EXHIBIT 10.10
SECOND SCHEDULE
F I J I
LEASE
WESTMALL LIMITED a limited liability company having its registered office at
Lautoka (hereinafter called "the lessor") hereby leases to CUL (FIJI) LIMITED a
limited liability company having its registered office at Lautoka (hereinafter
called "the lessee") to be held by the lessee as tenant for the period of ten
(10) years commencing on the 1st day of March, 1998 or if consent of the
Minister of Lands is not obtained by that day then the 1st day of the 1st month
following the date of the Minister of Land's consent at the monthly rental of
$27,083.33 (Twenty seven thousand eighty three dollars and thirty three cents)
per month payable on the 1st day of each and every month at the times and in
the manner hereinafter provided. ALL THAT improvement by way of a shopping
centre complex with car-park space for vehicles constructed by the Lessor
pursuant to an agreement dated day of , 1998 between the
Lessor and Lessee and comprising a floor area of not less than 25,000 square
feet hereinafter referred to as "the demised premises" situated on the land
described as follows:-
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Title Number Description Island City Area
A R P
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C.L. Lot 1 D.P. 2913 "Natavolivoli" Vitilevu Nadi
and "Nawainitoki" (part of)
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This Lease is subject to the following conditions. restrictions and covenants:-
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Lodged by: YOUNG & ASSOCIATES, SOLICITORS,
LAUTOKA, FIJI.
....................No...........
Registered .........at...........
...................... Date .....................................
Registrar of Titles Documents:................................
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1. THE Lessee hereby agrees with the Lessor as follows:-
(a) To pay the reserved rent (less any deduction, set-off or counter-claim
which the lessee is entitled to raise against the lessor) in Lautoka
to the lessor or to such agent as he shall from time to time in
writing direct in Suva to the Lessor or to such agent as he shall from
time to time in writing direct.
(b) To pay promptly all garbage fees charges for electricity and water
consumed on the demised premises and not to commit or permit any act
or omission whereby the water or electricity supply shall be or become
liable to be disconnected.
(c) Subject to paragraph 3(h) hereof from time to time and at all times
throughout the said term to uphold and maintain in good and tenantable
repair the interior of the walls floors and ceilings but not if it
relates to structural aspect thereof of the demised premises and the
windows doors locks and fastenings thereof and (but without prejudice
to the Lessee's obligations under paragraph (d) of this clause) the
electrical water and sewerage installations therein and all the
Lessor's fittings and fixtures in connection therewith (fair wear and
tear and damage by fire storm earthquake or inevitable accident or
strikes and riots or civil commotion or action of the States enemies
(without neglect or wilful default of the Lessee) alone excepted and
at the expiry or sooner determination of the said term to deliver up
to the Lessor the demised premises in good and tenantable repair save
only as aforesaid.
(d) At the expense of the Lessee to replace or repair all broken circuit
fuses, wall switches and lampholders in the electricity installations
of the demised premises and promptly renew the washers or any leaking
taps in the demised premises.
(e) Not to throw or permit to be thrown any rubbish or other substances or
things out of any windows or doors of the demised premises or in or
about other parts of the said building to which the Lessee shall have
access or into any water closet or other water supply apparatus of the
demised premises and not to do or permit any act whereby the exterior
walls of the demised premises shall be discoloured defaced or damaged.
(f) To duly and promptly comply with all lawful notices and requirements
of the relevant City Council; Medical; Health and other proper Public
Authorities relating to the demised premises in respect of matters
arising from the Lessee's neglect or default.
(g) (i) Not at any time to do or suffer any act or omission upon or about
the demised premises which may render any increased or extra
premium payable for the insurance of the said building against
loss or damage by fire or which may make void or voidable any
policy for such insurance.
(ii) To keep the Lessor indemnified against all claims, actions,
losses and expenses of any nature which the Lessor may suffer or
incur or for which the Lessor may become liable in respect of:
(1) The neglect or careless use or misuse by the Lessee or
persons under the control of the Lessee of the demised
premises or arising out of any faulty fixture or fitting of
the Lessee:
(2) Any accident or damage to property or any person arising
from any occurrence in or near the demised premises wholly
or in part by reason of any act or omission by the Lessee or
persons under the control of the Lessee.
(h) Not to suffer or permit any person or persons to carry out or permit
to be carried on in or upon the demised premises any noise or
offensive or immoral business trade calling or purpose nor create any
nuisance thereon or do or suffer to be done any act matter or thing
which shall or may be or may grow to the
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annoyance nuisance grievance damage or disturbance of the Lessor or
occupiers of any adjoining lands or premises.
(i) To permit the Lessor or its servants agents contractors or workmen at
all reasonable times and on giving notice to the Lessee to enter into
and upon the demised premises to view the state and condition thereof
or for the purpose of executing repairs or renovations thereto or to
any other part of the building of which the demised premises form part
provided however that the Lessor its servants agents contractors or
workmen shall not enter any strong-room cage or place in the demised
premises where money securities or documents are kept unless
accompanied by an officer of the Lessee and that the Lessor will use
all reasonable endeavours to ensure that any repair or renovation work
shall be carried out in a manner which will not unduly interfere with
the Lessee's business.
2. THE Lessor hereby agrees with the Lessee as follows:-
(a) Except as expressly made payable by the Lessee to duly and punctually
pay all city rates insurance premiums and other assessments and
charges levied charged or imposed on the Lessor's said land and/or
the building thereon or on the Lessor or occupier thereof in respect
thereof.
(b) The Lessee paying the rent hereby reserved and observing and
performing all and singular the agreements and stipulations on the
Lessee's part herein contained or implied shall peaceably hold and
enjoy the demised premises during the said term of years without any
interruption by the Lessor or any person rightfully claiming under or
in trust for the Lessor.
(c) The Lessor will keep in good and tenantable repair and condition the
buildings on the demised premises so that the Lessee shall have the
full and free use and benefit thereof and the demised premises and
without limiting the generality of the foregoing the Lessor will at
all times maintain in good condition and proper working order the
water electrical sewerage and drainage installation in or serving the
said buildings or the demised premises except in the case of a defect
occasioned by the negligence or default of the Lessee.
(d) The Lessee may at its option and at its own cost, paint the interior
or exterior of the demised premises or any part thereof during the
currency of the Lease.
(e) The Lessee shall be at liberty without consent of the Lessor to
transfer or assign this Lease or sublet or otherwise part with
possession of the demised premises or any part thereof.
(f) The Lessor will insure and keep insured during the currency of this
Lease all buildings on the demised premises for their full replacement
value against all risks including (but not limited to) fire, malicious
damage, hurricane and earthquake and shall apply all or any proceeds
received under any policy of insurance towards reinstatement or repair
of the buildings or any part thereof as hereafter provided.
3. IT is hereby agreed and declared by and between the parties hereto as
follows:-
(a) If the demised premises or any part thereof shall at any time during
the continuance of this Lease be partially destroyed or damaged by
fire floods lightning storm tempest earthquake strikes riots civil
commotion or action of the State's enemies but not to such an extent
as to render the same unfit for the occupation and use of the Lessee
then the Lessor will at lessor expense forthwith and with all
reasonable speed reinstate the same and a fair and just proportion of
the rent hereby reserved according to the nature and extent of the
damage sustained shall be suspended and cease to be payable until the
premises shall have been reinstated and made fit for the occupation
and use of the Lessee and in the case of any dispute arising as to the
amount of such
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abatement of rent the same shall be referred to arbitration under the
provisions of the Arbitration Act.
(b) In case the demised premises shall be destroyed or damaged by fire
flood lightning storm tempest earthquake strikes riots civil commotion
or action of the State's enemies to such an extent as to render the
same wholly untenantable or if through the lawful act of any public
authority the Lessee shall be deprived of the use and enjoyment of the
demised premises then at the absolute option of the Lessee to be
exercised in writing the Lease hereby created may immediately cease
and determine but without prejudice to the rights of either party in
respect of any antecedent breach or non-observance of any covenant or
provisions hereof. If the Lessee does not so exercise the lessee right
to determine this Lease within three (3) months from the date of
Lessor advising the Lessee in writing of its agreement to reinstate
the demised premises then this Lease shall continue for the remaining
term and any renewal hereby granted in respect of the demised
premises. In that event the Lessee shall be entitled to construct such
new building as it shall decide and the Lessor will apply or cause to
be applied insurance proceeds received by or for it towards such cost
of construction.
(c) If the whole of the demised Premises, of if such portions of the
facilities and building improvements comprising part of the demised
Premises as may be required for the reasonable use of the Lessee's
business, shall be taken by virtue of any condemnation or eminent
domain proceeding, this Lease, at the option of the Lessee, shall
automatically terminate as of the date of any final judgment entered
under such condemnation, or as of the date possession is taken by the
condemning authority, whichever is earlier. In the event the Lessee
does not exercise such right to terminate this lease, this Lease shall
continue and the Lessee shall continue in possession of the remainder
of the demised Premises under the terms herein provided, except that
the monthly rent payable herein shall be reduced in proportion to the
amount of the land area of the demised Premises so taken. The Lessee
shall have the right to recover from any condemning authority that
portion of any award attributed to the Lessee's leasehold interest.
(d) If and whenever the rent shall be in arrear and unpaid for twenty (21)
days from the due date the same may be levied by distress.
(e) If the rent hereby reserved or any part thereof shall be in arrear and
unpaid for the space of twenty-eight (28) days whether the same shall
have been legally or formally demanded or not or if and whenever there
shall be any breach or non-observance or non-performance of any
stipulation condition or agreement herein on the part of the Lessee
contained or implied it shall be lawful for the Lessor forthwith or at
any time thereafter without making any demand or giving any notice or
doing or seeing to the doing of any act matter or thing to re-enter
upon and take possession of the demised premises or any part thereof
in the name of the whole whereupon the term hereby created shall
absolutely cease and determine but without releasing the Lessee from
liability for any rent due or accruing due hereunder or from liability
for any antecedent breach of any stipulation agreement or condition
hereunder.
(f) That no waiver by the Lessor of one breach of any covenant obligation
or provision in this Lease contained or implied shall operate as a
waiver of another breach of the same or of any other covenant
obligation or provision in this Agreement contained or implied.
(g) In the event of the Lessee holding over after the expiration or sooner
determination of the term hereby granted or any lawful renewal thereof
with the consent of the Lessor the Lessee shall become a monthly
Lessee only of the Lessor at a monthly rental equivalent to a monthly
rent payable by the Lessee hereunder after the expiration or sooner
determination of such term or renewal thereof and otherwise on the
said terms and conditions mutatis mutandis as those herein contained
so far as applicable.
(h) The Lessee may prior to the commencement of the said term and from
time to time during the said term and at its discretion make erect or
install alterations additions decorations improvements
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fixtures fittings and appliances within the existing building on the
demised premises for the purpose of its business and such shall remain
the property of the Lessee and upon the expiration or earlier
termination of this Lease, the Lessee may remove the same.
(i) (i) In case the Lessor shall at any time fail neglect or default in
making any payment required of it under or for the benefit of
this Lease (such as and without limitation but by way of
illustration only insurance premium and city rates) it shall be
lawful for but not obligatory upon the Lessee to pay the same and
any moneys paid for or on behalf of the Lessor by the Lessee
shall carry interest at Bank rate prevailing from time to time on
overdraft accounts and all such moneys including accrued interest
shall be payable on Demand.
(ii) Without discharging the Lessor's liability to pay and as security
only the Lessor hereby irrevocably authorises the Lessee to
deduct all moneys and interest payable by the Lessor under the
preceding sub-clause from the rentals payable under clause 1 (a).
4. AS long as the Lessee is not in default under this Lease, the Lessee shall
have the option to renew the term of this Lease for three renewal terms (each, a
"Renewal Term") of 10 years, 5 years and 5 years such renewal to be upon the
covenants, terms and conditions as set forth in this Lease, except that annual
rent for such Renewal Term will be the "Fair Market Rental Value" (defined
below) of the Premises at the commencement of the Renewal Term. In order to
exercise its option to renew, Lessee shall give written notice to Lessor not
less that one hundred eighty (180) days prior to the end of the then-current
lease term.
"Fair Market Rental Value" shall be determined as follows. Lessor and Lessee
shall seek to agree as to Fair Market Value within thirty (30) days after Lessee
gives Lessor notice of its election to renew this Lease. If Lessor and Lessee do
not agree about Fair Market Rental Value within such thirty (30) day period, the
following provisions shall apply.
(a) Within fifteen (15) days after the expiration of the thirty (30) day
period, the Lessor and Lessee shall each identify an impartial,
licensed real estate professional familiar to the Namaka area to act
as a valuation expert. If either party fails to appoint an expert
within such fifteen (15) day period, then the determination of the
expert first appointed will be final, conclusive and binding on both
parties.
(b) The named experts shall together determine the Fair Market Rental
Value. In making such determination, the experts shall consider the
rentals at which leases are being concluded for comparable
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space in the Building and for comparable space in comparable
buildings. If the experts fail to agree on the Fair Market Rental
Value within thirty (30) days of their appointment and the difference
in their conclusions about Fair Market Rental Value is (10%) or less
of the lower of the two determinations, Fair Market Rental Value shall
be the average of the two determinations.
(c) If the two experts fail to agree on Fair Market Rental Value and the
difference between the two determinations exceeds ten percent (10%) of
the lower of the two determinations then the experts shall appoint a
third expert, similarly impartial and qualified, to determine the Fair
Market Rental Value. This third expert shall determine the Fair Market
Rental Value within thirty (30) days of his or her appointment, and
his or her determination will be final, conclusive and binding on
Lessor and Lessee. The Lessor and Lessee shall each execute and
deliver an agreement confirming annual rent for the renewal term.
(d) The Lessor and the Lessee shall each pay the fees of any expert
appointed by the Lessor and Lessee, respectively, and Lessor and
Lessee shall each pay one-half (1/2) of the fees of the third expert,
if any.
5. IN consideration of the sum of $1.00 (One dollar) paid to the Lessor by the
Lessee (the receipt of which sum the Lessor hereby acknowledges) the Lessor
agrees and undertakes that if at any time during the term of this Lease or any
renewal thereof the Lessor shall decide to sell the property comprised in this
Lease the said property shall be first offered in writing to the Lessee. The
said offer shall be at a price and upon the terms and conditions as the Lessor
shall advise and the offer shall remain open for acceptance by the Lessee for
such period as shall be stipulated being not less than two months from the date
of the service of the offer upon the Lessee. Upon receipt of the said offer the
Lessee may cause a valuation to be done of the property by a qualified
registered valuer in Fiji appointed mutually by the parties or failing agreement
by the firm. Such valuation shall be used by the parties as a basis for
negotiating an acceptance of the said offer or any other price that may be
mutually agreed. Should the parties fail to mutually agree upon a price or
should the Lessee refuse to accept the said offer or fail to do so within the
stipulated time then the
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Lessor shall be free to sell the said property to anyone else but such sale
shall not be at a price lower nor the terms and conditions any less onerous
than those already offered to the Lessee. In any event the cost of the said
valuation shall be shared equally by the Lessor and the Lessee.
6. THIS Lease is subject to the consent of Minister of Lands pursuant to the
provisions of Section 6 of the Lands Sales Act as the Lessor shall obtain such
consent before the execution of this Lease.
7. (a) THE Lessor warrants and represents that any use, storage, treatment,
or transportation of Hazardous Substances, as defined hereinafter
which has occurred in or on the demised Premises prior to the date
hereof has been in compliance with all applicable federal, state and
local laws, regulations and ordinances. The Lessor additionally
warrants and represents that no release, leak, discharge, spill,
disposal or emission of Hazardous Substances has occurred in, on or
under the demised Premises, and that the demise Premises are free of
Hazardous Substances as of the date hereof.
(b) THE Lessor agrees to indemnify and hold harmless the Lessee from any
and all claims, damages, fines, judgments, penalties, costs,
liabilities or losses (including, without limitation, any and all sums
paid for settlement of claims, attorneys' fees, consultant and expert
fees) arising during or after the lease term from or in connection
with the presence or suspected presence of Hazardous Substances in or
on the demised Premises, unless the Hazardous Substances are present
solely as a result of negligence, willful misconduct or other acts of
the Lessee, its agents, employees, contractors or invitees. Without
limitation of the foregoing, this indemnification shall include any
and all costs incurred due to any investigation of the site or any
cleanup, removal or restoration mandated by a federal, state or local
agency or political subdivision, unless the Hazardous Substances are
present solely as a result of negligence, willful misconduct or other
acts of the Lessee, its agents, employees, contractors or invitees.
This indemnification shall specifically include any and all costs due
to Hazardous Substances which flow,
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diffuse, migrate or percolate into, onto or under the demised Premises
after the lease term commences.
(c) As used herein, "Hazardous Substances" shall mean any substance or
material defined or designated as hazardous or toxic waste, hazardous
or toxic material, a hazardous, toxic or radioactive substance or
other similar term by any federal, state or local environmental
statue, regulation or ordinance presently in effect or that may be
promulgated in this future as such statutes, regulations and
ordinances may be amended from time to time.
8. (a) THE Lessee shall pay all Value Added Tax (or any similar tax levied in
substitution therefore) on all payments by the Lessee in terms of this
Lease where such payments are levied with such tax.
(b) THE Lessee shall upon demand pay to the Lessor all Value Added Tax (or
any similar tax levied in substitution therefore) paid or payable by
the Lessor in respect of:
(i) the rental payable under this Lease;
(ii) any other payments paid or payable by the Lessee under this Lease
or paid by the Lessor on behalf of the Lessee in terms of the
Lessee's obligations to make such payment under this Lease.
9. (a) IF any dispute or difference shall arise between the parties as to:
(i) The meaning or application of any part of this Lease; or
(ii) Any other matter in connection with or which may have an effect
on this Lease
the dispute or difference ("the Issue") shall be referred to the award
of a single arbitrator to be agreed upon between the Lessor and the
Lessee.
(b) If the Lessor and the Lessee are unable to agree upon a single
arbitrator within 10 days of either the Lessor or the Lessee notifying
the other in writing of their wish to have the Issue arbitrated then
either party ("the Notifying Party") may at any time subsequently by
notice in writing to the other party ("the
8
Receiving Party") require the Issue to be determined by two
arbitrators (one to be appointed by the Lessor and one to be appointed
by the Lessee) and their umpire (to be appointed by the arbitrators
before proceeding to determine the Issue). The notice to be given by
the Notifying Party pursuant to this subclause shall:
(i) Nominate the arbitrator appointed by the Notifying Party;
and
(ii) Require the Receiving Party to nominate its arbitrator by a
date not less than 10 days after the date of service of the
notice on the Receiving Party; and
(iii) Warn the Receiving Party of the consequences under subclause
8 (c) of failure to appoint an arbitrator by the date
specified by the Notifying Party.
(c) If the Receiving Party shall fail to appoint its arbitrator by the
date specified then the Notifying Party may by notice in writing to
the Receiving Party have the Issue determined solely by the Notifying
Party's arbitrator.
(d) If any arbitrator appointed pursuant to subclauses 8 (a) or (b)
refuses or fails to act in pursuance of the arbitration (including
appointing an umpire if necessary) within a reasonable time of their
appointment then either the Lessor or the Lessee may (provided the
defaulting arbitrator has first been given in writing a reasonable
time in which to act) request the President of the Fiji Law Society to
appoint a replacement arbitrator or an umpire (if the arbitrators are
unable to agree on an umpire) who shall act in lieu of the defaulting
arbitrator or as the umpire as the case may be.
(e) Time shall be of the essence under this clause.
(f) The parties agree to be bound by any decision or award completed
pursuant to this clause.
(g) This provision shall survive the expiration or earlier determination
of this Lease.
(h) Any referral to arbitration under this clause shall be a submission to
arbitration under the Arbitration Act Cap 38 which
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Act shall, to the extent not inconsistent with anything in this
clause, apply to any such submission.
10. ALL notices required hereunder shall be in writing and may be personally
delivered or mailed by certified or registered mail, addresssed to the
respective parties, and all notices, demands or other writing to be made, given
or sent hereunder, or which may be so given or made or sent by any party to the
other shall be deemed to have been fully given or made when personally delivered
or if mailed, 10 calendar days following the deposit thereof in the Fiji mail,
registered or certified, postage prepaid, and addressed to the respective
parties as follows:-
Lessor: WESTMALL LIMITED
P.O. Box 7,
Nadi,
Fiji Islands.
Attention : Mr. Terry Buckley
Lessee: CUL (FIJI) LIMITED
12410 S.E. 32nd Street,
Bellevue,
WA 98005,
Attention : Mr. Jim Rose
11. EACH party shall bear half the Solicitors cost in preparing and attending
to execution of this Lease except that the Lessee shall pay disbursements for
the stamping and registration of the same.
12. EACH party acknowledges that it has been specifically advised by Young &
Associates, Solicitors to obtain seperate and independent legal advice on this
agreement and the transaction contemplated therein.
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THE SCHEDULE
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IN WITNESS WHEREOF the parties have subscribed their names the day and year
hereinbefore appearing.
THE COMMON SEAL of WESTMALL LIMITED )
was hereunto affixed in our presence )
and we certify that we are the proper ) [THE COMMON SEAL OF WESTMALL LIMITED]
officers by whom and in whose presence )
the said Seal is to be affixed: )
[SIGNATURE ILLEGIBLE] [SIGNATURE ILLEGIBLE]
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Director Director
THE COMMON SEAL of CUL (FIJI) )
LIMITED was hereunto affixed )
in our presence and we certify ) [THE COMMON SEAL OF CUL (FIJI) LIMITED]
that we are the proper officers )
by whom and in whose presence )
the said Seal is to be affixed: )
/s/ Michael J. Rose /s/ Allan Youngberg
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Director Director
MEMORANDUM OF PRIOR LEASES, MORTGAGES AND ENCUMBRANCES REFERRED TO:
Nil
Correct for the purposes of Land Transfer Act.
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Solicitor for the Lessee
[PROPOSED LAYOUT PLAN OF WEST MALL DEVELOPMENT FIJI]