LEASE
THIS
LEASE (this “Lease”) is made as of March 26, 2007, by and between Xxxx
XX
St. Croix USVI, LLC, a Delaware limited liability company
(“Lessor”), and CULUSVI, Inc. d/b/a Cost-U-Less, a U.S. Virgin Islands
corporation (“Lessee”).
W
I T N E S S E T H:
THAT,
in
consideration of the mutual covenants and agreements herein contained, Lessor
and Lessee hereby covenant and agree as follows:
1. Certain
Defined Terms.
The
following terms shall have the following meanings for all purposes of this
Lease:
“ADA”
means
the Americans with Disabilities Act of 1990, as such act may be amended from
time to time.
“Additional
Rental”
has
the
meaning set forth in Section 4C.
“Adjustment
Date”
means
the first day of the month following the month in which the fifth (5th)
anniversary of the Effective Date occurs, and every fifth (5th)
anniversary of the Effective Date thereafter during the Lease Term (including
the extension period(s) if Lessee exercises its option pursuant to Section
26).
“Affiliate”
means
any Person which directly or indirectly controls, is under common control with,
or controlled by any other Person. For purposes of this definition “controls”,
“under common control with” and “controlled by” means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or otherwise.
“Anti-Money
Laundering Laws”
means
all applicable laws, regulations and government guidance on the prevention
and
detection of money laundering, including 18 U.S.C. § § 1956 and 1957,
and the BSA.
“Applicable
Regulations”
means
all applicable statutes, regulations, rules, ordinances, codes, licenses,
permits, orders and approvals of each Governmental Authority having jurisdiction
over the Premises, including, without limitation, all health, building, fire,
safety and other codes, ordinances and requirements, all applicable standards
of
the National Board of Fire Underwriters and the ADA and all policies or rules
of
common law, in each case, as amended, and any judicial or administrative
interpretation thereof, including any judicial order, consent, decree or
judgment applicable to Lessee or Guarantor.
“Base
Annual Rental”
means
$512,000.00.
“Base
Monthly Rental”
means
an amount equal to 1/12 of the applicable Base Annual Rental.
“BSA”
means
the Bank Secrecy Act (31 U.S.C. § § 5311 et. seq.), as
amended.
“Business
Day”
means
a
day on which banks located in St. Croix, U.S. Virgin Islands are not required
or
authorized to remain closed.
“Change
of Control”
means
a
change in control of Lessee, including, without limitation, a change in control
resulting from direct or indirect transfers of voting stock or partnership,
membership or other ownership interests, whether in one or a series of
transactions. For purposes of this definition, “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of Lessee, and a Change of Control will occur if any
of
the following occurs: (i) any merger or consolidation by Lessee, with or into
any other entity, which is not controlled by Guarantor; or (ii) if any “Person”
as defined in Section 3(a)(9) of the Securities and Exchange Act of 1934, as
amended (the “Exchange Act”), and as used in Section 13(d) and 14(d) thereof,
including a “group” as defined in Section 13(d) of the Exchange Act, other than
Guarantor or any entity controlled by Guarantor, becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), of securities of Lessee,
representing 50% or more of the combined voting power of Lessee’s then
outstanding securities (other than indirectly as a result of the redemption
by
Lessee, of its securities).
“Code”
means
the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq.,
as
amended.
“Default
Rate”
means
8% per annum or the highest rate permitted by law, whichever is
less.
“Effective
Date”
means
the date on which XXX (as such term is defined in the Purchase Agreement) occurs
pursuant to the Purchase Agreement.
“Entity”
means
any entity that is not a natural person.
“Environmental
Condition”
means
any condition with respect to soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air and any environmental
medium comprising or surrounding the Premises, whether or not discovered, which
would reasonably be expected to or does result in any damage, loss, cost,
expense, claim, demand, order or liability to or against Lessee, Guarantor
or
Lessor by any third party (including, without limitation, any Governmental
Authority), including, without limitation, any condition resulting from the
operation of business at the Premises and/or the operation of the business
of
any other property owner or operator in the vicinity of the Premises and/or
any
activity or operation formerly conducted by any person or entity on or off
the
Premises.
“Environmental
Laws”
means
any present and future federal, state and local laws, statutes, ordinances,
rules, regulations, orders, injunctions and decrees of Governmental Authorities
and common law, relating to Hazardous Materials and/or the protection of human
health or the environment by reason of a Release or a Threatened Release of
Hazardous Materials or relating to liability for or costs of Remediation or
prevention of Releases. “Environmental Laws” includes, but is not limited to,
the following statutes, as amended, any successor thereto, and any regulations,
rulings, orders or decrees promulgated pursuant thereto, and any state or local
statutes, ordinances, rules, regulations, orders, injunctions and decrees of
Governmental Authorities, if and to the extent they are applicable in the U.S.
Virgin Islands: the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. §§ 9601 et seq.; the Emergency Planning and
Community Xxxxx-xx-Xxxx Xxx, 00 X.X.X. § 00000 et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. § 5101 et seq.; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I relating
to underground storage tank systems), 42 U.S.C. §§ 6901 et seq.;
the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Clean Air Act,
42 U.S.C. §§ 7401 et seq.; the Toxic Substances Control Act, 15
U.S.C. § 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C.
§§ 7401 et seq.; the Occupational Safety and Health Act, 29 U.S.C.
§ 651 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act,
7 U.S.C. §§ 136 et seq.; the Endangered Species Act, 16 U.S.C.
§§ 1531 et seq. and the National Environmental Policy Act, 42 U.S.C.
§ 4321 et seq. “Environmental Laws” also includes, but is not limited
to, any present and future federal, state and local laws, statutes, ordinances,
rules, regulations, orders, injunctions and decrees of Governmental Authorities
and common law, if and to the extent they are applicable in the U.S. Virgin
Islands: conditioning transfer of property upon a negative declaration or other
approval of a Governmental Authority of the environmental condition of the
property; requiring notification or disclosure of Releases or other
environmental condition of the Premises to any Governmental Authority or other
person or entity, whether or not in connection with transfer of title to or
interest in property; imposing conditions or requirements relating to Hazardous
Materials in connection with permits or other authorizations required by
Governmental Authorities; relating to the handling and disposal of Hazardous
Materials; relating to nuisance, trespass or other causes of action related
to
Hazardous Materials; and relating to wrongful death, personal injury, or
property or other damage in connection with the physical condition or use of
the
Premises by reason of the presence of Hazardous Materials in, on, under or
above
the Premises.
“Environmental
Liens”
means
all liens and other encumbrances imposed pursuant to any Environmental
Law.
“Event
of Default”
has
the
meaning set forth in Section 21.
“GAAP”
means
generally accepted accounting principles consistently applied.
“Governmental
Authority”
means
any governmental authority, agency, department, commission, bureau, board,
instrumentality, court or quasi-governmental
authority
having jurisdiction or supervisory or regulatory authority over the Premises,
Lessee or Guarantor (solely with respect to the Premises).
“Guarantor”
means
Cost-U-Less, Inc., a Washington corporation.
“Guaranty”
means
that certain unconditional guaranty of payment and performance dated as of
the
date of this Lease executed by Guarantor for the benefit of Lessor with respect
to this Lease, as the same may be amended from time to time.
“Hazardous
Materials”
means
(a) any toxic substance or hazardous waste, substance, solid waste or
related material, or any pollutant or contaminant; (b) radon gas, asbestos
in any form which is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment containing dielectric fluid having levels of
polychlorinated biphenyls in excess of applicable standards established by
any
Governmental Authority, any petroleum product or additive, any petroleum-based
substances or any similar terms described or defined in any Environmental Laws
applicable to or regulating below or above ground tanks and associated piping
systems used in connection with the storage, dispensing and general use of
petroleum and petroleum-based substances, or any Toxic Mold; (c) any
substance, gas, material or chemical which is now or hereafter defined as or
included in the definition of “hazardous substances,” “toxic substances,”
“hazardous materials,” “hazardous wastes,” “regulated substances” or words of
similar import under any Environmental Laws; and (d) any other chemical,
material, gas or substance the exposure to or release of which is prohibited,
limited or regulated by any Governmental Authority that asserts or may assert
jurisdiction over the Premises or the operations or activity at the Premises,
or
any chemical, material, gas or substance that does or is reasonably likely
to
pose a hazard to the health and/or safety of the occupants of the Premises
or
the owners and/or occupants of property adjacent to or surrounding the
Premises.
“Indemnified
Parties”
means
Lessor and Lessor’s directors, officers, shareholders, partners, members,
employees, agents, servants, representatives, lenders, contractors,
subcontractors, affiliates, subsidiaries, participants, successors and assigns
of any and all of the foregoing, including, but not limited to, any successors
by merger, consolidation or acquisition of all or a substantial portion of
Lessor’s assets and business.
“Lease
Term”
has
the
meaning set forth in Section 3.
“Lease
Year”
means
the 12-month period commencing on the first day of the calendar year or any
other 12-month period as may be approved in writing by Lessor after the
commencement of the Lease Term and each successive 12-month period
thereafter.
“Lender”
has
the
meaning set forth in Section 8.
“Lessee
Indemnified Parties”
means
Lessee and Lessee’s directors, officers, shareholders, partners, members,
employees, agents, servants, representatives, lenders, contractors,
subcontractors, affiliates, subsidiaries, participants, successors and assigns
of
any
and all of the foregoing, including, but not limited to, any successors by
merger, consolidation or acquisition of all or a substantial portion of Lessee’s
assets and business.
“Lessor
Entities”
means,
collectively, Lessor and any Affiliate of Lessor.
“Losses”
means
any and all claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs,
expenses, diminutions in value, fines, penalties, charges, fees, expenses,
judgments, awards, amounts paid in settlement and damages of whatever kind
or
nature (including, without limitation, reasonable attorneys’ fees, court costs
and other costs of defense).
“Material
Adverse Effect”
means
a
material adverse effect on (i) the Premises, including, without limitation,
the
operation of the Premises as a Permitted Concept, or (ii) Lessee’s ability to
perform its obligations under this Lease.
“OFAC
Laws and Regulations” means,
if
and to the extent applicable to the Premises and Lessee, Executive Order 13224
issued by the President of the United States of America, the Terrorism Sanctions
Regulations (Title 31 Part 595 of the U.S. Code of Federal Regulations), the
Terrorism List Governments Sanctions Regulations (Title 31 Part 596 of the
U.S.
Code of Federal Regulations), the Foreign Terrorist Organizations Sanctions
Regulations (Title 31 Part 597 of the U.S. Code of Federal Regulations), and
the
Cuban Assets Control Regulations (Title 31 Part 515 of the U.S. Code of Federal
Regulations), and all other present and future federal, state and local laws,
ordinances, regulations, policies, lists (including, without limitation, the
Specially Designated Nationals and Blocked Persons List) and any other
requirements of any Governmental Authority (including, without limitation,
the
United States Department of the Treasury Office of Foreign Assets Control)
addressing, relating to, or attempting to eliminate, terrorist acts and acts
of
war, each as hereafter supplemented, amended or modified from time to time,
and
the present and future rules, regulations and guidance documents promulgated
under any of the foregoing, or under similar laws, ordinances, regulations,
policies or requirements of other states or localities.
“Permitted
Amounts”
means,
with respect to any given level of Hazardous Materials, that level or quantity
of Hazardous Materials in any form or combination of forms the presence, use,
storage, release or handling of which does not constitute a violation of any
Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the U.S. Virgin
Islands.
“Permitted
Concept”
means
a
Cost-U-Less wholesale/retail warehouse club and pharmacy.
“Person”
means
any individual, corporation, partnership, limited liability company, trust,
unincorporated organization, Governmental Authority or any other form of
entity.
“Personal
Property”
means
all tangible personal property now or at any time hereafter located on or at
the
Premises or used in connection therewith, including, without limitation, all
machinery, appliances, furniture, HVAC and other equipment,
walk-in
coolers, walk-in freezers, generators, trade fixtures and inventory, all of
which constitute Lessee’s property, provided, however, the term “Personal
Property” shall not include supply fans, exhaust fans, air ducts, hoods, vents,
built-in sinks, built-in countertops, plumbing and electrical fixtures, sign
poles and lighting poles, all of which items are intended to be fixtures as
such
term is used within the definition of “Premises.”
“Premises”
means
the parcel or parcels of real estate legally described in Exhibit A
attached
hereto, all rights, privileges and appurtenances associated therewith, and
all
buildings, fixtures and other improvements now or hereafter located thereon
(whether or not affixed to such real estate), excluding the Personal
Property.
“Purchase
Agreement”
means
that certain Purchase Agreement and Escrow Instructions dated as of December
21,
2006 between Series B, LLC, an Arizona limited liability company, and Guarantor
with respect to the Premises, as amended to date.
“Release”
means
any presence, release, deposit, discharge, emission, leaking, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Materials.
“Remediation”
means
any response, remedial, removal, or corrective action, any activity to clean
up,
detoxify, decontaminate, contain or otherwise remediate any Hazardous Materials
required by any Environmental Law or any Governmental Authority, any actions
to
prevent, cure or mitigate any Release, any action to comply with any
Environmental Laws or with any permits issued pursuant thereto, any inspection,
investigation, study, monitoring, assessment, audit, sampling and testing,
laboratory or other analysis, or any evaluation relating to any Hazardous
Materials, including, without limitation, all acts necessary to clean and
disinfect any portions of the Premises affected by Toxic Mold and to eliminate
the sources of Toxic Mold in or on the Premises, including, without limitation,
providing any necessary moisture and control systems at the
Premises.
“Threatened
Release”
means
a
substantial likelihood of a Release which requires action to prevent or mitigate
damage to the soil, surface waters, groundwaters, land, stream sediments,
surface or subsurface strata, ambient air or any other environmental medium
comprising or surrounding the Premises which may result from such
Release.
“Toxic
Mold”
means
any toxic mold or fungus of a type which would pose a risk to human health
or
the environment or would negatively impact the value of the
Premises.
“U.S.
Publicly-Traded Entity”
is
an
Entity whose securities are listed on a national securities exchange or quoted
on an automated quotation system in the U.S. or a wholly-owned subsidiary of
such an Entity.
2. Demise
of Premises; Lease Characterization.
A.
In
consideration of the rentals and other sums to be paid by Lessee and of the
other terms, covenants and conditions on Lessee’s part to be kept and performed,
Lessor hereby leases to Lessee, and Lessee hereby takes and hires, the
Premises.
X. Xxxxxx
and Lessee intend that: (i) this Lease is a “true lease” and not a financing
lease, capital lease, mortgage, equitable mortgage, deed of trust, trust
agreement, security agreement or other financing or trust arrangement, and
the
economic realities of this Lease are those of a true lease; and (ii) the
business relationship created by this Lease and any related documents is solely
that of a long-term commercial lease between landlord and tenant and has been
entered into by both parties in reliance upon the economic and legal bargains
contained herein. Lessor and Lessee acknowledge and agree that the Lease Term,
including any term extensions provided for in this Lease, is less than the
remaining economic life of the Premises. Each of Lessor and Lessee waives any
claim or defense based upon the characterization of this Lease as anything
other
than a true lease and irrevocably waives any claim or defense which asserts
that
this Lease is anything other than a true lease. Each of Lessor and Lessee
covenants and agrees that it will not assert that this Lease is anything but
a
true lease. Each of Lessor and Lessee stipulates and agrees not to challenge
the
validity, enforceability or characterization of this Lease of the Premises
as a
true lease and further stipulates and agrees that nothing contained in this
Lease creates or is intended to create a joint venture, partnership (either
de
jure or de facto), equitable mortgage, trust, financing device or arrangement,
security interest or the like. Each of Lessor and Lessee shall support the
intent of the parties that the lease of the Premises pursuant to this Lease
is a
true lease and does not create a joint venture, partnership (either de jure
or
de facto), equitable mortgage, trust, financing device or arrangement, security
interest or the like, if, and to the extent that, any challenge occurs. Each
of
Lessor and Lessee represents and warrants to the other that (1) the Base Annual
Rental is the fair rental value for the use of the Premises as permitted
hereunder and was agreed to by Lessor and Lessee on that basis, and (2) the
execution, delivery and performance by Lessor and Lessee of this Lease does
not
constitute a transfer to Lessee of all or any part of the Premises other than
a
leasehold interest therein. The expressions of intent, the waivers, the
representations and warranties, the covenants, the agreements and the
stipulations set forth in this Section are a material inducement to Lessor
and
Lessee entering into this Lease.
3. Lease
Term. The
Lease
Term shall commence as of the Effective Date and shall expire on the last day
of
the month in which the fifteenth (15th)
anniversary of the Effective Date occurs, unless terminated sooner as provided
in this Lease and as may be extended for two (2) periods of five (5) years
each
as set forth in Section 26 below. The time period during which this Lease
shall actually be in effect is referred to herein as the “Lease
Term.”
4. Rental
and Other Payments.
A. If
the
Effective Date is a date other than the first day of the calendar month, Lessee
shall pay Lessor on the Effective Date the Base Monthly Rental prorated on
the
basis of the ratio that the number of days from the Effective Date through
the
last day in the month containing the Effective Date bears to the number of
days
in such month. Thereafter, on or before the first day of each succeeding
calendar month, Lessee shall pay Lessor in advance the Base Monthly
Rental.
B. Commencing
on the first Adjustment Date and on each Adjustment Date thereafter, the Base
Annual Rental shall increase by an amount equal to the product of the
then-current Base Annual Rental and ten percent (10%). The increased Base Annual
Rental shall constitute the Base Annual Rental due and payable until the next
Adjustment Date.
C. All
sums
of money required to be paid by Lessee under this Lease which are not
specifically referred to as rent (“Additional Rental”) shall be considered rent
although not specifically designated as such. Lessor shall have the same
remedies for nonpayment of Additional Rental as those provided herein for the
nonpayment of Base Annual Rental.
5. Representations
and Warranties of Lessor.
The
representations and warranties of Lessor contained in this Section are being
made to induce Lessee to enter into this Lease and Lessee has relied and will
continue to rely upon such representations and warranties. Lessor represents
and
warrants to Lessee as of the Effective Date as follows:
A. Organization,
Authority and Status of Lessor.
(i) Lessor
has been duly organized and is validly existing and
in
good standing under
the
laws of the State of Delaware. All necessary limited liability company action
has been taken to authorize the execution, delivery and performance by Lessor
of
this Lease and of the other documents, instruments and agreements provided
for
herein.
(ii) The
person who has executed this Lease on behalf of Lessor is duly authorized so
to
do.
B. Enforceability.
This
Lease constitutes the legal, valid and binding obligation of Lessor, enforceable
against Lessor in accordance with its terms,
except
as such enforceability may be limited by applicable bankruptcy, insolvency,
liquidation, reorganization and other laws affecting the rights of creditors
generally and general principles of equity.
6. Representations
and Warranties of Lessee. The
representations and warranties of Lessee contained in this Section are being
made to induce Lessor to enter into this Lease and Lessor has relied, and will
continue to rely, upon such
representations
and warranties. Lessee represents and warrants to Lessor as of the Effective
Date as follows:
A. Organization,
Authority and Status.
(i)
Lessee is a corporation, duly organized and validly existing and in good
standing under the laws of the U.S. Virgin Islands where the Premises are
located. Guarantor is a corporation, duly organized and validly existing under
the laws of the State of Washington. All necessary corporate action has been
taken to authorize the execution, delivery and performance by Lessee of this
Lease and of the other documents, instruments and agreements provided for herein
and by Guarantor of the Guaranty. Lessee’s Tax Identification number,
Organization Identification number and principal place of business are correctly
set forth on the signature page of this Lease. The person(s) who have executed
this Lease on behalf of Lessee and the Guaranty on behalf of Guarantor are
duly
authorized to do so. To Lessee’s actual knowledge, neither Lessee nor Guarantor
is an entity whose property or interests are subject to being blocked under
any
of the OFAC Laws and Regulations or which is otherwise in violation of any
of
the OFAC Laws and Regulations; provided, however, that the representation
contained in this sentence shall not apply to any Person to the extent such
Person’s interest is in or through a U.S. Publicly Traded Entity. As used
herein, “Lessee’s actual knowledge” shall mean the actual knowledge of J.
Xxxxxxx Xxxxx, President of Guarantor, and Xxxxxx Xxxxx, Vice President of
Guarantor, without investigation.
B. Enforceability.
Upon
execution by Lessee, this Lease shall constitute the legal, valid and binding
obligation of Lessee, enforceable against Lessee in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, liquidation, reorganization and other laws affecting the rights
of
creditors generally and general principles of equity.
C. Litigation.
There
are no suits, actions, proceedings or investigations pending, or, to the best
of
its knowledge, threatened against or involving Lessee or the Premises before
any
arbitrator or Governmental Authority, except for such suits, actions,
proceedings or investigations which, individually or in the aggregate, have
not
had, and would not reasonably be expected to result in, a Material Adverse
Effect.
D. Absence
of Breaches or Defaults.
Lessee
is not and the authorization, execution, delivery and performance of this Lease
and the documents, instruments and agreements provided for herein will not
result in any breach or default under any document, instrument or agreement
to
which Lessee is a party or by which Lessee, the Premises or any of the property
of Lessee is subject or bound, except for such breaches or defaults which,
individually or in the aggregate, have not had, and would not reasonably be
expected to result in, a Material Adverse Effect. The authorization, execution,
delivery and performance of this Lease and the documents, instruments and
agreements provided for herein will not violate any applicable law, statute,
regulation, rule, ordinance, code, rule or order. The Premises are not subject
to any right of first refusal, right of first offer or option to purchase or
lease granted to a third party by
Lessor
or
Guarantor. Lessee has not assigned, transferred, mortgaged, hypothecated or
otherwise encumbered this Lease or any rights hereunder or interest
herein.
E. Licenses
and Permits; Access.
All
required licenses and permits, both governmental and private, to use and operate
the Premises as a Permitted Concept are in full force and effect, except for
such licenses and permits the failure of which to obtain has not had, and would
not reasonably be expected to result in, a Material Adverse Effect. Adequate
rights of access to public roads and ways are available to the Premises for
unrestricted ingress and egress and otherwise to permit utilization of the
Premises for its intended purposes, and all such public roads and ways have
been
completed and dedicated to public use.
7. Rentals
To Be Net to Lessor.
Except
as otherwise expressly provided herein or by applicable laws, regulations or
ordinances, (i) this Lease is a net lease and shall not terminate prior to
the stated expiration date hereof; (ii) so long as Lessor performs all of
its obligations hereunder, Lessee shall not be entitled to any abatement,
reduction, diminution, set-off, counterclaim, defense or deduction with respect
to any Base Annual Rental, Additional Rental or other sums payable hereunder,
(iii) the obligations of Lessee hereunder shall not be affected, by reason
of:
any damage to or destruction of the Premises or any portion thereof; any defect
in the condition, design, operation or fitness for use of the Premises or any
portion thereof; any taking of the Premises or any part thereof by condemnation
or otherwise; any prohibition, limitation, interruption, cessation, restriction
or prevention of Lessee’s use, occupancy or enjoyment of the Premises, or any
interference with such use, occupancy or enjoyment by any person; construction
on or renovation of the Premises; or any failure in the Premises to comply
with
Applicable Regulations, or any other cause whether similar or dissimilar to
the
foregoing. All costs, expenses and obligations of every kind and nature
whatsoever relating to the Premises and the appurtenances thereto and the use
and occupancy thereof which may arise or become due and payable with respect
to
the period which commences on the Effective Date and ends on the expiration
or
earlier termination of the Lease Term in accordance with the provisions hereof
(whether or not the same shall become payable during the Lease Term or
thereafter) shall be paid by Lessee, except as otherwise expressly provided
herein. It is the purpose and intention of the parties to this Lease that the
Base Annual Rental and the Additional Rental due hereunder shall be absolutely
net to Lessor and that this Lease shall yield, net to Lessor, the Base Annual
Rental and the Additional provided in this Lease, except as specifically
provided herein. So long as Lessee’s rights hereunder and quiet enjoyment of the
Premises are not disturbed, and Lessor or its successor performs all of Lessor’s
obligations hereunder, Lessee shall remain obligated under this Lease in
accordance with its terms and shall not take any action to terminate, rescind
or
avoid this Lease, notwithstanding any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Lessor or any action
with
respect to this Lease which may be taken by any trustee, receiver or liquidator
or by any court. Except as otherwise expressly provided herein or by applicable
laws, regulations or ordinances, Lessee waives all rights to terminate or
surrender this Lease, or to any abatement or deferment of Base Annual Rental,
Additional Rental or other sums payable hereunder.
8. Taxes
and Assessments. Lessee
shall pay, prior to delinquency, all taxes and assessments of every type or
nature assessed against, imposed upon or arising with respect to the Premises,
this Lease, the rental or other payments due and payable by Lessee under this
Lease or Lessee during the Lease Term, including, without limitation, the
following:
A. All
taxes
and assessments upon the Premises or any part thereof and upon any Personal
Property, whether belonging to Lessor or Lessee, or any tax or charge levied
in
lieu of such taxes and assessments;
B. All
taxes, charges, license fees and or similar fees imposed by reason of the use
of
the Premises by Lessee; and
C. All
excise, transaction, privilege, license, sales, use and other taxes upon the
rental or other payments due and payable by Lessee under this Lease, the
leasehold estate of Lessee or the activities of Lessee pursuant to this
Lease.
Notwithstanding
the foregoing, in no event will Lessee be required to pay any net income taxes
(i.e., taxes which are determined taking into account deductions for
depreciation, interest, taxes and ordinary and necessary business expenses)
or
franchise taxes (unless imposed in lieu of other taxes that would otherwise
be
the obligation of Lessee under this Lease, including, without limitation, any
“gross receipts tax” or any similar tax payable in connection with the rent paid
by Lessee hereunder) of Lessor, any transfer taxes of Lessor, or any tax imposed
with respect to the sale, exchange or other disposition by Lessor, in whole
or
in part, of the Premises or Lessor’s interest in this Lease, or any tax imposed
on Lessor not in connection with the Premises or this Lease.
All
taxing authorities shall be instructed to send all tax and assessment invoices
payable by Lessee hereunder to Lessee, and Lessee shall promptly provide Lessor
and any lender with a security interest in the Premises designated by Lessor
in
a written notice to Lessee (each, a “Lender”) with copies of all tax and
assessment invoices received by Lessee and payable by Lessee hereunder. Upon
Lessor’s written request therefor, Lessee shall also provide Lessor and any
Lender with evidence that such invoices were paid in a timely fashion. Lessee
may, at its own expense, contest or cause to be contested, by appropriate legal
proceedings conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any item payable by Lessee
specified in this Section or lien therefor, provided that (i) Lessee shall
provide written notice to Lessor of any contest involving more than $10,000.00,
(ii) such proceeding shall suspend the collection thereof from the Premises
or any interest therein, (iii) neither the Premises nor any interest
therein would be in any imminent danger of being sold, forfeited or lost by
reason of such proceedings, and (iv) no Event of Default has occurred and is
continuing (unless Lessee has deposited in escrow or obtained a bond for the
disputed amount, or otherwise provided security for the payment of taxes and
assessments which are ultimately found to be due and payable by Tenant
hereunder, to Landlord’s reasonable satisfaction).
9. Utilities.
Lessee
shall contract, in its own name, for and pay when due all charges for the
connection and use of water, gas, electricity, telephone, garbage collection,
sewer use and other utility services supplied to the Premises during the Lease
Term. Under no circumstances shall Lessor be responsible for any interruption
of
any utility service.
10. Insurance.
Throughout the Lease Term Lessee shall maintain with respect to the Premises,
at
its sole expense, the following types and amounts of insurance (which may be
included under a blanket insurance policy if all the other terms hereof are
satisfied), in addition to such other insurance as Lessor may reasonably
require:
A. Insurance
against loss, damage or destruction by fire and other casualty, including theft,
vandalism and malicious mischief, wind, flood (if the Premises are in a location
designated by the Federal Emergency Management Administration as a Special
Flood
Hazard Area), earthquake (if the Premises is in an area subject to destructive
earthquakes within the past 100 years), boiler explosion (if there is any boiler
upon the Premises), plate glass breakage, sprinkler damage (if the Premises
have
a sprinkler system), all matters covered by a standard extended coverage
endorsement, all matters covered by a special coverage endorsement commonly
known as an “all risk” endorsement, insuring the Premises and the Personal
Property for not less than 100% of their full insurable replacement cost,
subject to commercially reasonable deductible amounts.
B. Commercial
general liability and property damage insurance, including a products liability
clause, covering Lessor and Lessee against bodily injury liability, property
damage liability and automobile bodily injury and property damage liability,
including without limitation any liability arising out of the ownership,
maintenance, repair, condition or operation of the Premises or adjoining ways,
streets or sidewalks and, if applicable, insurance covering Lessor and Lessee
against liability arising from the sale of liquor, beer or wine on the Premises.
Such insurance policy or policies shall contain a broad form contractual
liability endorsement under which the insurer agrees to insure Lessee’s
obligations under Section 17 hereof to the extent insurable, and a
“severability of interest” clause or endorsement which precludes the insurer
from denying the claim of Lessee or Lessor because of the negligence or other
acts of the other, shall be in amounts of not less than $2,000,000.00 per injury
and occurrence with respect to any insured liability, whether for personal
injury or property damage, and shall be of form and substance reasonably
satisfactory to Lessor.
C. Business
income insurance equal to 100% of the Base Monthly Rental for a period of not
less than six months.
D. State
(or
U.S. Virgin Islands) Worker’s compensation insurance in the statutorily mandated
limits, employer’s liability insurance with limits not less than $500,000 and
such other insurance as may be necessary to comply with applicable
laws.
All
insurance policies shall:
(i) Provide
for a waiver of subrogation by the insurer as to claims against Lessor, Lessor’s
employees and agents and provide that such insurance cannot be unreasonably
cancelled, invalidated or suspended on account of the conduct of Lessee, its
officers, directors, employees or agents;
(ii) Provide
that any “no other insurance” clause in the insurance policy shall exclude any
policies of insurance maintained by Lessor and that the insurance policy shall
not be brought into contribution with insurance maintained by
Lessor;
(iii) Contain
a
standard without contribution mortgage clause endorsement in favor of any lender
designated by Lessor in writing;
(iv) Provide
that the policy of insurance shall not be terminated, cancelled or substantially
modified without at least thirty (30) days’ prior written notice to Lessor and
to any lender covered by any standard mortgage clause endorsement;
(v) Provide
that the insurer shall not have the option to restore the Premises if Lessor
or
Lessee elects to terminate this Lease in accordance with the terms hereof;
(vi) Be
issued
by insurance companies licensed to do business in the U.S. Virgin Islands and
which are rated AVI or better by Best’s Insurance Guide or are otherwise
approved by Lessor; and
(vii) Provide
that the insurer shall not deny a claim because of the negligence of Lessee,
anyone acting for Lessee or any tenant or other occupant of the
Premises.
It
is
expressly understood and agreed that the foregoing minimum limits of insurance
coverage shall not limit the liability of Lessee for its acts or omissions
as
provided in this Lease. All insurance policies (with the exception of worker’s
compensation insurance to the extent not available under statutory law) shall
designate Lessor and any Lender as additional insureds as their interests may
appear and shall be payable as set forth in Section 19 hereof. All such
policies shall be written as primary policies, with deductibles not to exceed
10% of the amount of coverage. Any other policies, including any policy now
or
hereafter carried by Lessor, shall serve as excess coverage. Lessee shall
procure policies for all insurance for periods of not less than one year and
shall provide to Lessor and any Lender certificates of insurance evidencing
that
insurance satisfying the requirements of this Lease is in effect at all
times.
11. Tax
and Insurance Impound.
Upon the
occurrence of an Event of Default, so long as such Event of Default remains
uncured, Lessor may require Lessee to
deposit
with Lessor sums which will provide an impound account (which shall be deemed
a
trust fund) for paying up to the next one year of taxes, assessments and/or
insurance premiums. Upon such requirement, Lessor will estimate the amounts
needed for such purposes and will notify Lessee to pay the same to Lessor in
equal monthly installments, as nearly as practicable, in addition to all other
sums due under this Lease. Should additional funds be required at any time,
Lessee shall pay the same to Lessor on demand. Lessee shall advise Lessor of
all
taxes and insurance bills which are due, and Lessor shall cooperate fully with
Lessee in assuring that the same are paid from the impounded funds in a timely
manner. Lessor shall deposit all impounded funds in trust accounts insured
by
any federal or state agency and shall not commingle such funds with other funds
and accounts of Lessor. Interest or other gains from such funds, if any, shall
be the sole property of Lessee. Upon the occurrence of an Event of Default
by
Lessee under Sections 21A(ii) or (iii), Lessor may apply all impounded funds
against any sums due from Lessee to Lessor hereunder. Lessor shall give to
Lessee an annual accounting showing all credits and debits to and from such
impounded funds received from Lessee. Within 60 days after the expiration or
earlier termination of this Lease, Lessor shall provide an accounting showing
all credits and debits to and from such impounded funds received from Lessee
and
reimburse to Lessee such funds, if any, in excess of the amount reasonably
estimated by Lessor to be necessary to pay unpaid taxes and/or insurance payable
by Lessee hereunder and applicable to the period of Lessee’s tenancy under this
Lease, even if such amounts are not yet due or payable. Lessor’s obligations
under this Section shall survive the expiration or termination of this
Lease.
12. Payment
of Rental and Other Sums. All
rental and other sums which Lessee is required to pay hereunder shall be the
unconditional obligation of Lessee and shall be payable in full when due without
any setoff, abatement, deferment, deduction or counterclaim whatsoever, except
as otherwise provided herein. Upon execution of this Lease, Lessee shall
authorize Lessor to establish arrangements whereby payments of the Base Monthly
Rental, any Additional Rental and impound payments, if any, are transferred
by
Automated Clearing House Debit initiated by Lessor or its designee directly
from
an account at a U.S. bank in the name of Lessee to such account as Lessor may
designate provided, however, upon notice from any Lender, co-signed by Lessor,
delivered in the manner set forth in Section 27, Lessee shall deliver all
payments of Base Monthly Rental and Additional Rental as specified in such
notice. Any delinquent payment (that is, any payment not made within five (5)
calendar days after the date when due and after the date of Lessee’s receipt of
Lessor’s written notice relating thereto) shall, in addition to any other remedy
of Lessor, incur a late charge of 5% (which late charge is intended to
compensate Lessor for the cost of handling and processing such delinquent
payment and should not be considered interest) and bear interest at the Default
Rate, such interest to be computed from and including the date such payment
was
due through and including the date of the payment; provided, however, in no
event shall Lessee be obligated to pay a sum of late charge and interest higher
than the maximum legal rate then in effect.
13. Use.
The
Premises shall be used solely for the operation of a Permitted Concept and
for
no other purpose without Lessor’s prior written consent, which consent shall not
be unreasonably withheld conditioned or delayed.
Lessee
shall not, by itself or through any assignment, sublease or other type of
transfer, convert the Premises to an alternative use during the Lease Term
without Lessor’s consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Lessor may consider any or all of the following in
determining whether to grant its consent, without being deemed to be
unreasonable: (i) whether the rental paid to Lessor would be equal to or
greater than the anticipated rental assuming continued existing use,
(ii) whether the proposed rental to be paid to Lessor is reasonable
considering the converted use of the Premises and the customary rental
prevailing in the community for such use, (iii) whether the converted use
will be consistent with the highest and best use of the Premises, and
(iv) whether the converted use will increase Lessor’s risks or decrease the
value of the Premises. Notwithstanding anything contained herein to the
contrary, Lessee shall have the unrestricted right to assign this Lease or
sublease all or any portion of the Premises to any Person controlled by
Guarantor.
14. Compliance
With Laws, Restrictions, Covenants and Encumbrances.
A. Lessee’s
use and occupation of the Premises, and the condition thereof, shall, at
Lessee’s sole cost and expense, comply with all Applicable Regulations now or
hereafter in effect and all restrictions, covenants and encumbrances of record
with respect to the Premises existing on the Effective Date or consented to
by
Lessee (which consent shall not be unreasonably withheld, conditioned or
delayed) after the Effective Date. In addition, Lessee shall comply with all
Applicable Regulations now or hereafter in effect, including, without
limitation, the OFAC Laws and Regulations and Anti-Money Laundering Laws.
Without limiting the generality of the other provisions of this Section, Lessee
shall comply with the ADA, and all regulations promulgated thereunder, if and
to
the extent applicable to the Premises.
B. Lessee
will not permit any act or condition to exist on or about the Premises which
will increase any insurance rate thereon, except when such acts are required
in
the normal course of its business and Lessee shall pay for such
increase.
C. Lessee
represents and warrants to Lessor with respect to the Premises as follows:
(i)
to
Lessee’s actual knowledge, neither the Premises, nor Lessee, nor Guarantor is in
violation of, or subject to, any pending or, to Lessee’s actual knowledge,
threatened investigation or inquiry by any Governmental Authority or to any
remedial obligations under any Environmental Laws, and this representation
and
warranty would continue to be true and correct following disclosure to the
applicable Governmental Authorities of all relevant facts, conditions and
circumstances, if any, pertaining to the Premises; (ii) to Lessee’s actual
knowledge, all permits, licenses or similar authorizations required to
construct, occupy, operate or use any buildings, improvements, fixtures and
equipment forming a part of the Premises by reason of any Environmental Laws
have been obtained; (iii) to Lessee’s actual knowledge, no Hazardous Materials
have been used, handled, manufactured, generated, produced,
stored,
treated, processed, transferred, disposed of or otherwise Released in, on,
under, from or about the Premises by Lessee or Guarantor, except in Permitted
Amounts; (iv) to Lessee’s actual knowledge, the Premises does not contain
Hazardous Materials, except in Permitted Amounts; (v) to Lessee’s actual
knowledge, there is no threat of any Release migrating to the Premises in excess
of Permitted Amounts; (vi) to Lessee’s actual knowledge, there is no past or
present non-compliance with Environmental Laws, or with permits issued pursuant
thereto, in connection with the Premises; (vii) to Lessee’s actual knowledge,
neither Guarantor nor Lessee has received any written or oral notice or other
communication from any person or entity (including but not limited to a
Governmental Authority) relating to Hazardous Materials or Remediation thereof
in excess of Permitted Amounts, of possible liability of any person or entity
pursuant to any Environmental Law, other Environmental Conditions in connection
with the Premises, or any actual or potential administrative or judicial
proceedings in connection with any of the foregoing; (viii) to Lessee’s actual
knowledge, all information known to Lessee or Guarantor, or contained in the
files of Lessee or Guarantor, relating to any Environmental Condition, Releases
of Hazardous Materials in, on, under or from the Premises, other than in
Permitted Amounts, has been provided to Lessor under the Purchase Agreement,
including, without limitation, information relating to all prior Remediation;
and (ix) to Lessee’s actual knowledge, the Premises has been kept free and clear
of all Environmental Liens; and neither Guarantor nor Lessee, has committed
any
act on the Premises that materially increased the dangers to human health or
the
environment, posed an unreasonable risk of harm to any person or entity,
impaired the value of the Premises in any material respect, is contrary to
any
requirement of any insurer, constituted a public or private nuisance,
constituted waste, or violated any covenant, condition, agreement or easement
applicable to the Premises.
D. Lessee
covenants to Lessor from and after the Effective Date and until the expiration
or earlier termination of this Lease as follows: (i) Lessee shall not take
any
action, or permit any other operator or user of the Premises to take any action,
that will cause the Premises to be in violation of Environmental Laws, or
subject to any investigation or inquiry by any Governmental Authority or subject
to any Remediation obligations under any Environmental Laws; (ii) all uses
and
operations on or of the Premises, whether by Lessee or any other operator or
user of the Premises, shall be in compliance with all Environmental Laws and
permits issued pursuant thereto; (iii) Lessee shall not cause any Releases
or
take any action that will cause Hazardous Materials to be in, on, under or
from
the Premises, except in Permitted Amounts; (iv) Lessee shall not take any action
that will cause the Premises to be subject to Environmental Liens; and (v)
Lessee shall not do or allow any tenant or other user of the Premises to do
any
act on the Premises that (1) materially increases the dangers to human
health or the environment, (2) poses an unreasonable risk of harm to any person
or entity (whether on or off the Premises), (3) materially impairs or is
reasonably likely to materially impair the value of the Premises, (4) is
contrary to any requirement of any insurer, (5) constitutes a public or private
nuisance or constitutes waste, or (6) violates any covenant, condition,
agreement or easement applicable to the Premises on
the
Effective Date or consented to by Lessee (which consent shall not be
unreasonably withheld, conditioned or delayed) after the Effective
Date.
E. Lessee
shall immediately notify Lessor in writing upon Lessee obtaining actual
knowledge after the Effective Date of: (i) any occurrence of Releases or
Threatened Releases in, on, under, from or migrating towards the Premises,
in
excess of Permitted Amounts after the Effective Date, including, without
limitation, the occurrence on or under the Premises, or the escape, seepage,
leakage, spillage, discharge, emission or release of any Hazardous Materials,
apparent or real, in excess of Permitted Amounts after the Effective Date;
(ii)
any non-compliance with any Environmental Laws related in any way to the
Premises occurring after the Effective Date; (iii) any Environmental Lien or
any
act or omission which would reasonably be expected to result in the imposition
of an Environmental Lien affecting the Premises occurring after the Effective
Date; (iv) any required or proposed Remediation of Environmental Conditions
relating to the Premises, including, without limitation, any and all
enforcement, clean-up, remedial, removal or other governmental or regulatory
actions threatened, instituted or completed pursuant to any of the Environmental
Laws affecting the Premises; (v) any written or oral notice or other
communication of which Lessee or Guarantor becomes aware from any source
whatsoever (including but not limited to a Governmental Authority) relating
in
any way to Hazardous Materials on the Premises or Remediation thereof, possible
liability of any person or entity pursuant to any Environmental Law in
connection with the Premises, other Environmental Conditions in connection
with
the Premises, or any actual or potential administrative or judicial proceedings
in connection with anything referred to in this Lease; or (vi) any investigation
or inquiry initiated by any Governmental Authority relating to the Environmental
Condition of the Premises.
F. If
Lessee
causes any Releases on the Premises in material violation of Environmental
laws
after the Effective Date, Lessee shall, at its sole cost and expense: (i)
perform any environmental site assessment or other investigation of
Environmental Conditions in connection with the Premises as may be required
under the Environmental Laws (including but not limited to sampling, testing
and
analysis of soil, water, air, building materials and other materials and
substances whether solid, liquid or gas), and share with Lessor the reports
and
other results thereof, and Lessor and the other Indemnified Parties shall be
entitled to rely on such reports and other results thereof; and (ii) have the
Premises inspected as may be required by any Environmental Laws for seepage,
spillage and other environmental concerns. Lessee shall provide Lessor with
written certified results of all inspections performed on the Premises. If
Lessee causes any Releases on the Premises in material violation of
Environmental laws after the Effective Date, all costs and expenses associated
with the inspection, preparation and certification of results, as well as those
associated with any corrective action, shall be paid by Lessee. All inspections
and tests performed on the Premises pursuant to this paragraph shall be
conducted in compliance with all Environmental Laws.
G. (i)
Lessee shall, at its sole cost and expense, and without limiting the rights
of
Lessor under any other provision of this Lease, comply
with all reasonable written requests of Lessor with respect to the Premises
to:
(1) reasonably effectuate Remediation of any condition (including but not
limited to a Release) caused by Lessee, Guarantor, or any of their respective
agents, representatives, licensees, invitees, assignees and sublessees in,
on,
under or from the Premises if and to the extent required by Environmental Laws;
(2) comply with any Environmental Law; (3) comply with any directive from any
Governmental Authority; and (4) take any other reasonable action necessary
or
appropriate for protection of human health or the environment.
(ii)
Upon
any Release on, above or under the Premises caused by Lessee, Guarantor, or
any
of their respective agents, representatives, licensees, invitees, assignees
and
sublessees Lessee shall immediately remedy such situation in accordance with
all
Environmental Laws. Should Lessee fail to remedy or cause the remedy of such
situation caused by Lessee Guarantor, or any of their respective agents,
representatives, licensees, invitees, assignees and sublessees in accordance
with all Environmental Laws, and if such failure is not cured, or if Lessee
does
not commence diligent efforts to cure such failure, within ten (10) days after
Lessee’s receipt of Lessor’s written notice of such failure, Lessor shall be
permitted to take such actions in its reasonable discretion to remedy such
situation if and to the extent required by Environmental Laws and any actual
and
reasonable costs and expenses incurred in connection therewith shall be paid
by
Lessee.
X. Xxxxxx
and any other person or entity designated by Lessor in writing, including but
not limited to any receiver, any representative of a Governmental Authority,
and
any environmental consultant, shall have the right, but not the obligation,
to
enter upon the Premises, upon reasonable prior written notice to Lessee, in
a
manner reasonably designed to not interfere with Lessee’s or other occupants’
conduct of their business at the Premises, during normal business hours or
at
any time in the event of an emergency (including, without limitation, in
connection with a proposed sale or conveyance of the Premises, a proposed
financing or refinancing secured by the Premises, any securitization,
participation or transfer of any mortgage loan documents encumbering the
Premises or the exercise of any remedies set forth in the Lease or any mortgage
loan documents encumbering the Premises) to assess any and all aspects of the
Environmental Condition of the Premises and its use, including but not limited
to conducting any environmental assessment or audit (the scope of which shall
be
determined in Lessor’s sole and absolute discretion) and taking samples of soil,
groundwater or other water, air, or building materials, and conducting other
invasive testing; provided, however, that Lessor shall restore the Premises
at
Lessor’s sole cost and expense. Lessee shall reasonably cooperate with and
provide access to Lessor and any such person or entity designated by Lessor.
Any
such assessment and investigation relating to any Release (including any
restoration of the Premises made necessary by any invasive testing) shall be
at
Lessee’s sole cost and expense if Lessee, Guarantor, or any of their respective
agents, representatives, licensees, invitees, assignees and sublessees has
caused the Release at the Premises in excess
of
Permitted Amounts. Otherwise, any such assessment and investigation shall be
at
Lessor’s sole cost and expense.
I. Lessee
fully and completely releases, waives and covenants not to assert any claims,
liabilities, actions, defenses, challenges, contests or other opposition against
Lessor, however characterized, known or unknown, foreseen or unforeseen, now
existing or arising in the future, relating to any Release or presence of
Hazardous Materials on, at or affecting the Premises, unless a Release is caused
by Lessor, its employees, agents or contractors.
J. In
addition to the other requirements of this Section, Lessee shall, at all times
throughout the Lease Term, comply with all federal, state or local statutes,
laws, rules, regulations, ordinances, codes, policies or rules of common law
now
or hereafter in effect and in each case, as amended, and any judicial or
administrative interpretation thereof, including any judicial order, consent,
decree or judgment, applicable to Lessee and its use and occupancy of the
Premises.
15. Condition
of Premises; Maintenance.
Lessee
has inspected, or had the opportunity to inspect, the Premises and hereby
accepts the Premises “AS IS” and “WHERE IS”, with no representation or warranty
of Lessor as to the condition thereof, and subject to the existing state of
facts which an accurate survey or physical inspection might reveal, and all
Applicable Regulations now or hereafter in effect. Lessee
shall (i) maintain the Premises in good condition and repair, subject to
reasonable and ordinary wear and tear, free from actual or constructive waste,
(ii) operate, remodel, update and modernize the Premises as deemed necessary
or
desired by Lessee, and (iii) pay all operating costs of the Premises in the
ordinary course of business. Except as otherwise specifically provided herein,
Lessee waives any right to (1) require Lessor to maintain, repair or
rebuild all or any part of the Premises or (2) make repairs at the expense
of Lessor, pursuant to any Applicable Regulations at any time in
effect.
16. Waste;
Alterations and Improvements. Lessee
shall not alter the exterior, structural, plumbing or electrical elements of
the
Premises in any manner without the consent of Lessor, which consent shall not
be
unreasonably withheld, delayed or conditioned; provided, however, that Lessee
may undertake nonstructural alterations to the Premises costing less than
$100,000 per project without Lessor’s consent. For purposes of this Lease,
alterations to the exterior, structural, plumbing or electrical elements of
the
Premises shall mean:
(i) alterations
which affect the foundation or “footprint” of the improvements at the
Premises;
(ii) alterations
which involve the structural elements of the improvements at the Premises,
such
as a load-bearing wall, structural beams, columns, supports or roof;
or
(iii) alterations
which materially affect any of the building systems, including, without
limitation, the electrical systems, HVAC (which shall remain Lessee’s property
until
the
expiration or earlier termination of this Lease), plumbing, and fire and safety
systems.
If
Lessor’s consent is required hereunder and Lessor consents to the making of any
such alterations, the same shall be made by Lessee at Lessee’s sole expense by a
licensed contractor and according to plans and specifications reasonably
approved by Lessor and subject to such other reasonable conditions as Lessor
shall require. Any work at any time commenced by Lessee or Lessor on the
Premises shall be prosecuted diligently to completion, shall be of good
workmanship and materials and shall comply fully with all the terms of this
Lease. Upon completion of any alterations by Lessee, Lessee shall promptly
provide Lessor with (i) evidence of full payment to all laborers and materialmen
contributing to the alterations, (ii) an architect’s certificate certifying the
alterations to have been completed in conformity with the plans and
specifications, (iii) a certificate of occupancy (if the alterations are of
such
a nature as would require the issuance of a certificate of occupancy), and
(iv)
any other documents or information reasonably requested by Lessor. Any addition
to or alteration of the Premises shall automatically be deemed a part of the
Premises and belong to Lessor, and Lessee shall execute and deliver to Lessor
such instruments as Lessor may reasonably require to evidence the ownership
by
Lessor of such addition or alteration. Lessee shall execute and file or record,
as appropriate, a “Notice of Non-Responsibility,” or any equivalent notice
permitted under applicable law in the U.S. Virgin Islands.
17. Indemnification.
Lessee
shall, at its sole cost and expense, protect, defend, indemnify, release and
hold harmless each of the Indemnified Parties for, from and against any and
all
Losses (excluding Losses suffered by an Indemnified Party arising out of the
negligence or willful misconduct of any of the Indemnified Parties; provided,
however, that the term “negligence” shall not include negligence imputed as a
matter of law to any of the Indemnified Parties solely by reason of Lessor’s
interest in the Premises or Lessor’s failure to act in respect of matters which
are or were the obligation of Lessee under this Lease) caused by, incurred
or
resulting from Lessee’s operations of the Premises, whether relating to
alteration, maintenance or use by Lessee or from any breach of, default under,
or failure to perform, any term or provision of this Lease by Lessee, its
officers, employees, agents or other persons under Lessee’s control or
affiliated with Lessee, or to which any Indemnified Party is subject because
of
(1) any accident, injury to or death of any person or loss of or damage to
property caused by Lessee, Guarantor, or any of their respective agents,
representatives, licensees, invitees, assignees and sublessees and occurring
in,
on or about the Premises or portion thereof or on the adjoining sidewalks,
curbs, parking areas, streets or ways, (2) the use, non-use or condition
caused by Lessee, Guarantor, or any of their respective agents, representatives,
licensees, invitees, assignees and sublessees, in, on or about, or Lessee’s,
Guarantor’s, or any of their respective agents’, representatives’, licensees’,
invitees’, assignees’ and sublessees’ possession, alteration, repair, operation,
maintenance or management of, the Premises or any portion thereof or on the
adjoining sidewalks, curbs, parking areas, streets or ways, (3) any
representation or warranty made herein by Lessee, in any certificate delivered
in connection herewith or in any other agreement to which Lessee is a party
or
pursuant
thereto
being false or misleading in any material respect as of the date of such
representation or warranty was made, (4) Lessee’s, Guarantor’s, or any of their
respective agents’, representatives’, licensees’, invitees’, assignees’ and
sublessees’ performance of any labor or services or the furnishing of any
materials or other property pursuant to the request of Lessee, Guarantor, or
any
of their respective agents, representatives, licensees, invitees, assignees
and
sublessees in respect to the Premises or any portion thereof (excluding,
however, any such performance or furnishing done at the request or direction
of
any of the Lessor Entities), (5) any taxes, assessments or other charges which
Lessee is required to pay under Section 8, (6) any lien, encumbrance or claim
arising on or against the Premises or any portion thereof under any Applicable
Regulation or otherwise which Lessee is obligated hereunder to remove and
discharge, or any failure to comply with any Applicable Regulation by Lessee,
Guarantor, or any of their respective agents, representatives, licensees,
invitees, assignees and sublessees, (7) the claims of Lessee’s or Guarantor’s
invitees, patrons, licensees or subtenants of all or any portion of the Premises
or any Person acting through or under Lessee or Guarantor otherwise acting
under
or as a consequence of this Lease or any sublease relating to Lessee’s or
Guarantor’s negligence or intentional misconduct, (8) any act or omission
of Lessee, Guarantor, or any of their respective agents, representatives,
licensees, invitees, assignees and sublessees, (9) any contest referred to
in
Section 8, (10) the sale of liquor, beer or wine on the Premises by Lessee,
Guarantor, or any of their respective agents, representatives, licensees,
invitees, assignees and sublessees, and (11) costs of Remediation (whether
or
not performed voluntarily), engineers’ fees, environmental consultants’ fees,
and costs of investigation (including but not limited to sampling, testing,
and
analysis of soil, water, air, building materials and other materials and
substances whether solid, liquid or gas) imposed upon or incurred by or asserted
against any Indemnified Parties, and directly or indirectly arising out of
or in
any way relating to any one or more of the following: (i) any presence of
any Hazardous Materials in, on, above, or under the Premises caused by Lessee,
Guarantor, or any of their respective agents, representatives, licensees,
invitees, assignees and sublessees; (ii) any past, present or Threatened
Release by Lessee, Guarantor, or any of their respective agents,
representatives, licensees, invitees, assignees and sublessees in, on, above,
under or from the Premises; (iii) any activity by Lessee, Guarantor, or any
of their respective agents, representatives, licensees, invitees, assignees
or
sublessees in connection with any actual, proposed or threatened use, treatment,
storage, holding, existence, disposition or other Release, generation,
production, manufacturing, processing, refining, control, management, abatement,
removal, handling, transfer or transportation to or from the Premises of any
Hazardous Materials at any time located in, under, on or above the Premises
caused by Lessee, Guarantor, or any of their respective agents, representatives,
licensees, invitees, assignees and sublessees; (iv) any activity by Lessee,
Guarantor, or any of their respective agents, representatives, licensees,
invitees, assignees and sublessees in connection with any actual or proposed
Remediation of any Hazardous Materials at any time located in, under, on or
above the Premises, whether or not such Remediation is voluntary or pursuant
to
court or administrative order, including but not limited to any removal,
remedial or corrective action; (v) any past, present or threatened
non-compliance or
violations
of any Environmental Laws (or permits issued pursuant to any Environmental
Law)
by Lessee, Guarantor, or any of their respective agents, representatives,
licensees, invitees, assignees and sublessees in connection with the Premises
or
operations thereon, including but not limited to any failure by Lessee,
Guarantor, or any of their respective agents, representatives, licensees,
invitees, assignees and sublessees to comply with any order of any Governmental
Authority in connection with any Environmental Laws; (vi) the imposition,
recording or filing or the threatened imposition, recording or filing of any
Environmental Lien encumbering the Premises caused by Lessee, Guarantor, or
any
of their respective agents, representatives, licensees, invitees, assignees
and
sublessees; (vii) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter caused by Lessee, Guarantor,
or
any of their respective agents, representatives, licensees, invitees, assignees
and sublessees addressed in this Section; (viii) any past, present or
threatened injury to, destruction of or loss of natural resources in any way
connected with the Premises caused by Lessee, Guarantor, or any of their
respective agents, representatives, licensees, invitees, assignees and
sublessees, including but not limited to costs to investigate and assess such
injury, destruction or loss; (ix) any acts of Lessee, Guarantor, or any of
their respective agents, representatives, licensees, invitees, assignees and
sublessees, in arranging for disposal or treatment, or arranging with a
transporter for transport for disposal or treatment, of Hazardous Materials
owned or possessed by Lessee, Guarantor, or any of their respective agents,
representatives, licensees, invitees, assignees and sublessees, at any facility
or incineration vessel owned or operated by another person or entity and
containing such or similar Hazardous Materials; (x) any acts of Lessee,
Guarantor, or any of their respective agents, representatives, licensees,
invitees, assignees and sublessees, in accepting any Hazardous Materials for
transport to disposal or treatment facilities, incineration vessels or sites
selected by Lessee, Guarantor, or any of their respective agents,
representatives, licensees, invitees, assignees and sublessees, from which
there
is a Release, or a Threatened Release of any Hazardous Materials which causes
the incurrence of costs for Remediation; (xi) any personal injury, wrongful
death, or property damage caused by Lessee, Guarantor, or any of their
respective agents, representatives, licensees, invitees, assignees and
sublessees arising under any statutory or common law or tort law theory,
including but not limited to damages caused by Lessee, Guarantor, or any of
their respective agents, representatives, licensees, invitees, assignees and
sublessees assessed for the maintenance of a private or public nuisance or
for
the conducting of an abnormally dangerous activity on or near the Premises;
or
(xii) Lessee’s misrepresentation or inaccuracy in any representation or
warranty or material breach or failure to perform Lessee’s covenants or other
obligations pursuant to this Section. Lessee’s obligations under this Section
shall survive the expiration or earlier termination of this Lease for any
reason.
Lessor
shall, at its sole cost and expense, protect, defend, indemnify, release and
hold harmless each of the Lessee Indemnified Parties for, from and against
any
and all Losses (excluding Losses suffered by any Lessee Indemnified Party
arising out of the negligence or willful misconduct of any of the Lessee
Indemnified Parties) caused by, incurred or resulting from Lessor’s breach of
any covenants, representations,
warranties
or agreements under this Lease or any negligence or willful misconduct of
Lessor, its officers, employees, agents or other persons under Lessor’s
control.
18. Quiet
Enjoyment.
So long
as Lessee shall pay the rental and other sums herein provided and shall keep
and
perform all of the terms, covenants and conditions on its part herein contained,
Lessee shall have, subject and subordinate to Lessor’s rights specifically set
forth herein, the right to the peaceful and quiet occupancy of the Premises
without hindrance or interference by Lessor or others claiming by, through
or
under Lessor.
19. Condemnation
or Destruction.
A. In
the
event that Lessee or Lessor becomes aware of a taking of all or any part of
the
Premises for any public or quasi public purpose by any lawful power or authority
by exercise of the right of condemnation or eminent domain or by agreement
between Lessor, Lessee and those authorized to exercise such right (“Taking”) or
the commencement of any proceedings or negotiations which might result in a
Taking or any damage to or destruction of the Premises or any part thereof
(a
“Casualty”), such party will promptly give written notice thereof to the other,
generally describing the nature and extent of such Taking, proceedings,
negotiations or Casualty and including copies of any documents or notices
received in connection therewith. Thereafter, each party shall promptly send
the
other copies of all correspondence and pleadings relating to any such Taking,
proceedings, negotiations or Casualty. During all periods of time following
a
Casualty, Lessee shall take reasonable actions to ensure that the Premises
is
secure and does not pose any risk of harm to adjoining property owners or
occupants or third-parties.
B. In
the
event of (i) a Taking of all of the Premises, other than for temporary use,
(ii)
a Taking of substantially all of the Premises (other than for temporary use)
that results in Lessee making a good faith determination that the restoration
and continued use of the remainder of the Premises as a Permitted Concept would
be uneconomic (each of (i) and (ii), a “Total Taking”), or (iii) a Casualty of
all or substantially all of the Premises that results in Lessee making a good
faith determination that the restoration and continued use of the Premises
as a
Permitted Concept would be uneconomic (a “Total Casualty”), if this Lease is
terminated pursuant to the provisions hereof, Lessor shall be entitled to
receive the entire award for the Premises, insurance proceeds or payment in
connection therewith for the Premises without deduction for any leasehold estate
vested in Lessee by this Lease. Lessee hereby expressly assigns to Lessor all
of
its right, title and interest in and to every such award, insurance proceeds
or
payment and agrees that Lessee shall not be entitled to any award, insurance
proceeds or payment for the value of Lessee’s leasehold interest in this Lease.
Lessee shall be entitled to claim and receive any award or payment from the
condemning authority expressly granted for the taking of Personal Property,
the
interruption of its business and moving expenses, but only if such claim or
award does not adversely affect or interfere with the prosecution of Lessor’s
claim for the Total Taking, or otherwise reduce the amount recoverable by Lessor
for the Total Taking, relating to the Premises. Lessee shall be entitled to
claim and receive any insurance proceeds with respect to the Personal Property,
the
interruption
of its business and moving expenses, but only if such claim or proceeds does
not
adversely affect or interfere with the prosecution of Lessor’s claim for the
Total Casualty, or otherwise reduce the amount recoverable by Lessor for the
Total Casualty, relating to the Premises.
In
the
event of a Total Taking or Total Casualty, Lessee shall have the right to
terminate this Lease by written notice (the “Termination Notice”) given to
Lessor not later than 45 days after the Total Taking or Total Casualty, as
applicable. The Termination Notice must: (i) specify a date on which this Lease
shall terminate, which date shall be the last day of a calendar month occurring
not earlier than 30 days and not later than 150 days after the delivery of
such
notice (the “Early Termination Date”); and (ii) contain a certificate executed
by the president, chief financial officer or treasurer of Lessee which (X)
describes the Total Taking or Total Casualty, and (Y) represents and warrants
that either the whole of the Premises has been taken, or that substantially
all
of the Premises has been taken and Lessee has determined in good faith that
the
restoration and continued use of the remainder of the Premises as a Permitted
Concept would be uneconomic, or that either the whole or substantially all
of
the Premises has been damaged or destroyed and Lessee has determined in good
faith that the restoration and continued use of the Premises as a Permitted
Concept would be uneconomic. If this Lease is terminated pursuant to this
Section, (i) the net award for such Total Taking or net insurance proceeds
for such Total Casualty, as applicable, relating to the Premises, after
deducting all costs, fees and expenses incident to the collection thereof,
including all costs and expenses incurred by Lessor in connection therewith
(the
“Net Award”) shall be paid to and belong to Lessor (provided, however, that the
Net Award shall not include any award or proceeds for the Personal Property,
the
interruption of Lessee’s business and moving expenses, all of which shall belong
to Lessee), (ii) on the Termination Date, Lessee shall pay to Lessor all
Base Annual Rental, Additional Rental and other sums and obligations accrued
through the date of Taking or Casualty (and all of the foregoing amounts shall
xxxxx after the date of Taking or Casualty), and (iii) Lessee shall have no
obligation to repair or restore the Premises, and all obligations of either
party hereunder shall cease as of the Termination Date; provided, however,
Lessee’s and Lessor’s indemnification obligations with respect to the Premises
under any indemnification provisions of this Lease.
C. In
the
event of a Taking of all or any part of the Premises for a temporary use lasting
not longer than three (3) years (“Temporary Taking”), this Lease shall remain in
full force and effect without any reduction of Base Annual Rental, Additional
Rental or any other sum payable hereunder. Except as provided below, Lessee
shall be entitled to the entire award for a Temporary Taking, whether paid
in
the form of damages, rent or otherwise, unless the period of occupation and
use
by the condemning authorities shall extend beyond the date of expiration of
this
Lease, in which case the award made for such Taking shall be apportioned between
Lessor and Lessee as of the date of such expiration. At the termination of
any
such Temporary Taking, Lessee will, at its own cost and expense and pursuant
to
the terms of Section 16 above, promptly commence and complete the restoration
of
the Premises; provided, however, Lessee shall not be required to restore the
Premises if the Lease Term shall expire prior to, or within one (1)
year
after, the date of termination of such Temporary Taking, and in such event
Lessor shall be entitled to recover that portion of the award relating to the
Temporary Taking, which is attributable to the restoration cost.
D. In
the
event of a Taking which is not a Total Taking or a Temporary Taking (“Partial
Taking”) or of a Casualty which is not a Total Casualty (a “Partial Casualty”),
all awards, compensation or damages, except amounts paid for Lessee’s Personal
Property and interruption of its business, shall be paid to Lessor, and Lessor
shall have the option to (i) terminate this Lease by notifying Lessee within
60
days after Lessee gives Lessor notice of such Partial Taking or Partial Casualty
or that title has vested in the taking authority or (ii) continue this Lease
in
effect, which election may be evidenced by either a notice from Lessor to Lessee
or Lessor’s failure to notify Lessee that Lessor has elected to terminate this
Lease within such 60 day period. Lessee shall have a period of 60 days after
Lessor’s notice that it has elected to terminate this Lease which
is
actually or deemed to have been issued, during
which to elect to continue this Lease on the terms herein provided. If Lessor
elects to terminate this Lease and Lessee does not elect to continue this Lease
or shall fail during such 60 day period to notify Lessor in writing of Lessee’s
intent to continue this Lease, then this Lease shall terminate as of the last
day of the month during which such period expired. Lessee shall then immediately
vacate and surrender the Premises, all obligations of either party hereunder
shall cease as of the date of termination (provided, however, Lessee’s and
Lessor’s obligations under any indemnification provisions of this Lease
(including, without limitation, Sections 14 and 17) and Lessee’s obligations to
pay Base Annual Rental, Additional Rental and all other sums (whether payable
to
Lessor or a third party,
reduced
equitably based on the portion of the Premises which was rendered unusable
by
the Taking or Casualty)
accruing under this Lease prior to the date of termination shall survive such
termination) and, except for amounts paid for Lessee’s Personal Property,
interruption of business and moving expenses, Lessor may retain all such awards,
compensation or damages. If Lessor elects not to terminate this Lease, or if
Lessor elects to terminate this Lease but Lessee elects to continue this Lease,
then this Lease shall continue in full force and effect on the following terms:
(i) all Base Annual Rental, Additional Rental and other sums and obligations
due
under this Lease shall xxxxx
equitably based upon the unusable portion of the Premises until the Premises
are
completely restored (and, in the case of a Partial Taking, the foregoing amounts
shall be equitably reduced after the date on which the Premises are restored,
for the remainder of the Lease Term, based on the areas of the Premises which
are taken or rendered unusable as a result of the Partial Taking), and
(ii)
Lessor shall assign to Lessee any and all award, compensation or damages
received by Lessor after deducting all actual and reasonable costs, fees and
expenses incident to the collection thereof, including all actual and reasonable
costs and expenses incurred by Lessor in connection therewith (the “Net
Restoration Amount”), and Lessee shall promptly commence and diligently
prosecute restoration of the Premises to the same condition, as nearly as
practicable, as prior to such Partial Taking or Partial Casualty as approved
by
Lessor. Lessee shall be entitled to keep any portion of the Net Restoration
Amount which may be in excess of the cost of restoration and Lessee shall bear
all additional costs, fees and expenses of such restoration in excess of the
Net
Restoration Amount. If this Lease is terminated as a result of a Partial
Casualty, simultaneously with such termination,
Lessee
shall pay Lessor an amount equal to the insurance deductible applicable to
such
Partial Casualty.
E. Any
loss
under any property damage insurance required to be maintained by Lessee shall
be
adjusted by Lessor and Lessee. Any award relating to a Total Taking or a Partial
Taking shall be adjusted by Lessor and Lessee. Notwithstanding the foregoing
or
any other provisions of this Section to the contrary, if at the time of any
Taking or any Casualty or at any time thereafter an Event of Default shall
have
occurred and be continuing under this Lease, Lessor is hereby authorized and
empowered but shall not be obligated, in the name and on behalf of Lessee and
otherwise, to file and prosecute Lessee’s claim, if any, for an award on account
of such Taking or for insurance proceeds on account of such Casualty and to
collect such award or proceeds and apply the same, after deducting all actual
and reasonable costs, fees and expenses incident to the collection thereof,
to
the curing of such Event of Default and any other then existing Event of Default
under this Lease and/or to the payment of any amounts owed by Lessee to Lessor
under this Lease, in such order, priority and proportions as Lessor in its
discretion shall deem proper.
F. Notwithstanding
the foregoing, nothing in this Section 19 shall be construed as limiting or
otherwise adversely affecting the representations, warranties, covenants and
characterizations set forth in Lease.
20. Inspection. Lessor
and its authorized representatives shall have the right, upon reasonable prior
notice to Lessee, in a manner reasonably designed to not interfere with Lessee’s
conduct of its business at the Premises, during normal business hours (or at
any
time in the event of an emergency) to enter the Premises or any part thereof
at
reasonable times in order to inspect the same and make photographic or other
evidence concerning Lessee’s compliance with the terms of this Lease or in order
to show the Premises to prospective purchasers and lenders. Except in the event
of Lessor’s or its representatives’ or contractors’ negligence or willful
misconduct, Lessee hereby waives any claim for damages for any injury or
inconvenience to or interference with Lessee’s business, any loss of occupancy
or quiet enjoyment of the Premises and any other loss occasioned by such entry
so long as Lessor or its representatives and contractors shall have used
diligent efforts not to unreasonably interrupt Lessee’s normal business
operations. Lessee shall keep and maintain at the Premises or Lessee’s chief
executive office full, complete and appropriate records of Lessee’s repair and
maintenance of the Premises. Lessee’s repair and maintenance records relating to
the Premises shall at all reasonable times be open for inspection by Lessor,
Lender and their respective auditors or other authorized
representatives.
21. Default,
Remedies and Measure of Damages.
A. Each
of
the following shall be an event of default under this Lease (each, an “Event of
Default”):
(i) If
any
representation or warranty of Lessee set forth in this Lease or of Guarantor
set
forth in the Guaranty is false when made in any material respect,
or
if
Lessee or Guarantor renders any materially false statement or account to Lessor
or any Lender;
(ii) If
any
rent or other monetary sum due under this Lease is not paid within five (5)
days
from the date when due; provided, however, notwithstanding the occurrence of
such an Event of Default, Lessor shall not be entitled to exercise its remedies
set forth below unless and until Lessor shall have given Lessee written notice
thereof and a period of five (5) days from Lessee’s receipt of such notice shall
have elapsed without such Event of Default being cured;
(iii) Subject
to the provisions of Section 8 of this Lease, if Lessee fails to pay, prior
to
delinquency, any taxes, assessments or other charges the failure of which to
pay
will result in the imposition of a lien against the Premises pursuant to
Applicable Regulations and
if
such failure is not cured within five (5) days after Lessee’s receipt of
Lessor’s written notice relating thereto;
(iv) If
Lessee
or Guarantor files or notifies Lessor that it intends to file a petition under
the Code, initiates a proceeding under any similar law or statute relating
to
bankruptcy, insolvency, reorganization, winding up or adjustment of debts
(collectively, hereinafter, an “Action”), becomes the subject of either a
petition under the Code or an Action, and
if
such petition is not withdrawn within ninety (90) days; or if Lessee or
Guarantor is not generally paying its debts as the same become due, and if
such
condition is not cured within sixty (60) days after Lessee’s receipt of Lessor’s
written notice relating thereto;
(v) If
Lessee
fails to maintain insurance in accordance with the requirements of Section
10 of
this Lease and if such failure is not cured within five (5) days after Lessee’s
receipt of Lessor’s written notice relating thereto;
(vii) If
Lessee
fails to observe or perform any of the other covenants, conditions, or
obligations of this Lease; provided, however, if any such failure does not
involve the payment of any monetary sum, does not place any rights or property
of Lessor in immediate jeopardy, and is within the reasonable power of Lessee
to
promptly cure after Lessee’s receipt of Lessor’s written notice thereof, all as
determined by Lessor in its reasonable discretion, then such failure shall
not
constitute an Event of Default hereunder, unless otherwise expressly provided
herein, unless and until Lessor shall have given Lessee written notice thereof
and a period of 30 days shall have elapsed from Lessee’s receipt of such notice,
during which period Lessee may correct or cure such failure, upon failure of
which an Event of Default shall be deemed to have occurred hereunder without
further notice or demand of any kind being required. If such failure cannot
reasonably be cured within such 30-day period, as determined by Lessor in its
reasonable discretion, and Lessee is diligently pursuing a cure of such failure,
then Lessee shall have a reasonable period to cure such failure beyond such
30-day period, which shall in no event exceed 90 days after Lessee’s receipt of
written notice of such failure from Lessor. If Lessee shall fail to correct
or
cure such failure within
such
90-day period, an Event of Default shall be deemed to have occurred hereunder
without further notice or demand of any kind being required;
(vii) If
a
final, nonappealable judgment is rendered by a court against Lessee which has
a
material adverse effect on the ability to conduct business at the Premises
for
its intended use, and is not discharged or provision made for such discharge
within 60 days from the date of entry thereof.
B. Subject
to Lessor’s obligation to make reasonable efforts to mitigate its damages, upon
the occurrence of an Event of Default, with or without notice or demand, except
the notice prior to default required under certain circumstances by
subsection A above or such other notice as may be required by statute and
cannot be waived by Lessee (all other notices being hereby waived), Lessor
shall
be entitled to exercise, at its option, concurrently, successively, or in any
combination, all remedies available at law or in equity, including without
limitation any one or more of the following (provided,
however, that Lessor shall not be entitled to duplicative remedies under any
circumstance whatsoever):
(i) To
terminate this Lease without any right of Lessee to reinstate Lessee’s rights by
payment of any rentals due hereunder, including Base Annual Rental and
Additional Rental, or other performance of the terms and conditions hereof,
whereupon Lessee’s right to possession of the Premises shall cease (and Lessee
shall immediately surrender possession of the Premises to Lessor) and this
Lease, except as to Lessee’s liability accrued prior to such termination, shall
be terminated. Lessee hereby expressly waives any and all rights of redemption
granted by or under present or future law in the event this Lease is terminated
pursuant to the provision of this Paragraph or Lessee is evicted or dispossessed
by reason of any breach by Lessee of any provisions of the Lease.
(ii) To
reenter and take possession of the Premises, any or all Personal Property and,
to the extent permissible, all franchises, licenses, area development
agreements, permits and other rights or privileges of Lessee pertaining to
the
use and operation of the Premises and to expel Lessee and those claiming under
or through Lessee, without being deemed guilty in any manner of trespass or
becoming liable for any loss or damage resulting therefrom, except in the event
of Lessor’s negligence or willful misconduct, without resort to legal or
judicial process, procedure or action. No notice from Lessor hereunder or under
a forcible entry and detainer statute or similar law shall constitute an
election by Lessor to terminate this Lease unless such notice specifically
so
states. If Lessee shall, after the occurrence of an Event of Default,
voluntarily give up possession of the Premises to Lessor, deliver to Lessor
or
its agents the keys to the Premises, or both, such actions shall be deemed
to be
in compliance with Lessor’s rights and the acceptance thereof by Lessor or its
agents shall not be deemed to constitute a termination of this Lease. Lessor
reserves the right following any reentry and/or reletting to exercise its right
to terminate this Lease by giving Lessee written notice thereof, in which event
this Lease will terminate as specified in said notice.
(iii) To
seize
all Personal Property (subject to any and all rights thereto and security and
other interests therein held by lenders of Lessee or any of its affiliates),
and
to dispose thereof in accordance with the laws prevailing at the time and place
of such seizure or to remove all or any portion of such Personal Property and
cause the same to be stored in a public warehouse or elsewhere at Lessee’s sole
expense, without becoming liable for any loss or damage resulting therefrom,
except in the event of Lessor’s negligence or willful misconduct, and without
resorting to legal or judicial process, procedure or action.
(iv) To
bring
an action against Lessee for any actual damages sustained by Lessor or any
equitable relief available to Lessor.
(v) To
relet
the Premises or any part thereof for such term or terms (including a term which
extends beyond the original Lease Term), at such rentals and upon such other
terms as Lessor, in its reasonable discretion, may determine, with all proceeds
received from such reletting being applied to the rental and other sums due
from
Lessee in such order as Lessor, may, in its reasonable discretion, determine,
which other sums include, without limitation, all actual and reasonable
repossession costs, brokerage commissions, attorneys’ fees and expenses,
employee expenses, alteration, remodeling and repair costs and expenses of
preparing for such reletting. Except to the extent required by applicable law,
and subject to Lessor’s obligation to make reasonable efforts to mitigate its
damages, Lessor shall have no obligation to relet the Premises or any part
thereof and shall in no event be liable for refusal or failure to relet the
Premises or any part thereof, or, in the event of any such reletting, for
refusal or failure to collect any rent due upon such reletting, and no such
refusal or failure shall operate to relieve Lessee of any liability under this
Lease or otherwise to affect any such liability. Lessor reserves the right
following any such reentry and/or reletting to exercise its right to terminate
this Lease by giving Lessee written notice thereof, in which event this Lease
will terminate as specified in said notice.
(vi) To
accelerate and recover from Lessee all rent and other monetary sums due and
owing and scheduled to become due and owing under this Lease both before and
after the date of such breach for the entire original scheduled Lease Term
discounted to present value
and
reduced by the fair rental value of the Premises for the remainder of the
original scheduled Lease Term.
(vii) To
recover from Lessee all reasonable and actual costs and expenses, including
attorneys’ fees, court costs, expert witness fees, costs of tests and analyses,
travel and accommodation expenses, deposition and trial transcripts, copies
and
other similar actual and reasonable costs and fees, paid or incurred by Lessor
as a result of such Event of Default.
(viii) To
immediately or at any time thereafter, and with or without notice, at Lessor’s
sole option but without any obligation to do so, correct such breach or default
and charge Lessee all reasonable and actual costs and expenses incurred by
Lessor therein. Any sum or sums so paid by Lessor, together with interest at
the
Default Rate, shall be deemed to be Additional Rent hereunder and shall be
immediately due from Lessee to Lessor.
(ix) To
immediately or at any time thereafter, and with or without notice, except as
required herein, set off any money of Lessee held by Lessor under this Lease
against any sum owing by Lessee.
(x) To
seek
any equitable relief available to Lessor, including, without limitation, the
right of specific performance.
(xii) To
enforce, and Lessee does hereby consent to such enforcement, all of Lessor’s
self-help remedies available at law or in equity without Lessor resorting to
any
legal or judicial process, procedure or action.
Lessee
and Lessor expressly waives any right of defense which such party may have
based
on any purported merger of any cause of action, and neither the commencement
of
any action or proceeding nor the settlement thereof or entering of judgment
therein shall bar such party from bringing subsequent actions or proceedings
from time to time. Any law, usage or custom to the contrary notwithstanding,
Lessor shall have the right at all times to enforce all terms, conditions and
covenants hereof in strict accordance herewith, notwithstanding any conduct
or
custom on the part of Lessor in refraining from so doing at any time or times.
Further, the failure of any party at any time or times to enforce its rights
hereunder strictly in accordance with the same shall not be construed as having
created a custom in any way or manner contrary to any specific term, condition
or covenant hereof, or as having in any way or manner modified the
same.
All
powers and remedies given by this Section to Lessor and Lessee, subject to
applicable law, shall be cumulative and not exclusive of one another or of
any
other right or remedy or of any other powers and remedies available to such
party under this Lease, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements of the other party
contained in this Lease, and no delay or omission of such party to exercise
any
right or power accruing upon the occurrence of any Event of Default (or Lessor’s
breach of this Lease, as applicable) shall impair any other or subsequent Event
of Default (or Lessor’s breach of this Lease, as applicable) or impair any
rights or remedies consequent thereto. Every power and remedy given by this
Section or by law to Lessor or Lessee may be exercised from time to time,
and as often as may be deemed expedient, by such party, subject at all times
to
such party’s right in its sole judgment to discontinue any work commenced by
such party or change any course of action undertaken by such party.
In
the
event of an emergency, then, without waiving any Event of Default which may
result from such emergency, Lessor may, but without any obligation to do so,
take all reasonable and necessary actions in connection therewith, including,
without limitation, enter upon the Premises to perform Lessee’s obligations,
immediately and without notice. All reasonable and actual expenses incurred
by
Lessor in connection with performing such obligations of Lessee, including,
without limitation, reasonable attorneys’ fees and expenses, together with
interest at the Default Rate from the date
any
such
expenses were incurred by Lessor until the date of payment by Lessee, shall
constitute Additional Rental and shall be paid by Lessee to Lessor upon
demand.
Should
Lessor default in the performance of any covenant or agreement herein, and
such
default continue for thirty (30) days after receipt by Lessor of written notice
thereof from Lessee, Lessee may (i) terminate this Lease upon written notice
to
Lessor; or (ii) pay any sums necessary to perform any obligation of Lessor
in
default hereunder and require Lessor to reimburse such sum to Lessee within
five
(5) business days of Lessor’s receipt of Lessee’s written demand therefor; or
(iii) pursue any other available legal or equitable remedy. In the event Lessee
reasonably and actually incurs any expenses because of Lessor’s failure to
fulfill its obligations set forth in this Lease, Lessor agrees to reimburse
Lessee for such expense upon written demand by Lessee. In the event of an
emergency, then, without waiving any default by Lessor hereunder which may
result from such emergency, Lessee may, but without any obligation to do so,
take all reasonable and necessary actions in connection with such emergency,
including, without limitation, performing Lessor’s obligations, immediately and
without notice. All reasonable and necessary expenses actually incurred by
Lessee in connection with performing such obligations, including, without
limitation, reasonable attorneys’ fees and expenses, shall be paid by Lessor to
Lessee within five (5) business days of Lessor’s receipt of Lessee’s written
demand therefor.
23. Mortgage,
Subordination, Nondisturbance and Attornment.
Lessor’s
interest in this Lease and/or the Premises shall not be subordinate to any
encumbrances placed upon the Premises by or resulting from any act of Lessee,
and nothing herein contained shall be construed to require such subordination
by
Lessor. Lessee shall keep the Premises free from any liens for work performed,
materials furnished or obligations incurred by Lessee. EXCEPT AS OTHERWISE
CONSENTED TO BY LESSOR PURSUANT TO SECTION 25, NOTICE IS HEREBY GIVEN THAT
LESSEE IS NOT AUTHORIZED TO PLACE OR ALLOWED TO BE PLACED ANY LIEN, MORTGAGE,
DEED OF TRUST OR ENCUMBRANCE OF ANY KIND UPON ALL OR ANY PART OF THE PREMISES
OR
LESSEE’S LEASEHOLD INTEREST THEREIN, AND ANY SUCH PURPORTED TRANSACTION SHALL BE
VOID. FURTHERMORE, ANY SUCH PURPORTED TRANSACTION SHALL BE DEEMED A TORTIOUS
INTERFERENCE WITH LESSOR’S RELATIONSHIP WITH LESSEE AND LESSOR’S FEE OWNERSHIP
OF THE PREMISES.
This
Lease at all times shall automatically be subordinate to the lien of any and
all
ground leases, mortgages and trust deeds now or hereafter placed upon the
Premises by Lessor, whose
holder provides Lessee with non-disturbance agreements reasonably acceptable
to
Lessee, and Lessee
covenants and agrees to execute and deliver, upon demand, such further
instruments subordinating this Lease to the lien of any or all such ground
leases, mortgages or trust deeds as shall be desired by Lessor, or any present
or proposed mortgagees or trustees under trust deeds, substantially in the
form
attached hereto as Exhibit C and made a part hereof, upon the condition that
Lessee shall have the right to remain in possession of the Premises under the
terms of this Lease, notwithstanding any default in any or all such mortgages
or
trust deeds, or after
foreclosure
thereof, so long as no Event of Default shall have occurred and be
continuing
and that
Lessor’s successor in interest shall assume and perform Lessor’s obligations
hereunder.
If
any
mortgagee or trustee elects to have this Lease and the interest of Lessee
hereunder be superior to any such interest or right and evidences such election
by notice given to Lessee, then this Lease and the interest of Lessee hereunder
shall be deemed superior to any such mortgage or trust deed, whether this Lease
was executed before or after such mortgage or trust deed and in that event
such
mortgagee or trustee shall have the same rights with respect to this Lease
as if
it had been executed and delivered prior to the execution and delivery of the
mortgage or trust deed and has been assigned to such mortgagee or
trustee.
Although
the foregoing provisions shall be self-operative and no future instrument of
subordination shall be required, upon request by Lessor, Lessee shall execute
and deliver whatever instruments may be required for such purposes in form
and
substance reasonably acceptable to Lessee, in exchange for non-disturbance
assurances reasonably satisfactory to Lessee.
In
the
event any purchaser or assignee of any Lender at a judicial or nonjudicial
foreclosure sale acquires title to the Premises, or in the event any Lender
or
any purchaser or assignee otherwise succeeds to the rights of Lessor as landlord
under this Lease, Lessee shall attorn to such Lender or such purchaser or
assignee, as the case may be (a “Successor Lessor”), and recognize the Successor
Lessor as lessor under this Lease, so long as the Successor Lessor assumes
and
performs Lessor’s obligations hereunder, and, subject to the provisions of this
Section, this Lease shall continue in full force and effect as a direct lease
between the Successor Lessor and Lessee, provided that the Successor Lessor
shall only be liable for any obligations of the lessor under this Lease which
accrue after the date that such Successor Lessor acquires title. The foregoing
provision shall be self operative and effective without the execution of any
further instruments.
Lessee
shall give written notice to any Lender, whose name and address are provided
to
Lessee by Lessor in writing, having a recorded lien upon any of the Premises
or
any part thereof of which Lessee has been notified of any breach or default
by
Lessor of any of its obligations under this Lease simultaneously with the giving
of such notice to Lessor, and Lessee shall give such Lender at least thirty
(30)
days beyond any notice period to which Lessor might be entitled to cure such
default before Lessee may exercise any remedy with respect thereto. Upon request
by Lessor, Lessee shall also provide Guarantor’s most recent annual or quarterly
report filed with the Securities and Exchange Commission to Lessor or any such
Lender, if such report is not available on the Internet.
24. Estoppel
Certificate.
At any
time, and from time to time, Lessee agrees, promptly and in no event later
than
20 days after Lessee’s receipt of a written request from Lessor, to execute,
acknowledge and deliver to Lessor or any present or proposed mortgagee or
purchaser designated by Lessor a certificate substantially in the form
attached
hereto as Exhibit D, certifying: (i) that Lessee has accepted the Premises
(or, if Lessee has not done so, that Lessee has not accepted the Premises,
and
specifying the reasons therefor); (ii) that this Lease is in full force and
effect and has not been modified (or if modified, setting forth all
modifications), or, if this Lease is not in full force and effect, the
certificate shall so specify the reasons therefor; (iii) the commencement
and expiration dates of the Lease Term and the terms of any extension options
of
Lessee; (iv) the date to which the rentals have been paid under this Lease
and the amount thereof then payable; (v) whether there are then, to
Lessee’s actual knowledge, any existing defaults by Lessor in the performance of
its obligations under this Lease, and, if there are any such defaults,
specifying the nature and extent thereof; (vi) that no notice has been
received by Lessee of any default under this Lease which has not been cured,
except as to defaults specified in the certificate; (vii) the capacity of
the person executing such certificate, and that such person is duly authorized
to execute the same on behalf of Lessee; and (viii) any other information
reasonably requested by Lessor, or its present or proposed purchaser or
mortgagee.
25. Assignment.
Lessor
shall have the right to sell or convey the Premises subject to this Lease or
to
assign its right, title and interest as Lessor under this Lease in whole or
in
part. In the event of any such sale or assignment other than a security
assignment, Lessee shall attorn to such purchaser or assignee which assumes
and
agrees in writing to perform Lessor’s obligations under this Lease from and
after the effective date of such assumption, a copy of which assumption shall
be
provided to Lessee, and Lessor shall be relieved, from and after the date of
such transfer or conveyance, of liability for the performance of any obligation
of Lessor contained herein, except for obligations or liabilities accrued prior
to such assignment or sale.
Lessee
acknowledges that Lessor has relied both on the business experience and
creditworthiness of Lessee and upon the particular purposes for which Lessee
intends to use the Premises in entering into this Lease. Without
the prior written consent of Lessor: (i) Lessee shall not assign, transfer,
convey, pledge or mortgage this Lease or any interest therein, whether by
operation of law or otherwise to any Person not controlled by Guarantor; (ii)
no
Change of Control shall occur; (iii) no interest in Lessee shall be pledged,
encumbered, hypothecated or assigned as collateral for any obligation of Lessee
or Guarantor, and (iv) Lessee shall not sublet all or any part of the Premises
to any Person not controlled by Guarantor (each of items (i) through (iv) are
hereinafter referred to as a “Prohibited Transaction”). In addition, no interest
in Lessee shall be transferred, assigned or conveyed to any individual or person
whose property or interests are subject to being blocked under any of the OFAC
Laws and Regulations and/or who is in violation of any of the OFAC Laws and
Regulations, and any such transfer, assignment or conveyance shall not be
effective until the transferee has provided written certification to Lessor
that
(A) the transferee or any person who owns directly or indirectly any
interest in transferee, is not an individual or entity whose property or
interests are subject to being blocked under any of the OFAC Laws and
Regulations or is otherwise in violation of the OFAC Laws and Regulations,
and
(B) the transferee has taken reasonable measures to assure than any
individual or entity who owns directly or indirectly any interest in transferee,
is not an individual or entity whose
property
or interests are subject to being blocked under any of the OFAC Laws and
Regulations or is otherwise in violation of the OFAC Laws and Regulations;
provided, however, the covenant contained in this sentence shall not apply
to
any Person to the extent that such Person’s interest is in or through a U.S.
Publicly Traded Entity. Notwithstanding anything to the contrary contained
herein, Lessee shall have the right at any time and from time to time to cause
any Affiliate of Lessee or Guarantor to operate its business at the Premises,
through a sublease, assignment or otherwise, so long as such business does
not
deviate from the Permitted Concept and in all other respects is in compliance
with the terms and provisions hereof.
Lessor’s
consent to a Prohibited Transaction shall be subject to the satisfaction of
such
conditions as Lessor shall determine in its reasonable discretion, including,
without limitation, (i) Lessee having executed and delivered such non-material
modifications to the terms of this Lease as Lessor shall reasonably request,
(ii) the proposed transferee having assumed this Lease, (iii) payment to Lessor
of fifty percent (50%) of any gross rentals payable under a sublease which
are
in excess of any and all rentals, taxes, utilities, insurance and other amounts
payable by Lessee under this Lease (net of Lessee’s reasonable and actual
sublease related costs), and (iv) the proposed transferee having satisfactory
creditworthiness and satisfactory experience operating a Permitted Concept.
In
addition, any such consent shall be conditioned upon the payment by Lessee
to
Lessor of an amount not to exceed $3,000 per consent granted to reimburse Lessor
for all out-of-pocket costs and expenses reasonably and actually incurred by
Lessor in connection with such consent, including, without limitation,
reasonable attorneys’ fees. The provisions of this Section shall apply to every
Prohibited Transaction regardless of whether voluntary or not, or whether or
not
Lessor has consented to any previous Prohibited Transaction. No assignment
of
this Lease or subletting of the Premises shall relieve Lessee of its obligations
under this Lease or any guarantor of this Lease of any of its obligations under
its guaranty. Any Prohibited Transaction in violation of this Section shall
be
voidable at the sole option of Lessor.
26. Option
To Extend.
Lessee,
provided an Event of Default shall not have occurred and be continuing at the
time of exercise or at the expiration of the Lease Term or, if applicable,
the
first extension of the Lease Term, shall have the option to continue this Lease
in effect for up to two (2) additional successive periods of five (5) years
each
in accordance with the terms and provisions of this Lease then in effect,
including, without limitation, adjustments in the Base Annual Rental during
such
extension term in accordance with the provisions of Section 4. If
Lessee
desires to extend the term of this Lease, Lessee shall exercise such extension
option by giving written notice to Lessor of Lessee’s intention to do so not
less than 210 days prior to the expiration of the Lease Term or the then
applicable Lease Term.
27. Notices.
All
notices, consents, approvals or other instruments required or permitted to
be
given by either party pursuant to this Lease shall be in writing and given
by
(i) hand delivery, (ii) facsimile, (iii) express overnight
delivery service providing delivery confirmation or (iv) certified or
registered mail, return receipt requested, and shall be
deemed
to
have been delivered upon (a) receipt, if hand delivered, (b) confirmed
transmission, if delivered by facsimile, (c) the next Business Day, if delivered
by express overnight delivery service, or (d) the third Business Day following
the day of deposit of such notice with the United States Postal Service, if
sent
by certified or registered mail, return receipt requested. Notices shall be
provided to the parties and addresses (or facsimile numbers, as applicable)
specified below:
|
If
to Lessee:
|
COST-U-LESS
|
|
0000
000xx
Xxxxx XX, Xxx. 000
|
Xxxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxx
Tel.:
(000) 000-0000
Fax:
(000) 000-0000
With
copies to:
Xxxxx
X. Xxxx
Xxxxxxx
Xxxxxxxx X.X.
0000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Tel.:
(000) 000-0000
|
Fax:
(000) 000-0000
|
|
If
to Lessor:
|
Xxxx
XX St. Croix USVI, LLC, a Delaware limited liability
company
|
Attention:
Legal Department
0000
X.
Xxxxxxxxx Xxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
or
to
such other address or such other person as either party may from time to time
hereafter specify to the other party in a notice delivered in the manner
provided above.
28. Holding
Over.
If
Lessee remains in possession of the Premises after the expiration of the Lease
Term, Lessee, at Lessor’s option and within Lessor’s sole discretion, may be
deemed a tenant on a month-to-month basis and shall continue to pay rentals
and
other sums in the amounts herein provided, except that, unless otherwise agreed
by and between Lessor and Lessee in writing, the Base Monthly Rental shall
be
automatically increased to one hundred twenty-five percent (125%) of the last
Base Monthly Rental payable under this Lease, and to comply with all the terms
of this Lease; provided that nothing herein nor the acceptance of rent by Lessor
shall be deemed a consent to such holding over without Lessor’s express written
consent to such holding over. If Lessee holds over without Lessor’s express
written consent, Lessee shall defend, indemnify, protect and hold the
Indemnified Parties harmless for, from and against any and all Losses resulting
from Lessee’s failure to surrender possession upon the expiration of the Lease
Term, including, without limitation, any claims made by any succeeding
lessee.
29. Removal
of Lessee’s Property.
At the
expiration of the Lease Term, and if no Event of Default has occurred and is
then continuing, Lessee may remove from the Premises all Personal Property;
provided, however, that Lessee shall surrender the Premises with any and all
HVAC equipment, walk-in coolers and walk-in freezers then located at the
Premises, free of charge, in their then-existing condition, AS IS, WHERE IS,
WITH ALL FAULTS. Lessee shall repair any damage caused by such removal and
shall
leave the Premises broom clean and in good and working condition and repair
inside and out, subject to ordinary wear and tear and, in the event this Lease
is terminated pursuant to Section 19 hereof due to a casualty or condemnation,
casualty and condemnation damages. Any property of Lessee left on the Premises
on the thirtieth (30th)
day
following the expiration of the Lease Term shall, at Lessor’s option,
automatically and immediately become the property of Lessor. Lessor hereby
waives any and all statutory or other liens it may have on the Personal
Property.
31. Financial
Statements.
Upon
Lessor’s request, at any time after the filing of the applicable report with the
Securities and Exchange Commission, Lessee shall deliver to Lessor a copy of
the
most recent annual or quarterly report of Guarantor filed with the Securities
and Exchange Commission, if such report is not available on the Internet. Lessee
and, by execution of the Guaranty, Guarantor, understand that Lessor is relying
upon such reports and Lessee and Guarantor represent that such reliance is
reasonable.
32. Force
Majeure.
Any
prevention, delay or stoppage due to strikes, lockouts, acts of God, enemy
or
hostile governmental action, civil commotion, fire or other casualty beyond
the
control of the party obligated to perform shall excuse the performance by such
party for a period equal to any such prevention, delay or stoppage, except
the
obligations imposed with regard to rental and other monies to be paid by Lessee
pursuant to this Lease.
33. Time
is of the Essence.
Time is
of the essence with respect to each and every provision of this Lease in which
time is a factor.
35. Lessor’s
Liability.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary consideration
for the execution of this Lease by Lessor, that (i) there shall be
absolutely no personal liability on the part of Lessor, its successors or
assigns and the trustees, members, partners, shareholders, officers, directors,
employees and agents of Lessor and its successors or assigns (collectively,
the
“Lessor Parties”), to Lessee with respect to any of the terms, covenants and
conditions of this Lease (except as set forth in subparagraph (iii) below),
(ii) Lessee waives all claims, demands and causes of action against the
Lessor Parties in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor (except as
set
forth in subparagraph (iii) below), and (iii) Lessee shall look solely to
Lessor’s and the Lessor Parties’ interest in the Premises for the satisfaction
of each and every remedy of Lessee in the event of any breach by Lessor of
any
of the terms, covenants and conditions of this Lease to be performed by Lessor,
or any other matter in connection with this Lease or the
Premises,
such exculpation of liability to be absolute and without any exception
whatsoever.
36. Consent
of Lessor.
Unless
specified otherwise herein, Lessor’s consent to any request of Lessee may be
conditioned or withheld in Lessor’s reasonable discretion. Lessor shall have no
liability for damages resulting from Lessor’s failure to give any consent,
approval or instruction reserved to Lessor, if such failure is reasonable,
Lessee’s sole remedy in any such event being an action for injunctive
relief.
37. Waiver
and Amendment.
No
provision of this Lease shall be deemed waived or amended except by a written
instrument unambiguously setting forth the matter waived or amended and signed
by the party against which enforcement of such waiver or amendment is sought.
Waiver of any matter shall not be deemed a waiver of the same or any other
matter on any future occasion. Unless otherwise stated by Lessor in writing,
no
acceptance by Lessor of an amount less than the monthly rent and other payments
stipulated to be due under this Lease shall be deemed to be other than a payment
on account of the earliest such rent or other payments then due or in arrears
nor shall any endorsement or statement on any check or letter accompanying
any
such payment be deemed a waiver of Lessor’s right to collect any unpaid amounts
or an accord and satisfaction.
38. Successors
Bound.
Except
as otherwise specifically provided herein, the terms, covenants and conditions
contained in this Lease shall bind and inure to the benefit of the respective
heirs, successors, executors, administrators and assigns of each of the parties
hereto.
39. No
Merger.
The
voluntary or other surrender of this Lease by Lessee, or a mutual cancellation
thereof, shall not result in a merger of Lessor’s and Lessee’s estates, and
shall, at the option of Lessor, either terminate any or all existing subleases
or subtenancies, or operate as an assignment to Lessor of any or all of such
subleases or subtenancies.
40. Captions.
Captions
are used throughout this Lease for convenience of reference only and shall
not
be considered in any manner in the construction or interpretation
hereof.
41. Severability.
The
provisions of this Lease shall be deemed severable. If any part of this Lease
shall be held unenforceable by any court of competent jurisdiction, the
remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal effect
to
the intention of the parties as expressed therein.
42. Independent
Counsel.
Lessor
and Lessee acknowledge and warrant to each other that each has been represented
by independent counsel and has executed this Lease after being fully advised
by
said counsel as to its effect and significance. This Lease shall be interpreted
and construed in a fair and impartial manner without regard to such factors
as
the party which prepared the instrument, the relative bargaining powers of
the
parties or the domicile of any party. Whenever in this Lease any words of
obligation or duty are used, such words or expressions shall have the same
force
and effect as though made in the form of a covenant.
43. Easements.
During
the Lease Term Lessor shall have the right to grant utility easements on, over,
under and above the Premises without the prior consent of Lessee, provided
that
such easements will not materially interfere with Lessee’s conduct of its
business at the Premises.
44. Bankruptcy.
A. As
a
material inducement to Lessor executing this Lease, Lessee acknowledges and
agrees that Lessor is relying upon (i) the financial condition and specific
operating experience of Lessee and Lessee’s obligation to use the Premises as a
Permitted Concept, (ii) Lessee’s timely performance of all of its
obligations under this Lease notwithstanding the entry of an order for relief
under the Code for Lessee and (iii) all defaults under this Lease being
cured promptly and this Lease being assumed within 60 days of any order for
relief entered under the Code for Lessee, or this Lease being rejected within
such 60 day period and the Premises surrendered to Lessor.
Accordingly,
in consideration of the mutual covenants contained in this Lease and for other
good and valuable consideration, Lessee hereby agrees that:
(i) All
obligations that accrue or become due under this Lease (including the obligation
to pay rent), from and after the date that an Action is commenced shall be
timely performed exactly as provided in this Lease and any failure to so perform
shall be harmful and prejudicial to Lessor;
(ii) Any
and
all obligations under this Lease that accrue or become due from and after the
date that an Action is commenced and that are not paid as required by this
Lease
shall, in the amount of such rents, constitute administrative expense claims
allowable under the Code with priority of payment at least equal to that of
any
other actual and necessary expenses incurred after the commencement of the
Action;
(iii) Any
extension of the time period within which Lessee may assume or reject this
Lease
without an obligation to cause all obligations accruing or coming due under
this
Lease from and after the date that an Action is commenced to be performed as
and
when required under this Lease shall be harmful and prejudicial to
Lessor;
(iv) Any
time
period designated as the period within which Lessee must cure all defaults
and
compensate Lessor for all pecuniary losses which extends beyond the date of
assumption of this Lease shall be harmful and prejudicial to Lessor;
(v) Any
assignment of this Lease must result in all terms and conditions of this Lease
being assumed by the assignee without alteration or amendment, and any
assignment which results in an amendment or alteration of the terms and
conditions of this Lease without the express written consent of Lessor shall
be
harmful and prejudicial to Lessor;
(vi) Any
proposed assignment of this Lease to an assignee: (a) that will not use the
Premises as a Permitted Concept, (b) that does not possess financial condition,
operating performance and experience characteristics equal to or better than
the
financial condition, operating performance and experience of Lessee as of the
Effective Date, or (c) that does not provide guarantors of this Lease
obligations with financial condition equal to or better than the financial
condition of the original guarantors of this Lease as of the Effective Date,
shall be harmful and prejudicial to Lessor; and
(vii) The
rejection (or deemed rejection) of this Lease for any reason whatsoever shall
constitute cause for immediate relief from the automatic stay provisions of
the
Code, and Lessee stipulates that such automatic stay shall be lifted immediately
and possession of the Premises will be delivered to Lessor immediately without
the necessity of any further action by Lessor.
B. No
provision of this Lease shall be deemed a waiver of Lessor’s rights or remedies
under the Code or applicable law to oppose any assumption and/or assignment
of
this Lease, to require timely performance of Lessee’s obligations under this
Lease, or to regain possession of the Premises as a result of the failure of
Lessee to comply with the terms and conditions of this Lease or the Code.
C. Notwithstanding
anything in this Lease to the contrary, all amounts payable by Lessee to or
on
behalf of Lessor under this Lease, whether or not expressly denominated as
such,
shall constitute “rent” for the purposes of the Code.
D. For
purposes of this Section addressing the rights and obligations of Lessor and
Lessee in the event that an Action is commenced, the term “Lessee” shall include
Lessee’s successor in bankruptcy, whether a trustee, Lessee as debtor in
possession or other responsible person.
45. No
Offer.
No
contractual or other rights shall exist between Lessor and Lessee with respect
to the Premises until both have executed and delivered this Lease,
notwithstanding that deposits may have been received by Lessor and
notwithstanding that Lessor may have delivered to Lessee an unexecuted copy
of
this Lease. The submission of this Lease to Lessee or Lessor shall be for
examination purposes only, and does not and shall not constitute a reservation
of or an option for Lessee or Lessor to lease or otherwise create any interest
on the part of Lessee in the Premises.
46. Further
Assurances. Each
of
the parties agrees to do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged and delivered all such further acts, documents and
assurances as may be reasonably required or
deemed
advisable to carry into effect the purposes of this Lease, and for the better
assuring and confirming of all of Lessor’s and Lessee’s rights, powers and
remedies under this Lease.
47. Attorneys’
Fees.
In the
event of any judicial or other adversarial proceeding between the parties
concerning this Lease, to the extent permitted by law, the prevailing party
shall be entitled to recover all of its reasonable and actual attorneys’ fees
and other costs in addition to any other relief to which it may be entitled.
In
addition, upon the default hereunder by the other party, the party not in
default shall, upon demand, be entitled to all reasonable and actual attorneys’
fees and all other costs incurred in the preparation and service of any notice
or demand hereunder, whether or not a legal action is subsequently
commenced.
48. Entire
Agreement.
This
Lease constitutes the entire agreement between the parties with respect to
the
subject matter hereof, and there are no other representations, warranties or
agreements except as herein provided. Without limiting the foregoing, each
of
Lessor and Lessee specifically acknowledges that neither the other party nor
any
agent, officer, employee or representative of such other party has made any
representation or warranty regarding the projected profitability of owning,
or
conducting the business to be conducted on, the Premises. Furthermore, each
of
Lessor and Lessee acknowledges that the other party did not prepare or assist
in
the preparation of any of the projected figures used by such party in analyzing
the economic viability and feasibility of owning, or conducting the business
to
be conducted by Lessee at, the Premises.
49. Forum
Selection; Jurisdiction; Venue; Choice of Law.
A. The
parties hereto agree that the state and federal courts located in King County,
Washington, shall be the sole and exclusive forum for any and all litigation
arising out of or in connection with this Lease, the relationship of Lessor
and
Lessee, Lessee’s use or occupancy of the Premises, and/or any claim for injury
or damage, or any emergency or statutory remedy. The parties hereto expressly
submit to the jurisdiction of said courts, and agree that venue is proper for
all such actions in said courts.
B. The
creation of this Lease, its interpretation, construction, and enforcement,
and
the rights and remedies of Lessor and Lessee with respect to the Premises and
under this Lease, shall be governed by the laws of the State of Washington
without regard to principles of conflict of law.
50. Counterparts.
This
Lease may be executed in one or more counterparts, each of which shall be deemed
an original.
51. Joint
and Several Liability.
If
Lessee consists of more than one individual or entity, each such individual
and/or entity shall be jointly and severally liable for all obligations of
Lessee under this Lease.
52. Memorandum
of Lease.
Concurrently with the execution of this Lease, Lessor and Lessee are executing
Lessor’s standard form memorandum of lease in recordable form attached hereto as
Exhibit B and made a part hereof, indicating the names and addresses of Lessor
and Lessee, a description of the Premises, the Lease Term and the terms of
any
options to extend the Lease Term, but omitting rent and such other terms of
this
Lease as Lessor and Lessee may not desire to disclose to the public. Further,
upon Lessor’s request, Lessee agrees to execute and acknowledge a termination of
lease and/or quit claim deed in recordable form upon the expiration or sooner
termination of the Lease Term.
53. No
Brokerage.
Lessor
and Lessee represent and warrant to each other that they have had no
conversation or negotiations with any broker concerning the leasing of the
Premises (except in connection with Lessee’s sale of the Premises pursuant to
the Purchase Agreement). Each of Lessor and Lessee agrees to protect, indemnify,
save and keep harmless the other, against and from all liabilities, claims,
losses, costs, damages and expenses, including attorneys’ fees, arising out of,
resulting from or in connection with their breach of the foregoing warranty
and
representation.
54. Waiver
of Jury Trial and Punitive, Consequential, Special and Indirect
Damages.
LESSOR
AND LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED
IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER
ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LESSOR
AND
LESSEE, LESSEE’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY
OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES
HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED
AND
IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, EACH OF LESSOR AND LESSEE
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE
TO
SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER PARTY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM
OR
COUNTERCLAIM BROUGHT BY IT AGAINST THE OTHER PARTY OR ITS SUCCESSORS WITH
RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR ANY
DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY EACH OF LESSOR
AND
LESSEE OF ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN.
55. OFAC
Laws and Regulations.
Lessee
shall immediately notify Lessor in writing if Lessee becomes aware that any
individual or entity owning directly or indirectly any interest in Lessee or
any
director, officer, member, manager or partner of Lessee is an individual or
entity whose property or interests are subject to being blocked under
any
of
the OFAC Laws and Regulations or is otherwise in violation of any of the OFAC
Laws and Regulations, or is under investigation by any governmental entity
for,
or has been charged with, or convicted of, drug trafficking, terrorist-related
activities or any violation of Anti-Money Laundering Laws, has been assessed
civil penalties under these or related laws, or has had funds seized or
forfeited in an action under these or related laws; provided, however, the
covenant contained in this sentence shall not apply to any Person to the extent
that such Person’s interest is in or through a U.S. Publicly-Traded Entity.
56. Transfer,
Participation and/or Securitization Covenants.
Lessee
agrees to cooperate in good faith with Lessor, and the holder of any security
interest in the Premises, in connection with any sale or transfer of the
Premises by Lessor or any transfer, participation, syndication and/or
securitization of any security interest in the Premises, or any or all servicing
rights with respect thereto, by providing an estoppel certificate substantially
in the form attached hereto as Exhibit D, which would be required with
respect to Lessee by a purchaser of the Premises and/or a purchaser, transferee,
assignee, servicer, participant, co-lender, investor or rating agency involved
with respect to any transfer, participation, syndication and/or securitization
of any security interest in the Premises, as applicable; provided, however,
Lessee shall not be required to deliver any other document or disclose any
confidential information or any information which has not previously been made
public unless required by applicable federal or state securities laws. Lessee
may, in Lessee’s sole discretion, without any obligation to do so, agree to
amend the terms of this Lease to the extent necessary so as to satisfy the
requirements of purchasers, transferees, assignees, servicers, participants,
co-lenders, investors or selected rating agencies involved in any such transfer,
participation, syndication or securitization, so long as such amendments would
not have a material adverse effect upon Lessee, Guarantor or the transactions
contemplated by this Lease. Notwithstanding the foregoing, Lessee acknowledges
and agrees that Lessor may disclose to any prospective purchaser of the Premises
the annual and quarterly reports of Guarantor obtained by Lessor pursuant to
Section 31 of this Lease. Lessor shall be responsible for causing the lender
undertaking any of the transactions contemplated by this Section to prepare
at
no expense to Lessee any documents evidencing the amendments referred to in
the
preceding sentence. Lessee consents to Lessor and such holder providing the
estoppel certificate, as well as any other information which Lessor and such
holder may now have or hereafter acquire with respect to the Premises or the
financial condition of Lessee or Guarantor to each prospective purchaser of
the
Premises as well as each prospective purchaser, transferee, assignee, servicer,
participant, co-lender, investor or rating agency involved with respect to
any
such transfer, participation, syndication and/or securitization of any security
interest in the Premises, as applicable. Lessee shall pay its own attorney
fees
and other out-of-pocket expenses incurred in connection with the performance
of
its obligations under this Section.
57. Power
House Encroachment.
Reference is hereby made to the ALTA/ACSM Land Title Survey of Plot No.’s 4-Q,
0-X & Xxxx Xxxx Xx. 0-X, Xxxxxx Sion Farm, Christiansted Jurisdiction, Queen
Quarter, St. Croix, United States Virgin Islands,
dated
February 5, 2007 (the “Survey”), prepared by Survey Services Company, LLC, and
to the masonry building (which is also referred to as “One Sty. Masonry Power
House” on Pages 2 and 3 of the Survey)(the “Power House”) referenced in the
“List of Encroachments” on Page 1 of the Survey (which reads, in part, as
follows: “1) A masonry building located along the west line of Plot No. 4-Q is
9.2’ into A Portion of the Remainder of Xxxx Xx. 0-X.”).
Lessee
hereby agrees that, within one (1) year after the Effective Date and at Lessee’s
expense, Lessee shall either:
(a) relocate
the “Power House” so that no part of the Power House will be located on any part
of “Easement ‘B’” or Plot No. 4-J identified on the Survey; or
(b) obtain
from (i) the owner of Xxxx Xx. 0-X an easement to permit the continued presence
of the Power House at its current location for a term and upon conditions
reasonably acceptable to Lessor; and (ii) obtain a waiver of the encroachment
from the holder of the easement rights to “Easement ‘B’” and “Easement ‘C’”
referenced above.
IN
WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as of the date
first above written.
LESSOR:
Xxxx
XX
St. Croix USVI, LLC, a Delaware limited liability company
By:
Xxxx
REIT Advisors II, LLC,
a
Delaware limited liability company
Its:
Manager
By
/s/
Xxxx X. Xxxx
Printed
Name Xxxx
X. Xxxx
Its
Executive
Vice President
LESSEE:
CULUSVI,
INC., d/b/a COST-U-LESS,
a
U.S.
Virgin Islands corporation
By
/s/
J.
Xxxxxxx Xxxxx
Printed
Name J.
Xxxxxxx Xxxxx
Its
President
Lessee’s
Tax Identification Number:
00-0000000
Lessee’s
Organization Identification Number:
__________
Lessee’s
Principal Place of Business:
U.S.V.I.
STATE
OF
WASHINGTON )
) ss.
COUNTY
OF
KING
)
On
this
__21___
day
of ___March______,
2007, before me personally appeared J.
Xxxxxxx Xxxxx,
President ,
of
CULUSVI, INC., a U.S. Virgin Islands corporation, to me known to be the
individual who executed the within and foregoing instrument, and acknowledged
that he signed the same as his free and voluntary act and deed, for the uses
and
purposes therein mentioned.
GIVEN
under my hand and official s/eal this __21___
day
of ___March__,
2007.
/s/
Xxxxx X. Xxxxxxx
Notary
Signature
Xxxxx
X. Xxxxxxx
Print/Type
Name
Notary
Public in and for the State of Washington,
residing
at Duvall,
Washington
My
commission expires 1-19-2009
STATE
OF
ARIZONA )
) ss.
COUNTY
OF
MARICOPA
)
On
this
_22nd
day of
March
_,
2007,
before me personally appeared Xxxx
X.
Xxxx ,
Executive
V.P._____________of
Xxxx REIT Advisors II, LLC, a Delaware limited liability company, Manager of
Xxxx XX St. Croix USVI, LLC, a Delaware limited liability company, to me known
to be the individual who executed the within and foregoing instrument, and
acknowledged that he signed the same as his free and voluntary act and deed,
for
the uses and purposes therein mentioned.
GIVEN
under my hand and official seal this __22nd_day
of
_March___,
2007.
/s/
Xxxx X. Xxxxx
Notary
Signature
Xxxx
X. Xxxxx
Print/Type
Name
Notary
Public in and for the State of Washington,
residing
at Gold
Canyon, AZ
My
commission expires 9/3/08
EXHIBIT
A
LEGAL
DESCRIPTION
Parcel
No. 4-M of Estate Sion Farm Queen Quarter, St. Croix, U.S. Virgin Island,
consisting of 2.00 acres, more or less, as shown on OLG Drawing No. 5084 dated
September 30, 1997 and revised June 6, 2000.
Parcel
No. 4-Q of Estate Sion Farm Queen Quarter, St. Croix, U.S. Virgin Island,
consisting of 2.00 acres, more or less, as shown on OLG Drawing No. 5264 dated
August 1, 2001.
One-sixteenth
(1/16) interest as a tenant in common in Road Plot 4-O of Estate Sion Farm,
Queen Quarter, St. Croix, U.S. Virgin Islands, consisting of 0.047 U.S. acre,
more or less, as more fully shown on O.L.G. Drawing No. 5084, dated
September 30, 1997, last revised June
EXHIBIT
B
MEMORANDUM
OF LEASE FORM
MEMORANDUM
OF LEASE
Xxxx
XX
St. Croix USVI, LLC, a Delaware limited liability company with a mailing address
of_____________________________ ("Lessor") and CULUSVI, Inc. d/b/a Cost-U-Less,
a US Virgin Islands Corporation with a mailing address
of___________________________ ("Lessee"), acknowledge they have entered into
a
Lease dated ______________, 2007, with respect to the improvements and property
more fully described as:
Parcel
No. 4-M of Estate Sion Farm Queen Quarter, St. Croix, U.S. Virgin Island,
consisting of 2.00 acres, more or less, as shown on OLG Drawing No. 5084 dated
September 30, 1997 and revised June 6, 2000;
Parcel
No. 4-Q of Estate Sion Farm Queen Quarter, St. Croix, U.S. Virgin Island,
consisting of 2.00 acres, more or less, as shown on OLG Drawing No. 5264 dated
August 1, 2001;
One-sixteenth
(1/16) interest as a tenant in common in Road Plot 4-O of Estate Sion Farm,
Queen Quarter, St. Croix, U.S. Virgin Islands, consisting of 0.047 U.S. acre,
more or less, as more fully shown on O.L.G. Drawing No. 5084, dated
September 30, 1997, last revised June 6, 2000.
This
lease is for an initial term of fifteen (15) years with rights of renewal as
more fully set forth in the lease.
Notice
is
hereby given to the public and interested parties of the existence of this
lease
and the obligations of Lessor and Lessee under the documents referenced herein
and more fully described above.
IN
WITNESS WHEREOF, the parties hereto have caused this Memorandum of Lease to
be
executed, under seal, by their duly authorized representatives, effective this
______ day of_________________ 2007.
IN
WITNESS: LESSOR:
XXXX
XX
ST. CROIX USVI, LLC, a Delaware limited liability company
By:
Xxxx
REIT Advisors II, LLC, a Delaware
limited
liability company
Its:
Manager
By
__________________
Printed
Name __________
Its
___________________
LESSEE:
CULUSVI,
INC., d/b/a COST-U-LESS,
a
U.S.
Virgin Islands corporation
By
__________________
Printed
Name _________
Its
__________________
ACKNOWLEDGMENT
STATE
OF
_____________________ )
):ss
COUNTY
OF
___________________ )
On
this
_______ day of ________________, 2007, before me personally came and appeared
_______________________, who acknowledged (himself, herself) to be
______________, of Xxxx REIT Advisors II, LLC, a Delaware limited liability
company, Manager of Xxxx XX St. Croix USVI, LLC, a Delaware limited liability
company, and that (he, she), as such an Officer being authorized to do so,
executed the foregoing instrument therein contained by signing the name of
the
corporation by (himself, herself) as such Officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary
Public
ACKNOWLEDGMENT
STATE
OF
__________________ )
):ss
COUNTY
OF
________________ )
On
this
_______ day of ______________, 2007, before me personally came and appeared
_______________________, who acknowledged (himself, herself) to be
______________, of CULUSVI, Inc. d/b/a Cost-U-Less, a U.S. Virgin Islands
corporation, and that (he, she), as such an Officer being authorized to do
so,
executed the foregoing instrument therein contained by signing the name of
the
corporation by (himself, herself) as such Officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary
Public
EXHIBIT
C
SNDA
Form
SUBORDINATION,
NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) is
made as of _____________ by and between
______________________________,
having
an address at ____________________ ___________________________ (“Lender”) and
__________________________, having an address at
____________________________________ (“Tenant”).
RECITALS:
A. Tenant
is
the holder of a leasehold estate in the property located at 4300 Sion Farm,
Christiansted, St. Croix, USVI, as more particularly described on Schedule
A
(the “Property”) under and pursuant to the provisions of a certain lease dated
________________, 2006 between __________________________, as landlord
(“Landlord”), and Tenant (“Lease”);
B. The
Property is or is to be encumbered by one or more mortgages, deeds of trust,
deeds to secure debt or similar security agreements (collectively, the “Security
Instrument”) from Landlord, or its successor in interest, in favor of Lender;
and
C. Tenant
has agreed to subordinate the Lease to the Security Instrument and to the lien
thereof and Lender has agreed to grant non-disturbance to Tenant under the
Lease
on the terms and conditions hereinafter set forth.
AGREEMENT:
NOW,
THEREFORE, the parties hereto mutually agree as follows:
1. Subordination.
The
Lease shall be subject and subordinate in all respects to the lien and terms
of
the Security Instrument, to any and all advances to be made thereunder and
to
all renewals, modifications, consolidations, replacements and extensions
thereof.
2. Nondisturbance.
So long
as Tenant pays all rents and other charges as specified in the Lease and is
not
otherwise in default (beyond applicable notice and cure periods) of any of
its
obligations and covenants pursuant to the Lease, Lender agrees for itself and
its successors in interest and for any other person acquiring title to the
Property through a foreclosure (an “Acquiring Party”), that Tenant’s possession
of
the
Property as described in the Lease will not be disturbed during the term of
the
Lease, as said term may be extended pursuant to the terms of the Lease, by
reason of a foreclosure and that, upon a foreclosure, the Acquiring Party shall
assume and perform all of Landlord’s obligations under the Lease. For purposes
of this Agreement, a “foreclosure” shall include (but not be limited to) a
sheriff’s or trustee’s sale under the power of sale contained in the Security
Instrument, the termination of any superior lease of the Property and any other
transfer of the Landlord’s interest in the Property under peril of foreclosure,
including, without limitation to the generality of the foregoing, an assignment
or sale in lieu of foreclosure.
3. Attornment.
Tenant
agrees to attorn to, accept and recognize any Acquiring Party as the landlord
under the Lease pursuant to the provisions expressly set forth therein for
the
then remaining balance of the term of the Lease, and any extensions thereof
as
made pursuant to the Lease, so long as the Acquiring Party assumes and performs
all of Landlord’s obligations under the Lease. The foregoing provision shall be
self-operative and shall not require the execution of any further instrument
or
agreement by Tenant as a condition to its effectiveness. Tenant agrees, however,
to execute and deliver, at any time and from time to time, upon the request
of
the Lender or any Acquiring Party any reasonable instrument which may be
necessary or appropriate to evidence such attornment in consideration for
Tenant’s receipt of Lender’s or the Acquiring Party’s written agreement to
assume and perform all of Landlord’s obligations under the Lease.
4. Rent.
Tenant
has notice that the Lease and the rents and all other sums due thereunder have
been assigned to Lender as security for the loan secured by the Security
Instrument. In the event Landlord notifies Tenant of the occurrence of a default
under the Security Instrument and demands that Tenant pay its rents and all
other sums due or to become due under the Lease directly to Lender, Tenant
shall
honor such demand and pay its rent and all other sums due under the Lease
directly to Lender or as otherwise authorized in writing by Landlord. Landlord
hereby irrevocably authorizes Tenant to make the foregoing payments to Lender
upon such notice and demand.
5. Lender
to Receive Notices.
Tenant
shall notify Lender of any default by Landlord under the Lease which would
entitle Tenant to cancel the Lease, and agrees that, notwithstanding any
provisions of the Lease to the contrary, no notice of cancellation thereof
shall
be effective unless Lender shall have received notice of default giving rise
to
such cancellation.
6. Notices.
All
notices or other written communications hereunder shall be deemed to have been
properly given (i) upon delivery, if delivered in person with receipt
acknowledged by the recipient thereof, (ii) one (1) Business Day (hereinafter
defined) after having been deposited for overnight delivery with any reputable
overnight courier service, or (iii) three (3) Business Days after having been
deposited in any post office or mail depository regularly maintained by the
U.S.
Postal Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed to the receiving party at its address set forth
above, and:
if
to
Tenant,
to the
attention of: ___________________________; and
if
to
Lender, to the attention of: ___________________________.
or
addressed as such party may from time to time designate by written notice to
the
other parties. For purposes of this Paragraph, the term “Business Day” shall
mean any day other than Saturday, Sunday or any other day on which banks are
required or authorized to close in the U.S. Virgin Islands. Either party by
notice to the other may designate additional or different addresses for
subsequent notices or communications.
7. Successors.
The
obligations and rights of the parties pursuant to this Agreement shall bind
and
inure to the benefit of the successors, assigns, heirs and legal representatives
of the respective parties. In addition, Tenant acknowledges that all references
herein to Landlord shall mean the owner of the landlord’s interest in the Lease,
even if said owner shall be different than the Landlord named in the
Recitals.
8. Duplicate
Originals; Counterparts.
This
Agreement may be executed in any number of duplicate originals and each
duplicate original shall be deemed to be an original. This Agreement may be
executed in several counterparts, each of which counterparts shall be deemed
an
original instrument and all of which together shall constitute a single
Agreement. The failure of any party hereto to execute this Agreement, or any
counterpart hereof, shall not relieve the other signatories from their
obligations hereunder.
IN
WITNESS WHEREOF, Landlord, Lender and Tenant have duly executed this Agreement
as of the date first above written.
LENDER:
By:
___________________
Name:
_________________
Title:
__________________
TENANT:
By:
___________________
Name:
_________________
Title:
__________________
LANDLORD:
The
undersigned as the Landlord named in the Recitals or as successor thereto hereby
accepts and agrees to be bound by the provisions of Paragraph 5
hereof.
_______________________________,
a
By:
___________________
Name:
________________
Title:
_________________
ACKNOWLEDGEMENTS
STATE
OF
__________________ )
) ss:
COUNTY
OF
________________ )
On
this
_____ day of _________, 200__, before me personally appeared _________________,
to me known to be the _______________ of 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/she/they was/were authorized
to
execute said instrument.
In
Witness Whereof I have hereunto set my hand and affixed my official seal the
day
and year first above written.
Notary
Public ___________________
Print/Type
Name ___________________
Notary
Public in and for the State of Washington, residing at _________
My
commission expires ___________________
STATE
OF
__________________ )
)
ss:
COUNTY
OF
________________ )
On
this
_____ day of _________, 200__, before me personally appeared _________________,
to me known to be the _______________ of 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/she/they was/were authorized
to
execute said instrument.
In
Witness Whereof I have hereunto set my hand and affixed my official seal the
day
and year first above written.
Notary
Public ___________________
Print/Type
Name ___________________
Notary
Public in and for the State of Washington, residing at _________
My
commission expires ___________________
STATE
OF
__________________ )
) ss:
COUNTY
OF
________________ )
On
this
_____ day of _________, 200__, before me personally appeared _________________,
to me known to be the _______________ of 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/she/they was/were authorized
to
execute said instrument.
In
Witness Whereof I have hereunto set my hand and affixed my official seal the
day
and year first above written.
Notary
Public ___________________
Print/Type
Name ___________________
Notary
Public in and for the State of Washington, residing at _________
My
commission expires ___________________
SCHEDULE
A (PROPERTY DESCRIPTION)
Parcel
No. 4-M of Estate Sion Farm Queen Quarter, St. Croix, U.S. Virgin Island,
consisting of 2.00 acres, more or less, as shown on OLG Drawing No. 5084 dated
September 30, 1997 and revised June 6, 2000.
Parcel
No. 4-Q of Estate Sion Farm Queen Quarter, St. Croix, U.S. Virgin Island,
consisting of 2.00 acres, more or less, as shown on OLG Drawing No. 5264 dated
August 1, 2001.
One-sixteenth
(1/16) interest as a tenant in common in Road Plot 4-O of Estate Sion Farm,
Queen Quarter, St. Croix, U.S. Virgin Islands, consisting of 0.047 U.S. acre,
more or less, as more fully shown on O.L.G. Drawing No. 5084, dated
September 30, 1997, last revised June
EXHIBIT
D
ESTOPPEL
CERTIFICATE FORM
ESTOPPEL
LETTER
[LETTERHEAD
OF TENANT]
__________
__, 200_
|
Re:
|
Confirmation
of Lease Agreement for Premises at 4300 Sion Farm, Christiansted,
St.
Croix, USVI (the “Premises”)
|
Ladies
and Gentlemen:
At
the
request of _______________________________ (“Landlord”) the undersigned hereby
certifies to you and agrees as follows recognizing that you will rely on the
information contained herein:
1. The
undersigned is the current tenant under a Lease dated ________________, 2006,
for the premises located at 4300 Sion Farm, Christiansted, St. Croix, USVI
(as
amended to date, the “Lease”), which has been amended and supplemented as
follows: ___________________________.
2. The
Lease
is in full force and effect and, except as set forth above, has not been
amended, modified, supplemented or superseded, and constitutes the entire
agreement between the undersigned and Landlord with respect to the leasing
of
the Premises. There is no other agreement between the undersigned and Landlord
with respect to the leasing of the Premises, except as follows:
___________________.
3. To
the
knowledge of the undersigned, (i) neither the undersigned nor Landlord is in
default under the Lease, and (ii) there is no defense, offset, claim or
counterclaim by or in favor of the undersigned against Landlord under the Lease
or against the obligations of the undersigned under the Lease, except as
follows: ___________________.
4. The
undersigned has not received notice and is not aware of any prior transfer,
assignment, hypothecation or pledge by Landlord or of any of Landlord’s interest
in the Lease, except to you and except as follows: ___________________.
5. The
monthly base or minimum rent due under the lease is __________________ and
has
been paid through ______________, 20__ and all additional rent due under the
Lease has been paid through _______________, 20__.
6. There
are
no actions, voluntary or otherwise, pending or, to the actual knowledge of
the
undersigned, threatened against the undersigned under the bankruptcy,
reorganization, moratorium or similar laws of the United States, any state
thereof or any other jurisdiction, except as follows:
___________________.
7. The
undersigned has accepted possession, and taken occupancy of, the Premises;
the
term of the Lease has commenced; the undersigned has commenced the payment
of
rents for all space subject to the Lease; the current expiration date of the
Lease is _______________; and the undersigned has the following right, under
the
Lease, to extend the term of the Lease: _________________.
8. To
date,
Landlord has not been obligated to perform any work under the Lease and no
reimbursement or allowance has been due to the undersigned under the Lease
in
connection with any work performed by Landlord or the undersigned.
Very
truly yours,
[Tenant]
By:
___________________
Name:
_________________
Title:
__________________
GUARANTY
OF LEASE
THIS
GUARANTY OF LEASE (this
“Guaranty”) is made as of the ____ day of _____________, 2007, by
COST-U-LESS, INC.,
a
Washington corporation (“Guarantor”), to and for the benefit of Xxxx XX St.
Croix USVI, LLC, a Delaware limited liability company (“Landlord”).
RECITALS
A. Landlord
and CULUSVI, Inc., d/b/a Cost-U-Less, a U.S. Virgin Islands corporation
(“Tenant”), as tenant, have entered into a certain Lease dated as of the date
hereof, pursuant to which Tenant leases or will lease from Landlord certain
premises located at 4300 Sion Farm, Christiansted, St. Croix, USVI, all as
more
particularly described in said Lease. Said Lease, as hereafter supplemented,
amended, restated, renewed, extended, replaced or modified, is hereinafter
referred to as the “Lease.” All capitalized terms which are not expressly
defined in this Guaranty shall have the same meanings herein as are ascribed
to
such terms in the Lease.
B. Landlord
has required that, as a condition to its execution and performance of the Lease,
Guarantor execute and deliver this Guaranty of all obligations of Tenant arising
and all sums due by Tenant under the Lease. The execution and delivery of this
Guaranty by Guarantor is a material inducement to Landlord for the execution
and
performance of the Lease.
C. Guarantor
has a financial interest in Tenant and will be benefited by the Lease.
Accordingly, Guarantor has agreed to execute, deliver and perform this
Guaranty.
NOW,
THEREFORE, in
consideration of the Recitals set forth above and in consideration of Landlord
executing and performing its obligations under the Lease and for other good
and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, Guarantor covenants and agrees as follows:
1. Guaranty.
For the
term of the Lease, Guarantor absolutely, unconditionally and irrevocably
guarantees to Landlord:
(a) The
full
and prompt payment when due (subject to the cure periods provided in the Lease),
whether upon acceleration or otherwise, and at all times thereafter, of any
and
all rentals, debts and obligations of Tenant for the payment of money, however
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, due or to become due, known or unknown
to
Guarantor at the time of the execution of this Guaranty, including, without
limitation, all Rent, late fees, payments in respect of real estate taxes,
assessments, governmental charges, premiums for insurance policies, amounts
required to discharge mechanics’ and materialmen’s liens and claims therefor,
and any other sums which may now be or hereafter become due and payable by
Tenant under the Lease;
(b) The
payment of all Enforcement Costs (as hereinafter defined); and
(c) The
full,
complete and punctual (subject to the cure periods provided in the Lease)
observance, performance and satisfaction of all covenants, terms, conditions,
obligations, duties and agreements of Tenant under the Lease.
All
amounts due and debts, liabilities and payment obligations described in
subparagraphs (a) and (b) of this Paragraph are referred to herein as the
“Liabilities.” All obligations described in subparagraph (c) of this Paragraph
are referred to herein as the “Obligations.”
2. Landlord’s
Remedies.
(a) This
Guaranty is an absolute, irrevocable, present and continuing guaranty of payment
and performance and not merely a guaranty of collection. Upon the occurrence
of
any Event of Default by Tenant under the Lease, after the expiration of any
cure
period applicable thereto, Guarantor agrees, on written demand by Landlord,
(i)
to pay all Liabilities then due hereunder; (ii) to perform the Obligations;
and (iii) to indemnify and hold Landlord and the other Indemnified Parties
(hereinafter defined) harmless from and against any and all loss, damage, cost,
expense, injury or liability Landlord or the Indemnified Parties may suffer
or
incur as a result of such Event of Default in connection with the exercise
of
the rights under the Lease or this Guaranty.
(b) Notwithstanding
anything to the contrary herein contained, in any action to enforce any of
the
liabilities or obligations of the Guarantor under this Guaranty, Landlord,
at
its election, may proceed against the Guarantor with or without:
(i) joining Tenant in any such action; (ii) commencing any action
against or obtaining any judgment against Tenant; or (iii) commencing any
proceeding to enforce or realize upon any collateral or other security
(including, without limitation, any security deposit or other guaranties) which
may be given to secure Tenant’s obligations under the Lease, or to obtain any
judgment, decree or foreclosure sale with respect thereto. Nevertheless, the
maintenance of any action or proceeding by Landlord to recover any sum or sums
that may be or become due under the Lease or to secure the performance of any
of
the other terms, covenants and conditions of the Lease shall not preclude
Landlord from demanding and receiving the payment of such sums and the
performance of such other terms, covenants and conditions from Guarantor, or
from thereafter instituting and maintaining subsequent actions or proceedings
for any subsequent default or defaults of Tenant under the Lease. Guarantor
does
hereby consent that, without affecting the liability of Guarantor under this
Guaranty and without notice to Guarantor, time may be given by Landlord to
Tenant for payment of rent and such other sums and performance of said other
terms, covenants and conditions, or any of them, and such time extended and
indulgence granted from time to time, or Tenant may be dispossessed or Landlord
may avail itself of or exercise any or all of the rights and remedies against
Tenant provided by law or by the Lease, and may proceed either against Tenant
alone or jointly against Tenant and Guarantor or against Guarantor alone without
first proceeding or exhausting any remedy or claim against Tenant.
Notwithstanding anything contained herein or in the Lease to the contrary,
Landlord
shall not be entitled to duplicative remedies under the Lease and/or this
Guaranty.
3. Return
of Payments.
Guarantor
agrees that, if at any time all or any part of any payment theretofore applied
by Landlord to any Liabilities is rescinded or returned by Landlord for any
reason whatsoever (including, without limitation, the insolvency, bankruptcy,
liquidation or reorganization of any party), such Liabilities shall, for the
purposes of this Guaranty, be deemed to have continued in existence to the
extent of such payment, notwithstanding such application by Landlord, and this
Guaranty shall continue to be effective or be reinstated, as the case may be,
as
to such Liabilities, all as though such application by Landlord had not been
made. Guarantor does hereby further agree that with respect to any payments
made
by Guarantor hereunder, Guarantor shall not have any rights based on suretyship,
subrogation or otherwise to stand in the place of Landlord so as to compete
with
Landlord as a creditor of Tenant, and Guarantor hereby waives all such rights
to
the fullest extent permitted by law.
4. No
Discharge.
Guarantor agrees that, except as may be agreed to in writing by Landlord, the
obligations, covenants and agreements of Guarantor under this Guaranty shall
not
be affected or impaired by any act of Landlord, or any event or condition except
the full, final and unvoidable performance of all Obligations and payment of
all
Liabilities and any other sums due hereunder. Guarantor agrees that the
liability of Guarantor hereunder shall not be discharged by, and Guarantor
hereby irrevocably consents to: (i) any subsequent change, modification or
amendment of the Lease in any of its terms, covenants and conditions, or in
the
Rent or any other sums payable thereunder, or in the term thereof (the “Term”),
or in the Premises demised thereby (whether said Premises be expanded,
contracted, relocated, substituted or otherwise altered), and to any assignments
of the Lease and to any sublettings of the Premises, and to any extensions
or
renewals of the Lease or its Term; (ii) the renewal or extension of time
for the payment of the Liabilities or performance of the Obligations under
the
Lease or any other agreement relating to the Premises; (iii) any failure,
omission, delay or inadequacy, whether entire or partial, of Landlord to
exercise any right, power or remedy regarding the Lease or to enforce or realize
upon (or to make any guarantor a party to the enforcement or realization upon)
any of Landlord’s security for the Lease, including, but not limited to, any
impairment or release of such security by Landlord; (iv) the existence of
any set off, claim or counterclaim or the reduction or diminution of the
Liabilities, or any defense of any kind or nature, which Guarantor may have
against Tenant or which any party other than Tenant has against Landlord;
(v) the application of payments received from any source to the payment of
any obligation other than the Liabilities, even though Landlord might lawfully
have elected to apply such payments to any part or all of the Liabilities;
(vi) the addition or release of any and all other guarantors, obligor and
other persons liable for the payment of the Liabilities and/or performance
of
the Obligations, and the acceptance or release of any and all other security
for
the payment of the Liabilities and/or performance of the Obligations; or
(vii) any distress or reentry by Landlord or dispossession of Tenant or any
action or remedy taken by Landlord under the Lease, or any failure to notify
Guarantor of any default by Tenant; all whether or not Guarantor shall have
had
notice or knowledge of
any
act
or omission referred to in the foregoing clauses (i) through (vii) inclusive
of
this Paragraph. Notwithstanding anything contained herein to the contrary,
Guarantor shall be entitled to the same defenses as those which Tenant may
have
under the Lease or otherwise.
In
the
event that the Lease is modified, renewed or extended in any respect by
agreement between Landlord and Tenant either pursuant to an option granted
in
the Lease or otherwise, or in the event that Tenant holds over beyond the Term
of the Lease, then the obligations hereunder of Guarantor shall extend to the
full and faithful performance and observance of all of the covenants, terms
and
conditions of the Lease and of any such modification, renewal or extension
thereof. Guarantor intends that Guarantor shall remain liable hereunder as
a
principal until the full, final and unvoidable performance of all of the
Obligations and the full, final and unvoidable payment of all
Liabilities.
5. Application
of Amounts Received.
Any
amounts received by Landlord from whatsoever source on account of any
Liabilities may be applied by Landlord toward the payment of such Liabilities,
and in such order of application, as Landlord may from time to time
elect.
6. Waiver.
Guarantor expressly waives: (i) notice of the acceptance by Landlord of
this Guaranty; (ii) notice of the existence, creation, payment or
nonpayment of the Liabilities; (iii) presentment, demand, notice of
dishonor, protest and all other notices whatsoever; and (iv) any failure by
Landlord to inform Guarantor of any facts Landlord may now or hereafter know
about Tenant, the Lease or the Premises, it being understood and agreed that
Guarantor has and will maintain personal knowledge of and is familiar with
Tenant’s financial condition and business affairs and has the ability to
influence Tenant’s decision-making processes, and that Landlord has no duty so
to inform, and that Guarantor is fully responsible for being and remaining
informed by, Tenant of all circumstances bearing on the Lease and this Guaranty.
No modification or waiver of any of the provisions of this Guaranty will be
binding upon Landlord except as expressly set forth in a writing duly signed
and
delivered on behalf of Landlord.
7. Enforcement
Costs.
If,
after the occurrence of any Event of Default, (i) the Lease or this
Guaranty is placed in the hands of an attorney for enforcement or collection
or
is enforced or collected through any legal proceeding; or (ii) an attorney
is retained to represent Landlord in any proceeding (including, without
limitation, any bankruptcy, reorganization, receivership or other proceeding
affecting creditors’ rights) involving a claim under or related to the Lease or
this Guaranty, then Guarantor shall pay to Landlord upon demand all actual
and
reasonable attorneys’ fees, costs and expenses, including, without limitation,
court costs and filing fees, and all other actual and reasonable costs and
expenses incurred in connection therewith (all of which are referred to herein
as “Enforcement Costs”), in addition to all other amounts due hereunder,
provided Landlord prevails in such legal proceeding. If Landlord does not
prevail in such legal proceeding, Landlord shall pay or reimburse Tenant and
Guarantor any and all actual and reasonable attorneys’ fees, costs and expenses,
including,
without
limitation, court costs and filing fees, and all other actual and reasonable
costs and expenses incurred by Tenant and/or Guarantor in connection
therewith.
8. Transfer
of Lease.
Notwithstanding
any assignment or transfer of the Lease or any interest therein by Landlord,
for
collateral purposes or otherwise, each and every immediate and successive
assignee, transferee or other successor in interest with respect to Landlord’s
interest under the Lease shall, to the extent of the interests assigned or
transferred, be entitled to the benefits of this Guaranty to the same extent
as
if such assignee or transferee were Landlord.
9. Governing
Law; Interpretation.
This
Guaranty shall be governed by the laws of the State of Washington without
reference to the conflicts of law principles of that state. The headings of
Paragraphs in this Guaranty are for convenience only and shall not be construed
in any way to limit or define the content, scope or intent of the provisions
hereof. As used in this Guaranty, the singular shall include the plural, and
masculine, feminine and neuter pronouns shall be fully interchangeable where
the
context so requires. If any provision of this Guaranty, or any paragraph,
sentence, clause, phrase or word, or the application thereof, in any
circumstances, is adjudicated by a court of competent jurisdiction to be
invalid, the validity of the remainder of this Guaranty shall be construed
as if
such invalid part were never included herein. Time is of the essence of this
Guaranty. All payments to be made hereunder shall be made in currency and coin
of the United States of America which is legal tender for public and private
debts at the time of payment.
10. Entire
Agreement.
This Guaranty
constitutes the entire agreement between Guarantor and Landlord with respect
to
the subject matter hereof and supersedes all prior such agreements and
understandings, both written and oral. This Guaranty may not be modified or
amended except by a written instrument signed by Landlord and Guarantor.
11. Successors
and Assigns.
(a) This
Guaranty shall bind Guarantor and its assigns and successors; provided that
Guarantor shall not be entitled to transfer or delegate its obligations
hereunder.
(b) This
Guaranty shall inure to the benefit of and be enforceable by Landlord and
Landlord’s officers, agents, employees, partners, directors and shareholders,
each of their respective successors and assigns, and each present or subsequent
mortgagee of the Premises and its successors and assigns (all such persons
and
entities shall be “Indemnified Parties” herein).
12. Certain
Waivers by Guarantor.
Guarantor
hereby waives the benefit of the right to trial by jury in any action or
proceeding that hereafter may be instituted in respect of the Lease or this
Guaranty.
13. Notices.
Any
notice, demand or other communication which is given hereunder shall be in
writing and shall be deemed given and served (a) upon receipt or
refusal,
if delivered personally, (b) one (1) business day after deposit with an
overnight carrier service, or (c) upon deposit in the United States mail
(certified or registered mail only), if mailed, and addressed to the intended
recipient at its address set forth below or to such other address as such
intended recipient may have designated by notice furnished in accordance
herewith:
If
to
Guarantor:
Cost-U-Less,
Inc.
0000
000xx
Xxxxx
XX, Xxx. 000
Xxxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxx
Tel.:
(000) 000-0000
Fax:
(000) 000-0000
| With copies to: | Xxxxx X. Xxxx |
Xxxxxxx
Xxxxxxxx X.X.
0000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Tel.:
(000) 000-0000
Fax:
(000) 000-0000
| If to Landlord: | Xxxx XX St. Croix USVI, LLC |
0000
X. Xxxxxxxxx Xxxx,
Xxxxx 000
Xxxxxxx,
XX 00000
Attn:
Legal Department
Tel.:
(000) 000-0000
Fax:
(000) 000-0000
| With copies to: | Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, PLC |
0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx
0000
Xxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx Esq.
Tel.:
(000) 000-0000
Fax:
(000) 000-0000
Except
as
otherwise specifically required herein, notice of the exercise of any right,
option or power granted to Landlord by this Guaranty is not required to be
given.
ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR
FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
SIGNED
AND DELIVERED as of
the
date first specified above.
GUARANTOR:
COST-U-LESS,
INC., a Washington corporation
By:
___________________
Name:
_________________
Title:
__________________
|
1
|
Certain
Defined Terms
|
1
|
|
2
|
Demise
of Premises; Lease Characterization
|
7
|
|
3
|
Lease
Term
|
7
|
|
4
|
Rental
and Other Payments
|
8
|
|
5
|
Representations
and Warranties of Lessor
|
8
|
|
6
|
Representations
and Warranties of Lessee
|
8
|
|
7
|
Rentals
To Be Net to Lessor
|
10
|
|
8
|
Taxes
and Assessments
|
11
|
|
9
|
Utilities
|
12
|
|
10
|
Insurance
|
12
|
|
11
|
Tax
and Insurance Impound
|
13
|
|
12
|
Payment
of Rental and Other Sums
|
14
|
|
13
|
Use
|
15
|
|
14
|
Compliance
With Laws, Restrictions, Covenants and Encumbrances
|
15
|
|
15
|
Condition
of Premises; Maintenance
|
19
|
|
16
|
Waste;
Alterations and Improvements
|
19
|
|
17
|
Indemnification
|
20
|
|
18
|
Quiet
Enjoyment
|
22
|
|
19
|
Condemnation
or Destruction
|
23
|
|
20
|
Inspection
|
26
|
|
21
|
Default,
Remedies and Measure of Damages
|
26
|
|
23
|
Mortgage,
Subordination, Nondisturbance and Attornment
|
31
|
|
24
|
Estoppel
Certificate
|
32
|
|
25
|
Assignment
|
33
|
|
26
|
Option
To Extend
|
34
|
|
27
|
Notices
|
34
|
|
28
|
Holding
Over
|
35
|
|
29
|
Removal
of Lessee’s Property
|
36
|
|
31
|
Financial
Statements
|
36
|
|
32
|
Force
Majeure
|
36
|
|
33
|
Time
is of the Essence
|
36
|
|
35
|
Lessor’s
Liability
|
36
|
|
36
|
Consent
of Lessor
|
37
|
|
37
|
Waiver
and Amendment
|
37
|
|
38
|
Successors
Bound
|
37
|
|
39
|
No
Merger
|
37
|
|
40
|
Captions
|
37
|
|
41
|
Severability
|
37
|
|
42
|
Independent
Counsel
|
37
|
|
43
|
Easements
|
38
|
|
44
|
Bankruptcy
|
38
|
|
45
|
No
Offer
|
39
|
|
46
|
Further
Assurances
|
39
|
|
47
|
Attorneys’
Fees
|
40
|
|
48
|
Entire
Agreement
|
40
|
|
49
|
Forum
Selection; Jurisdiction; Venue; Choice of Law
|
40
|
|
50
|
Counterparts
|
40
|
|
51
|
Joint
and Several Liability
|
40
|
|
52
|
Memorandum
of Lease
|
40
|
|
53
|
No
Brokerage
|
41
|
|
55
|
OFAC
Laws and Regulations
|
41
|
|
56
|
Transfer,
Participation and/or Securitization Covenants
|
42
|
|
57
|
Power
House Encroachment
|
42
|
