Exhibit C DRAFT-Caneel Bay LDDA 508.pdf

UPDATED 9-11-2024

LEASE DISPOSITION

AND

DEVELOPMENT AGREEMENT

by and between

United States Department of the Interior

National Park Service and

[Insert Name of Lessee]

Dated as of [Insert Date]

SAMPLE LEASE DISPOSITION AND DEVELOPMENT AGREEMENT

THIS LEASE DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is made as of [Insert Date] ("Effective Date"), by and between the United States Department of the Interior, acting through the National Park Service, an agency of the United States of America, Virgin Islands National Park, a unit of the National Park Service, acting through the Interior Region 2 Regional Director, hereinafter, together with his or her successor or successors in office and his, her, and their duly appointed representatives (collectively, "NPS") and [Insert Lessee Name], a [Insert State of Incorporation] limited liability company ("Developer").

RECITALS

This Agreement is entered into upon the following facts, understandings and intentions of NPS and Developer, sometimes collectively referred to herein as the "Parties," and individually as a "Party":

A. Virgin Islands National Park (VIIS) is administered by the Secretary of the Department of the Interior through the National Park Service pursuant to the National Park Service Organic Act, 54 U.S.C. 100101, and the Act to Authorize the Establishment of the Virgin Islands National Park, (Aug. 2, 1956, ch. 885, § 1, 70 Stat. 940, 16 U.S.C. 398), as amended, establishing the Virgin Islands National Park.

B. On July 26, 2023, NPS issued a Finding of No Significant Impact for the Caneel Bay Area Redevelopment and Management Environmental Assessment (EA) pursuant to the National Environmental Policy Act, 42 U.S.C. Sections 4321 et seq. (NEPA).

C. The NPS, in consultation with the Virgin Islands State Historic Preservation Office (VI SHPO), found the Caneel Bay Historic District, which generally has the same footprint as the area that was previously operated as the Caneel Bay Resort, to be eligible for inclusion on the National Registry of Historic Places in 2012.

D. Title 54 U.S.C. § 102102 and Title 36 C.F.R. Part 18 authorize the Secretary of the Department of the Interior to negotiate and enter into leases, under certain circumstances, for the use of buildings and associated property administered as part of the National Park System.

E. Those buildings, lands, and improvements that were previously operated as the Caneel Bay Resort (“The Resort”), has been determined by the Regional Director of Interior Region 2 to be suitable for leasing under 36 C.F.R. Part 18.

F. It is because of the Developer’s response to the Request for Qualifications (RFQ) and the Request for Proposals (RFP), including the qualifications and identity of Developer and its team comprised of [Enter details of the development team here] (collectively, the "Development Team"), and proposed redevelopment, construction, management, and operation plans that NPS is entering into this Agreement with Developer. The Development Team may be changed only with the prior written consent of the NPS.

G. NPS has determined that the use and occupancy of the Premises for the use contemplated in this Agreement is consistent with the purposes established by law for VIIS, the General Management Plan / Development Concept Plan / Environmental Assessment, dated September 1983, the EA, and the purposes of the act to Authorize the Establishment of the Virgin Islands National Park (Aug. 2, 1956, ch. 885, § 1, 70 Stat. 940, 16 U.S.C. 398), and is compatible with the public interest.

H. Developer desires to lease a portion of The Resort, along with those areas identified in their response to the NPS RFP issued [INSERT DATE](the "Premises," as defined below) for the purpose of redeveloping, managing, and operating the Premises as a resort in accordance with all Applicable Laws (as defined below) and all applicable covenants, conditions, restrictions, requirements, and limitations that exist now or that may exist in the future.

I. NPS has agreed to enter into this Agreement with Developer and to lease the Premises to Developer (i) in reliance on Developer's representations that (a) it, together with the Development Team, will secure leasehold financing to perform the redevelopment and construction of the Premises to facilitate its use as a resort, and (b) Developer will manage and operate the same in a first-class manner in accordance with all Applicable Laws and all applicable covenants, conditions, restrictions, requirements, and limitations; and

(ii) in further reliance upon Developer's unique ability, skills and expertise to redevelop, construct, manage and operate a resort on the Premises.

J. [Optional condition to be used if phased development is determined to be appropriate] To facilitate the leasing, funding, financing, and completion of the capital improvements of the Premises, Developer and NPS have agreed to a phased redevelopment and capital improvement plan, on the terms, agreements, covenants, conditions and provisions set forth in this Agreement and for the purposes provided in this Agreement. The Parties intend that in accordance with the phasing plan, Developer (or its assignee approved in writing by NPS) will first lease and develop the Initial Phase (as defined below) of the Phased Improvements (as defined below) to establish and operate the Premises. As permitted by the EA, Developer may elect to perform the redevelopment and construction of additional phases of the resort, which may be accomplished over time and in a variety of configurations. As Developer elects to proceed with subsequent phases of the capital improvement program, the Parties will amend the Scope of Development (Exhibit G) and related schedules of performance, as they may be incorporated into the Lease, for each subsequent phase. Upon satisfaction of conditions precedent for subsequent phase, the Premises leased pursuant to the Lease (as defined below) may be expanded, as necessary, to include the applicable phase.

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1

INTENT, DEFINITIONS

Section 1.1 Purpose. The purpose of this Agreement is to set forth conditions precedent for the Lease Execution Date (as defined below) to ensure that, prior to the Lease Execution Date, Developer complies with certain terms and conditions for its due diligence, design, construction, financing, and redevelopment of the Initial Improvements and Phased Improvements (if applicable); and that, following the Lease Execution Date, the Initial Improvements and Phased Improvements (if applicable) will be constructed in accordance with the terms and conditions of this Agreement as they may be incorporated into the Lease.

Section 1.2 Definitions. In addition to the terms defined elsewhere in this Agreement, the following definitions will apply:

(a) “Applicable Laws” means all present and future law or legal authority, including statutes, ordinances, regulations, and administrative or judicial orders or determinations, enacted, promulgated, or issued by federal, state, or local governmental entities or agencies having lawful jurisdiction over the Premises or the Lessee, that apply to and govern the Premises or the Lessee’s activities on the Premises.

(b) "Approved Development Budget" means the Proposed Development Budget that has been approved, in writing, by the NPS accordance with Section 2.2(f)(i)(B) below.

(c) "Associated Property" means those areas that may be utilized by Developer for underground utilities serving the Premises.

(d) "Certificate of Occupancy" means a document issued by NPS that confirms that NPS' requirements for full occupancy and use of the Initial or Phased Improvements pursuant to this Agreement and the Lease have been completed to the satisfaction of the NPS.

(e) "Conditional Certificate of Occupancy" means a Certificate of Occupancy issued by NPS with conditions for final completion and allowing for partial occupation or partial use of the Initial or Phased Improvements.

(f) "Construction Contracts" means each construction contract for the general contractor, each subcontractor who will perform landscape and site work and historic rehabilitation, and all other subcontracts.

(g) "Construction Schedule" means the schedule for the construction of the Initial or Phased Improvements attached as Exhibit E.

(h) "Construction Documents" means schematic design and review documents, design development review drawings, construction drawings, permit drawings, and any other documents upon which Developer and its contractors shall rely on in building the Initial or Phased Improvements. The Construction Documents include, without limitation, final architectural drawings, landscaping plans and specifications, final elevations, and building plans and specifications (also commonly known as "working drawings"). The Construction Documents must be based upon the Scope of Development (Exhibit G) and must not materially deviate from the Scope of Development without the express written approval of the NPS. In addition, the Construction Documents must include any onsite or off-site mitigation measures required by the NPS as a condition of any permits or approvals required for the Project.

(i) "Development Cost" means the costs associated with the Initial or Phased Improvements, including, without limitation, the cost of all labor, materials, furniture, fixtures (but not trade fixtures) and equipment supplied by the contractor and subcontractors or other suppliers; taxes, permits, licenses, fees, charges and levies imposed by governmental authorities; fees paid to engineers, architects, interior designers, and space planners to prepare plans, specifications and drawings for the work; reasonable fees paid to attorneys in connection with drafting and approval of the Lease, subleases, financial documents and other related documents; the reasonable cost of on-site inspection, administration and supervision of the development and construction process, financing, and insurance; and recording and filing fees required by the construction.

(j) "Effective Date" will be the date first set forth above.

(k) “Environmental Assessment” means that certain environmental assessment entitled "Caneel Bay Redevelopment and Management Environmental Assessment," dated January 2023.

(l) "Excusable Delay" means delay in the performance of a Party's obligations due to causes beyond its reasonable control and without its fault or negligence, including, without limitation, Force Majeure, unavailability of necessary labor, tools, or materials, government restrictions, or litigation, but excluding Developer's inability to obtain financing. Where this Agreement provides for an extension of time for an Excusable Delay, the extension will be for such reasonable time as is necessary to compensate for the delay, as set forth in a written notice from the Party experiencing the delay to the other.

(m) "Fair Market Value Rent" means the most probable rent, as of a specific date, in cash or in terms equivalent to cash, for which the property to be leased, under the terms and conditions of the Lease, should rent for its highest and best permitted use after reasonable exposure in a competitive market under all conditions requisite to a fair leasing opportunity, with the NPS and the Lessee under the Lease each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under undue duress. Fair Market Value Rent will be confirmed for the Initial Improvements and reconfirmed for subsequent phases in accordance with Section 2.2(d) below and the Lease.

(n) "Financing Plan" means the Developer’s plan for financing the redevelopment, construction, operation, and maintenance of the Project and Premises developed in accordance with Section 2.2(f) below

(o) “Force Majeure” means an act, event, or condition that can be neither anticipated nor controlled and that objectively prevents the Developer from performing one or more of its obligations under this Lease.

The term “Force Majeure” does not include any act, event, or condition that the Developer reasonably may anticipate or control; it does not include market conditions, economic conditions, or the Developer’s financial inability to perform its obligations under this Lease; and it does not include changes in Applicable Laws, except that the Lessor may determine that it includes an order issued by a governmental entity with jurisdiction over the Premises that prevents the Developer’s use or occupancy of the Premises for the authorized purposes set forth in this Lease.

(p) "Foundation Document" means that certain Virgin Islands National Park | Virgin Islands Coral Reef National Monument Foundation Document, December 2016, prepared by the NPS.

(q) “Hazardous Materials” means any material or other substance: (a) that requires investigation, correction, or abatement under Applicable Laws; (b) that is or becomes defined as a hazardous waste, hazardous substance, pollutant, or contaminant, under Applicable Laws; (c) that is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous, and is or becomes regulated under Applicable Laws; (d) that contains gasoline, diesel fuel or other petroleum hydrocarbons; (e) that contains polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde foam insulation; or (f) that contains radon gas. The term Hazardous Materials as used in this Agreement includes Pre-existing Hazardous Materials unless otherwise stated in a particular provision of this Agreement.

(r) “Hazardous Materials Occurrence” means any use, treatment, keeping, storage, sale, release, disposal, migration, transport, or discharge of any Hazardous Materials from, on, under, or into the Premises or other VIIS property that occurs during the Lease Term.

(s) "Hazardous Materials Laws" means all Applicable Laws relating to any Hazardous Materials or Pre-existing Hazardous Materials.

(t) “Historic Property” means building(s) and land located within the boundaries of VIIS that are part of a pre-historic or historic district or site included on, or eligible for inclusion on, the National Register of Historic Places.

(u) “Improvements” means permanent additions to the Premises that increase its value or utility or enhance its appearance, regardless of who makes the additions. The term “Improvements” includes both Initial and Phased Improvements.

(v) "Initial Improvements" means the Improvements to be constructed pursuant to this Agreement, including ancillary landscaping, parking, and other Improvements as approved by NPS, as generally described in the design development documents and supplemental civil engineering drawings listed in the Scope of Development (Exhibit G), including, [the scope of the Initial Improvements will be dependent upon what is proposed by the Developer and accepted by the NPS as a result of the RFP process].

(w) "Lease" means, prior to the Lease Execution Date, that certain lease to be executed by NPS and Developer or its assignee approved in writing by NPS, by which NPS will convey a leasehold interest in the Premises to Developer or its assignee approved in writing by the NPS pursuant to the terms and conditions of this Agreement. The Lease will be substantially in the form attached to this Agreement as Exhibit B. After the Lease Execution Date, the term "Lease" refers to the fully-executed Lease of the Premises for the redevelopment, construction of the Initial and Phased Improvements, management, and operation of the Premises including all conditions, exhibits, attachments, modifications, amendments, and extensions thereof.

(x) "Lease Execution Date" means the date by which all conditions precedent for execution of the Lease have been satisfied and the Lease has been fully executed.

(y) "Material Change" means a change in the Construction Documents, as approved by NPS, that affects NPS infrastructure, Historic Property elements, mitigation measures, or requires code review.

(z) "Party" means one of the two parties to this Agreement and their respective successors and assigns.

(aa) "Permitted Areas" means those areas within VIIS for which VIIS has issued a Special Use Permit to the Developer for use by Developer in the conduct of due diligence activities or to aid in the construction of the Initial and Phased Improvements. The areas anticipated to be Permitted Areas for the Initial Phase of the Phased Improvements are depicted on Exhibit C attached hereto.

(bb) "Permitted Exceptions" means the exceptions to title listed in the attached Exhibit D (as may be amended prior to the Lease Execution Date) in accordance with any easements or rights-of-way granted, or to be granted, by the NPS to [Insert names utility companies that have, or may have, a Right of Way or others entities that have permitted or legal access to the Premises].

(cc) "Phased Improvements" means any construction or modification to the Improvements, other than Initial Improvements, pursuant to this Agreement, including ancillary landscaping, parking, and other improvements as approved by NPS, including:

[Details of the Phased Improvements will depend on what is proposed and excepted through the RFP process]

(dd) "Phased Improvement Milestone" means the date by which all conditions precedent for each phase of the Phased Improvements must be satisfied.

(ee) “Pre-existing Hazardous Materials” means Hazardous Materials (including storage tanks) that existed in, on, or under the Premises or other lands or waters within the Premises prior to the Effective Date.

(ff) “Premises” means that certain real property, together with the Improvements thereon, to be leased pursuant to the Lease, which includes portions of The Resort and those areas of VIIS necessary for the redevelopment project proposed by the Developer and further depicted on the map in Exhibit A to this Agreement.

(gg) "Project" means the construction of the Initial and Phased Improvements, including the modification of existing Improvements, to develop the Premises (including the installation of underground utilities in any Associated Property), pursuant to the terms and conditions of this Agreement and the Lease.

(hh) “Project Area” means the area(s) within the Premises where the Initial and Phased Improvements will take place.

(ii) "Proposed Development Budget" means a detailed itemization of the Development Cost of the applicable phase of the Initial and Phased Improvements developed in accordance with Section 2.2(f)(i)(B) of this Agreement.

(jj) "Response Action" means all actions taken to investigate, remove, remedy, remediate, maintain and monitor Hazardous Materials, all such terms include enforcement activities related thereto. For purpose of this definition, “remove” means the cleanup or removal of released Hazardous Materials from the environment, such actions as may be necessary in the event of the threat of release of Hazardous Materials into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of Hazardous Materials, the disposal of removed material, or taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. For purposes of this definition, “remedy" or "remediate" mean those actions consistent with a permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a Hazardous Material into the environment, to prevent or minimize the release of Hazardous Materials so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment..

(kk) "Schedule of Performance" means the dates by which conditions precedent for Lease execution and for each phase of the Phased Improvements that must be met as generally described in Exhibit F attached hereto (subject to adjustment by the mutual written consent of the Parties).

(ll) "Scope of Development" means the development described in Exhibit G attached to this Agreement applicable to the Initial Improvements and further depicted in the design drawings, civil engineering drawings, and construction drawings listed in Exhibit G and reflected in the final Construction Documents for the Initial Improvements approved by NPS pursuant to this Agreement and to be constructed in accordance with the Lease.

(mm) "Substantial Completion" means the work of constructing the Initial or Phased Improvements, as applicable, is substantially complete such that the applicable facility and improvement(s) are operable as a usable facility(ies) or improvement(s) though "punch list" items may not yet be completed.

ARTICLE 2

TERM, CONDITIONS PRECEDENT

Section 2.1 Term. The term of this Agreement will commence upon the Effective Date and will terminate on upon the execution of the Lease or such earlier date as this Agreement may be terminated in accordance with its terms.

Section 2.2 Conditions Precedent. As conditions precedent to the occurrence of the Lease Execution Date or Phased Improvement Milestone, as applicable, the conditions set forth in this Section 2.2 must first be met by the times specified for such conditions for each phase of the Initial and Phased Improvements (as may be extended for Excusable Delay as determined by the Parties). A summary of the deadline for such conditions is provided under this Agreement as the Schedule of Performance (Pre-Lease Execution or Phased Improvement Milestones) attached hereto as Exhibit F.

(a) Subsequent Phases. The Parties acknowledge that additional phases may be accomplished over time and in a variety of configurations. If Developer elects to proceed with subsequent phases of the Phased Improvements, the Parties will meet and confer to amend the Lease to reflect any changes to the Scope of Development, Schedule of Performance and Phased Improvement Milestones, and Construction Schedules as incorporated in the Lease.

(d) Appraisal. An appraisal or similar determination to confirm the Fair Market Value Rent for the Initial Improvements will be completed by the NPS on or before the Lease Execution Date. An appraisal or similar determination may be conducted by the NPS as part of each phase of the Phased Improvements to reconfirm that the rent is consistent with Fair Market Value Rent. If an appraisal or similar determination is required, it will be conducted when the design development documents for each applicable phase of the Phased Improvements have been approved by NPS and may be conducted in accordance with the current Uniform Standards of Professional Appraisal Practice, commonly referred to as "USPAP," as amended, revised or superseded. If an appraisal is conducted the appraiser will be selected by NPS. To confirm (with respect to the Initial Phase of the Phased Improvements) or reconfirm (with respect to subsequent phases of the Phased Improvements) the Fair Market Value Rent NPS will require that the appraisal or similar determination take into consideration the applicable Scope of Development to be completed as part of such phase and the requirements of the leasing regulations (36 CFR Part 18, as amended, revised or superseded) and NPS guidelines as adopted and as amended, revised or superseded. If applicable, the Lease will be amended to memorialize any Rent adjustment as a result of any such appraisal. With respect to any Fair Market Value Rent reconfirmation conducted in connection with phases of the Phased Improvements subsequent to completion of the Initial Improvements, if no material change is made in the type of activities authorized by Section 6.1 of the Lease, conducted by the Developer under the Lease in any part of the Premises, then any such Fair Market Value Rent determination will be limited to the increment of such additional phase of the Phased Improvements.

(e) Application for Approvals.

(i) Developer must submit to the NPS and obtain written approval for the Initial and Phased Improvements Scope of Development (Design Drawings), and Schedule of Performance (Pre- Lease Execution or Phased Improvement Milestones), which, upon approval, will be attached hereto as Exhibits G and F, respectively.

(ii) Developer must obtain and submit to NPS evidence of any "will serve" letters from utilities necessary for construction of the Project in accordance with the Scope of Development and Schedule of Performance (Pre-Lease Execution or Phased Improvement Milestones) attached hereto as Exhibits G and F, respectively.

(f) Financing Plan.

(i) Developer must submit in writing a proposed Financing Plan to NPS within ten (10) days following Developer's submission of design development documents for each phase of the Initial and Phased Improvements pursuant to the Schedule of Performance (Pre-Lease Execution or Initial and Phased Improvement Milestones) attached hereto as Exhibit F. The Financing Plan must include the following:

(A) A ten-year cash flow projection of resort operations showing detailed summaries of anticipated income and expenses.

(B) A detailed itemization of the Development Cost of the applicable phase of the Initial and Phased Improvements (the "Proposed Development Budget"). The Proposed Development Budget must be based upon the applicable Scope of Development. Pursuant to Section 2.2(f)(iii) below, after preparation of the Construction Documents, Developer must update the Proposed Development Budget to reflect any changes between approval of the applicable Scope of Development and preparation of the Construction Documents. NPS will review the Proposed Development Budget to determine whether each of its work items is an appropriate Development Cost and whether each of the components of the Development Cost is reasonable and necessary for the construction of the applicable phase of the Initial and Phased Improvements. Upon such determination by NPS, NPS will provide Developer written approval of the Proposed Development Budget (the "Approved Development Budget"). If the Proposed Development Budget is not approved by NPS, then NPS must notify Developer in writing of the reasons for disapproval. Developer will thereafter submit to NPS a revised Proposed Development Budget within fourteen (14) days of the notification of disapproval, or, if applicable by the date (or within the period) specified on the Schedule of Performance (Pre-Lease Execution or Initial and Phased Improvement Milestones) attached hereto as Exhibit F. NPS will, within fifteen (15) days, approve or disapprove in writing the revised Proposed Development Budget. Provided Developer timely provides all required documentation for NPS' review, Developer may request in writing a shorter review period by NPS if the Proposed Development Budget is contingent upon contractors' bids which contractors will only hold open for a period less than thirty (30) days. Only upon NPS' approval in writing of an Approved Development Budget will this condition precedent be deemed met.

(C) A reasonably detailed description of the type and source of funding and appropriate supporting documents in a form satisfactory to NPS showing all sources and uses of funds, and sufficient to demonstrate that Developer has, or will have, adequate funds to complete the applicable phase of the Initial and Phased Improvements in accordance with the Approved Development Budget, and that such funds are committed and available for that purpose. The description of the type and source of funds, must be certified by Developer to be true and correct, and must include but not be limited to:

(1) conventional debt, such as construction, permanent or other financing;

(2) conventional equity; and

(3) any other source of funding.

(D) NPS review and approval of any and all philanthropic capital campaigns pertaining to the Initial and Phased Improvements.

(E) To the extent of any debt financing, a copy of a bona fide commitment or commitments, with no conditions to funding other than standard and customary conditions and no provisions requiring acts of Developer prohibited herein or prohibiting acts of Developer required herein, for the financing of that portion of the Approved Development Budget intended to be borrowed by Developer, certified by Developer to be a true and correct copy or copies thereof. The commitment or commitments, if required by any construction lender, must include commitments for permanent financing. Developer covenants to perform any and all conditions to funding in accordance with the commitments.

(F) An independently audited financial statement or other evidence in a form satisfactory to NPS demonstrating that Developer has sufficient additional capital funds available and is committing such funds to cover the difference, if any, between the dollar amount of the Approved Development Budget for the applicable phase of the Initial and Phased Improvements and the amount available to Developer from external sources.

(ii) Upon receipt by NPS of the applicable Proposed Development Budget and proposed Financing Plan, NPS will review the proposed Financing Plan and approve or disapprove it in writing within thirty (30) days of receipt of complete documentation therefor. NPS' review of the proposed Financing Plan will consist of determining if the Financing Plan:

(A) provides sufficient funds to complete the applicable phase of the Initial and Phased Improvements in accordance with the Approved Development Budget;

(B) is appropriately documented in accordance with Section 2.2(f)(i) above;

(C) is consistent with this Agreement and the Lease; and

(D) is feasible.

If the proposed Financing Plan is not approved by NPS, then NPS will notify Developer in writing of the reasons for disapproval. Developer must thereafter submit to NPS a revised proposed Financing Plan within fifteen (15) days of the notification of disapproval. NPS will promptly approve or disapprove in writing the revised proposed Financing Plan. Only upon NPS' approval in writing of a Financing Plan will this condition precedent be deemed met.

(iii) Developer will update the approved Financing Plan to reflect any changes in the Approved Development Budget between approval of the Scope of Development and preparation of the Construction Documents. Developer must submit (A) a proposed updated Financing Plan to NPS to (1) reflect any such changes in the Approved Development Budget, and (2) include firm commitments for any financing formerly committed through preliminary commitments in accordance with the requirements set forth in Section 2.2(f)(i)(E) above; and (B) all applicable loan documents. NPS will review and approve or disapprove in writing the proposed updated Financing Plan (together with the proposed updated Approved Development Budget) within thirty (30) days of receipt of complete documentation therefor or, if applicable by the date (or within the period) specified on the Schedule of Performance (Pre-Lease Execution or Initial and Phased Improvement Milestones attached hereto as Exhibit F) using the same criteria applicable to review of the Approved Development Budget under Section 2.2(f)(i)(B) above and the Financing Plan under Section 2.2(f)(ii) above. If the proposed updated Approved Development Budget and Financing Plan are not approved by NPS, then NPS must notify Developer in writing of the reasons for disapproval. Developer must thereafter submit to NPS a revised proposed updated Approved Development Budget and a revised proposed updated Financing Plan within fifteen (15) days of the notification of disapproval. NPS will, within fifteen (15) days, approve or disapprove in writing the revised proposed updated Approved Development Budget and the revised proposed updated Financing Plan. Only upon NPS' approval in writing of an updated Approved Development Budget and an updated Financing Plan and loan documents will this condition precedent be deemed met.

(g) Design; Construction Documents; Building Permit.

(i) Developer must design the Initial and Phased Improvements in accordance with Applicable Laws and sound professional design practice, including the Secretary of the Interior’s Standards for the Treatment of Historic Properties, as may be applicable, and in accordance with the requirements of this Agreement, including all plans required to be prepared by the Developer and approved by the NPS.

(ii) In accordance with the Scope of Development for the applicable phase of the Initial and Phased Improvements, and the Schedule of Performance (Pre-Lease Execution or Initial and Phased Improvement Milestones), Developer must complete and submit to NPS the civil engineering drawings and construction drawings, referred to in the applicable Scope of Development, along with any additional materials that may be specified in the Scope of Development for NPS review and approval. Within (30) days of the receipt of civil engineering documents, Construction Documents, and additional materials specified in the Scope of Development, NPS will notify Developer, in writing, of its approval or disapproval of the documents. If the documents are not approved then the NPS will notify Developer of the reasons for disapproval and Developer will have thirty (30) days to revise such drawings or plans and resubmit. Only upon written approval by NPS of the civil engineering drawings, Construction Documents, and additional materials specified in the Scope of Development will this condition precedent be deemed met.

(iii) All Construction Documents must be prepared in accordance with standards and submittal requirements set forth in NPS Director's Order No. 10A, Design and Construction Drawings, effective date April 15, 2003, as amended.

(iv) In the preparation of Construction Documents, Developer must review utility plans for the location of existing utilities that may be damaged by Developer's construction of the Initial and Phased Improvements and Developer must use its best efforts to prevent such damage during the construction process and must promptly repair any damage that does occur. All existing "as-built" utility plans in NPS' possession will be furnished by NPS showing the locations of all NPS utilities in the relevant areas. Developer must make reasonable efforts to obtain all other necessary utility plans from utility companies and the previous operator.

(v) Developer must furnish NPS with a true and correct copy of Developer's contracts with any architect, engineer, design consultant, and any general contractor engaged in connection with this Agreement for design and construction of the Initial and Phased Improvements.

(h) Hospitality Management Agreement. The following provisions will be applicable to the extent an entity other than Developer will be managing and operating the Premises, in whole or in part.

(i) In accordance with the Schedule of Performance (Pre-Lease Execution), Developer must submit to NPS a proposed hospitality management agreement. Upon receipt by NPS of the proposed hospitality management agreement, NPS will review the proposed hospitality management agreement and approve or disapprove it in writing within thirty (30) days of receipt of complete information. NPS' review of the proposed hospitality management agreement will consist of determining if the proposed hospitality management company:

(A) has sufficient financial resources to manage and operate the resort property as proposed by the Developer;

(B) has acceptable experience managing resorts of a size and quality similar to, or higher than, the quality of The Resort as proposed by the Developer;

(C) is otherwise acceptable to NPS;

(D) has not been excluded under the nonprocurement or procurement debarment and suspension system from contracting with the government pursuant to 2 C.F.R. Parts 180 and 1400; and

(D) any management fee is either a flat fee, or a percentage fee based on gross income, as defined in the Lease, and within the range of resort industry standards. If the proposed hospitality management agreement is not approved by NPS, then, within thirty (30) days NPS will notify Developer in writing of the reasons for disapproval. Developer must thereafter submit to NPS a revised proposed hospitality management agreement within forty-five (45) days of the notification of disapproval. NPS will approve or disapprove the revised proposed hospitality management agreement within thirty (30) days of receipt of complete information. Only upon approval in writing of the proposed hospitality management agreement will this condition precedent be deemed met.

(ii) Prior to the Lease Execution Date, Developer must deliver to NPS the fully executed hospitality management agreement.

(i) Construction Contracts. Developer will enter into contracts for the performance and completion of the Initial and Phased Improvements with reputable contractors, which contracts must provide for the work to be performed for fixed and specified maximum amounts or allowances pursuant to the applicable approved Construction Documents and the applicable approved Financing Plan and Approved Development Budget.

In accordance with the Schedule of Performance (Pre-Lease Execution or Initial and Phased Improvement

Milestones), Developer must submit a copy of each construction contract for the general contractor, each subcontractor who will perform landscape and site work and historic rehabilitation, and all other subcontracts (collectively, the "Construction Contracts") to NPS (on a confidential basis to the fullest extent permitted by Applicable Law), certified by Developer to be true and correct, for purposes of determining (i) that the scope and cost of work have been fixed and are consistent with the scope and cost set forth in the approved Construction Documents and the approved Financing Plan (and Approved Development Budget), and (ii) that no changes to the contract that would cause the contract to be out of compliance with this Agreement or the Lease may be made without the prior written consent of NPS. NPS will approve or disapprove each Construction Contract within fifteen (15) business days. If a construction contract or subcontract is not approved then the NPS will notify Developer, in writing, of the reasons for disapproval and Developer will have thirty (30) days to revise and resubmit the contract. The Construction Contracts subject to this Section 2.2(i) need not include contracts for furniture or equipment to be placed in the Initial and Phased Improvements. Only upon approval by NPS of all of the Construction Contracts will this condition precedent be deemed met.

j) Plans, Programs, and Studies. In accordance with the Schedule of Performance (Initial and Phased Improvement Milestones), Developer, at its sole cost and expense, must prepare, in accordance with Applicable Laws, and deliver to NPS and any other agencies, as applicable, the following plans, programs and studies with respect to the Initial Improvements and each phase of the Phased Improvements:

(i) A management and response plan for lead-based paint and asbestos or asbestos-containing materials.

(ii) A traffic management plan (TMP) which will include, without limitation, specifications on construction traffic scheduling, proposed haul routes, construction parking, staging area management, visitor safety, detour routes, speed controls, and various limitations including restrictions on the delivery times for equipment and materials to off-peak hours. Upon request, the draft TMP will be made available to other agencies for review and comment.

(iv) A stormwater pollution prevention plan (SWPPP) for construction activities. The SWPPP will prescribe best management practices to minimize potential soil erosion, minimize the transportation of soils into the marine environment, and include prescriptions for monitoring of conditions before and after the completion of work.

(v) A detailed, design-level, geotechnical engineering investigation to assist in the development of engineering design criteria for any grading activities, infrastructure facilities, and building foundations. The scope of the investigation must include site-specific subsurface testing, laboratory testing, and geologic/engineering analyses that address specific geologic conditions (including landslide potential), constraints on development, and performance standards.

(vi) Survey(s) to determine the presence of nesting birds of prey, nesting/migratory birds, and bats.

(vii) A detailed plan with specific conservation measures to ensure that turbidity standards are met and that provides erosion control necessary to protect Essential Fish Habitat (EFH), as that term is defined in 50 C.F.R. § 600.10, during all phases of the redevelopment of the resort, including but not limited to the redevelopment, demolition, construction, operation, and maintenance of the Premises.

(viii) All necessary information for the preparation of compliance documents pursuant to NEPA or other Applicable Laws.

(ix) Historic American Building Survey (HABS) and Historic American Engineering Record (HAER) recordation documents for buildings to be demolished by Developer as part of the Initial and Phased Improvements. All documentation must be completed by Developer and accepted by HABS and HAER prior to demolition.

(x) In cooperation with NPS, develop an energy system management program that will track energy use throughout the Premises.

(xi) A sustainability program, which must include sustainability performance measures for all existing, new, and historic buildings, including building envelope and interior systems strategies;

sustainability measures for site infrastructure and utility development; and demonstration projects that include both applied technology demonstration projects and interpretive demonstration projects.

(xii) A resort pre-opening marketing plan, which will include the naming and branding of the resort and methods to ensure that the NPS will predominate as the site owner, steward, and principal interpreter. The resort marketing plan will provide for planning, publicity and advertising, internal and external corporate communications, and budgeting of activities, which may include: (A) production, distribution, and placement of general promotional materials; (B) production and distribution of educational materials designed to inform resort staff and promote resort employee understanding of the resort and the Premises unique place in the history of the island of St. John;

(C) preparation and distribution mechanisms of news releases that describe, in language approved by NPS, the resort and the relationship between NPS and Developer, and if applicable, hospitality management company; and (D) production and maintenance of an internet website describing the resort.

(xiii) Management plan for the resort, that includes, without limitation, (A) operation of a toll-free reservations and information line, and (B) operation of a room and meetings reservations system, maintained with current room inventories and associated current rates and tariffs.

(xiv) Surveys and legal descriptions of the Premises and Associated Property.

(xv) Only upon completion and submission to NPS of all of the plans, programs, and studies in this section j, as applicable, shall this condition precedent be deemed met.

(k) Evidence of Availability of Funds for Initial and Phased Improvements. Prior to the Lease Execution Date or Phased Improvement Milestone, as applicable, Developer must submit to NPS evidence satisfactory to NPS that any conditions to the release or expenditure of all necessary funds for the applicable phase of the Phased Improvements described in the approved Financing Plan (and Approved Development Budget) have been met or will be met at the Lease Execution Date or Phased Improvement Milestone, as applicable, and that such funds will be available at the Lease Execution Date or Phased Improvement Milestone, as applicable, for commencing and completing the Initial or applicable phase of the Phased Improvements.

(1) Insurance. Prior to the Lease Execution Date or Phased Improvement Milestone, as applicable, Developer must submit to NPS evidence that the insurance requirements of Exhibit B (Draft Lease) will be satisfied at the time of the Lease Execution Date or Phased Improvement Milestone, as applicable.

(m) Guarantees. Prior to the Lease Execution Date or Phased Improvement Milestone, as applicable, Developer must submit for NPS review and approval executed guarantees for the construction and completion of the Initial or applicable phase of the Phased Improvements from approved guarantors with enforceability opinions from counsel to the approved guarantors in a form satisfactory to NPS.

(n) Lease and Other Project Documentation.

(i) Prior to the Lease Execution Date or Phased Improvement Milestone, as applicable, Developer and NPS must have negotiated the Lease and other transaction documents necessary for the performance and completion of the Initial Improvements or Phased Improvements.

(ii) Prior to the Lease Execution Date, Developer must provide to NPS for NPS' written approval, all proposed agreements; subleases; operating, management, or financing arrangements between Developer and nonprofit entities affiliated with VIIS commonly referred to as “VIIS Park Partners.” Such agreements with entities approved by NPS in writing prior to the Lease Execution Date will be referred to as the “Resort Agreements.”

(o) Other Developer Obligations. Developer must have performed all obligations hereunder required to be performed prior to the Lease Execution Date or Phased Improvement Milestone, as applicable.

(p) NPS Responsibilities.

(i) NPS will provide to Developer all documents, information, and timely review of Developer’s design and engineering submittals in accordance with the Schedule of Performance (Pre-Lease Execution or Initial and Phased Improvement Milestones) attached hereto as Exhibit F.

(ii) Subject to Section 10.2 below, NPS will provide a management plan for NPS’ activities and responsibilities at the Premises which may include on-site and off-site staffing allocations, maintenance, operations, and anticipated schedule for future capital improvements.

(vi) NPS may issue permits and approvals of Developer’s design document submissions for Developer’s final proposal for cutting, clearing and trimming of trees and vegetation within the Premises as set forth in the design development documents listed in Scope of Development (Exhibit G) attached hereto.

Section 2.3 Occupancy Conditions Precedent. The following are conditions precedent to occupancy of the Project Area by the Lessee under the Lease:

(a) NPS Obligations. Subject to Section 10.2 below, NPS will complete the following at its sole cost and expense:

(i) Complete additional infrastructure and site improvements mutually agreed to by the Parties in writing per schematic plans prepared by the Developer for the Initial and Phased Improvements.

(ii) Remove (including stumps) non-historic trees located within the Premises in conformance with applicable natural resource requirements.

(iii) Complete the environmental clean-up and mitigation measures on the Premises identified in the “Action Memorandum” dated October 1, 2021.

(iv) Comply with those requirements of the Endangered Species Act, 16 U.S.C. 1531 et seq. (ESA) which are identified as NPS' obligations on Exhibit I attached hereto.

(b) Developer Obligations. The Lessee under the Lease may not occupy the Premises described in the Lease until issuance of all applicable Certificates of Occupancy for completion of the Initial Improvements. In addition to other requirements set forth in this Agreement and the Lease, the following are conditions precedent to NPS' issuance of the initial Certificate of Occupancy for the Initial Improvements. Developer must at its sole cost and expense:

(i) Complete all mitigation measures, including such measures that are requirements of the ESA, which are identified as Developer’s obligations on Exhibit I, attached hereto.

(ii) Have delivered, and NPS must have approved, all insurance requirements, agreements, contracts, plans, programs, studies, and other information required by this Agreement and the Lease in the period described in this agreement and in accordance with Schedule of Performance (Pre-Lease Execution or Initial and Phased Improvement Milestones) attached hereto as Exhibit F.

ARTICLE 3

DUE DILIGENCE, ACCESS, GENERAL CONDITIONS

Section 3.1 Developer's Due Diligence. During the period commencing with the Effective Date until the Lease Execution Date, Developer must, at Developer's sole cost and expense, investigate the developmental and use potential of the Premises, and approve any conditions associated therewith, as Developer will deem necessary to satisfy itself that the Project may be developed in an economically feasible manner, and will have inspected the Project Area and Premises and investigated the development cost and potential thereof and satisfied itself, in Developer's sole discretion, that all physical and legal aspects of the Project Area and Premises are acceptable to Developer, including without limitation, size, soils condition, flood and earthquake fault locations, improvement costs (both on-site and off-site), development entitlements, availability of utilities, and the Project Area and Premises otherwise meets Developer's development and use criteria and may be developed in an economically feasible manner. In the event prior to the Lease Execution Date, Developer determines any aspect of the Project Area or Premises to be unacceptable to Developer, Developer may terminate this Agreement by giving written notice to NPS.

Section 3.2 Entry. During the period commencing with the Effective Date…