be realized from such reletting after paying all of the
expenses of such decorations, repairs, changes, alterations, additions, the
expenses of such reletting and the collection of the rent accruing therefrom
(including, but not by way of limitation, attorneys' fees and brokers'
commissions), to satisfy the rent herein provided to be paid for the remainder
of the term of this Sublease, Sublessee shall pay to Sublessor on demand any
deficiency and Sublessee agrees that Sublessor may file suit to recover any sums
falling due under the terms of this paragraph from time to time. If default
shall be made in any covenant, agreement, condition or undertaking herein
contained to be kept, observed and performed by Sublessee, other than the making
of any payments as herein provided, which cannot with due diligence be cured
within a period of thirty (30) days, and if notice thereof in writing shall have
been given to Sublessee, and if Sublessee, prior to the expiration of thirty
(30) days from and after the giving of such notice, commences to eliminate the
cause of such default and proceeds diligently and with reasonable dispatch to
take all steps and do all work required to cure such default and does so cure
such default, then Sublessor shall not have the right to
Cost-U-Less Sublease
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declare the said term ended by reason of such default or to repossess without
terminating the Sublease; provided, however, that the curing of any default in
such manner shall not be construed to limit or restrict the right of Sublessor
to declare the said term ended or to repossess without terminating the Sublease,
and to enforce all of its right and remedies hereunder for any other default not
so cured.
24.2 SUBLESSOR'S DEFAULT
In the event of any alleged default in the obligation of Sublessor under
this Sublease, Sublessee will deliver to Sublessor written notice listing the
reasons for Sublessor's default and Sublessor will have thirty (30) days
following receipt of such notice to cure such alleged default or, in the event
the alleged default cannot reasonably be cured within a thirty (30) day period,
to commence action and proceed diligently to cure such alleged default. A copy
of such notice to Sublessor will be sent to any holder of a mortgage or
beneficiary of a deed of trust on the Premises of which Sublessee has been
notified in writing, and any such holder will also have the same time periods to
cure such alleged default.
24.3 REMEDIES CUMULATIVE
Except as otherwise expressly provided herein, no remedy herein or
otherwise conferred upon or reserved to Sublessor or Sublessee shall be
considered to exclude or suspend any other remedy but the same shall be
cumulative and shall be in addition to every other remedy given hereunder now or
hereafter existing at law or in equity or by statute, and every power and remedy
given by this Sublease to Sublessor or to Sublessee may be exercised from time
to time and as often as occasion may rise or as may be deemed expedient. No
delay or omission of Sublessor as Sublessee to exercise any right or power
arising from any event of default, shall impair such right or power or shall be
construed to be a waiver of such default or any acquiescence therein. Neither
the rights herein given to receive, collect, xxx for or distrain for any rent or
rents, moneys or payments, or to enforce the terms, provisions and conditions of
this Sublease, or to prevent the breach or non-observance thereof, or the
exercise of any such right or of any other right or remedy hereunder or
otherwise granted or arising, shall in any way affect or impair or toll the
right or power of Sublessor to declare the term of this Sublease hereby granted
ended, and to terminate this Sublease as provided for in this Sublease, or to
repossess without terminating this Sublease, because of any default in or breach
of the covenants, provisions or conditions of this Sublease.
Cost-U-Less Sublease
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25. CONDEMNATION
25.1 WHOLE TAKING
If the whole of the Premises, or so much thereof, including however a
portion of the Building and other improvements, shall be taken or condemned for
a public or quasi-public use or purpose by any competent authority and as a
result thereof the balance of the Premises cannot be used for the same purpose
as expressed in Paragraph 18(a), then and in either of such events, the term of
this Sublease shall terminate when possession of the Premises shall be so taken
and surrendered, and any award, compensation or damages (hereinafter sometimes
called the "award"), shall be paid to and be the sole property of Sublessor
whether such award shall be made as compensation for diminution of the value of
the leasehold or the fee of the Premises or otherwise and Sublessee hereby
assigns to Sublessor all of Sub1essee's right, title and interest in and to any
and all such award. Sublessee shall continue to pay rent until the term of this
Sublease is terminated and any taxes and insurance premiums paid by Sublessee,
shall be adjusted between the parties.
25.2 PARTIAL TAKING
If only a part of the Premises shall be so taken or condemned, and although
as a result thereof the balance of the Premises can be used for the same purpose
as expressed in Paragraph 18(a), the Sublessee in good faith reasonably
determines that its use will be materially adversely impaired by the taking,
either party may terminate this lease upon notice to the other, provided, such
--------
notice is given prior to the tenth day following the first date the Condemner
has a right to possession of the part taken. In all other cases in which only a
part of the Premises shall be taken or condemned and the balance can be used for
the same purpose as expressed in Paragraph 18 (a), this Sublease shall not
terminate and Sublessee, at its sole cost and expense, shall repair and restore
the Premises and all improvements thereon. Sublessee shall promptly and
diligently proceed to make a complete architectural unit of the remainder of the
improvements first complying with the procedure set forth in Paragraph 10.2 and
10.3. For such purpose Sublessor shall receive and hold in trust the amount of
the award relating to the Building and improvements and shall disburse such
award to apply on the cost of said repairing or restoration in accordance with
the procedure set forth in Paragraph 10.2 and 10.3. If Sublessee does not make
a complete architectural unit of the remainder of the improvements within a
reasonable period after such taking or condemnation, not to exceed one hundred
eighty (180)
Cost-U-Less Sublease
Page 30
days, then, in addition to whatever other remedies Sublessor may have either
under this Sublease, at law or in equity, Sublessor may retain the entire award
or the balance thereof remaining in the custody of Sublessor, as the case may
be, as liquidated damages resulting from the failure of Sublessee to comply with
the provisions of this paragraph. Any portion of such award as may not have to
be expended for such repairing or restoration shall be paid to Sublessor. There
shall be no abatement or reduction in any rental because of such taking or
condemnation.
26. NOTICES
All notices, demands or communication required or permitted to be given
hereunder shall be in writing and may be personally delivered or mailed by
certified or registered mail, addressed to the respective parties, and shall be
deemed to have been fully given or made when personally delivered, when
transferred by facsimile to a party at the Fax telephone number set forth below
for that party, when delivered by overnight courier, or if mailed, three (3)
calendar days following the deposit thereof with the United States Postal
Service, registered or certified, postage prepaid, and addressed to the
respective parties as follows:
Sublessor: Tamuning Capital Investment, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Friend, President
Fax telephone number: (000) 000-0000
Sublessee: Cost-U-Less
0000 00xx Xxxxx, X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxx
Fax telephone number: (000) 000-0000
Any party may change the address to which notices are to be given or the
Fax telephone number to which notices may be facsimile transferred by giving
notice as above provided.
27. ASSIGNMENT, SUBLEASE AND MORTGAGE
(a) Sublessee shall not have the right without Sublessor's prior written
consent, which consent shall not be unreasonably withheld: (i) to mortgage or
encumber Sub1essee's leasehold interest; (ii) to sublet the Premises; or (iii)
to assign this Sublease. Within forty-five (45) days after Sublessee has
requested Sublessor's consent to mortgage
Cost-U-Less Sublease
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or encumber Sub1essee's leasehold interest, or to sublet the Premises, or to
assign this Sublease, Sublessor shall consent to or deny the request. If the
request is denied, then Sublessor shall state in writing the reasons or grounds
for its denial. Sublessor shall not be deemed to have unreasonably withheld
consent in the event the prospective assignee or subtenant fails to provide
reasonable documents and evidence that (i) it has had for at least three
continuous years immediately prior to the proposed assignment or sublease a net
worth equal to or greater than that of Sublessee during the same period, and
(ii) the proposed assignee or sublessee, or any of its full time and regularly
employed corporate officers or general partners (if the assignee or sublessee is
a corporation or partnership) has at least five (5) years bona fide, personal
management experience in the business in which the proposed assignee or
sublessee is involved. If no consent or denial is received by Sublessee within
such forty-five (45) day period, then such request shall be deemed as approved
by Sublessor.
(b) Sublessor and Sublessee agree that: (i) a devolution by operation of
law (including without limitation, merger or consolidation); (ii) a change in
ownership of stock in Sublessee exceeding fifty percent (50%) of the issued and
outstanding stock of Sublessee at the date first above written; (iii) licensing
the use of all or a portion of the Premises, even though on a non-exclusive
basis; and (iv) any device designed to circumvent the foregoing definitions (the
"good faith" of Sublessee not being relevant in assessing whether a
circumvention has occurred) shall, in each instance, be deemed a subleasing or
assignment, as the case may be, within the meaning of Paragraph 27(a) requiring
Sublessor's consent as provided in Paragraph 27(a), provided, however, the
--------
provisions of subparagraph 27(b) (i) and (ii) shall not apply to any devolution
by operation of law or change in ownership and such transactions may occur
without Sublessor's consent, if the outstanding common stock of Sublessee is
publicly traded.
(c) Any attempted assignment, subleasing or mortgaging, including any
involuntary transfers or assignments by operation of law, without Sublessor's
written consent shall be void and confer no rights upon any third person. A
consent by Sublessor to one assignment, sublease or mortgage shall not operate
as a waiver of Paragraph 27(a) as to any further assignment, sublease or
mortgage, and Paragraph 27(a) shall apply to any assignee, sublessee or
mortgagee.
(d) Sublessor shall have the right to assign its interest under this
Sublease. Upon receipt of notice of such
Cost-U-Less Sublease
Page 32
assignment, Sublessee shall look solely to the new assignee for the performance
of all obligations of Sublessor under this Sublease.
28. SUCCESSORS AND ASSIGNS
This Sublease shall run with the land and shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto and any other
person or persons claiming to hold or exercise any interest by, under or through
either of the Parties.
29. NON-MODIFICATION
It is mutually agreed that the covenants and conditions herein contained
are the full and complete terms of this Sublease and that no alterations,
amendments, modifications or waivers of the same shall be binding unless first
reduced to writing and signed by both parties hereto.
30. MEMORANDUM OF SUBLEASE
It is mutually agreed that this Sublease will not be recorded, but that the
parties will execute a written memorandum acknowledging the tenancy which may be
recorded in the records of the Department of Land Management, Government of
Guam.
31. ATTORNEYS' FEES
In the event of any action or proceeding is instituted in connection with
any controversy arising out of this Sublease or to enforce any provision of this
Sublease, the substantially prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary expenses expended or incurred in connection
with such action or proceeding in addition to any other relief to which such
party may be entitled.
32. EFFECT OF INVALIDITY
If any term or provision of this Sublease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Sublease, 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 Sublease shall be valid and enforceable to the fullest extent permitted by
law.
Cost-U-Less Sublease
Page 33
33. APPLICABLE LAW
This Sublease and all questions relating to its validity, interpretation,
performance and enforcement shall be construed, interpreted and governed in
accordance with the substantive and procedural laws of Guam, notwithstanding
any Guam or other conflict-of-law provisions to the contrary.
34. HOLD-OVER
If Sublessee remains in possession of the Premises after the expiration of
the term of this Sublease without the express written consent of Sublessor and
without executing a new lease, then such holding over shall be construed as a
month-to-month tenancy, subject to all the conditions, provisions and
obligations of this Sublease insofar as the same are applicable to a month-to-
month tenancy. During such tenancy Sublessee agrees to pay to Sublessor as
monthly rental one hundred fifty percent (150%) of the 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.
35. APPROVAL BY GROUND LESSOR
Either party may cancel this lease without liability of either party to the
other if XXXXXXX X. XXXXXXX and XXXXX X. XXXXXXX (HUSBAND AND WIFE) AND XXXXXXXX
X. XXXXXX (A WIDOW) fail to execute a consent to this Sublease in the form
annexed hereto as Exhibit E on or before the fifteenth day following the date
first above written. Either party shall exercise the foregoing option by
delivering notice of cancellation of this Sublease to the other during the
period commencing with the sixteenth day following the date first above written
and ending the twenty fifth day following the date first above written, both
dates inclusive, time being of the essence. This condition shall be conclusively
deemed waived if neither party gives the notice described in the immediately
preceding sentence.
36. ENVIRONMENTAL
36.1 SUBLESSOR'S WARRANTIES
Sublessor warrants and represents that, to the best of its knowledge, any
use, storage, treatment or transportation of Hazardous Substances which has
occurred in or on the Premises prior to the date hereof has been in compliance
with
Cost-U-Less Sublease
Page 34
all applicable federal, state and local laws, regulations and ordinances.
Sublessor additionally warrants and represents that, to the best of its
knowledge, 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.
36.2 SUBLESSOR'S INDEMNITY
Sublessor agrees to indemnify and hold harmless Sublessee 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 term of
this Sublease from or in connection with the presence or suspected presence of
Hazardous Substances Released in or on the Premises prior to the Commencement
Date, unless the Hazardous Substances are present solely as a result of the acts
of Sublessee, Sublessee's agents, licensees, 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.
36.3 SUBLESSEE'S INDEMNITY
Sublessee agrees to indemnify and hold harmless Sublessor 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 term of
this Sublease, from or in connection with the presence or suspected presence of
Hazardous Substances Released in or on the Premises after Sublessee takes
possession of the Premises unless the Hazardous Substances are present solely as
a result of negligence, willful misconduct or other acts of Sublessor,
Sublessor's agents, licensees, 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.
37. NEGOTIATION AND CONSTRUCTION
(a) The express terms of this Sublease control and supersede any course of
dealing, usage of trade or course of performance inconsistent with its terms.
If any exhibits
Cost-U-Less Sublease
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described in this Sublease have not been attached as completed exhibits at
execution of this Sublease, they shall be incorporated into this Sublease upon
delivery to each of the parties hereto and shall relate back to the effective
date of this Sublease.
(b) The headings contained in this Sublease are for convenience and
reference only and shall not be used to interpret or construe its provisions.
This Sublease 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.
38. SECURITY DEPOSIT
Sublessee shall deposit with Sublessor contemporaneously with the execution
of this Sublease an amount equal to the sum of One Hundred Twenty-one Thousand
Seven Hundred Seventy-three and No/100 Dollars (US$121,773.00) (the "Security
Deposit") as security for the full performance of this Sublease. If Sublessee
defaults under any provision of this Sublease, Sublessor shall be entitled, at
Sublessor's option and in addition to all other rights and remedies available to
Sublessor, to apply or retain the whole or any part of the Security Deposit for
the payment of any rent or any other charge due Sublessor or any other sum that
Sublessor may spend or become obligated to spend by reason of Sublessee's
default. If the Security Deposit is so used or applied, Sublessee shall, within
ten (10) days after written demand, deposit cash with Sublessor in an amount
sufficient to restore the Security Deposit to its original amount. Sublessor
shall not be required to keep the Security Deposit separate from its general
funds and Sublessee shall not be entitled to interest on the Security Deposit.
The Security Deposit or any balance thereof shall be returned to Sublessee after
Sublessor is able to determine the final amounts of Sublessee's obligations upon
the expiration or termination of this Sublease. If Sublessor transfers
Sublessor's interest in the Premises during the term of this Sublease, Sublessor
may transfer the Security Deposit to any subsequent owner and Sublessee hereby
releases Sublessor from all liability for the return of the Security Deposit,
provided the transferee assumes Sublessor's obligations hereunder with respect
--------
to the Security Deposit. Sublessee shall not assign, pledge, mortgage, or
otherwise hypothecate its interest in the Security Deposit.
39. ESTOPPEL CERTIFICATE
Cost-U-Less Sublease
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39.1 TERMS OF ESTOPPEL CERTIFICATE
Sublessee shall at any time within twenty (20) days after written request
by Sublessor, execute, acknowledge and deliver to Sublessor a statement in
writing: (i) certifying that this Sublease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Sublease, as so modified, is in full force and effect) and the date to
which the rents and other charges are paid in advance, if any; (ii)
acknowledging that there are not, to Sublessee's knowledge, any uncured defaults
on the part of Sublessor hereunder, or specifying such defaults if any are
claimed; and (iii) certifying or acknowledging such other matters that Sublessor
may reasonably request. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises or any part thereof.
39.2 FAILURE TO DELIVER
Sublessee's failure to deliver such statement shall be conclusive upon
Sublessee that: (i) this Sublease is in full force and effect, without
modifications except as expressly represented otherwise by Sublessor; (ii)
Sublessor is not in default under the Sublease; and (iii) not more than one (1)
month's rent has been paid in advance.
40. SUBORDINATION, ATTORNMENT AND NONDISTURBANCE
40.1 SUBORDINATION OR SUPERIORITY
At Sublessor's option, this Sublease shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the Premises or any part thereof and to any and all
advances made on the security thereof and to all renewals, modifications,
consolidations, replacements, and extensions thereof without the execution and
delivery of any instruments on the part of Sublessee. Any mortgagee or trustee
shall have to option to give the rights and interest of Sublessee under this
Sublease priority over the lien of its mortgage or deed of trust. In the event
of either such option and upon notification by such mortgagee or trustee to
Sublessee to that effect, the rights and interest of Sublessee under this
Sublease shall be deemed to be subordinate to, or to have priority over, as the
case may be, the lien of said mortgage or trust deed, whether this Sublease is
dated prior to or subsequent to the date of said mortgage or trust deed.
Cost-U-Less Sublease
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40.2 AGREEMENTS
Sublessee agrees to execute any agreements reasonably required to
effectuate such subordination or to make this Sublease subordinate to the lien
of any mortgage, deed of trust, or ground lease.
40.3 ATTORNMENT
Sublessee hereby agrees, at the written request of the lienholder or the
purchaser of Sublessor's interest pursuant to foreclosure or other proceedings,
to attorn to such lienholder or purchaser or, at such lienholder's or
purchaser's option, to enter into a new lease for the balance of the term upon
the same terms and conditions as this Sublease.
41. NO BREACH OF THE GROUND LEASES AND THE MASTER SUBLEASES
Sublessee shall not do or permit to be done any act or thing which
constitutes a breach or violation of any term, covenant or condition of either
the Ground Leases or the Master Subleases by the tenant thereunder, whether or
not such act or thing is permitted under the provisions of this Sublease.
42. TERMINATION OF GROUND LEASES OR MASTER SUBLEASES
If for any reason the term of the Ground Leases or the Master Subleases
terminates prior to the expiration date of this Sublease, Sublessor shall not be
liable to Sublessee by reason thereof unless (a) Sublessee is not then in
default hereunder and (b) said termination is effected because of the breach or
default of Sublessor under the Master Subleases or either of them.
43. SURVIVAL
All representations and warranties made by either party shall survive the
expiration or sooner termination of this Sublease.
44. SUBLESSEE'S FINANCIAL STATEMENT
Sublessee shall furnish Sublessor annually within one hundred and twenty
(120) days after the end of each of Sublessee's fiscal years a copy of its
annual audited and certified statement. It is mutually agreed that Sublessor
may deliver a copy of such statements to its mortgagee, but
Cost-U-Less Sublease
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otherwise Sublessor shall keep such statements and information contained therein
confidential.
45. LENDER'S REQUIREMENTS
If any mortgagee or committed financier of Sublessor should require, as a
condition precedent to the closing of any loan or the disbursal of any money
under any loan, that this Sublease be amended or supplemented in any manner,
Sublessor shall give written notice thereof to Sublessee, which notice shall be
accompanied by a Sublease Supplement Agreement embodying such amendments and
supplements. Sublessee shall, within twenty (20) days after the effective date
of Sublessor's notice, either consent to such amendments and supplements (which
consent shall not be unreasonably withheld) and execute the tendered Sublease
Supplement Agreement, or deliver to Sublessor a written statement of its reason
or reasons for refusing to so consent and execute. Failure of Sublessee to
respond within said twenty (20) day period shall be a default under this
Sublease.
46. SUBLESSOR
The term "Sublessor" as used in this Sublease, so far as covenants or
obligations on the part of Sublessor are concerned, shall be limited to mean and
include only the owner or owners at the time in question of the subleasehold
interest created under the Master Sublease, and in the event of any transfer or
transfers of the title to such subleasehold interest, the original Sublessor
(and in case of any subsequent transfer or conveyances, the then grantor) shall
be automatically freed and relieved, from and after the date of such transfer or
conveyance, of all liability as respects the performance of any covenants or
obligations on the part of Sublessor contained in this Sublease thereafter to be
performed; provided that any funds in the hands of such Sublessor or the then
grantor at the time of such transfer, in which Sublessee has an interest, shall
be turned over to the grantee, and any amount then due and payable to Sublessee
by Sublessor or the then grantor under any provisions of this Sublease, shall be
paid to Sublessee.
47. INSPECTION
Sublessor, or Sublessor's agent, may enter the Premises at any reasonable
time and in a manner that does not interfere with Sublessee's business, for the
purpose of inspecting the same, or of making repairs which Sublessee may neglect
or refuse to make in accordance with the covenants and agreements of this
Sublease, and also for the purpose of showing the
Cost-U-Less Sublease
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Premises to persons wishing to purchase the same, or at any time within one (1)
year prior to the expiration of the term of this Sublease, to persons wishing to
rent the Premises. Sublessee shall within one hundred and twenty (120) days
prior to the expiration of the term of this Sublease, permit the usual notice of
"To Let" or "For Sale" to be placed on the Premises and to remain thereon
without molestation.
48. EXECUTION AND COUNTERPARTS
This Sublease may be executed by the parties in counterparts, which, taken
together, constitute the entire lease. The signature of any party to this
Sublease may be sent by facsimile and if so sent shall be treated as if
delivered in person as an original signature.
49. CONSENT REQUIREMENT
Wherever this Sublease requires the consent of either the Sublessor or the
Sublessee, that consent may not be unreasonably withheld.
50. MORTGAGE CONTINGENCY
This Sublease is contingent upon Sublessor obtaining financing for
Sublessor's Construction ("Construction Financing") within thirty (30) days of
the date of this Sublease. If, after using best efforts, Sublessor is unable to
obtain Construction Financing, then Sublessor may, by written notice to
Sublessee within forty (40) days of the date of this Sublease, terminate this
Sublease without further right or obligation for Sublessor or Sublessee.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
first above written.
Sublessor:
TAMUNING CAPITAL INVESTMENT,
INC., a Guam corporation
By /s/ Xxxxxx Friend
-----------------------
Xxxxxx Friend
President
Cost-U-Less Sublease
Page 40
Sublessee:
COST-U-LESS,
a Washington corporation
By /s/ Xxxxxxx X. Xxxx
--------------------
Name: Xxxxxxx X. Xxxx
Title: CEO
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On this 15th day of July, 1994, before me, the undersigned, personally
appeared Xxxxxx Friend, who acknowledged himself to be the President of Tamuning
Capital Investment, Inc., a Guam corporation, and that he, as such officer being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxx X. Xxxxxx
Notary Public
My Commission Expires:
May 26, 0000
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF Xxxxxx )
On this 14th day of July, 1994, before me, the undersigned, a Notary Public
in and for the State of Washinqton, 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
that he was duly elected, qualified and acting as said officer of the
corporation, that he was authorized to
Cost-U-Less Sublease
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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.
[NOTARY SEAL APPEARS HERE] /s/ Xxxxxxxx X. Xxxxx
(Signature of Notary)
Xxxxxxxx X. Xxxxx
(Print or stamp name of notary)
NOTARY PUBLIC in and for the
State of Washington, residing at
Xxx Xxxxxx, XX 00000
My Appointment Expires: 4-6-96
EXHIBIT "A"
[MAP OF TAMUNING COMMERCIAL CENTER]
EXHIBIT "A"
[MAP OF TAMUNING COMMERCIAL CENTER]
Cost-U-Less Sublease
Page 43
EXHIBIT B
PLANS
(For American Samoa Store and a letter from Cost U Less's
architect explaining the differences.)
--------------------------------------------------------------------------------
)
)
RECORDATION )
)
DEPARTMENT )
)
OF )
)
LAND )
)
MANAGEMENT )
)
)
--------------------------------------------------------------------------------
SUBLEASE
PARCEL 3
THIS Sublease is made effective and entered into July 1, 1994, by and between
PACIFIC TYRE CAPITAL INVESTMENT, INC., a Guam corporation ("Sublessor"), and
TAMUNING CAPITAL INVESTMENT, INC., a Guam corporation ("Sublessee").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the payment of rent and of the covenants,
terms, and conditions herein, the parties agree as follows:
1 PARCEL 3: Sublessor hereby subleases to Sublessee "Parcel 3"
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consisting of Lot No. 2145-REM-6NEW-R3, Dededo, Guam, containing an area of
72,773 +/- square feet, as shown on Exhibit "A" attached to, and by this
reference incorporated in, this Sublease and subject to the easements as
recorded in the Department of Land Management, Government of Guam, under
Instrument No.278081. Parcel 3 is a parcelling for leasehold purposes only of
the property or lots under the Ground Lease described in paragraph 23 below. The
Ground Lease is recorded in the Department of Land Management, Government of
Guam, as Instrument No.479857.
2 RECIPROCAL EASEMENTS
--------------------
(a) Sublessor's Grant of Easement
-----------------------------
Sublessor grants to Sublessee for the term of this Sublease and all
extensions thereof, a nonexclusive easement for ingress, egress and passage,
both vehicular and pedestrian, and vehicle parking, in the respective areas from
time to time established therefor, including any and all service roads,
driveways, driveway entrances and exits, vehicle approaches, sidewalks,
Exhibit "C" Page 1 of 25
Sublease - Parcel 3
Page 2
pedestrian walkways and vehicle parking areas, which now are or hereafter may be
located on Parcels 1, 2, and 4 as shown on Exhibit "A". Sublessee shall have the
right to extend the benefit of the foregoing easement to its employees,
suppliers, customers, invitees, assigns, tenants, predecessors in interest, and
licensees during the term of this Sublease.
(b) Sublessee's Grant of Easement
-----------------------------
Sublessee grants to Sublessor for the term of this Sublease and all
extensions a nonexclusive easement for ingress, egress and passage, both
vehicular and pedestrian, and vehicle parking, in the respective areas from time
to time established therefor, including any and all service roads, driveways,
driveway entrances and exits, vehicle approaches, sidewalks, pedestrian walkways
and vehicle parking areas, which now are or hereafter may be located on Parcel
3. Sublessor shall have the right to extend the benefit of the foregoing
easement to any other party including but not limited to its employees,
suppliers, customers, invitees, assigns, tenants, predecessors in interest, and
licensees.
(c) Unimpeded Access
----------------
Sublessee and Sublessor each agree to maintain unimpeded access at all
times between and among all vehicle parking areas from time to time located on
Parcels 1, 2, 3, and 4, or any portion thereof; and no fence, wall, hedge, or
other barrier (other than reasonable devices for the regulation of traffic flow
and the delineation of parking areas) shall be constructed or installed on
Parcels 1, 2, 3, and 4, or any portion thereof, in such a manner as to interfere
with such access between and among Parcels 1, 2, 3, and 4. Notwithstanding any
other provision hereof, Sublessor shall have the right to erect and maintain a
construction fence for a period of thirty (30) calendar days for each building
or other improvement to be constructed on Parcels 1, 2, and 4 as shown on
Exhibit A attached hereto.
(d) No Public Dedication
--------------------
Nothing contained in this Sublease shall constitute, or be construed to
constitute, a dedication of any portion of Parcels 1, 2, 3 or 4 to the general
public or for the benefit of the general public or for any public purposes
whatsoever. The easements herein granted shall be for the exclusive use of the
parties hereto and those whom the parties permit to enter upon their respective
premises.
(e) Easements Run With Land
-----------------------
The easements herein granted shall run with the land.
Exhibit "C" Page 2 of 25
Sublease - Parcel 3
Page 3
(f) No Encroachment
---------------
Sublessor shall have the right to construct such permanent buildings and
improvements on land abutting Parcel 3, whether now owned or subleased or
hereafter acquired or subleased by Sublessor, and such buildings and
improvements shall not be deemed to encroach on the easements created by this
instrument, provided Sublessee has ingress and egress from Parcel 3 to and from
a public thoroughfare.
3 TERM: The term of this Sublease shall be for approximately seventy-two
----
(72) years and 8 months commencing on July 1, 1994 and ending at midnight on
February 29, 2067, unless sooner terminated as provided herein.
4 RENTAL:
------
a) No rent shall be payable from July 1, 1994 until December 31, 1994.
The rent to be paid by Sublessee to Sublessor for the sublease herein granted
during calendar year 1995 shall be One Hundred Sixty-eight Thousand and No/100
Dollars ($168,000.00), payable in monthly installments on the first day of each
calendar month in the amount of Fourteen Thousand and No/100 Dollars
($14,000.00). In every subsequent calendar year during the term of this
Sublease, the rent to be paid by Sublessee to Sublessor for the sublease herein
granted shall increase by the sum of Five Thousand Forty and No/100 Dollars
($5,040.00) over the rent for the immediately preceding calendar year. Example:
For 1996 the rent shall be One Hundred Seventy-three Thousand Forty and No/100
Dollars ($173,040.00), payable in monthly installments on the first day of each
calendar month in the amount of Fourteen Thousand Four Hundred Twenty and No/100
Dollars ($14,420.00); for 1997 the rent shall be One Hundred Seventy-eight
Thousand Eighty and No/100 Dollars ($178,080.00), payable in monthly
installments on the first day of each calendar month in the amount of Fourteen
Thousand Eight Hundred Forty and No/100 Dollars ($14,840.00).
b) At all times during the term of this Sublease, in order to adjust the
rent payable under this Sublease in accordance with changes in Sublessor's basic
costs in connection with this Sublease, Sublessee agrees to pay to Sublessor, in
addition to the rental provided for in the preceding subparagraphs and as
additional rent under this Sublease, all gross receipt taxes and assessments,
and other business privilege tax or assessments, and governmental charges and
other similar taxes and assessments, whether federal, territorial or municipal,
and whether they be by taxing districts or authorities presently taxing Parcel 3
or by others, subsequently created or otherwise, and any other taxes and
assessments attributable to Parcel 3, including without limitation any form of
assessment, license fee, commercial rental tax, gross receipts tax, transaction
privilege tax, levy, charge or tax (other than net income taxes) imposed by any
authority having the direct or indirect power to tax, including any city,
territorial or federal government, or any school, agricultural, lighting,
drainage, flood control or other special district thereof, as against any legal
or equitable interest of Sublessor in Parcel 3, as against Sublessor's right to
rent or other income
Exhibit "C" Page 3 of 25
Sublease - Parcel 3
Page 4
therefrom, or as against Sublessor's business of leasing Parcel 3, or any tax
imposed in substitution, partially or totally, for any such tax, levy,
assessment or charge, and any increases thereto. Any reference to "tax" in this
subparagraph shall not include income taxes due and payable by Sublessor on any
net income attributable to Sublessor.
5 MEMORANDUM OF SUBLEASE: It is mutually agreed that this Sublease will
----------------------
not be recorded, but that the parties will execute a written memorandum
acknowledging the tenancy which may be recorded in the records of the Department
of Land Management, Government of Guam.
6 UTILITIES, TAXES, AND ASSESSMENTS: Hereafter, Sublessee shall pay, as
---------------------------------
they become due and payable, all utilities, taxes, assessments, and other public
charges arising thereto, levied or assessed against Parcel 3, or arising by
reason of the occupancy, use, or possession of same. If Sublessee, in good
faith, shall contest such payment, Sublessee must make payment and file in the
name of Sublessor all such protests or other instruments and commence or
prosecute proceedings for the purpose of such contest.
7 Reserved.
---------
8 USE AND ZONING: Sublessee may use Parcel 3 in accordance with all
--------------
zoning laws, governmental rules, and regulations. Upon Sublessee's request,
Sublessor shall assist, cooperate, execute and shall use its best efforts to
have the fee simple owners under the Ground Lease assist, cooperate, and execute
any instruments for change in zoning, or for dedication to the Territory of Guam
any portion of Parcel 3, as may be desired by Sublessee in the development and
use of Parcel 3.
9 DEVELOPMENT, BUILDING AND IMPROVEMENTS:
--------------------------------------
a. Sublessee shall have the right to freely develop, construct,
build, modify, remove, alter and repair any building or improvements on or about
Parcel 3 without Sublessor's approval. All buildings and improvements shall be
constructed and maintained according to applicable building codes and permits.
Upon the expiration of the term of this Sublease, all buildings, fixtures, and
other permanent improvements left on Parcel 3 by Sublessee shall become the
property of Sublessor. Sublessee shall have the right to remove, dispose of and
sell any soil, coral, rocks and vegetation from Parcel 3 provided that such is
directly related to the development of Parcel 3. Sublessee shall have the right
to keep the proceeds if such soil, coral, rocks and vegetation are sold.
Provided, however, Sublessee shall not create a coral pit or mine coral on
Parcel 3 other than in connection with the construction of improvements on
Parcel 3.
b. Sublessee shall not cause or allow any mechanics lien, as a result
---
of any construction work on Parcel 3, to attach to Sublessor's interest. If such
a mechanic's lien attaches to Sublessor's interest then Sublessor shall
immediately notify Sublessee in writing,
Exhibit "C" Page 4 of 25
Sublease - Parcel 3
Page 5
and Sublessee shall remove such mechanics lien within thirty (30) days
thereafter, or if Sublessee contests such lien, then Sublessee shall post a bond
with Sublessor covering one hundred ten percent (100%) of such lien. Prior to
the start of construction Sublessee shall cause the contractor to post
performance, payment and material bonds, naming Sublessor as an additionally
assured party thereunder, covering the full cost of construction.
10 LOSS OR DAMAGE SUSTAINED BY SUBLESSEE: Sublessor shall not be liable
-------------------------------------
to Sublessee, or to anyone claiming under or through Sublessee, for any loss
and/or damage which may occur for any reason whatsoever on or about Parcel 3 or
to any damage caused to Sublessee's property except for damage as a result of
Sublessor's negligence.
11 INDEMNIFICATION: Sublessee shall indemnity and hold harmless Sublessor
---------------
from all claims, losses and damages including expenses, costs and reasonable
attorneys' fees incurred by Sublessor as a result thereof, by third parties for
property damage, personal injury, or wrongful death arising out of or in any way
occasioned by an accident or condition on or about Parcel 3 or any water, fire,
or explosion occurring on Parcel 3 and caused by any act, omission or negligence
on the part of Sublessee.
12 INSURANCE: Sublessee shall maintain comprehensive public liability
---------
insurance at all times during the entire term of this Sublease, and shall be
with a company qualified to do business in Guam. Such insurance policies shall
designate specifically that Sublessor and the fee simple owners under the Ground
Lease are also named as an insured parties thereunder in the form and reasonable
substance approved by Sublessor. The comprehensive public liability insurance
shall have coverage in the minimum amount of TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) for property; TWO MILLION AND NO/100 DOLLARS
($2,000,000.00) for injuries to more than one person arising out of one
accident; and ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) for injury to one
person. The minimum amount of insurance coverage shall be subject to adjustment
simultaneously when Sublessor is required to adjust the minimum insurance
coverage as required under the Ground Lease, which is approximately every ten
(10) years. Sublessee shall carry at all times the same amount of minimum
insurance coverage as required of Sublessor under the Ground Lease. Sublessee
shall also obtain and maintain fire insurance covering the full replacement
costs of the improvements on Parcel 3. Sublessee shall deliver copies of all
insurance policies on Parcel 3 and the "project" (as defined in the Ground
Lease) to Sublessor at Sublessor's request.
13 ASSIGNMENT, SUBLEASING AND MORTGAGING: Sublessee shall have the right
-------------------------------------
to mortgage or encumber Sublessee's subleasehold interest without Sublessor's
consent. Sublessee shall also have the right to sublet Parcel 3 and/or project
without Sublessor's consent. All subleases by Sublessee under this Sublease, or
all subletting of Sublessee's subleasehold interest shall be subject to this
Sublease and Sublessor shall not be required to accept or recognize any such
sublease or subletting by Sublessee. Sublessee shall not have the right to
assign this Sublease without the consent of Sublessor and
Exhibit "C" Page 5 or 25
Sublease - Parcel 3
Page 6
Sublessor agrees to not unreasonably withhold its consent. Sublessor shall not
receive any money or additional consideration for giving of any consent to an
assignment of this Sublease. Within thirty (30) days after Sublessee has
requested Sublessor's consent to an assignment, Sublessor shall consent or deny
the request. If the request for an assignment is denied, then Sublessor shall
state in writing the reasons or grounds for the denial. If no consent or denial
is received by Sublessee within the said thirty (30) day period, then such
request shall be deemed as approved by Sublessor.
14 MORTGAGE: If Sublessee mortgages its Subleasehold interest, and if
--------
Sublessee is in default of the payment of rent or any payment due under this
Sublease, then Sublessor, upon giving sixty (60) days notice to Sublessee, shall
also give a copy by certified or registered mail to Sublessee's mortgagee, and
such mortgagee shall have the right but not the obligation to cure such default
within said sixty (60) days. If Sublessee's default concerns an act other than
the payment of money, then upon Sublessor giving Sublessee thirty (30) days to
commence to cure, Sublessor shall likewise give a copy, by registered, or
certified mail to Sublessee's mortgagee and such mortgagee shall have the right,
but not the obligation, to commence to cure such default and to cure the same
within a reasonable time thereafter. As long has Sublessee has a mortgage on
its subleasehold interest, no default or termination by Sublessor shall be valid
unless Sublessee's mortgage has received a proper notice and has had an
opportunity to cure the default as set forth herein.
15 ESTOPPEL CERTIFICATE: Upon Sublessee's request, Sublessor shall
--------------------
execute any estoppel certificate or statement stating that this Sublease is in
full force and effect, and that Sublessee is not in default; provided, however,
that the statement as requested is true and correct. Further, Sublessor shall
use its best efforts to assist Sublessee in obtaining an estoppel certificate
from the fee simple owners under the Ground Lease.
16 SUBLESSOR'S CONSENT: Whenever and if Sublessor's consent is required
-------------------
under this Sublease, then Sublessor shall not unreasonably withhold such consent
and Sublessor shall not be entitled to receive any additional consideration for
such consent.
17 CONDEMNATION: If the entire Parcel 3 and project should be taken
------------
during the term of this Sublease by the Government of Guam, or by any other
lawful governing authority, under the power of eminent domain, then this
Sublease shall terminate upon actual possession by the government. If only a
portion of Parcel 3 or project is taken so that such taking does not materially
interfere with Sublessee's business, than this Sublease shall not terminate but
shall continue. The rent must be adjusted on a fair and reasonable basis. Such
adjustment shall be in proportion to the amount of land (not building) taken as
fit bears to the original size of Parcel 3. Further, such rental adjustment
shall take into consideration the rental value of vacant land as a comparable
and the rental value of the remaining building and improvements and other
factors. However, if the portion taken by the government is substantial or if in
Sublessee's reasonable opinion such condemnation materially affects the business
of Sublessee, then this Sublease may be terminated by
Exhibit "C" Page 6 of 25
Sublease - Parcel 3
Page 7
Sublessee. Each party may claim from the government the value of its interest
taken. If the parties cannot agree as to the adjusted rental, if a non-material
or non-substantial portion is taken, or if there is a disagreement between the
parties as to whether or not a material or substantial portion was taken to
justify a termination of this Sublease, then either party by giving the other at
least twenty (20) days written notice, may start arbitration proceedings. Each
shall then select a real estate appraiser, and the appraisers shall then select
a third appraiser. The appraisers shall then determine the non-material or
material issue of such taking, the values, rents, and other related issues
including the payment of all or any portion of such appraiser's fees. A majority
decision of the appraisers on any issue before them shall be necessary for a
determination.
18 SUCCESSORS: All terms and conditions of this Sublease shall be binding
----------
upon Sublessor and Sublessee, and their respective successors and assigns.
19 NOTICE:
-------
a. All notices shall be made by personal delivery or by registered or
certified mail, addressed to the proper party as set forth below:
As to Sublessor: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Friend, President
with facsimile copy to (000) 000-0000
As to Sublessee: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention; Xxxxxx Friend, President
with facsimile copy to (000) 000-0000
b. All notices shall be deemed delivered as of the date of the postmark
of any mail or notices properly addressed and registered or certified mail,
return receipt requested, by the U.S. Post Office provided that such notice and
mail is properly addressed as set forth above, contains sufficient postage and
is registered or certified.
c. Sublessor shall, upon serving notice to Sublessee, simultaneously
serve a copy of such notice to any mortgagee of Sublessee.
d. Should either party desire to designate another individual to
receive payments or notice on its behalf, or shall have a change of address,
then such party shall give ten (10) days written notice of such new party to
receive such notice or payment and/or any new address.
Exhibit "C" Page 7 of 25
Sublease - Parcel 3
Page 8
20 DEFAULT:
--------
a. Sublessee shall be in default of this Sublease if Sublessee shall
fail to make the payment of rent or monies due under this Sublease within sixty
(60) days after written notice thereof from Sublessor. Further, if Sublessee
shall breach the terms and conditions of this Sublease, other than those
requiring the payment of money or rent, and if Sublessee shall fail to commence
to correct or cure such breach within thirty (30) days after written notice and
correct or cure such breach within a reasonable time thereafter, then Sublessee
shall be in default of this Sublease.
b. If Sublessee fails to cure any default within the cure period
provided above, Sublessor shall have the right to terminate this Sublease and
may at once reenter Parcel 3 and take possession of Parcel 3 and the project and
all improvements thereon. If Sublessor so terminates this Sublease, Sublessor
may demand that Sublessee assign to Sublessor all of Sublessee's interest in and
to Parcel 3, and the project. If Sublessee shall voluntarily make such
assignment within thirty (30) days after Sublessor's written demand, then
Sublessee shall not be liable to Sublessor for any damages, costs, back rents,
shortages, attorney's fees, or for any money or obligations whatsoever.
Otherwise, Sublessor shall be entitled to all damages, money and remedies
allowed by law and this Sublease.
21 NONDISTURBANCE OF SUBTENANTS: If this Sublease is terminated due to
----------------------------
Sublessee's default or for any reason whatsoever, then such termination shall
not mean a termination of any sublease or subtenancy. Sublessors shall recognize
and accept all subleases and subtenancies on the above described property and
project. All subtenants or sublessees shall attorn directly to Sublessors, and
Sublessors shall be substituted as sublessor or the landlord of all subtenants
or sublessees. All terms and conditions of the subleases shall remain in full
force and effect and all rental payments thereunder due to Sublessee shall be
paid directly to Sublessor.
22 FORCE MAJEURE: The following shall be deemed as events of "force
-------------
majeure: Non-delivery or a delay in the delivery of materials from an off island
supplier as a result of acts of God or events beyond the control of the
supplier; typhoon; cyclone, tropical storms, earthquake; acts of God; hazardous
wastes and pollutants; strikes, inability to obtain materials; unreasonable
delays caused by the government; change in zoning which may prohibit or prevent
commercial use; or any event which is beyond the fault or reasonable control of
Sublessee; or any event which may frustrate the basic intent and purposes of
this Sublease between the parties. Events of force majeure shall justify the
delay or inaction of Sublessee of any required act hereunder.
23 GROUND LEASE: Any reference to "Ground Lease" shall mean that LEASE,
------------
(Novation or Substitute Lease) dated November 13, 1992, between XXXXXXX X.
XXXXXXX and XXXXX X. XXXXXXX (HUSBAND AND WIFE), AND XXXXXXXX X. XXXXXX (A
WIDOW), collectively referred to as "Lessors", and PACIFIC TYRE CAPITAL
Exhibit "C" Page 8 of 25
Sublease - Parcel 3
Page 9
INVESTMENT, INC. referred to as the Lessee, as recorded in the Department of
Land Management, Government of Guam, under Instrument No. 479857, on Lot Nos.
2145-REM-6 and 2143-REM-7, Dededo, Guam. The terms and conditions of this
Sublease shall be subject to the terms and conditions of the Ground Lease and
any future amendments thereto. If there is any conflict between this Sublease
and the Ground Lease and any future amendments thereto then the Ground Lease and
its amendments shall control. Any reference in this Sublease to Ground Lessor
shall mean the lessor in the Ground Lease and any amendments thereto.
24. JOINT USE OF PARCELS: If Sublessee has other subleases from or with
--------------------
Sublessor which concern or are on portions of the lots under the Ground Lease,
then parcels as subleased by Sublessee from Sublessor may be used for the
benefit of each other. Sublessor, jointly and severally, consent to Sublessee
constructing buildings and improvements across the boundary lines between the
parcels. If Sublessor's approval on other documents are required to allow for
the construction or building across the boundary lines of the parcels, then
Sublessor shall execute such documents.
25. SUPERSEDES PRIOR SUBLEASE: This Sublease supersedes all prior
-------------------------
subleases relating to the above described property between the parties.
IN WITNESS WHEREOF, this Sublease is dated the day and year first above
written.
Sublessor: Sublessee:
PACIFIC TYRE CAPITAL TAMUNING CAPITAL INVESTMENT, INC.,
INVESTMENT, INC., a Guam corporation
a Guam corporation
By:/s/ Xxxxxx Friend By:/s/ Xxxxxx Friend
------------------------ ------------------------
Xxxxxx Friend, President Xxxxxx Friend, President
STATE OF ARIZONA )
)ss.
County of Maricopa )
On this, the 1st day of July, 1994 before me, the undersigned, personally
appeared Xxxxxx Friend, who acknowledged himself to be the President of PACIFIC
TYRE CAPITAL INVESTMENT INC., a Guam corporation, and that he, as such officer
being
Exhibit "C" Page 9 of 25
Sublease - Parcel 3
Page 10
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxx X. Xxxxxxx
-------------------
Notary Public
My Commission expires:
11-25-95
---------------------
STATE OF ARIZONA )
)ss.
County of Maricopa )
On this, the 1st day of July, 1994 before me, the undersigned, personally
appeared Xxxxxx Friend, who acknowledged himself to be the President of TAMUNING
CAPITAL INVESTMENT, INC., a Guam corporation, and that he, as such officer
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by himself as
President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxx X. Xxxxxxx
-------------------
Notary Public
My Commission expires:
11-25-95
---------------------
Exhibit "C" Page 10 of 25
EXHIBIT "A"
[MAP OF TAMUNING COMMERCIAL CENTER]
EXHIBIT "C" PAGE 11 OF 25
EXHIBIT "A"
[MAP OF TAMUNING COMMERCIAL CENTER]
EXHIBIT "C" PAGE 12 OF 25
--------------------------------------------------------------------------------
RECORDATION )
)
DEPARTMENT )
)
OF )
)
LAND )
)
MANAGEMENT )
--------------------------------------------------------------------------------
SUBLEASE
PARCEL 4
THIS Sublease is made effective and entered into July 1, 1994, by and
between PACIFIC TYRE CAPITAL INVESTMENT, INC., A Guam corporation
("Sublessor"), and TAMUNING CAPITAL INVESTMENT, INC., A Guam corporation
("Sublessee").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the payment of rent and of the covenants,
terms, and conditions herein, the parties agree as follows:
1 PARCEL 4: Sublessor hereby subleases to Sublessee "Parcel 4"
--------
consisting of Lot No 2146-3-13, Xxx Xx.0000-0-00, xxx Xxx Xx.0000-0-00,
Xxxxxxxx, Xxxxxxxxxxxx of Dededo, Guam, as shown on Exhibit "A" attached to, and
by this reference incorporated in, this Sublease and subject to the easements as
recorded in the Department of Land Management, Government of Guam, as Instrument
No.278081. Parcel 4 is a parcelling for leasehold purposes only of the property
or lots under the Ground Lease described in paragraph 23 below. The Ground Lease
is recorded in the Department of Land Management, Government of Guam, as
Instrument No.469677.
2 RECIPROCAL EASEMENTS
--------------------
(a) Sublessor's Grant of Easement
-----------------------------
Sublessor grants to Sublessee for the term of this Sublease and all
extensions thereof, a nonexclusive easement for ingress, egress and passage,
both vehicular and pedestrian, and vehicle parking, in the respective areas from
time to time established therefor, including any
Exhibit "C" Page 13 of 25
Sublease - Parcel 4
Page 2
and all service roads, driveways, driveway entrances and exits, vehicle
approaches, sidewalks, pedestrian walkways and vehicle parking areas, which now
are or hereafter may be located on Parcels 1, 2, and 3 as shown on Exhibit "A".
Sublessee shall have the right to extend the benefit of the foregoing easement
to its employees, suppliers, customers, invitees, assigns, tenants, predecessors
in interest, and licensees during the term of this Sublease.
(b) Sublessee's Grant of Easement
-----------------------------
Sublessee grants to Sublessor for the term of this Sublease and all
extensions a nonexclusive easement for ingress, egress and passage, both
vehicular and pedestrian, and vehicle parking, in the respective areas from
time to time established therefor, including any and all service roads,
driveways, driveway entrances and exits, vehicle approaches, sidewalks,
pedestrian walkways and vehicle parking areas, which now are or hereafter may be
located on Parcel 4. Sublessor shall have the right to extend the benefit of the
foregoing easement to any other party including but not limited to its
employees, suppliers, customers, invitees, assigns, tenants, predecessors in
interest, and licensees.
(c) Unimpeded Access
----------------
Sublessee and Sublessor each agree to maintain unimpeded access at all
times between and among all vehicle parking areas from time to time located on
Parcels 1, 2, 3, and 4, or any portion thereof; and no fence, wall, hedge, or
other barrier (other than reasonable devices for the regulation of traffic flow
and the delineation of parking areas) shall be constructed or installed on
Parcels 1, 2, 3, and 4, or any portion thereof in such a manner as to interfere
with such access between and among Parcels 1, 2, 3, and 4. Notwithstanding any
other provision hereof, Sublessor shall have the right to erect and maintain a
construction fence for a period of thirty (30) calendar days for each building
or other improvement to be constructed on Parcels 1, 2, and 3 as shown on
Exhibit A attached hereto.
(d) No Public Dedication
--------------------
Nothing contained in this Sublease shall constitute, or be construed to
constitute, a dedication of any portion of Parcels 1, 2, 3 or 4 to the general
public or for the benefit of the general public or for any public purposes
whatsoever. The easements herein granted shall be for the exclusive use of the
parties hereto and those whom the parties permit to enter upon their respective
premises.
(e) Easements Run With Land
-----------------------
The easements herein granted shall run with the land.
Exhibit "C" Page 14 of 25
Sublease - Parcel 4
Page 3
(f) No Encroachment
---------------
Sublessor shall have the right to construct such permanent buildings and
improvements on land abutting Parcel 4, whether now owned or subleased or
hereafter acquired or subleased by Sublessor, and such buildings and
improvements shall not be deemed to encroach on the easements created by this
instrument, provided Sublessee has ingress and egress from Parcel 4 to and from
a public thoroughfare.
3 TERM: The term of this Sublease shall commence on July 1, 1994 and shall
----
end at midnight on March 31, 2092 unless sooner terminated as provided herein.
4 RENTAL:
------
(a) No rent shall be payable from July 1, 1994 until December 31,
1994. The rent to be paid by Sublessee to Sublessor for the sublease herein
granted shall be paid in eleven hundred seventy-nine (1,179) successive monthly
payments payable on the first day of each calender month commencing January 1,
1995 and continuing thereafter until and including March 1, 2092. The first
twelve (12) monthly installments of rent payable on the first day of each
calendar month in 1995 shall be in the amount of Three Thousand and No/100
Dollars ($3,000.00) each. Starting on April 1, 1997, the rent shall increase by
12 1/2% and the rent shall increase, every five (5) years thereafter at 12 1/2%
compounded, until March 1, 2047. "Every 5 years thereafter", shall mean that the
rent shall increase by 12 1/2%, compounded, on April 1 of the following years:
2002, 2007, 2012, 2017, 2022, 2027, 2032, and 2037.
(b) Starting as of April 1, 2042, the rent to be paid by Sublessee to
Sublessor during the term from April 1, 2042 to the end of this Sublease term,
March 31, 2092, shall increase by the same amount which Sublessor is required
to pay the Ground Lessor under the Ground Lease.
NOTE: For informational purposes only, the Ground Lease states that the rents
shall increase to nine percent (9%) of the land value of the then existing use
of the Parcel under the Ground Lease at the end of the original term of the
Ground Lease, namely the original term of the Ground Lease ends on April 6, 2042
with an option to extend. Sublessor has exercised the option to extend the
Ground Lease for the additional 50 year period. Further, in any event, the
rental for the first five (5) years of the extended term of the Ground Lease is
not to be less than the rental for the last five (5) years of the original term.
After each fifth anniversary of the extended term of the Ground Lease the rent
to be paid by the Ground Lessee to the Ground Lessor is to be increased by
twelve and one-half percent (12 1/2%) over nine percent (9%) of the land value
of the then existing use of the Parcel at the end of the original term of the
Ground Lease.
Exhibit "C" Page 15 of 25
Sublease - Parcel 4
Page 4
(c) At all times during the term of this Sublease, in order to adjust
the rent payable under this Sublease in accordance with changes in Sublessor's
basic costs in connection with this Sublease, Sublessee agrees to pay to
Sublessor, in addition to the rental provided for in the preceding subparagraphs
and as additional rent under this Sublease, all gross receipt taxes and
assessments, and other business privilege tax or assessments, and other business
privilege tax or assessments, and governmental charges and other similar taxes
and assessments, whether federal, territorial or municipal, and whether they be
by taxing districts or authorities presently taxing Parcel 4 or by others,
subsequently created or otherwise, and any other taxes and assessments
attributable to Parcel 4, including without limitation any form of assessment,
license fee, commercial rental tax, gross receipts tax, transaction privilege
tax, levy, charge or tax (other than net income taxes) imposed by any authority
having the direct or indirect power to tax, including any city, territorial or
federal government, or any school, agricultural, lighting, drainage, flood
control or other special district thereof, as against any legal or equitable
interest of Sublessor in Parcel 4, as against Sublessor's right to rent or other
income therefrom, or as against Sublessor's business of leasing Parcel 4, or any
tax imposed in substitution, partially or totally, for any such tax, levy,
assessment or charge, and any increases thereto. Any reference to "tax" in this
subparagraph shall not include income taxes due and payable by Sublessor on any
net income attributable to Sublessor.
5 MEMORANDUM OF SUBLEASE: It is mutually agreed that this Sublease will
----------------------
not be recorded, but that the parties will execute a written memorandum
acknowledging the tenancy which may be recorded in the records of the Department
of Land Management, Government of Guam.
6 UTILITIES, TAXES, AND ASSESSMENTS: Hereafter, Sublessee shall pay, as
---------------------------------
they become due and payable, all utilities, taxes, assessments, and other public
charges arising thereto, levied or assessed against Parcel 4, or arising by
reason of the occupancy, use, or possession of same. If Sublessee, in good
faith, shall contest such payment, Sublessee must make payment and file in the
name of Sublessor all such protests or other instruments and commence or
prosecute proceedings for the purpose of such contest.
7 Reserved.
---------
8 USE AND ZONING: Sublessee may use Parcel 4 in accordance with all
--------------
zoning laws, governmental rules, and regulations. Upon Sublessee's request,
Sublessor shall assist, cooperate, execute and shall use its best efforts to
have the fee simple owners under the Ground Lease assist, cooperate, and execute
any instruments for change in zoning, or for dedication to the Territory of Guam
any portion of Parcel 4, as may be desired by Sublessee in the development and
use of Parcel 4.
Exhibit "C" Page 16 of 25
Sublease - Parcel 4
Page 5
9 DEVELOPMENT, BUILDING AND IMPROVEMENTS:
--------------------------------------
(a) Sublessee shall have the right to freely develop, construct,
build, modify, remove, alter and repair any building or improvements on or about
Parcel 4 without Sublessor's approval. All buildings and improvements shall be
constructed and maintained according to applicable building codes and permits.
Upon the expiration of the term of this Sublease, all buildings, fixtures, and
other permanent improvements left on Parcel 4 by Sublessee shall become the
property of Sublessor. Sublessee shall have the right to remove, dispose of and
sell any soil, coral, rocks and vegetation from Parcel 4 provided that such is
directly related to the development of Parcel 4. Sublessee shall have the right
to keep the proceeds if such soil, coral, rocks and vegetation are sold.
Provided, however, Sublessee shall not create a coral pit or mine coral on
Parcel 4 other than in connection with the construction of improvements on
Parcel 4.
(b) Sublessee shall not cause or allow any mechanics lien, as a result
---
of any construction work on Parcel 4, to attach to Sublessor's interest. If such
a mechanic's lien attaches to Sublessor's interest then Sublessor shall
immediately notify Sublessee in writing, and Sublessee shall remove such
mechanics lien within thirty (30) days thereafter, or if Sublessee contests such
lien, then Sublessee shall post a bond with Sublessor covering one hundred ten
percent (110%) of such lien. Prior to the start of construction Sublessee shall
cause the contractor to post performance, payment and material bonds, naming
Sublessor as an additionally assured party thereunder, covering the full cost of
construction.
10 LOSS OR DAMAGE SUSTAINED BY SUBLESSEE: Sublessor shall not be liable
-------------------------------------
to Sublessee, or to anyone claiming under or through Sublessee, for any loss
and/or damage which may occur for any reason whatsoever on or about Parcel 4 or
to any damage caused to Sublessee's property except for damage as a result of
Sublessor's negligence.
11 INDEMNIFICATION: Sublessee shall indemnify and hold harmless Sublessor
---------------
from all claims, losses and damages including expenses, costs and reasonable
attorneys' fees incurred by Sublessor as a result thereof, by third parties for
property damage, personal injury, or wrongful death arising out of or in any
way occasioned by any accident or condition on or about Parcel 4 or any water,
fire, or explosion occurring on Parcel 4 and caused by any act, omission or
negligence on the part of Sublessee.
12 INSURANCE: Sublessee shall maintain comprehensive public liability
---------
insurance at all times during the entire term of this Sublease, and shall be
with a company qualified to do business in Guam. Such insurance policies shall
designate specifically that Sublessor and the fee simple owners under the Ground
Lease are also named as an insured parties thereunder in the form and reasonable
substance approved by Sublessor. The comprehensive public liability insurance
shall have coverage in the minimum amount of TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) for property; TWO
Exhibit "C" Page 17 of 25
Sublease - Parcel 4
Page 6
MILLION AND NO/100 DOLLARS ($2,000,000.00) for injuries to more than one person
arising out of one accident; and ONE MILLION AND NO/100 DOLLARS ($1,000,000.00)
for injury to one person. The minimum amount of insurance coverage shall be
subject to adjustment simultaneously when Sublessor is required to adjust the
minimum insurance coverage as required under the Ground Lease, which is
approximately every ten (10) years. Sublessee shall carry at all times the same
amount of minimum insurance coverage as required of Sublessor under the Ground
Lease. Sublessee shall also obtain and maintain fire insurance covering the
full replacement costs of the improvements on Parcel 4. Sublessee shall deliver
copies of all insurance policies on Parcel 4 and the "project" (as defined in
the Ground Lease) to Sublessor at Sublessor's request.
13 ASSIGNMENT, SUBLEASING AND MORTGAGING: Sublessee shall have the right
-------------------------------------
to mortgage or encumber Sublessee's subleasehold interest without Sublessor's
consent. Sublessee shall also have the right to sublet Parcel 4 and/or project
without Sublessor's consent. All subleases by Sublessee under this Sublease, or
all subletting of Sublessee's subleasehold interest shall be subject to this
Sublease and Sublessor shall not be required to accept or recognize any such
sublease or subletting by Sublessee. Sublessee shall not have the right to
assign this Sublease without the consent of Sublessor and Sublessor agrees to
not unreasonably withhold its consent. Sublessor shall not receive any money or
additional consideration for giving of any consent to an assignment of this
Sublease. Within thirty (30) days after Sublessee has requested Sublessor's
consent to an assignment, Sublessor shall consent or deny the request. If the
request for an assignment is denied, then Sublessor shall state in writing the
reasons or grounds for the denial. If no consent or denial is received by
Sublessee within the said thirty (30) day period, then such request shall be
deemed as approved by Sublessor.
14 MORTGAGE: If Sublessee mortgages its Subleasehold interest, and if
--------
Sublessee is in default of the payment of rent or any payment due under this
Sublease, then Sublessor, upon giving sixty (60) days notice to Sublessee, shall
also give a copy by certified or registered mail to Sublessee's mortgagee, and
such mortgagee shall have the right but not the obligation to cure such default
within said sixty (60) days. If Sublessee's default concerns an act other than
the payment of money, then upon Sublessor giving Sublessee thirty (30) days to
commence to cure, Sublessor shall likewise give a copy, by registered or
certified mail to Sublessee's mortgagee and such mortgagee shall have the right,
but not the obligation, to commence to cure such default and to cure the same
within a reasonable time thereafter. As long has Sublessee has a mortgage on its
subleasehold interest, no default or termination by Sublessor shall be valid
unless Sublessee's mortgagee has received a proper notice and has had an
opportunity to cure the default as set forth herein.
15 ESTOPPEL CERTIFICATE: Upon Sublessee's request, Sublessor shall
--------------------
execute any estoppel certificate or statement stating that this Sublease is in
full force and effect, and that Sublessee is not in default; provided, however,
that the statement as
Exhibit "C" Page 18 of 25
Sublease - Parcel 4
Page 7
requested is true and correct. Further, Sublessor shall use its best efforts to
assist Sublessee in obtaining an estoppel certificate from the fee simple owners
under the Ground Lease.
16 SUBLESSOR'S CONSENT: Whenever and if Sublessor's consent is required
-------------------
under this Sublease, then Sublessor shall not unreasonably withhold such consent
and Sublessor shall not be entitled to receive any additional consideration for
such consent.
17 CONDEMNATION: if the entire Parcel 4 and project should be taken
------------
during the term of this Sublease by the Government of Guam, or by any other
lawful governing authority, under the power of eminent domain, then this
Sublease shall terminate upon actual possession by the government. If only a
portion of Parcel 4 or project is taken so that such taking does not materially
interfere with Sublessee's business, than this Sublease shall not terminate but
shall continue. The rent must be adjusted on a fair and reasonable basis. Such
adjustment shall be in proportion to the amount of land (not building) taken as
it bears to the original size of Parcel 4. Further, such rental adjustment shall
take into consideration the rental value of vacant land as a comparable and the
rental value of the remaining building and improvements and other factors.
However, if the portion taken by the government is substantial or if in
Sublessee's reasonable opinion such condemnation materially affects the business
of Sublessee, then this Sublease may be terminated by Sublessee. Each party may
claim from the government the value of its interest taken. If the parties cannot
agree as to the adjusted rental, if a non-material or non-substantial portion is
taken, or if there is a disagreement between the parties as to whether or not a
material or substantial portion was taken to justify a termination of this
Sublease, then either party by giving the other at least twenty (20) days
written notice, may start arbitration proceedings. Each shall then select a real
estate appraiser, and the appraisers shall then select a third appraiser. The
appraisers shall then determine the non-material or material issue of such
taking, the values, rents, and other related issues including the payment of all
or any portion of such appraiser's fees. A majority decision of the appraisers
on any issue before them shall be necessary for a determination.
18 SUCCESSORS: All terms and conditions of this Sublease shall be binding
----------
upon Sublessor and Sublessee, and their respective successors and assigns.
19 NOTICE:
------
(a) All notices shall be made by personal delivery or by registered or
certified mall, addressed to the proper party as set forth below:
As to Sublessor: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Friend, President
with facsimile copy to (000) 000-0000
Exhibit "C" Page 19 of 25
Sublease - Parcel 4
Page 8
As to Sublessee: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Friend, President
with facsimile copy to (000) 000-0000
(b) All notices shall be deemed delivered as of the date of the
postmark of any mail or notices properly addressed and registered or certified
mail, return receipt requested, by the U.S. Post Office provided that such
notice and mail is properly addressed as set forth above, contains sufficient
postage and is registered or certified.
(c) Sublessor shall, upon serving notice to Sublessee, simultaneously
serve a copy of such notice to any mortgagee of Sublessee.
(d) Should either party desire to designate another individual to
receive payments or notice on its behalf, or shall have a change of address,
then such party shall give ten (10) days written notice of such new party to
receive such notice or payment and/or any new address.
20 DEFAULT:
-------
(a) Sublessee shall be in default of this Sublease if Sublessee shall
fail to make the payment of rent or monies due under this Sublease within sixty
(60) days after written notice thereof from Sublessor. Further, if Sublessee
shall breach the terms and conditions of this Sublease, other than those
requiring the payment of money or rent, and if Sublessee shall fail to commence
to correct or cure such breach within thirty (30) days after written notice and
correct or cure such breach within a reasonable time thereafter, then Sublessee
shall be in default of this Sublease.
(b) If Sublessee fails to cure any default within the cure period
provided above, Sublessor shall have the right to terminate this Sublease and
may at once reenter Parcel 4 and take possession of Parcel 4 and the project and
all improvements thereon. If Sublessor so terminates this Sublease, Sublessor
may demand that Sublessee assign to Sublessor all of Sublessee's interest in and
to Parcel 4, and the project. if Sublessee shall voluntarily make such
assignment within thirty (30) days after Sublessor's written demand, then
Sublessee shall not be liable to Sublessor for any damages, costs, back rents,
shortages, attorney's fees, or for any money or obligations whatsoever.
Otherwise, Sublessor shall be entitled to all damages, money and remedies
allowed by law and this Sublease.
21 NONDISTURBANCE OF SUBTENANTS: If this Sublease is terminated due to
----------------------------
Sublessee's default or for any reason whatsoever, then such termination shall
not mean a termination of any sublease or subtenancy. Sublessors shall
recognize and accept all subleases and subtenancies on the above described
property and project. All subtenants or
Exhibit "C" Page 20 of 25
Sublease - Parcel 4
Page 9
sublessees shall attorn directly to Sublessors, and Sublessors shall be
substituted as sublessor or the landlord of all subtenants or sublessees. All
terms and conditions of the subleases shall remain in full force and effect and
all rental payments thereunder due to Sublessee shall be paid directly to
Sublessor.
22 FORCE MAJEURE: The following shall be deemed as events of "force
-------------
majeure: Non-delivery or a delay in the delivery of materials from an off island
supplier as a result of acts of God or events beyond the control of the
supplier; typhoon; cyclone, tropical storms, earthquake; acts of God; hazardous
wastes and pollutants; strikes, inability to obtain materials; unreasonable
delays caused by the government; change in zoning which may prohibit or prevent
commercial use; or any event which is beyond the fault or reasonable control of
Sublessee; or any event which may frustrate the basic intent and purposes of
this Sublease between the parties. Events of force majeure shall justify the
delay or inaction of Sublessee of any required act hereunder.
23 GROUND LEASE: Any reference to "Ground Lease" shall mean that Lease
------------
Agreement, dated April 6, 1992, by Xxxxxxxxx X. Xxxxx (Lessor) and Pacific Tyre
Capital Investments, Inc. (Lessee), as recorded in the Department of Land
Management, Government of Guam, as Instrument No. 469677, for Xxx Xx. 0000-0-00,
Xxx Xx. 0000-0-00, and Xxx Xx. 0000-0-00, Xxxxxxxx, Xxxxxxxxxxxx of Dededo,
Guam. The terms and conditions of this Sublease shall be subject to the terms
and conditions of the Ground Lease and any future amendments thereto. If there
is any conflict between this Sublease and the Ground Lease and any future
amendments thereto then the Ground Lease and its amendments shall control. Any
reference in this Sublease to Ground Lessor shall mean the lessor in the Ground
Lease and any amendments thereto.
24 JOINT USE OF PARCELS: If Sublessee has other subleases from or with
--------------------
Sublessor which concern or are on portions of the lots under the Ground Lease,
then parcels as subleased by Sublessee from Sublessor may be used for the
benefit of each other. Sublessor, jointly and severally, consent to Sublessee
constructing buildings and improvements across the boundary lines between the
parcels. If Sublessor's approval on other documents are required to allow for
the construction or building across the boundary lines of the parcels, then
Sublessor shall execute such documents.
Exhibit "C" Page 21 of 25
Sublease - Parcel 4
Page 10
25. SUPERSEDES PRIOR SUBLEASE: This Sublease supersedes all prior
-------------------------
subleases related to the above described property between the parties.
IN WITNESS WHEREOF, this Sublease is dated the day and year first above
written.
Sublessor: Sublessee:
PACIFIC TYRE CAPITAL TAMUNING CAPITAL INVESTMENT, INC.,
INVESTMENT, INC., a Guam corporation
a Guam corporation
By: /s/ Xxxxxx Friend By: /s/ Xxxxxx Friend
------------------------ -------------------------
Xxxxxx Friend, President Xxxxxx Friend, President
STATE OF ARIZONA )
) SS.
County of Maricopa )
On this, the 1st day of July, 1994, before me, the undersigned, personally
appeared Xxxxxx Friend, who acknowledged himself to be the President of PACIFIC
TYRE CAPITAL INVESTMENT, INC., a Guam corporation, and that he, as such officer
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by himself as
President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxx X. Xxxxxxx
-----------------------
Notary Public
My Commission expires:
11-25-95
--------------------
Exhibit "C" Page 22 of 25
Sublease - Parcel 4
Page 11
STATE OF ARIZONA )
) SS.
County of Maricopa )
On this, the 1st day of July, 1994, before me, the undersigned, personally
appeared Xxxxxx Friend, who acknowledged himself to be the President of TAMUNING
CAPITAL INVESTMENT, INC., a Guam corporation, and that he, as such officer being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxx X. Xxxxxxx
------------------------
Notary Public
My Commission expires:
11-25-95
----------------------
Exhibit "C" Page 23 of 25
EXHIBIT "A"
[MAP OF TAMUNING COMMERCIAL CENTER]
EXHIBIT "C" PAGE 24 OF 25
--------------------------------------------------------------------------------
REGISTRATION UNDER )
THE GUAM LAND TITLE ) TERRITORY OF GUAM, DEPARTMENT OF LAND MANAGEMENT
REGISTRATION ACT ) OFFICE OF THE RECORDER
REQUESTED BY ) INSTRUMENT NUMBER 479857
___________. AFTER ) -----------
REGISTRATION, ) This instrument was filed for record on 17
DELIVER COPIES TO ) ------
PACIFIC TYRE ) Day of Nov , 1992 at 4:21 P.M. and duly
CAPITAL INVESTMENTS, ) ----- -- ------
INC., TAMUNING, GUAM. ) recorded in Book ___________ at Page __________,
THE REAL PROPERTY ) Recording Fee 34 Voucher No. 637592.
AFFECTED BY THIS )
INSTRUMENT IS REGISTERED ) /s/ Xxxxxxx Xxxxx
LAND AND THE NAME OF THE ) --------------------
REGISTERED OWNER BEING ) Deputy Recorder
___________________ AND )
THE NUMBER OF THE )
CERTIFICATE OF LAST )
REGISTRATION BEING NOS. )
--------------------------------------------------------------------------------
LEASE
(Novation or Substitute Lease)
----------------------------
THIS LEASE (Novation or Substitute Lease) is dated November 13, 1992, and
is between XXXXXXX X. XXXXXXX and XXXXX X. XXXXXXX (HUSBAND AND WIFE) and
XXXXXXXX X. XXXXXX (A WIDOW) hereinafter collectively referred to as "Lessors",
and PACIFIC TYRE CAPITAL INVESTMENT, INC., a Guam corporation, whose mailing
address is 000 Xxxxxx Xxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, hereinafter
referred to as "Lessee".
WITNESSETH:
WHEREAS, the parties have a prior lease on the property described below;
WHEREAS, the parties desire to substitute the prior lease with this LEASE
(Novation or Substitute Lease) and terminate the prior lease;
NOW, THEREFORE, for and in consideration of the payment of rent and of the
covenants, terms, and conditions hereinafter provided, the parties agree as
follows:
Exhibit "D" Page 1 of 34
1. PRIOR LEASE: Any reference to "prior lease" shall mean the following
-----------
lease between the parties:
That Lease dated March 12, 1992, between XXXXXXX X. XXXXXXX and XXXXX X.
XXXXXXX (HUSBAND AND WIFE), AND XXXXXXXX X. XXXXXX (A WIDOW), collectively
referred to as "Lessors", and PACIFIC TYRE CAPITAL INVESTMENT, INC.,
referred to as the Lessee, as recorded in the Department of Land
Management, Government of Guam, under instrument no. 467887, on Lot nos.
2145-REM-6 and 2145-REM-7, Dededo, Guam.
2. LEASE: This LEASE (Novation or Substitute Lease), hereafter called
-----
"Lease" shall substitute, replace, and be lieu of the prior lease. The prior
lease shall no longer have any force and effect, and all terms and conditions of
this Lease shall control, be binding and be in full force and effect.
3. PROPERTY: Lessors hereby lease to Lessee the following parcels
--------
hereinafter referred to as the "property":
Parcel #1
---------
Lot No. 2145-REM-6, (Subdivision of Lot No. 2145-REM-R2) Municipality of
Dededo, containing an area of approximately 108,878+ -square feet or
approximately 10,115+ -square meters, as shown on that Drawing Number
PRB87-27, as X.X. Check Number 183 FY 88, as described in that Court
Distance Survey Map of Lot No. 2145-REM-R2 into Lot No. 2145-REM-3 through
2145-REM-R7-R/W, (Probate Case No. 101-85), recorded September 16, 1988 in
the Department of Land Management, Government of Guam, under Document
Number 403860. Last Certificate Title Number: 35307 (on Lot 2145-REM-R2).
Parcel #2
---------
LOT NUMBER 2145-REM-7, (a portion of Xxx Xx. 0000-XXX-X0), XXXXXX, XXXX,
XXXXXX NUMBER 566700, as said Lot is marked and designated on Map Drawing
Number PRB87-27 recorded on September 16, 1988 in the Department of Land
Management, Government of Guam under Document No.403860. Said map shows the
area to be: 87,782+ -Square Feet or 8,155+ -Square Meters.
-2-
Exhibit "D" Page 2 of 34
TOGETHER with all appurtenances and all rights of Lessors to use all
streets, highways, easements and rights-of-ways abutting on or appurtenant to
said property. Lessee shall have the right to use and have the benefits of all
easements on or about or affecting the property, particularly the easement shown
on as provided in Instrument No. 278081.
4. WARRANTY OF TITLE: Lessors hereby jointly and/or severally declare,
-----------------
represent and warrant the following:
a. that Lessors own the fee simple title to the property and/or lots
described above;
b. that said property or lots are free and clear of all liens and
encumbrances, except for easements under Instrument No. 278081;
c. that no other signatures or approvals other than the undersigned
Lessors are required;
d. that a certificate of title from the government of Guam has been
issued on the basic Lot No. 2145-REM-R2;
e. that the boundaries are true and correct as shown on the maps
referred to in this Lease, that there are no hazardous wastes or pollutants on
the property, and that there are no defects or problems in Lessors' fee simple
title, or claims by third parties concerning the land and/or Lessors' title,
which would hinder, delay or prevent Lessee in obtaining financing and/or
development of the project;
f. that Lessors shall indemnify and hold harmless the Lessee from any
claims, damages, expenses, losses and reasonable attorney's fees incurred by
Lessee as a result of any breach of the declarations, representations, and
warranties made hereunder.
5. TERM: The term of this Lease shall be for seventy-five (75) years
----
commencing on March 12, 1992, and ending at midnight on March 11, 2067, unless
sooner terminated as provided herein.
6. RENTAL:
------
a. During Development Period - rent during the development period
shall be at SIX THOUSAND SIX HUNDRED SIXTY-SEVEN DOLLARS AND NO/CENTS
($6,667.00) per month on the first day of each month. See paragraph 9 below on
the development period.
-3-
Exhibit "D" Page 3 of 34
b. After the Development Period - rents due to Lessors after the
development period shall be FIVE HUNDRED THOUSAND DOLLARS AND NO/CENTS
($500,000.00) per year, payable, however, monthly at the rate of FORTY ONE
THOUSAND, SIX HUNDRED SIXTY-SIX DOLLARS AND SIXTY-SEVEN CENTS ($41,666.67) per
month on the first day of each month; subject, however, to the increases as set
forth below.
c. Beginning in the sixth year of the Lease, namely as of April
1,1998 the rent shall increase to FIVE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS
AND NO/CENTS ($575,000.00) for twelve (12) months, such 12 month period ending
on March 31,1999. Thereafter, starting on April 1, 1999, and on the first day of
April for each year of the term of the Lease, the rents shall be increased by
FIFTEEN THOUSAND DOLLARS ($15,000.000). For purposes of clarification and as an
example, the annual rents, starting on April 1, 1999, shall be:
April 1, 1999 to March 31, 2000...... $590,000.00 per year
April 1, 2000 to March 31, 2001...... $605,000.00 per year
April 1, 2001 to March 31, 2002...... $620,000.00 per year
and increasing at $15,000 each year thereafter, and on April 1 of each year
thereafter, until the end of the Lease term.
The rents as stated above are on a yearly basis (for a 12 month period) and such
rents are to be paid in monthly installments, in advance, due on the first day
of each month.
7. PRORATA - If the term of this Lease does not start on the first of a
-------
month, or end on the last day of a month, then the rental due shall be prorated
on a thirty (30) day basis for the first and last month.
8. UTILITIES, TAXES, AND ASSESSMENTS: Hereafter, the Lessee shall pay, as
---------------------------------
they become due and payable, all utilities, taxes, assessments, and other public
charges arising thereto, levied or assessed against the property, or arising by
reason of the occupancy, use, or possession of same. If the Lessee, in good
faith, shall contest such payment, the Lessee must make payment and file in the
name of the Lessors all such protests or other instruments and commence or
prosecute proceedings for the purpose of such contest.
9. DEVELOPMENT PERIOD: Lessee has represented that it shall be able to
------------------
commence and start development and the construction of improvements on the
property on or before June 1, 1993, then complete the development within
eighteen (18) months thereafter. Therefore, the Lessee estimates the development
to be completed on or about November 30, 1994. Any reference in this Lease to
the development period shall mean the period from the date of this Lease to
November 30, 1994, subject, however to extensions if delays are caused by acts
of God or by causes reasonably beyond the control of Lessee, or as a result of
force majeure. In any event any extensions of
-4-
Exhibit "D" Page 4 of 34
time for delays caused by any reasons as set forth above, including but not
limited to acts of God, those reasonably beyond the control of Lessee,
governmental delay or as a result of force majeure shall not extend the
development period for a period of time greater than six (6) months or until May
31, 1995.
10. USE AND ZONING: Lessors warrants that Lessee may use the property in
--------------
accordance with all zoning laws governmental rules and regulation. Upon Lessee's
request, Lessors shall assist, cooperate and execute any instruments for change
in zoning, or for dedication to the territory of Guam any portion of said
property, as may be desired by Lessee in the development and use of said
property by Lessee.
11. DEVELOPMENT, BUILDING AND IMPROVEMENTS:
--------------------------------------
a. Lessee shall have the right to freely develop, construct, build,
modify, remove, alter and repair any building or improvements on or about the
property without Lessors's approval. All buildings and improvements shall be
constructed and maintained according the applicable building codes and permits.
Upon the expiration of the term of this Lease, all buildings, fixtures, and
other permanent improvements left on the property by Lessee shall become the
property of Lessors. Lessee shall have the right to remove, dispose of and sell
any soil, coral, rocks and vegetation from the property provided that such is
directly related to the development of the property. Lessee shall have the right
to keep the proceeds if such soil, coral, rocks and vegetation are sold.
Provided, however, Lessee shall not create a coral pit or mine coral on the
property other than in connection with the construction of improvements on the
property.
b. Lessee shall not cause or allow any mechanics lien, as a result
---
of any construction work on the property relating to Lessee's project, to attach
to Lessors' fee simple interest. If such a mechanic's lien attaches to Lessors'
fee simple interest then Lessors shall immediately notify Lessee in writing, and
Lessee shall remove such mechanics lien within 30 days thereafter, or if Lessee
contests such lien, then Lessee shall post a bond with Lessors covering one
hundred ten percent (110%) of such lien. Prior to the start of construction the
Lessee shall cause the contractor to post performance, payment and material
bonds, naming the Lessors as an additionally assured party thereunder, covering
the full cost of construction.
12. LOSS OR DAMAGE SUSTAINED BY LESSEE: Lessors shall not be liable to
----------------------------------
Lessee, or to anyone claiming under or through Lessee, for any loss and/or
damage which may occur for any reason whatsoever on or about the property or to
any damage caused to Lessee's property except for damage as a result of Lessors'
negligence.
13. INDEMNIFICATION: Lessee shall indemnify and hold harmless the Lessors
---------------
from all claims, losses and damages including expenses, costs and reasonable
attorneys' fees incurred by Lessors as a result thereof, by third parties for
property damage, personal injury, or wrongful death arising out of or in any way
occasioned by any accident
-5-
Exhibit "D" Page 5 of 34
or condition on or about the property or any water, fire, or explosion occurring
on the property and caused by any act, omission or negligence on the part of
Lessee.
14. INSURANCE: Lessee shall maintain comprehensive public liability
---------
insurance at all times during the entire term of this Lease, and shall be with a
company qualified to do business in Guam. Such insurance policies shall
designate specifically that the Lessors are also named as an insured party
thereunder in the form and reasonable substance approved by the Lessor. The
comprehensive public liability insurance shall have coverage in the minimum
amount of TWO HUNDRED THOUSAND DOLLARS AND NO CENTS ($200,000.00) for property;
TWO MILLION DOLLARS AND NO CENTS ($2,000,000.00) for injuries to more than one
person arising out of one accident; and ONE MILLION DOLLARS AND NO CENTS
($1,000,000.00) for injury to one person. The minimum amount of insurance
coverage shall be subject to adjustment every ten (10) years in a reasonable
amount to the satisfaction of both parties. Lessee shall also obtain and
maintain fire insurance covering the full replacement costs of the improvements
on the property. Lessee shall deliver copies of all insurance policies on the
property and the project to Lessors at Lessors' request.
15. ASSIGNMENT, SUBLEASING AND MORTGAGING:
-------------------------------------
a. Lessee shall have the right to mortgage or encumber Lessee's
leasehold interest without Lessors' consent. Lessee shall also have the right to
sublet the property and/or project without Lessors' consent. Lessee shall not
have the right to assign this Lease without the consent of Lessors and Lessors
agree to not unreasonably withhold its consent. Lessors shall not receive any
money or additional consideration for giving of any consent to an assignment of
this Lease. Within thirty (30) days after Lessee has requested Lessors' consent
to an assignment, Lessors shall consent or deny the request. If the request for
an assignment is denied, then Lessors shall state in writing the reasons or
grounds for the denial. If no consent or denial is received by Lessee within the
said thirty (30) day period, then such request shall be deemed as approved by
Lessors.
b. Provided, however, the Lessor hereby consents to any assignment of
this Lease, in whole or a portion thereof, to Family Health Plan Inc.
16. MORTGAGE: If Lessee mortgages its leasehold interest, If Lessee is in
--------
default of the payment of rent or any payment due under this Lease, then
Lessors, upon giving sixty (60) days notice to the Lessee, shall also give a
copy by certified or registered mail to Lessee's mortgagee, and such mortgagee
shall have the right but not the obligation to cure such default within said
sixty (60) days. If Lessee's default concerns an act other than the payment of
money, then upon Lessors giving Lessee thirty (30) days to commence to cure, the
Lessors shall likewise give a copy, by registered or certified mail to Lessee's
mortgagee and such mortgagee shall have the right, but not the obligation, to
commence to cure such default and to cure the same within a reasonable
-6-
Exhibit "D" Page 6 of 34
time thereafter. As long has Lessee has a mortgage on its leasehold interest, no
default or termination by Lessors shall be valid unless Lessee's mortgagee has
received a proper notice and has had an opportunity to cure the default as set
forth herein.
17. ESTOPPEL CERTIFICATE: Upon Lessee's request, Lessors shall execute any
--------------------
estoppel certificate or statement, as may be required by Lessee's financial
institution or mortgagee, declaring or stating matters such as, but not limited
to, that this Lease is in full force and effect, that the Lessee is not in
default, and other matters as may be requested by Lessors' mortgagee; provided,
however, that such is reasonable and that the statement as requested is true and
correct.
18. LESSORS' CONSENT: Whenever and if Lessors' consent is required under
----------------
this Lease, then Lessors shall not unreasonably withhold such consent and
Lessors shall not be entitled to receive any additional consideration for such
consent.
19 CONDEMNATION: If the entire property and project should be taken during
------------
the term of this Lease by the Government of Guam, or by any other lawful
governing authority, under the power of eminent domain, then this Lease shall
terminate upon actual possession by the government. If only a portion of the
property or project is taken so that such taking does not materially interfere
with the Lessee's business, than this Lease shall not terminate but shall
continue. The rent shall be adjusted proportionately to the satisfaction of the
parties, taking into consideration the rental value of vacant land as a
comparable and the rental value of the remaining building and improvements and
other factors. However, if the portion taken by the government is substantial or
if in Lessee's reasonable opinion such condemnation materially affects the
business of the Lessee, then this Lease may be terminated by Lessee. Each party
may claim from the government the value of its interest taken. If the parties
cannot agree as to the adjusted rental, if a non-material or non-substantial
portion is taken, or if there is a disagreement between the parties as to
whether or not a material or substantial portion was taken to justify a
termination of this Lease, then either party by giving the other at least twenty
(20) days written notice, may start arbitration proceedings. Each shall then
select a real estate appraiser, and the appraisers shall then select a third
appraiser. The appraisers shall then determine the non-material or material
issue of such taking, the values, rents, and other related issues including the
payment of all or any portion of such appraiser's fees. A majority decision of
the appraisers on any issue before then shall be necessary for a determination.
20. SUCCESSORS: All terms and conditions of this Lease shall be binding
----------
upon the Lessors and the Lessee, and their heirs, executors, administrators,
successors and assigns.
21. LESSORS' REPRESENTATIVE: The Lessors may designate one person, party
----------------------- ---
or company to represent Lessors on all matters concerning this Lease. Any such
designation of this representative shall be in writing and may be changed from
time to
-7-
Exhibit "D" Page 7 of 34
time provided all the Lessors consent thereto. Any demand, notice or request
from such representative to Lessee shall then be a valid demand, notice or
request of all Lessors.
22. NOTICE:
------
a. All notices shall be made by personal delivery or by registered or
certified mail, addressed to the proper party as set forth below:
As to the Lessors: x/x Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, Xxxx 00000
As to the Lessee: 000 Xxxxxx Xxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
b. All notices shall be deemed delivered as of the date of the
postmark of any mail or notices properly addressed and registered or certified
mail, return receipt requested, by the U.S. Post Office provided that such
notice and mail is properly addressed as set forth above, contains sufficient
postage and is registered or certified.
c. Lessors shall, upon serving notice to the Lessee, simultaneously
serve a copy of such notice to any mortgagee of the Lessee.
d. All rents shall be sent in x/x Xxxxxxx X. Xxxxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxxx, Xxxx 00000.
e. Should the any party desire to redesignate another individual to
receive payments or notice on his/her/their behalf, or shall have a change of
address, then such party shall give ten (10) days written notice of such new
party to receive such notice or payment, and/or any new address.
23. DEFAULT:
-------
a. Lessee shall be in default of this Lease if the Lessee shall fail
to make the payment of rent or monies due under this Lease within sixty (60)
days after written notice thereof from the Lessors. Further, if Lessee shall
breach the terms and conditions of this Lease, other than those requiring the
payment of money or rent, and if Lessee shall fail to commence to correct or
cure such breach within thirty (30) days after written notice and correct or
cure such breach within a reasonable time thereafter, then Lessee shall be in
default of this Lease.
b. If Lessee fails to cure any default within the cure period
provided above, the Lessors shall have the right to terminate this Lease and may
at once reenter
-8-
Exhibit "D" Page 8 of 34
the property and take possession of the property and the project and all
improvements thereon. Lessors shall also be entitled to Lessee's leasehold
interest in and to Xxx Xx. 0000-0-00, Xxxxxx, Xxxx. If the Lessor so terminates
this Lease, the Lessor may demand that Lessee assign to Lessor all of Lessee's
interest in and to the property, the project and Lessee's interest in and to Xxx
Xx.0000-0-00, all at Lessee's sole expense. If Lessee shall voluntarily make
such assignment within thirty (30) days after Lessor's written demand, then
Lessee shall not be liable to Lessors for any damages, costs, back rents,
shortages, attorney's fees, or for any money or obligations whatsoever,
otherwise, Lessors shall be entitled to all damages, money and remedies allowed
by law and this Lease.
24. NONDISTURBANCE OF SUBTENANTS: If this Lease is terminated due to
----------------------------
Lessee's default or for any reason whatsoever, then such termination shall not
mean a termination of any sublease or subtenancy. Lessors shall recognize and
accept all subleases and subtenancies on the property and project. All
subtenants or sublessees shall attorn directly to the Lessors, and Lessors
shall be substituted as the sublessor or the landlord of all subtenants or
sublessees. All terms and conditions of the subleases shall remain in full force
and effect and all rental payments thereunder due to Lessee shall be paid
directly to the Lessor.
25. FORCE MAJEURE: The following shall be deemed as events of "force
-------------
majeure: Non-delivery or a delay in the delivery of materials from an off island
supplier as a result of acts of God or events beyond the control of the
supplier; typhoon; cyclone, tropical storms, earthquake; acts of God; hazardous
wastes and pollutants; strikes, inability to obtain materials; unreasonable
delays caused by the government; change in zoning which may prohibit or prevent
commercial use; or any event which is beyond the fault or reasonable control of
Lessee; or any event which may frustrate the basic intent and purposes of this
Lease between the parties. Events of force majeure shall entitle Lessee an
extension of the development period, or may justify the delay or inaction of
Lessee of any required act hereunder.
26. RIGHT OF FIRST REFUSAL.
----------------------
a. If Lessors (including, its successors, assigns, subsidiaries or
transferees) desires to dispose, assign or sell any interest in and to the
property in fee or otherwise, except by transfer by devise to Lessors' immediate
family or transfer to a trust created for the benefit of Lessors and/or Lessors'
immediate family, Lessors shall first offer the same in writing to Lessee who
shall have ninety (90) days within which to purchase the same upon the terms
offered by Lessor. If Lessee does not exercise this option to purchase on or
before the expiration of said ninety (90) day period, the interest may be so
transferred to any person. In the event Lessors, their successors, assigns,
subsidiaries or transferees shall from time to time change the terms of the
offering or in the event Lessors shall have transferred their interest to their
immediate family or shall have transferred their interest to a trust created for
the benefit of Lessors and/or Lessors'
-9-
Exhibit "D" Page 9 of 34
immediate family, and such transferees shall either change the terms of the
offering or desire to dispose, assign or sell any interest in the property,
Lessee shall have the first opportunity to purchase upon the terms of the new
offering or the first opportunity to purchase upon the same terms offered by
Lessors' immediate family or by a trust created for the benefit of Lessors
and/or Lessors' immediate family. Under no circumstances shall any arrangement
whatsoever be made to circumvent Lessee's right to purchase the property in fee
as provided herein. The condition contained in this paragraph shall be covenant
running with the land, and shall be expressly stated in any document assigning
or conveying the property hereby leased or any part thereof to Lessors'
immediate family or a trust created for the benefit of Lessors and/or Lessors'
immediate family, and said document shall be duly recorded.
b. If Lessee (including, its successors, assigns, subsidiaries or
transferees) desires to dispose, assign or sell any of its leasehold interest in
and to the property, except by transfer to Lessee's subsidiary or affiliated
company or companies, Lessee shall first offer the same in writing to Lessors
who shall have ninety (90) days within which to purchase the same upon the terms
offered by Lessee. If Lessors do not exercise this option to purchase on or
before the expiration of said ninety (90) day period, the interest may be so
transferred by Lessee to any person, company, corporation or association,
subject to paragraph 16 of this Lease. If Lessee, its successors, assigns,
subsidiaries or transferees shall from time to time change the terms of the
offering, then Lessors shall have the first opportunity to purchase upon the
terms of the new offering. Under no circumstances shall any arrangement
whatsoever be made to circumvent Lessors' right to purchase the lease as
provided herein.
27. JOINT USE OF PROPERTIES: Both lots as described above are to be used
-----------------------
for the benefit of each other. Lessors, jointly and severally, consent to Lessee
constructing buildings and improvements across the lot lines. If Lessors'
approval on other documents are required to allow for the construction or
building across the lot lines, then Lessors shall execute such documents.
IN WITNESS WHEREOF, this Lease is dated the day and year first above
written.
LESSORS: LESSEE:
/s/ Xxxxxxx X. Xxxxxxx PACIFIC TYRE CAPITAL
-------------------------- INVESTMENT, INC.
XXXXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx By:/s/ Xxxxxx Friend
-------------------------- ----------------------
XXXXX X. XXXXXXX Name: XXXXXX FRIEND
--------------------
Title: President
-------------------
/s/ Xxxxxxxx X. Xxxxxx
--------------------------
XXXXXXXX X. XXXXXX
- 10 -
Exhibit "D" Page 10 of 34
TERRITORY OF GUAM )
) ss:
CITY OF AGANA )
On this 4th day of November, 1992, before me a Notary Public in and for
the Territory of Guam, personally appeared XXXXXXX X. XXXXXXX, known to me to be
the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he executed the same as his free and voluntary act and deed for the
uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the date last above written.
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Notary Public
XXXXXXX X. XXXXXXXXX
NOTARY PUBLIC
In and for the Territory of Guam
My Commission Expires: Aug. 28, 1993
TERRITORY OF GUAM )
) ss:
CITY OF AGANA )
On this 4th day of November, 1992, before me a Notary Public in and for
the Territory of Guam, personally appeared XXXXX X. XXXXXXX, known to me to be
the person whose name is subscribed to the foregoing instrument and acknowledged
to me that she executed the same as her free and voluntary act and deed for the
uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the date last above written.
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Notary Public
XXXXXXX X. XXXXXXXXX
NOTARY PUBLIC
In and for the Territory of Guam
My Commission Expires: Aug. 28, 1993
- 11 -
Exhibit "D" Page 11 of 34
TERRITORY OF GUAM )
) SS:
CITY OF AGANA )
On this day of Nov 11 1992, 1992, before me a Notary Public in and for the
Territory of Guam, personally appeared JOSEFlNA X. XXXXXX, known to me to be the
person whose name is subscribed to the foregoing instrument and acknowledged to
me that she executed the same as her free and voluntary act and deed for the
uses and purposes therein set forth.
IN WITNESS WHEREOF, I have herento set my hand and affixed my official seal
the date last above written.
/s/ Xxxxxx X. XxXxxxx
--------------------------
Notary Public
Xxxxx X. XxXxxxx
NOTARY PUBLIC
In and for the Territory of Guam.
My Commission expires: 11/12/94
STATE OF ARIZONA )
) SS:
COUNTY OF PHOENIX )
- 12 -
Exhibit "D" Page 12 of 34
TERRITORY OF GUAM )
) SS:
CITY OF AGANA )
On this 13th day of November, 1992, before me a Notary Public in and for
the Territory of Guam, personally appeared XXXXXX FRIEND, known to me to be the
authorized representative of PACIFIC TYRE CAPITAL INVESTMENT, INC., whose name
is subscribed to the foregoing instrument and acknowledged to me that he
executed the same as his free and voluntary act and deed on behalf of PACIFIC
TYRE CAPITAL INVESTMENT, INC. for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the date last above written.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
[Notary Seal Appears Here] Notary Public
- 13 -
Exhibit "D" Page 13 of 34
-------------------------------------------------------------------------------
RECORDATION )
)
DEPARTMENT )
)
OF )
)
LAND )
)
MANAGEMENT )
-------------------------------------------------------------------------------
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into this 6th day of April,
1992, by and between XXXXXXXXX X. XXXXX, whose address is Xxxx Xxxxxx Xxx 0000,
Xxxxx, Xxxx, 00000 ("Lessor"), and PACIFIC TYRE CAPITAL INVESTMENTS, INC., a
Guam Corporation, whose address is 000 Xxxxxx Xxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxx
00000 ("Lessee").
Lessor owns the parce1 of land described hereinbelow, and Lessor
desires to lease such land to Lessee and Lessee desires to lease the same from
Lessor.
Lessor and Lessee mutually desire to enter into this lease to define
their rights, duties, and obligations relating to the lease of the subject
parcel of land.
NOW, THEREFORE, in consideration of the premises and the terms,
covenants, and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Lessor and Lessee enter into this lease and agree as follows:
Exhibit "D" Page 14 of 34
Lease Agreement/Ouano Page 2
1. Premises
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor
the following described parcel of land (the "Premises"):
Lot No. 2146-3-13, consisting of an area of 508.12 square
meters, Tamuning, Municipality of Dededo, Guam
Lot No. 2146-3-12, consisting of an area of 735.12 square meters
(revised 702.29), Tamuning, Municipality of Dededo, Guam
Lot No. 2146-3-11, consisting of an area of 626.51 square
meters, Tamuning, Municipality of Dededo, Guam
TOGETHER WITH all and singular, the tenements, rights, easements,
privileges, improvements, and appurtenances to the same belonging or
appertaining or held and enjoyed in connection therewith.
2. Original Term
The original term of this lease shall be for a period of fifty (50)
years, commencing April 6, 1992 and ending on April 6, 2042.
3. Rent
Lessee shall prepay in advance the sum of $20,000.00 on April 6, 1992
and $16,000.00 on September 6, 1992 for one (1) year's rent.Commencing April 6,
1993 Lessee shall pay rental to Lessor on the sixth (6) day of each month
thereafter, in the amount of $3,000.00. On each fifth anniversary of the
original term of this lease, rental shall increase by 12 1/2%.
Exhibit "D" Page 15 of 34
Lease Agreement/Ouano Page 3
4. Option to Extend
Lessee shall have the option to extend the term of this lease for an
additional fifty (50) years upon the same terms, covenants and conditions as
provided herein for the original term except the amount of rent to be paid
during the extended term shall be as hereinafter provided. The option to extend
the term of this lease shall be deemed to have been automatically exercised and
the term extended unless Lessee shall have given Lessor not less than sixty (60)
days written notice, prior to the expiration of the original term hereof, of its
election not to extend the term of this lease.
5. RENT DURING EXTENDED TERM
The rent to be paid by Lessee to Lessor during the extended term shall
increase to nine percent (9%) of the land value of the then existing use of the
premises at the end of the original term of this lease ending on April 6, 2042;
in any event, the rental for the first five (5) years of the extended term shall
not be less then the rental for the last five (5) years of the original term.
After each fifth anniversary of the extended term of this lease, the rent to be
paid by Lessee to Lessor shall be increased by twelve and one-half percent
(12 1/2%) over nine percent (9%) of the land value of the then existing use of
the premises at the end of the original term of this lease.
Exhibit "D" Page 16 of 34
Lease Agreement/Ouano Page 5
construction on the premises for which the value of said improvement or
construction exceeds the sum of Ten Thousand Dollars ($l0,000.00), Lessee's
contractor shall secure a bond naming Lessor as co-obligee.
During the term of this lease, title to any and all buildings or
improvements situated or erected on the premises and the building equipment,
fixtures, or other items installed thereon and any alterations or additions
thereto shall remain in Lessee, and Lessee shall be the owner of the same. Upon
expiration of this lease and any extensions hereof all improvements remaining on
the premises shall become the property of Lessor free and clear of all liens and
encumbrances. Further, said improvements will be in reasonable condition, normal
wear and tear excepted.
9. Assignment
Lessee may, at any time and from time to time, assign or mortgage and
encumber this lease, in whole or in part, and sublet all or any part of the
premises or any improvements thereon or space in said improvements, upon
Lessor's written consent. Lessor's written consent shall not be unreasonably
withheld. Lessor shall be deemed to have consented to Lessee's assignment or
sublease, unless Lessor shall have given Lessee written notice within thirty
(30) days after Lessee's request for Lessor's consent, of Lessor's objection to
Lessee's assignment or sublease.
Exhibit "D" Page 18 of 34
Lease Agreement/Ouano Page 4
6. Quiet Enjoyment
Lessor shall put and keep Lessee in actual possession of the premises
at the beginning of and throughout the term of this lease, as may be extended.
Lessor warrants and represents that she is the sole and lawful owner of the
premises in fee simple and that she has the right to enter into and make this
lease. Lessor covenants and agrees that Lessee, upon paying the rent required
hereunder, shall lawfully, peacefully, and quietly have, hold, use, occupy, and
enjoy the premises without interruption or disturbance by Lessor or by any
persons claiming by, from, under, or against Lessor throughout the term of this
lease and any extension of such lease term.
7. Use
The premises may be used and occupied for any lawful purpose
whatsoever.
8. Alterations, Improvements, and Replacements
Lessee may, on all or any part of the premises, make any alterations,
changes, replacements, and additions in and to the premises, including the
contour and grade thereof, and the additions, buildings, and improvements
constructed thereon, including, without limitation, the demolition and/or
reconstruction of any buildings and improvements or structures which may be
situated or erected on the premises. In the event Lessee undertakes any
improvement or
Exhibit "D" Page 17 of 34
Lease Agreement Page 6
10. Taxes and Assessments
Lessee shall pay all taxes, assessments, and other charges levied on
or assessed against the premises and improvements located on the premises during
the lease term or extensions thereof. Lessee shall make all such payments
directly to the taxing authority. Taxes, assessments, and charges shall be
prorated between the parties on a daily basis as of the date of this lease.
Lessee may contest in good faith the validity or amount of any tax, assessment,
or charge. Any return or rebate from any taxing authority on account of any tax
or assessment shall be the sole property of the Lessee.
11. Payment of Utilities
Lessee shall pay and be responsible for all charges for water, power,
and other utilities installed and supplied to and on the premises through the
term of this lease and any extensions thereof.
12. Maintenance
Lessee shall, at its own cost and expense, maintain all of the
improvements on the premises in good repair and condition throughout the term of
this lease, including any extension term and in accordance with all applicable
laws, rules, regulations, and ordinances of federal, local, or other
governmental agencies having or claiming jurisdiction.
13. Lessee's Right to Mortgage the Leasehold
Lessee may, at any time and from time to time, subject the leasehold
estate and any or all improvements to one or more mortgages or
Exhibit "D" Page 19 of 34
Lease Agreement/Ouano Page 7
other liens as security for a loan or loans or other obligations of Lessee, with
the consent of Lessor and its (Lessor shall be deemed to have consented to
Lessee's encumbrance or mortgage unless Lessor shall have given Lessee written
notice within ten (10) days after Lessee's request for Lessor's consent, of
Lessor's objection to Lessee's encumbrance or mortgage) lender, if any, which
consent shall not be unreasonably withheld, provided that:
(a) The mortgage or other lien shall be subject to all of the
terms and conditions of this lease and to the rights and interest of Lessor
except as specifically provided to the contrary in this lease.
(b) Lessee shall notify Lessor of the creation of each such
mortgage or other lien and deliver to Lessor a true copy of the note and
mortgage or other lien documents.
(c) Consent to Cancellation
There shall be no cancellation, surrender, amendment, or modification
of this lease without the prior consent in writing of any leasehold mortgagee or
secured party except in accordance with the terms hereof.
(d) Notice
Lessor shall, upon serving upon Lessee any notice of default as
provided for herein, at the same time send a copy of such notice upon any
leasehold mortgagee or secured party, and any notice by Lessor to
Exhibit "D" Page 20 of 34
Lease Agreement/Ouano Page 8
Lessee hereunder shall not be deemed to have been effectively given as to such
mortgagee or secured party, unless a copy thereof has been sent by regular
first-class mail to existing leasehold mortgagees and secured parties which
Lessee has previously notified Lessor are in existence.
(e) Remedy
Any leasehold mortgagee or secured party, in case Lessee shall be in
default hereunder, shall, with the term herein provided, have the right to
remedy such default, or cause the same to be remedied, and Lessor shall accept
such performance by or at the instigation of such leasehold mortgagee or secured
party as if the same had been performed by Lessee. For the purposes hereof, no
event of default shall be deemed to exist under this lease in respect to the
performance of work required to be performed, or of acts to be done, or of
conditions to be remedied, if steps shall, in good faith, have been commenced
within the time permitted therefor to rectify the same and shall be prosecuted
to completion with diligence and continuity. Anything herein contained to the
contrary notwithstanding, upon the occurrence of an event of default, other than
an event of default due to a default in the payment of money, Lessor shall take
no action to effect the termination of this lease if any leasehold mortgagee or
secured party after notice from Lessor as herein provided, acts diligently
within a reasonable time thereafter to accomplish one of the following, either
(i) to obtain
Exhibit "D" Page 21 of 34
Lease Agreement/Ouano Page 9
possession of the premises (including possession by receiver), or (ii) to
institute, prosecute, and complete foreclosure proceedings or otherwise acquire
Lessee's interest under this lease with diligence. Such mortgagee or secured
party upon obtaining possession or acquiring Lessee's interest under this lease
shall be required promptly to cure all defaults, provided, however, that such
mortgagee or secured party shall not be obligated to continue such possession or
to continue such foreclosure proceedings after such defaults have been cured.
Any default by Lessee, not reasonably susceptible of being cured, shall be
deemed to have been waived by Lessor upon completion of such foreclosure
proceedings or upon such acquisition of Lessee's interest in this lease, except
that any such events of default which are reasonably susceptible of being cured
after such completion and acquisition shall then be cured with reasonable
diligence.
(f) Foreclosure
Any leasehold mortgagee or secured party shall have the right at any
time during the term of this lease to realize on the security afforded by the
leasehold estate by exercising foreclosure proceedings or power of sale or other
remedy afforded in law or in equity or by any applicable mortgage or security
documents and to transfer, convey, or assign the title of Lessee to the
leasehold estate created hereby to any purchaser at any foreclosure sale, and to
acquire and succeed to the interest of Lessee hereunder by virtue of any such
foreclosure sale.
Exhibit "D" Page 22 of 34
Lease Agreement/Ouano Page 10
Such mortgagee or secured party, or its assignee or designee, or other purchaser
in foreclosure proceedings may become the legal owner and holder of this lease
through such foreclosure proceedings or by assignment of this lease in lieu of
foreclosure.
(g) It is acknowledged by Lessee that it shall have no right to
mortgage the fee simple interest of the Lessor.
14. Estoppel Certificate
Lessor agrees, at any time and from time to time, at no cost or
expense to Lessee, upon request of Lessee, to execute, acknowledge and deliver
to Lessee for the benefit of Lessee or any actual or potential lender, creditor,
inventor, or successor Lessee, within ten (10) days of the request, a statement
in writing certifying that this lease is unmodified and in full force and effect
and Lessee is not in default (or if modified, in full force and effect as
modified and stating the modifications, or if there is any default stating such
default), the dates to which rent or other sums have been paid in advance and
setting forth such further information with respect to this lease or the
premises as may be requested thereon, it being understood that any such
statement delivered pursuant hereto may be relied upon by Lessee or any actual
or prospective purchaser, mortgagee, assignee, beneficiary, or other party.
Exhibit "D" Page 23 of 34
Lease Agreement/Ouano Page 11
15. Right Of First Refusal
In the event that Lessor (including, its successors, assigns,
subsidiaries or transferees) desires to dispose, assign or sell any interest in
and to the premises in fee or otherwise, except by transfer by desire to
Lessor's immediate family or transfer to a trust created for the benefit of
Lessor and/or Lessor's immediate family, Lessor shall first offer the same in
writing to Lessee who shall have sixty (60) days within which to purchase the
same upon the terms offered by Lessor. If Lessee does not exercise this option
to purchase on or before the expiration of said sixty (60) day period, the
interest may be so transferred to any person. In the event Lessor, her
successors, assigns, subsidiaries or transferees shall from time to time change
the terms of the offering or in the event Lessor shall have transferred her
interests to a trust created from the benefit of Lessor and/or Lessor's
immediate family, and such transferees shall either change the terms of the
offering or desire to dispose, assign or sell any interest in the premises,
Lessee shall have the first opportunity to purchase upon the terms of the new
offer by Lessor's immediate family or by a trust created for the benefit of
Lessor and/or Lessor's immediate family.
Under no circumstances shall any arrangement whatsoever be made to
circumvent Lessee's right to purchase the premises in fee as provided herein.
The condition contained in this paragraph shall be a
Exhibit "D" Page 24 of 34
Lease Agreement/Ouano Page 12
covenant running with the land, and shall be expressly stated in any document
assigning or conveying the premises hereby leased or any part thereof to
Lessor's immediate family or a trust created for the benefit of Lessor and/or
Lessor's immediate family, and said document shall be duly recorded.
16. Warranties of Lessor
(a) Lessor warrants and represents that Lessor has all rights and
interest in the entire premises, including, without limitation, marketable
title to convey the premises as provided under the terms of this lease.
(b) There are no leases or subleases affecting or encumbering the
premises.
(c) At closing, all real property taxes shall be current.
(d) The premises have never been used in the past and at the time of
closing in the application, use, storage, handling or disposal of pollutants,
toxic or hazardous substances. In the event of breach of this warranty, Lessee
shall have the right to terminate this lease and surrender the premises to
Lessor with no liability to Lessor or third parties.
(e) There are no improvements of any nature owned by adjoining
property owners which encroach upon the premises.
(f) There are no improvements or conditions affecting thee possession,
use and quiet enjoyment of the premises by Lessee.
Exhibit "D" Page 25 of 34
Lease Agreement/Ouano Page 13
17. Condemnation
In the event the entire premises is taken for public purposes by
condemnation as a result of any action or proceeding in eminent domain, or shall
be transferred in lieu of condemnation to any authority entitled to exercise the
power of eminent domain, this lease and all of the right, title, and interest
hereunder shall terminate and cease on the date title to the premises so taken
or transferred vests in the condemning authority.
In the event of taking or transfer of only a portion the premises
leaving a remainder in such location, or in such form, shape, or reduced size as
to be not effectively and practicably usable, this lease and all right, title,
and interest thereunder shall cease on the date title of the premises or the
portion thereof so taken or transferred vests in the condemning authority.
In the event of such taking or transfer of only a portion of the
premises leaving the remainder in such location, or in such form, shape, or size
as to be effectively and practicably usable in the opinion of Lessee, this lease
shall terminate and end as to the portion of the premises so taken or
transferred as of the date title to such portion vests in the condemning
authority, but shall continue in full force and effect as to the portion of the
premises not so taken or transferred. In such event, the rent payable hereunder
shall be reduced in proportion to the area of the premises taken.
All compensation and damages awarded for the taking of all buildings
and other improvements whatsoever on the premises or any
Exhibit "D" Page 26 of 34
Lease Agreement/Ouano Page 14
portion thereof shall belong to and be the property of Lessee; provided however,
Lessor shall be entitled to receive an award and compensation from the
condemning authority for the value of its remainder interest in the premises.
Furthermore, Lessee shall be entitled to the award for and on account of any
cost or loss Lessee may sustain in the removal of Lessee's fixtures, equipment,
and furnishings from the premises, or as a result of any alterations,
modifications, or repairs may be reasonably required by Lessee in order to place
the remaining portion of the premises not so condemned in a suitable condition
for the continuance of Lessee's interest in the balance of the lease term, or on
account of any diminution in value of its leasehold estate hereunder. All
interested parties may independently file separate claims in the condemnation
proceedings for the purpose of having the value of their respective claims
determined.
18. Default
The following shall constitute a default or breach of this lease by
Lessee:
(a) If Lessee shall fail to pay Lessor any rent or any amounts owed
herein within thirty (30) days after written notice of said default from Lessor,
provided that Lessee at its election may be liable to Lessor for the amount of
any arrears not paid and tender such amount to Lessor. In this case, the lease
shall be peaceably surrendered to Lessor together with any improvements thereof.
Lessor will then have no further recourse or remedy against Lessee, in law or in
equity.
Exhibit "D" Page 27 of 34
Lease Agreement/Ouano Page 15
(b) If Lessee shall fail in the performance of a covenant or agreement
on its part to be performed in this lease other than the payment of rent, and
such default shall not have been cured within thirty (30) days after written
notice of said default from Lessor.
(c) If such default cannot, with due diligence, be cured within thirty
(30) days, and Lessee shall not have commenced the remedying thereof within
such period (it being intended in connection with default not susceptible of
being cured by Lessee within thirty (30) days that the time within which to
remedy the same shall be extended for such period as may be necessary to
complete the same with due diligence), then Lessor shall have the rights and
remedies granted to Lessor in law and equity not inconsistent with the
specifications and provisions of this lease.
(d) In the event Lessee assigns any part of this lease or sublets any
part of the improvements thereon or space in said improvements pursuant to
paragraph 9 supra, any default of Lessee under this paragraph shall not be
-----
grounds for deeming any partial assignment or partial sublease in default and
any rental payments paid by Lessee's sublessee shall be tendered to Lessor.
19. Mortgagee's Notice and Right to Cure .
Provided Lessor has been notified of the name and address of the
holder of a leasehold mortgage, Lessor agrees to provide such mortgagee with a
copy of all required notices of default sent to Lessee. Such mortgagee shall
have the opportunity to either cure the default
Exhibit "D" Page 28 of 34
Lease Agreement/Ouano Page 16
within the required time term or to commence foreclosure. If foreclosure is
commenced, Lessor shall not pursue any remedy for default during the pendency of
the foreclosure proceedings so long as the qualifying mortgagee prosecutes it
diligently to conclusion and pays all rents and performs all other covenants and
conditions of this lease requiring the payment of expenditure of money by the
Lessee until the leasehold estate is released from the mortgage or until it is
transferred or assigned to a new Lessee who expressly assumes and agrees to pay
and perform Lessee's remaining obligations under this lease.
20. Partial Invalidity
If any term, condition, or provision of this lease is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the remainder
of the provisions shall remain in full force and effect and shall in no way be
affected, impaired, or invalidated.
21. Indemnity Clause
Lessee shall indemnify and hold Lessor harmless against all expenses,
liabilities, demands, and claims of any kind whatsoever, by or on behalf of any
person or entity arising out of either: (1) a failure by Lessee to perform any
of the terms or conditions of this lease; (2) any injury or damage happening on
or about the premises, including damage to the premises and personal injury,
arising out of or in connection with the use or occupancy of the premises by
Lessee or any other person or entity claiming under Lessee, or any accident,
fire, or
Exhibit "D" Page 29 of 34
Lease Agreement/Ouano Page 17
nuisance on the premises, or any failure by Lessee to keep the premises in a
safe condition; (3) failure to comply with any law or any governmental
authority; or (4) any mechanic's lien or security interest filed against the
premises or equipment, materials, or alterations of buildings or improvements
thereon.
22. Insurance
(a) Fire and Casualty Insurance. Lessee at Lessee's option and at
---------------------------
its own expense may keep insured all improvements erected on the premises
against the loss or damage by fire or other casualty. Any insurance proceeds
payable with respect to any loss to any improvements erected on the premises
shall belong to Lessee and Lessor shall have no right, claim or interest
therein.
(b) Personal Injury and Property Damage Insurance. Lessee shall
---------------------------------------------
obtain, keep and maintain in full force and effect, at its sole cost and expense
insurance against liability for bodily injury and property damage liability
insurance with a single limit of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident, all in respect to bodily injury or property damage
arising out of Lessee's use and occupancy of the premises. This insurance
policy shall name Lessor as an additional insured.
23. Attorneys' Fees
Should either party commence any legal action or proceeding against
the other based upon this lease, or any provision hereof,
Exhibit "D" Page 30 of 34
Lease Agreement/Ouano Page 18
including, without limitation, this provision, the prevailing party shall be
entitled to an award of attorneys' fees.
24. Government Restrictions
(a) At the request of Lessee, Lessor shall, from time to time, execute
and deliver or join in the execution and delivery of such documents as are
appropriate, necessary or required under the laws of the Territory of Guam for
Lessee's development plans for the premises, including, without limitation,
applications for zone changes or use variances.
(b) Lessee shall not grant any easements or rights of ways without
prior notice to Lessor, and any easements or rights of way granted by Lessee
shall not extend beyond the term of this lease or extensions thereof.
25. Additional Instruments
The parties agree to execute and deliver any instruments in writing
reasonably necessary to carry out the agreement, term, condition, or
assurance in the lease whenever the occasion shall arise and request for such
instruments shall be made. The execution and delivery of any such instrument
shall be at the expense of the requesting party.
26. Interpretation
The language and all parts of this lease shall be in all cases
construed simply, according to its fair meaning and the laws of the
Exhibit "D" Page 31 of 34
Lease Agreement/Ouano Page 19
Territory of Guam, and not strictly for or against Lessor or Lessee. Captions in
paragraph headings contained herein are for convenience and reference only, and
shall not be deemed to limit or in any manner restrict the content of the
paragraph to which they relate.
27. Binding Effect
This lease and the terms, covenants, and conditions herein shall
extend to and be binding upon the parties, their respective heirs, legal
representatives, successors, and assigns.
28. Notice
All notices to be given with respect to this lease shall be in
writing. Each notice shall be sent by registered or certified mail, postage
prepaid, and return receipt requested, to the party to be notified at the
address first above written or at such other address as either party may from
time to time designate in writing. Nothing contained herein shall be construed
to preclude personal service of any notice in the manner prescribed for personal
service of a summons or other legal process.
29. Entire Agreement
This lease contains the entire agreement of the parties in respect to
Lessee's tenancy, use, and occupancy of the premises, and no other agreement,
statement, pertaining to the same shall be valid or of any force or effect.
This lease shall not be subject to modification except in writing signed by the
parties hereto.
Exhibit "D" Page 32 of 34
Lease Agreement/Ouano Page 20
30. Water and Power (Electricity) Availability
Lessee under this lease agreement acknowledges that water and power
(electricity) are immediately available on the premises or within one hundred
(100) feet thereof.
LESSOR:
/s/ Xxxxxxxxx X. Xxxxx
---------------------------------
XXXXXXXXX X. XXXXX
Territory of Guam )
) ss:
City of Agana )
On this 9th day of April, 1992, before me, a Notary Public in and for
the Territory of Guam, personally appeared XXXXXXXXX X. XXXXX, known to me to be
the person who executed the foregoing Lease Agreement, and acknowledged to me
that she executed the same as a free and voluntary act for the purposes therein
expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the date last above written.
/s/ Xxxxx Xxx Xxxxxx
-------------------------------
)SEAL( NOTARY PUBLIC
XXXXX XXX XXXXXX
NOTARY PUBLIC
IN AND FOR THE TERRITORY OF GUAM
MY COMMISSION EXPIRES: JULY 15, 1992
Exhibit "D" Page 33 of 34
LEASE Agreement/Ouano Page 21
LESSEE:
PACIFIC TYRE CAPITAL
INVESTMENTS, INC.
BY:/s/ Xxxxxx Friend
-------------------------------
XXXXXX FRIEND, PRESIDENT
State of Arizona )
) ss:
County of Phoenix )
On this 6th day of Apri1, 1992, before me, a Notary Public, in and for
the State of Arizona, personally appeared XXXXXX FRIEND, a duly authorized
representative of PACIFIC TYRE CAPITAL INVESTMENTS, INC., known to me to be the
person who executed the foregoing Lease Agreement, and acknowledged to me that
he executed the same on behalf of PACIFIC TYRE CAPITAL INVESTMENTS, INC., for
the purposes and considerations contained therein.
IN WITNESS WHEREOF, I have hereunto set my hands and affixed my
official seal the date last above written.
/s/ Xxxx X. Xxxxxx
) SEAL( ----------------------------
My commission expires May 26, 1995 NOTARY PUBLIC
Exhibit "D" Page 34 of 34
