HomeMy WebLinkAboutCOM 0004.002 2004-2006 J~~r os p~~'
GAKY SAFAKIK ~ ~ha~ COMMI"I'TEES
Councilmemher Public Works & Intergovernmental Relations
Disn~icP V Puna Makai Clwir
Phone: (808) 961-8267 ~j~.~e•;. Housing Agency
Jar : !°.;N~
Fax: (808) 961-8912 ~ oi'M? Choir
~safaii k @ i nterpac. nel Coiatry of Hawai `i Finance
Hawaii County Buildi~tg Vice-Chair
25 Aupuni Street
Nilo, Hawaii 96720
RE~CEi'V@Ir
pots-~ ~....lO.~ off..... _....,.r..~.
County Coun~ll
December 6, 2004
TO: Council Members
FROM: ~C'iary Safarik
Council Chair Elect
RE: Resolution No. 16-04, Draft 2
Holomua Center Lease-Waimea
This is to transmit a draft two-year lease for the Holomua Center-Waimea Council Office.
This lease includes revisions recommended by the Office of the Corporation Counsel. However,
Paragraphs 23, 24, 25, and 28 must still be rewritten by the County and agreed to by the landlord.
Should you have any questions, please feel free to contact me.
Att.
Comm. Na ~ Z
Ref. To;P~e+eeh 1111
Ref. Date
l(awai `i County is an F.qual Opporlunily Provider and lireployer
LEASE TERM SHEET
Date of Lease: November 24, 2004
Name of Landlord: Holomua Center, LLC
75-5801 Alii Drive, Suite AU2
Kailua-Kona, HI 96740
Name of Tenant: County of Hawaii
Office of the County Council/Clerk
25 Aupuni Street
Hilo, HI 96720
Location of Building: 64-1067 Mamalahoa Hwy
Mamalahoa Highway
Waimea, Hawaii 96743
Space Number: C-5
Approximate Gross Square Feet of Premises: 600 square feet
Tenant's Percentage of Property Expenses: 4.00% CAM
charges currently estimated at S0.40 per square foot per month
subject to adjustment as provided for in Paragraph 5 and 6 below.
Term of Lease: Two (2) years commencing on December 1,
2004 and terminating on November 30, 2006.
Rent:
For the period of December 1, 2004 through November 30,
2005 the Base Rent shall be Nine Hundred and NO/100 (S900.00) per
month;
For the period of December 1, 2005 through November 30,
2006 the Base Rent shall be Nine Hundred Thirty and NO/100 (S930.00)
per month;
Tenant's Permitted Use: Office
Parking Stalls: Shared use of Holomua parking
Make checks payable to: Clark Realty Corporation
c/o Anekona Properties
75-5801 Alii Drive, Suite AU2
Kailua-Kona, HI 96740
Security Deposit: Not Applicable
Special Conditions Addendum: Yes No X
Page 1 of 23 Initial
Option Addendum: Yes X No
Guaranty Addendum: Yes No X
Tenant: County of Hawaii
Space: C-5
LEASE
THIS INDENTURE OF LEASE, is dated and made and entered into as of
the date set forth on the attached Lease Term Sheet by and
between the Landlord and the Tenant.
THE PARTIES COVENANT AND AGREE AS FOLLOWS:
1. Premises
a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, upon the terms and conditions herein set forth those
certain Premises described on the attached Lease Term Sheet in
Hawaii, and shown outlined in red on Exhibit "A". The areas so leased
are herein called the "Premises".
b) In addition to the Premises, Tenant shall, as an appurtenance
thereto, have full right of access to said Premises over and across
the common entrances, lobbies, halts, corridors, parking areas and
stairways on the Property.
cl Tenant acknowledges that the square footage of the Premises set
forth on the attached Lease Term sheet is merely an approximation
of the actual area of the Premises. Notwithstanding that the square
footage set forth on the attached Lease Term Sheet is an
approximation, Tenant agrees that the stated figure shall govern in
any question relating to the area of the Premises, whether or not
the actual square footage of the Premises is the same as the
approximate square footage set forth on the attached Lease Term
Sheet.
2. Term. The term of this Lease shall commence and terminate on
the dates stated on the attached Lease Term Sheet.
3. Premises accepted "AS Is".
a) Tenant acknowledges that Tenant has inspected the Premises and
accepts them in an "as is" condition.
b) If Landlord for any reason cannot deliver possession of the
Premises to the Tenant on or before the commencement date of
this Lease, this Lease shall not be void or voidable, and Landlord shall
not be liable to Tenant for any loss or damage resulting from
Landlord's failure to deliver possession to Tenant. However, during
Page 2 of 23 Initial
such period of non-delivery, the rent under this Lease shall be
abated until Landlord offers to deliver possession of the Premises to
Tenant. In all cases, however, the commencement and termination
date shall remain the same even though the Landlord's and Tenant's
obligations under this Lease shall not commence until the date the
Landlord offers to deliver possession of the Premises to the Tenant.
Notwithstanding the foregoing, if possession of the Premises shall
not be offered by the landlord to tenant within ninety (90) days
after the commencement date set forth on the attached Lease Term
Sheet, Tenant may terminate this Lease without liability by written
notice to the Landlord between the 90th and 120th day. If Tenant,
with the consent of the Landlord, takes occupancy of all or part of
the Premises prior to the commencement date of this Lease, said
occupancy by Tenant shall be subject to all of the terms and
conditions hereof, and Tenant shall pay rent for said period of
occupancy prior to the commencement of said term at the monthly
rate prescribed herein for the first month of the term, unless
otherwise agreed by Landlord and Tenant.
4. Base Rent
a) For each and every calendar month during each year of the term
of this Lease, Tenant shall pay to the Landlord, on or before the first
(1st) day of each month, in advance, at Landlord's address, the base
rent set forth on the attached Lease Term Sheet. If the beginning
date of this Lease is not on the first (1st) of the month, the base rent
for the first fractional month shall be paid prorata, together with
the first full month's base rent.
b) Commencing one (1) year from the commencement of the term
of this Lease (or such other date as may be agreed upon by Landlord
and Tenant) and on the same day of each calendar year thereafter
(the "adjustment date"), the monthly base rent shall be increased by
an amount equal to the increase shown on the attached Lease Term
Sheet.
c) The amount of the base rent set forth on the attached Lease Term
Sheet is a negotiated figure and shall govern whether or not the
actual square footage of the Premises is the same as the square
footage set forth on the attached Lease Term Sheet. Tenant shall
have no right to withhold, deduct or offset any amount from the
base monthly rent even if the actual square footage of the Premises
is less than the approximate square footage set forth on the
attached Lease Term Sheet. In addition, this approximate square
footage figure shall serve as the base figure in determining prorata
base rent reduction in the event of damage, condemnation or other
circumstance requiring such reduction, abatement or adjustment of
base rent, notwithstanding that this approximate square footage
shall be more or less than the actual square footage of the Premises.
5. Additional Rent.
a) In addition to the base rent and additional parking space rent, if
any, the Tenant agrees to pay, as additional rent, a percentage share
of all building maintenance and operating expenses as hereinafter
defined. Said percentage shall be in the amount stated on the
attached Lease Term Sheet and is not dependent on or related to
the actual square footage of the Premises or of the Property. Tenant
shall have no right to withhold, deduct or offset any amount from
Page 3 of 23 Initial
the additional rent even if the actual square footage of the Premises
is less than the approximate square footage of the Premises set
forth on the attached Lease Term Sheet. All additional rent will be
due and payable each month together with the base rent.
b) The additional rent to be paid by the Tenant is based upon the
Tenant's percentage of the Property's maintenance and operating
expenses as of the date of commencement of the lease term. The
maintenance and operating expenses for the Property shall be
computed on an annual basis, at the beginning of each calendar
year, and, to the extent such expenses are not fixed or known in
advance, shall be estimated by the landlord for the ensuing Year.
The Tenant shall pay such expenses, as additional rent, throughout
the calendar year, in advance, with the base rent, subject to
reconciliation and adjustment as provided in Paragraph 6. below.
Landlord shall notify Tenant of Tenant's share of the expenses for
the coming calendar year as soon as reasonably possible after the
beginning of each year. In the event Tenant's lease term shall
commence or end at any other time than the beginning or end of a
calendar year, the Tenant's additional rent shall be adjusted prorata
for such shortened period. Landlord shall have the right, in the
event of unusual or extraordinary maintenance and operating
expenses, to assess and collect, as additional rent, either as a one
time or continuing charge, additional sums under this Paragraph 5.
to pay such expenses without affecting the Tenant's liability for the
monthly sums herein above described.
c) "Maintenance and operating expenses" shall include, without
limitation, the (i) Landlord's overhead expenses pertaining to the
management of the Property, its common areas and common area
funds, (ii) costs of roof repairs, any other non-structural repairs, line
painting, landscaping and irrigation, water, electricity, maintenance
of utility meters, bulb replacement, cleaning up, sweeping and
janitorial service, and cost of garbage and refuse removal, (iii)
Property employees' salaries (including payroll taxes and workmen's
compensation premiums), (iv) cost of directing or controlling
parking and other policing, (v) liability, fire, business interruption,
property damage and other insurance, including any deductibles
payable by the Landlord thereunder, (vi) real property taxes and any
and all other taxes, including any ground rent assessments or
charges made under any betterment or improvement law,
attributable to the Property or the land on which it is located, (vii)
maintenance, repair and depreciation of machinery and equipment
used in operating and maintaining the Premises and Property, (viii)
all billing, auditing, management and legal expenses relating to the
operation and maintenance of the Property, (ix) any expenses
incurred in contesting real property assessments and any
assessments or charges made under any betterment or
improvement law or otherwise, (x) any utility charges for the
Property or the Premises not separately metered or paid by the
Tenant, and (xi) any Other costs which the Landlord shall conclude, in
its sole discretion, are reasonable and necessary for maintaining and
operating the Premises and/or the Property. As used herein the term
"equipment" shall be taken to include both personalty and fixtures.
d) Tenant shall pay for, prior to delinquency, all telephone, utility
and all other materials and services, not expressly required to be
paid by Landlord, whether as building operating expenses or
Page 4 of 23 Initial
otherwise, which may be furnished to or used in, on, or about the
Premises during the term of this Lease.
6. Breakdown Of Additional Rent. A breakdown of maintenance
and operating expenses for the Property shall be provided annually
to the Tenant within ninety (90) days of each calendar year end. If
the maintenance and operating expenses according to such
breakdown shall differ from the expenses computed by Landlord
pursuant to Paragraph 5, the expenses according to such breakdown
shall be deemed correct and an appropriate adjustment shall be
made in the rent by prompt payment by Tenant of any deficiency
or, in the event of an excess, subject to Paragraph 7 below, an
adjustment of additional rent thereafter due to provide Tenant with
reimbursement over a period of time not to exceed twelve (12)
months.
7. Maintenance Reserve Account. Notwithstanding anything to the
contrary contained in this Lease, Landlord sha?I have the option of
establishing and maintaining a "Maintenance Reserve Account" for
the purpose of accumulating funds for the payment of
extraordinary maintenance and operating expense as defined in
Paragraph 5 above. The Landlord shall have the option of depositing
any excess additional rent received from Tenant into the Account in
lieu of an adjustment in rent as provided in Paragraph 6 above. All
funds in the account become the property of the Landlord for the
purposes herein described and Tenant shall have no right or claim to
such funds whether byway of offset, reimbursement or credit.
8. Security Deposit.
a) Amount of Deposit. Tenant, contemporaneously with the
execution of this Lease, shall deposit with the Landlord the security
deposit set forth on the attached Lease Term Sheet. This security
deposit shall be held by the Landlord, without liability for interest, as
security for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by
Tenant during the term of this Lease.
b) Use and Return of Deposit. If Tenant fails to keep and perform any
of the terms, covenants and conditions of this Lease to be kept and
performed by Tenant, including the payment of rent or any other
sum to Landlord, then the Landlord, at its option, may appropriate
and apply the entire deposit, or so much of the deposit as may be
necessary, to compensate Landlord for any overdue rent or other
sum or any loss or damage sustained or suffered by Landlord due to
such breach by Tenant. Should the entire deposit, or any portion
thereof, be so appropriated and applied by Landlord for the
payment of losses, damages, overdue rent or other sums due and
payable to landlord by Tenant hereunder, then Tenant shall, upon
the written demand of Landlord, forthwith remit to the Landlord a
sufficient amount to restore the security deposit to the original sum
deposited. Tenant's failure to do so within five (5) days after receipt
of such demand shall constitute a breach of this Lease. If Tenant
complies with all of such terms, covenants, and conditions and
promptly pays all of the rent and all other sums payable by Tenant
to Landlord under this Lease as they fall due, then the security
deposit shall be returned, without interest, to Tenant at the end of
the term of this Lease, or upon earlier termination of this Lease.
Page 5 of 23 Inirial
c) Landlord may transfer and/or deliver the security deposit, as such,
to the purchaser of the reversion of this Lease, in the event that the
reversion is sold and thereupon Landlord shall be discharged from
any further liability to Tenant in reference thereto.
9. Tax On Rent. In addition to the rent herein provided, Tenant shall
also pay over and reimburse Landlord, on each rental payment date
during the term hereof, an amount equal to that portion of the
State general excise or gross income tax assessed to Landlord and
attributable to the rent and other payments made by or on behalf
of Tenant under the terms of this lease, and Tenant shall also pay all
and any increases in said taxes from time to time and any and all
other taxes or duties levied or assessed by the State of Hawaii, the
County of Hawaii, or any other political subdivision of the State of
Hawaii now or hereafter having power to levy taxes or duties which
are attributable to the rent or other payments made by or on behalf
of Tenant under the terms of this Lease. It is the intent of this
provision and of the other provisions of this Lease to insure that the
rent herein provided to be paid to Landlord by Tenant will be
received by Landlord without diminution by any tax, assessment,
charge or levy of any nature whatever, except United States and
State net income taxes, and the terms and conditions of their Lease
shall be liberally construed to effect such purpose.
10. Parking Spaces. Landlord shall provide Tenant with the number
of assigned parking spaces stated on the attached Lease Term Sheet
during the term hereof. landlord shall also provide the Tenant with
the number of additional parking spaces, if any, stated on the
attached Lease Term Sheet at the rate stated per month per space.
These spaces shall be made available during normal business hours.
Landlord shall have the right to increase the rate stated for
additional parking spaces upon thirty (30) days written notice to
Tenant. Tenant shall have the option of surrendering the additional
parking spaces at any time upon thirty (30) days written notice to
Landlord.
11. Insurance.
Landlord and Tenant acknowledge and agree that Tenant is self-
insured. Pursuant to Chapter 2, Article 29, Hawaii County Code,
there exists aself-insurance fund for the purpose of paying claims,
settlements and judgments against the County.
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12. Use. The Premises may be used and occupied only for the
purpose
of carrying on the business described on the attached Lease Term
Sheet and for
no other purpose or purposes. All operations by the Tenant in the
conduct of its business shall be performed within the demised
Premises and in no other areas of the Property without the written
consent of the Landlord.
'13. Use of Premises and Compliance With Law. It is understood and
agreed by the Landlord and Tenant that the Premises being leased
hereunder are located in a first class commercial retail/office center
and that accordingly, the Tenant, in the operation of it's business,
both with regard to the services provided and the products offered
for sale, must conduct itself In a manner which Is compatible with
the building and the other tenants located therein. In order to
facilitate the implementation of the foregoing understanding and
agreement, the Landlord and Tenant agree to the following terms
and conditions regulating the use of the Premises:
a) The Tenant shall not perform any acts or carry on any practices
which may be injurious to the building, or be a nuisance or menace
to other tenants in the building. The Tenant recognizes and
acknowledges that the appearance of the Premises are of
considerable importance to the Landlord and agrees to maintain
them with particular attention being paid to their orderliness,
cleanliness, and quality.
b) The Tenant shall not permit the Premises to be used for any
improper, offensive, or unlawful purpose or for any purpose which
will increase the existing rate of insurance on the Property. The
Tenant will keep the Premises in a strictly clean, safe, neat and
sanitary condition, and will observe, perform and comply with all
laws, statutes, ordinances, rules and regulations of the health and
other government authorities applicable to the Premises and of all
insurance policies at any time duly issued or in force which are
applicable to the conduct of the Tenant's business in or about the
Premises or any part thereof and will indemnify the Landlord against
all actions, suits, damages and claims by whomsoever brought or
made by reason of the nonperformance or nonobservance of such
laws, statutes, ordinances, rules and regulations or of this covenant,
such indemnification to include not only the award of any Court, but
also the Landlord's court costs and attorney's fees.
Page 8 of 23 Initial
cl The Tenant agrees not to place or cause to be placed on the
Property any notices, advertisements, written solicitations, or
writings of any nature for the purpose of soliciting or originating
any business with the other tenants of the Property.
d) The Tenant shall not commit or suffer to be committed any waste
in or upon the Premises or the Property or maintain any public or
private nuisance or any other action which may interfere with or
disturb the quiet enjoyment of any other tenant of the Property.
e) The Tenant shall not maintain, place or store any products,
equipment, goods, materials, vehicles, boats, trailers, containers or
other items in any common area of the Premises, including parking
areas, for a period exceeding twenty-four (24l hours without the
specific written consent of the Landlord, which consent the
Landlord may withhold for any reason; provided, however, that the
Landlord shall not unreasonably withhold its consent to such storage
during any reasonable period of time required by the Tenant with
respect to the Tenant's moving into or out of the Premises or the
Tenant's construction or alterations to the Premises.
f) Tenant shall not be allowed to use the name of the Landlord, the
Property or the building in which the Premises are located, or words
to that effect, in connection with any business carried on in said
Premises, except as tenant's address, without the prior written
consent of Landlord.
14. Rules and Regulations. Landlord shall have the right to
promulgate rules and regulations to police, regulate traffic in,
control parking and common area use (including controlled access or
paid parking), restrict Tenant advertising and displays within the
center and otherwise regulate and control the Property, and amend
the same from time to time, with respect to the use and operation
of the Property which shall be binding upon Tenant on notice to
Tenant. In enforcing these rules and regulations, Landlord shall have
all remedies provided in this Lease for a breach of a term of this
Lease, and all other legal and equitable remedies.
15. Improvements, Alterations and Fixtures.
a) All improvements, fixtures and equipment installed by Tenant
shall be new or completely reconditioned and acceptable in all
respects to Landlord for use on the Premises. Tenant will not make
or cause to be made any alterations or improvements or install or
cause to be installed any trade fixtures, exterior signs, interior or
exterior lighting, plumbing fixtures, shades, awnings, colored or
tinted glass or make any changes to the Premises without the prior
written consent of the Landlord, which consent shall not be
unreasonably withheld. Tenant shall present to the Landlord plans
and specifications for said work at the time approval is sought and
Landlord shall require no further payment from the Tenant for such
approval except the costs, if any, of legal and architectural review of
such plans and specifications. In no case shall the Tenant make any
changes to the exterior of the Tenant's premises, including the
painting of or the installation of any coverings on such exterior.
Page 9 of 23 Initial
b) All alterations or improvements to the Premises shall remain for
the benefit of the Landlord and shall not be removed unless
otherwise expressly agreed in writing and shall be presumed to
become an integral part of the Premises. Notwithstanding the fact
that ail such alterations and improvements shall become an integral
part of the Premises, such alterations and improvements shall not be
deemed a rent substitute or any other payment to or for the
benefit of the Landlord.
c) Tenant shall obtain all permits, licenses and approvals required for
any alterations or improvements and promptly pay all contractors
and materialmen so as to minimize the possibility of a lien attaching
to the Premises or to the Property, and should any such lien be
made or filed, Tenant shall bond against or discharge the same
within ten (10) days after written request by Landlord.
d) Prior to commencing any interior construction, or any alterations,
remodeling or other construction in the Premises, Tenant shall
furnish evidence satisfactory to Landlord that Tenant has obtained
all permits, licenses and approvals and is financially able to pay the
contractor, and shall furnish a copy of a bond in an amount, in a
form and with a surety acceptable to Landlord naming Landlord and
Tenant as obligees, and ensuring completion of the proposed work
free and clear of liens.
16. Repairs and Maintenance.
a) Repairs By Tenant. Tenant shall at all times keep the Premises
(including entrances, all interior and exterior glass and all window
moldings) and all partitions, doors, fixtures, equipment and
appurtenances therein (including lighting and plumbing fixtures and
any air conditioning system, but excluding structural portions of the
Premises) in good order, condition and repair (including reasonably
periodic painting of the interior).
b) Landlord's Right To Cure Tenant's Default. If Tenant refuses or
neglects to repair as required under this Lease to the reasonable
satisfaction of Landlord as soon as reasonably possible after written
demand, Landlord may make such repairs without liability to Tenant
for any loss or damage that may occur to Tenant's property or to
Tenant's business, and upon completion thereof, Tenant shall pay
the landlord's costs for making such repairs upon a presentation of
the bills therefor, as additional rent.
c) Structural Repairs By Landlord. If Landlord is required to make
repairs to structural portions of the Property by reason of Tenant's
negligent acts or omissions to act, Landlord may add the cost of
such repairs to the rent which shall thereafter become due, and
Tenant shall pay the same as additional rental. The phrase "structural
portions of the Property", as above used, shall not be so construed
as to require Landlord to make repairs to the interior surfaces
thereof unless the damage to such interior surface resulted from
Landlord's acts or omissions or defects otherwise required to be
kept in repair by Landlord.
17. Liens and Insolvency. Tenant shall keep the Premises and the
Property free from any liens or encumbrances arising out of any
work performed by Tenant, materials furnished by Tenant, or
Page 10 of 23 Initial
obligation incurred by Tenant. Upon the occurrence of any of the
following events, Landlord may terminate this Lease forthwith by
giving Tenant notice of it's election to do so: (i) if Tenant files a
voluntary petition in bankruptcy, or for reorganization under the
bankruptcy laws, or is adjudged a bankrupt by a court of competent
jurisdiction; or (ii) if Tenant makes an assignment for the benefit of
creditors; or (iii) if a receiver is appointed by a court of competent
jurisdiction for Tenant's business and it is established in the
receivership proceedings that Tenant is insolvent.
18. Assignment and Subletting.
a) Restriction on Assignment and Subletting. Tenant shall not assign
this Lease, or any interest therein, nor sublet the Premises or any
part thereof, or any right or privilege appurtenant thereto, nor
suffer any other person (the agents and employees of the Tenant
excepted) to occupy or use the Premises, or any portion thereof,
without the prior written consent of the Landlord, which consent
may be withhe?d for any or no reason at the Landlord's sole
discretion. Landlord shall in all cases have the right to determine
that any proposed assignee or sublessee shall be of sound financial
condition and shall use the Premises only for suitable purposes. A
consent by the Landlord to one assignment, subletting, occupation
or use by any other person, shall not be deemed to be a consent to
any subsequent assignment, subletting, occupation or use by
another person. Any such Assignment or subletting without
Landlord's consent shall be void, and shall, at the option of Landlord,
terminate this Lease. This Lease shall not, nor shall any interest
therein, be assignable, as to the interest of Tenant, by operation of
law, without the written consent of Landlord.
b) Change of Ownership. If the Tenant is a corporation, partnership,
or other business entity, the consent of the Landlord shall be
required prior to any change, from that existing on the beginning
date of this Lease, in the ownership of Tenant's business, whether as
a result of any sale of assets, transfer of stock or other ownership
interest, merger, consolidation, spin-off or otherwise, and whether
by operation of law or any other disposition. Any such change in the
ownership of Tenant's business shall be deemed to bean assignment
for the purposes of Paragraph 18 a), and Landlord shall have the
right, in its sole and absolute discretion, to terminate this Lease in
the event of any such assignment without Landlord's consent as
required by Paragraph 18 a).
c) Continuing Liability of Tenant. No assignment or subletting of
Tenant's interest permitted under this Paragraph or consented to by
Landlord shall in any way release Tenant of any liability and
responsibility assumed under the terms of this Lease.
d) Extension. Except as may otherwise be provided herein, Landlord
shall have no obligation to extend or renew this Lease upon its
termination or upon such termination to give another lease to
Tenant covering the Premises, and upon such termination Landlord
may lease the Premises to others to operate therein a business the
same as or different from that operated by Tenant.
19. Surrender and Holding Over.
Page 11 of 23 Initial
a) Surrender Upon Termination. At the expiration of the term of this
Lease, Tenant shall surrender the Premises in the same condition of
cleanliness, repair and sightliness as the Premises were in upon the
Tenant's commencement of business under this Lease, reasonable
wear and tear excepted. Tenant shall surrender all keys for the
Premises to Landlord at the place then fixed for the payment of rent
and shall inform Landlord about all combinations on locks, safes and
vaults, if any, in the Premises. On such day, unless the Landlord shall,
in its sole discretion, require the removal thereof, all alterations,
additions, improvements, all hard surface bonded or adhesively
affixed flooring, and all fixtures on the Premises other than Tenant's
trade fixtures and operating equipment, shall become the property
of Landlord and shall remain upon and be surrendered with the
Premises as a part thereof, without disturbance, molestation or
injury, and without credit to Tenant, its sublessees, concessionaires
or licensees. On or before the last day of the term or the sooner
termination hereof, Tenant, if not then in default, shall remove all
trade fixtures, operating equipment and other personal property of
Tenant and, if required by the Landlord, remove all alterations,
additions, improvements, flooring and other fixtures, from the
Premises and repair any damage occasioned by any such removal. If
Landlord is required to repair any damage caused to the Premises by
such removal, Tenant shall repay the landlord for the cost of the
same. Property not so removed shall be deemed abandoned by
tenant. If the Premises are not surrendered at such time, Tenant
shall indemnify Landlord against loss or liability resulting from delay
by Tenant in so surrendering the premises, including without
limitation, any claims made by any succeeding tenant based on such
delay and/or Landlord's lost rental income. Tenant's obligation to
observe or perform this covenant shall survive the expiration or
other termination of the term of this Lease.
b) Liquidated Damages. If Tenant shall, at the expiration or other
termination of this Lease, fail to yield possession to Landlord,
Landlord shall have the option to require Tenant to pay and Tenant
shall pay, as liquidated damages, for each day possession is withheld,
an amount equal to double the amount of the daily base rent
computed on the basis of a thirty (30) day month, together with any
additional rent or other payments required under this Lease.
c) Holding Over. Any holding over after the expiration of the term of
this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month at a monthly rent specified by
Landlord in writing and on the terms and conditions specified In this
Lease so far as applicable.
20. Default.
a) Right to Re-enter. In the event of (i) any failure of Tenant to pay
any base rent or additional rent due hereunder when it is due, or (ii)
any failure to perform any other of the terms, conditions, or
covenants of this Lease to be observed or performed by Tenant
(except for a default in the payment of rent) for more than ten (10)
days after written notice of such default shall have been mailed to
Tenant, or (iii) the occurrence of any event described in Paragraph
17 above, or (iv) if Tenant shall abandon the Premises, or suffer this
Lease to be taken under any writ of execution, any such happening
Page 12 of 23 Initial
shall be considered a default by Tenant, and Landlord, besides any
other rights or remedies it may have, shall have the immediate
right, with or without termination, of re-entry and may remove all
persons and property from the Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost
of, and for the account of Tenant, all without service of notice or
resort to legal process and without Landlord being deemed guilty of
trespass, or becoming liable for any loss or damage which may be
occasioned thereby.
b) Right to Re-let. Should Landlord elect to re-enter under Paragraph
20 a), or should it take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, it may either terminate
this Lease or it may from time to time without terminating this
Lease, make such alterations and repairs as may be necessary in
order to re-let the Premises, and re-let the Premises or any part
thereof for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rent and upon such other
terms antl conditions as Landlord in it's sole discretion may deem
advisable. All rents received by the Landlord from such re-letting
shall be applied (i) to the payment of any indebtedness (other than
rent due hereunder) from Tenant to Landlord, (ii) to the payment of
any costs and expenses of such re-letting and of such alterations and
repairs, (iii) to the payment of rent due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment
of future rent as the same may become due and payable hereunder.
If the rent received from such re-letting during any month is less
than that to be paid during that month by Tenant hereunder,
Tenant shall pay any such deficiency (which shall be calculated and
paid monthly) to Landlord.
c) Termination. Upon any default by Tenant, as that term is defined
in Paragraph 20 a) above, Landlord may terminate this Lease by
giving written notice to the Tenant of intention to do so, specifying
a day not earlier than twenty (20) days thereafter, and the term of
this Lease and all right, title and interest of the Tenant hereunder
shall expire as fully and completely on the day so specified as if that
day were the date fixed in this Lease for the expiration of the term.
No re-entry or taking possession of the Premises by Landlord shalt be
deemed its election to terminate this Lease unless a written notice
of termination is given to Tenant or unless the termination is
decreed by a court of competent jurisdiction. Landlord may at any
time after re-letting the Premises without terminating this Lease,
elect to terminate this Lease for Tenant's previous default.
d) Damages to Landlord. If Landlord terminates this Lease because of
a default by Tenant, in addition to any other remedies Landlord may
have, it may recover from Tenant all damages it may incur by reason
of such default, including the cost of recovering the Premises,
attorney's fees, and the worth at the time of such termination of
the excess, if any, of the amount of rent and additional rent
reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the Premises for the remainder of
the stated term, all of which amounts shall be immediately due and
payable from Tenant to Landlord.
e) Separate Suits. Landlord shall have the privilege of splitting its
cause of action for rent so as to permit institution of a separate suit
or proceeding for the base and additional rent due Landlord under
Page 13 of 23 Initial
this Lease and a separate suit or proceeding for any other payment
required under this Lease and neither the institution of any such suit
or proceeding nor the entering of judgment therein, shall bar
Landlord from bringing a subsequent suit or proceeding for the
base rent, the additional rent, or for any other payments required
hereunder.
f) Non-waiver. The waiver by Landlord of any breach of any term,
covenant or condition of this Lease shall not be deemed a waiver of
such term, covenant or condition or of any subsequent breach of
any term, covenant or condition. The subsequent acceptance of rent
by Landlord shall not be deemed a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other
than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the
time of such acceptance.
g) No Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the rent herein stipulated shall be
deemed to be other than on account of the rent claimed by
Landlord, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord right to recover the balance
of such rent or pursue any other remedy provided In this Lease.
h) Late Fee and Interest on Past Due Amounts. Any payments of rent
or other amounts required under this Lease that are not paid to the
Landlord within five (5) days of when they are due shall have added
thereto a late fee equal to five percent (5%) of the overdue amount.
Any amounts owing by Tenant to Landlord under the terms of this
Lease shall carry interest from the date the same become due until
paid at the rate of twelve percent (12%) per annum. Said interest
shall be considered as a part of the rent payable under this Lease.
i) Waiver of Jury Trial and venue. The parties each hereby waive trial
by jury in any action, proceeding or counterclaim brought by either
against the other on any matter whatsoever arising out of or in any
way connected with this Lease or Tenant's use or occupancy of the
Premises, including any claim of injury or damage, and any
emergency and other statutory remedy with respect thereto. The
parties also agree that the venue of any such action, proceeding or
counterclaim shall be in the District Court of the Third Circuit or
Circuit Court of the Third Circuit, as appropriate.
21. Damage to or Destruction of Building.
a) Repairs by Landlord. Except as may otherwise be required by any
mortgage on the Property, if the Premises or any portion of the
Property should be damaged or destroyed during the term hereof
by any casualty or should the Property be damaged to an extent of
twenty-five percent (25%) or more of the then tax assessed value
thereof, then the Landlord may either terminate this Lease or elect
to repair or restore said damage or destruction, in which latter
event Landlord shall repair and/or rebuild the same as provided for
below and the base rent shall be abated proportionately as provided
in Paragraph 21 d). Landlord shall advise Tenant in writing whether it
intends to rebuild or repair within sixty (60) days after the casualty. If
Page 14 of 23 Initial
Landlord elects not to repair or rebuild, this Lease shall terminate
without further notice, in which event all further obligations of
either party shall cease, effective as of the date Tenant shall cease
business in the Premises. If such damage or destruction occurs and
this Lease is not so terminated by Landlord, this Lease shall remain in
full force and effect, and the parties waive the provisions of any law
to the contrary. The Landlord's obligation under this Paragraph shall
in no event exceed the scope of the work done by the Landlord or
its predecessors in the original construction of the Property and the
Premises.
b) Continuation of Business. Tenant agrees during any period of
reconstruction or repair of the Premises and/or of the Property to
continue the operation of its business in the Premises to the extent
reasonably practicable from the standpoint of good business
practice.
c) Repairs by Tenant. Tenant shall, in the event of any damage or
destruction affecting the Premises, unless this Lease shall be
terminated as provided in Paragraph 21 a), promptly replace or fully
repair all furniture, improvements, trade fixtures, equipment, and
other fixtures originally installed by Tenant. Landlord shall have no
interest in the proceeds of any insurance carried by Tenant on
Tenant's interest in this Lease, and Tenant shall have no interest in
the proceeds of any insurance carried by Landlord.
d) Abatement of Base Rent. Except in those cases where damage or
destruction to the Premises shall have been caused by the fault of
the Tenant, the base rent shall be abated proportionately during any
period during which, by reason of any damage or destruction, there
is a substantial interference with the operation of the business of
Tenant in the Premises, and such abatement shall continue for the
period commencing with such destruction or damage and ending
with the completion by the Landlord of such work of repair and/or
reconstruction as Landlord is obligated to do. Nothing in this
Paragraph shall be construed to abate or diminish additional rent or
abate base rent where interference with the operation of the
Tenant's business shall have been a result of the Tenant's acts,
omissions or other fault.
22. Condemnation.
a) Automatic Termination of Lease. Except as may otherwise be
required by any mortgage on the Property, if the whole of the
Premises shall be taken by any public authority under the power of
eminent domain, then the term of this Lease shall cease as of the
day possession is taken by such public authority, and all rent shall be
paid up to that date. If only a part of the Premises shall be taken
under eminent domain, this Lease shall terminate as to the portion
taken, and, unless this Lease shall be terminated as hereinafter
provided, it shall continue in full force and effect as to the
remainder of the Premises, and the base rent, but not additional
rent, shall be reduced in the proportion the floor area taken bears
to the total floor area leased, and Tenant, at its own cost and
expense, shall make all necessary repairs and alterations to the
Premises required by such taking.
Page 15 of 23 Initial
b) Option to Cancel. If the remainder of the Premises cannot be
made tenantable for the purposes for which Tenant has been using
the Premises, Tenant shall have the option, to be exercised within
thirty (30) days after the filing of such eminent domain action, of
canceling this Lease effective as of the date the condemning
authority shall take possession; provided, however, that if more than
fifty percent (50%) of the floor area of the Premises shall be taken
under power of eminent domain, either party, by written notice to
the other delivered on or before the date of surrendering
possession to the public authority, may terminate this Lease,
effective as of such surrender of possession. All compensation and
damage of any type awarded for any taking, whole or partial, shall
belong to and be the property of the Landlord except as hereinafter
provided.
c) Tenant's Damage. Tenant shall have the right to claim and recover
from the condemning authority, but not from Landlord, such
compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right on account of any cost or loss to which
Tenant might be put in removing Tenant's merchandise, furniture,
fixtures and equipment.
d) Temporary Taking. In the event of a condemnation of a leasehold
interest, i.e., a temporary taking, in all or a portion of the Premises
without the condemnation of the whole leasehold or the fee simple
title also, this Lease shall not terminate and such condemnation shall
not excuse Tenant from full performance of all of its covenants
hereunder, including the payment of rent, but Tenant in such event
shall be entitled to present or pursue against the condemning
authority it's claim for and to receive all compensation or damages
sustained by it by reason of such condemnation, and Landlord's
right to recover compensation or damages shall be limited to
compensation for and damages, if any, to it's reversionary interest;
it being understood, however, that during the time Tenant shall be
out of possession of the Premises by reason of such condemnation,
this Lease shall not be subject to forfeiture for failure to observe and
perform those covenants not calling for the payment of money. If
the condemning authority shall fail to keep the Premises in the state
of repair required hereunder, or to perform any other covenant not
calling for the payment of money, Tenant shall have ninety (90) days
after the restoration of possession to it within which to carry out it's
obligations under such covenant or covenants. At any time after
such condemnation proceedings are commenced, Landlord shall
have the right, at its option, to require Tenant to assign all
compensation and damages payable by the condemner to Tenant to
Landlord, to be held without liability for interest thereon, as security
for the full performance of Tenant's covenants hereunder, such
compensation and damages received pursuant to said assignment to
be applied first to the payment of rents, taxes, assessments,
insurance premiums and all other sums from time to time payable
by Tenant pursuant to the terms of this Lease as such sums fall due,
and the remainder, if any, to be payable to Tenant, it being
understood and agreed that such assignment shall not relieve
Tenant of any of its obligations under this Lease with respect to such
rents, taxes, assessments insurance premiums and other sums
except as the same shall be actually received by Landlord.
Page 16 of 23 Initial
23. Non-liability of Landlord. Landlord and it's agent shall not be
liable to Tenant for any damage or loss, including loss or
interruption to Tenant's business or services, occasioned by any
service provided by Landlord or its agent under this Lease or
electricity, plumbing, gas, water, air conditioning, sprinkler or other
pipes and sewage systems, or the loss, interruption or stoppage
thereof, or by the bursting, leaking, overflowing or running over of
any tank, washstand, closet, waste or other pipes in or about the
Premises or the Property, nor for any damage occasioned by water
coming into the Premises from any source whatsoever or for any
damage arising from any acts or neglect of the co-tenants or other
occupants of the Property or of adjacent property, or of the public,
unless such damage or loss shall result from a wanton and willful act
of the Landlord or the Landlord's gross negligence. All property of
Tenant kept or stored on the Premises shall be kept or stored at the
risk of Tenant only, and Tenant shall hold Landlord harmless from
any claims arising out of damage to the same, including subrogation
claims by Tenant's insurance carriers unless such damage shall be
caused by the wanton and willful act or gross negligence of the
Landlord. In no event shall Landlord or any of its agents, employees,
or principals be liable to Tenant, its principals, agents or employees
for lost profits or any other consequential damage suffered by
Tenant, its principals, agents or employees from any cause, unless
such losses or damages shall result from a wanton and willful act of
the Landlord or the Landlord's gross negligence.
24. Indemnity of Landlord. Tenant shall indemnify and save
Landlord and its agent, if any, harmless against and from any and all
claims, damages, costs and expenses, including reasonable attorney's
fees, arising from the operation of the business conducted by
Tenant in the Premises or arising from any default by Tenant in the
performance of any of the covenants, conditions or terms of this
Lease, or from any act or negligence or omission to act of Tenant,
it's agents, contractors, servants, employees, sublessees, sublessees
or licensees in or about the Premises or in connection with this
Lease or any sublease. If any action or proceeding is brought against
Landlord or it's agent, if any, by reason of any such claim, even
though such claim is based on the alleged fault of Landlord, Tenant
agrees to pay the reasonable costs and expenses thereof including
attorney's fees and any judgments or settlement of claims secured
against Landlord by reason of such action or proceedings.
25. Attorney's, Architect's, Etc. Fees. If Landlord and/or it's agent
shall, without fault, be made a party to any litigation by or against
Tenant arising out of Tenant's occupancy of the Premises or any act
of Tenant concerning the Premises or this Lease, or if litigation shall
be brought for recovery of possession of the Premises, for the
recovery of rent or any other amount due under the provisions of
this Lease, or because of the breach of any covenant in this Lease to
be kept or performed by Tenant, and a breach shall be established,
Tenant shall pay to Landlord and/or it's agent all expenses incurred in
connection therewith, including attorney's fees. Tenant shall also
pay any and all costs and fees Incurred or paid by the Landlord,
including attorney's fees and the fees of architects or other
professionals employed by Landlord, to review, revise or prepare
any document, plan or other writing of any nature presented by or
on behalf of the Tenant to Landlord for review or approval in
Page 17 of 23 Initial
connection with Tenant or any action by Tenant under this Lease,
including, without limitation, requests for consents to assignments,
subleases, mortgages or other similar items, or certificates,
approvals, opinions, or other agreements with respect thereto,
which such items in the opinion of the Landlord require the
employment of an attorney or other professional on behalf of the
Landlord. Any failure of the Tenant to pay such costs or fees upon
demand of the Landlord shall be deemed a default under this Lease
and the Landlord shall be entitled to exercise its rights on account of
such default as provided above. Landlord shall not be obligated to
consider, review, execute or deliver any consent, approval,
certificate or other Item until the costs and fees herein required to
be paid by the Tenant have been paid.
26. Access to and Inspection of Premise. Landlord reserves and
shall at any and all times have the right to enter the Premises to
inspect the same, to supply janitorial service and any other service
to be provided by Landlord to Tenant hereunder, to exhibit the
Premises to prospective purchasers or tenants, to post notices of
non-responsibility and "for lease" signs, and to alter, improve or
repair the Premises and any portion of the building without
abatement of rent, and may for that purpose erect scaffolding and
other necessary structures where reasonably required by the
character of the work to be performed, always providing the
entrance to the Premises shall not be blocked thereby, and further
providing that the business of Landlord shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with Tenant's business,
any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby to the degree the interference is not
substantial. For each of the aforesaid purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in,
upon and about the Premises, excluding Tenant's vaults and safes,
and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency, in
order to obtain entry to the Premises, and any entry to the Premises
obtained by Landlord by any of said means, or otherwise, shall not
under any circumstances be construed or deemed to be a forcible
or unlawful entry Into, or a detainer of, the Premises, or any eviction
of Tenant from the Premises or any portion thereof.
27. NOtICes.
a) Notices to Tenant. All notices to be given to Tenant may be given
in writing personally to Tenant, if Tenant is an individual, or to an
officer of Tenant, if Tenant is a corporation, or by depositing the
same in the United States mail, registered or certified and postage
prepaid, and addressed to Tenant at the Premises whether or not
Tenant has departed from, abandoned or vacated the Premises.
b) Notice to Landlord. Notice to Landlord shalt be given in writing
personally to an agent or employee of Landlord or by depositing the
same in the United States mail, registered or certified and postage
prepaid, and addressed to Landlord at the address set forth on the
attached Lease Term Sheet, or at such other addresses as Landlord
may give to Tenant in writing from time to time.
Page 18 of 23 Initial
c) Time of Service. Any written notice sent by registered or certified
mail shall be deemed to have been served as to the date it is mailed
in accordance with the foregoing provisions.
28. Conveyance Tax. Any conveyance tax imposed pursuant to
Chapter 247, Hawaii Revised Statues or any rules and regulations
promulgated thereto, shall be payable by the Tenant. Landlord shall
advise Tenant of the amount of said tax and said tax shall be due and
payable at the time of execution of this Lease. Further, Tenant shall
be responsible for and shall pay before delinquency, all municipal,
state or county taxes assessed during the term of this Lease against
it by reason of the conduct of its business in the Premises or with
respect to personal property of any kind, owned by or placed in,
upon or about the Premises by and/or at the expense of Tenant.
29. Subordination of Lease. This Lease shall automatically be
subordinate to any mortgage, encumbrance or deed of trust
heretofore or hereafter placed upon the Property by Landlord, to
any and all advances made or to be made thereunder, to the
interest on the obligations secured thereby, and to all renewals,
replacements and extensions thereof; provided, however, that in
the event of foreclosure of any such mortgage or deed of trust or
exercise of the power of sale thereunder, Tenant shall attorn to the
purchaser at such foreclosure or sale, and recognize such purchaser
as Landlord under this Lease if so requested by such purchaser. Said
encumbrances shall include, without limitation, the lien of a
mortgage executed in part to secure a loan to pay for the
construction of improvements in or to any building. Within ten (10)
days after request therefor by Landlord, or, in the event that upon
Landlord's sale, assignment or hypothecation of the land or
improvements which comprise the Property an estoppel or offset
statement shall be required from Tenant, Tenant shall deliver in
recordable form a certificate to any purchaser, mortgagee under
such mortgage, or to Landlord, certifying (if such be the case) that
this Lease is in full force and effect and that there are no defenses or
offsets thereto, or stating those claimed by Tenant, and stating such
other facts and conditions as may be reasonably required by Tenant.
In the event Landlord is refinancing the Property, Tenant agrees to
deliver a current Financial Statement to the proposed lender. If any
mortgagee or beneficiary elects to have this Lease superior to its
mortgage or deed of trust and gives notice of its election to Tenant,
then this Lease shall thereupon become superior to the lien of such
mortgage or deed of trust, whether this Lease is dated or recorded
before or after the mortgage or deed or trust. Tenant shall execute
promptly after demand, without charge, all forms, documents and
instruments required by Landlord to carry out the terms of this
Paragraph.
30. Estoppel Certificate.
a) Tenant shall at any time upon not less than ten (10) days' prior
written notice from Landlord execute, acknowledge and deliver to
Landlord a statement in writing (1) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as is
modified, is in full force and effect) and the date to which the rent
Page 19 of 23 Initial
and other charges are paid in advance, if any, and (2) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on
the part of landlord hereunder, or specifying such defaults if any
are claimed. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises.
b) At Landlord's option, Tenant's failure to deliver such statement
within such time shall be a material breach of this Lease or shall be
conclusive Upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii)
that there are no uncured defaults in Landlord's performance, and
(iii) that not more than one (1) month's rent has been paid in
advance.
c) If Landlord desires to finance, refinance, or sell the Premises, or
any part thereof, Tenant hereby agrees to deliver to any lender or
purchaser designated by Landlord such financial statements of
Tenant as may be reasonably required by such lender or purchaser.
Such statements shall include the past three (3) years' financial
statements of Tenant. All such financial statements shall be received
by Landlord and such lender or purchaser in confidence and shall be
used only for the purposes herein set forth.
31. Force Majure. In the event that either Landlord or Tenant shall
be delayed or hindered in or prevented from the performance from
any act required under this Lease Agreement by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of
power, restrictive governmental laws or regulations, riots,
insurrection, war, or other reason of a like nature, not the fault of
the party delayed in performing the work or doing the acts required
under the terms of this Lease Agreement, then performance of such
act shall be excused for the period of the delay and the period for
the performance of any such act shall be extended for a period
equivalent to the period of such delay. The provisions of this
Paragraph 31 shall not operate to excuse Tenant from the prompt
payment of rent, or any other payments required by the terms of
this Lease Agreement.
32. Additional Improvements upon property. Landlord reserves
the right at any time, to make alterations or additions to, and to
build additional stories on the building in which the Premises are
contained and to build in areas adjoining the Premises. landlord also
reserves the right, from time to time to construct other buildings or
improvements on the Property and to make alterations or addition
thereto and to build additional stories on any such buildings and to
build adjoining the same and to construct controlled or elevated
parking facilities.
33. Right to Relocate Tenant. Landlord shall have the right, at any
time during the term of this Lease Agreement, to relocate the
Tenant to another Bay within the building containing at least the
same amount of floor area upon the following conditions:
a) Landlord gives the Tenant at least ninety (90) days written
proposed relocation.
Page 20 of 23 Initial
b) All rent, including additional rent as defined in Paragraph 5., shall
be abated for sixty (60) days from the date Tenant shall commence
removal from the Premises; provided, however, that if the Tenant,
for any reason other than force majure, shall fail to resume
substantially normal operations in the new location within that sixty
(60) day period, Tenant shall pay to the Landlord a prorata portion of
the monthly base rent and additional rent for each day between the
end of said sixty (60) day period and the date on which Tenant
resumes substantially normal operations.
c) Landlord shall reimburse Tenant for all reasonable expenses and
costs incurred by Tenant in relocating, and shall pay for all expenses
and costs of Tenant, including but not limited to, all the fixtures,
carpeting, and furnishings incurred for the new Premises.
d) The monthly base and percentage rental for the new location
shall not be greater than the monthly rental for the old location
unless the gross approximate square footage of the new location
exceeds that of the old location by more than ten percent (10%).
Tenant shall not be obligated to accept a floor area exceeding that
of the old location by more than ten percent (10%).
e) Landlord shall not be liable to Tenant for any lost income, business
or profits by reason of the relocation unless such relocation shall
interrupt the Tenant's business for a period in excess of sixty (60)
calendar days.
34. Short Form Counterpart. Upon request by either party, the
other party will execute and deliver to the party requesting the
same a recordable short form counterpart of this Lease, stating the
names of the parties, the term, the description of the Premises, and
the nature of any options for renewal. The Landlord will supply the
form for the short-form counterpart. The party requesting
recordation shall pay any costs, taxes or assessments incurred in
connection with the recordation of any short-form counterpart.
35. Entire Agreement. This Lease contains the entire agreement
between the parties, and any agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment
of the Lease in whole or in part unless such agreement is in writing
and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought. It is expressly
understood and agreed that each and all of the provisions of this
Lease are conditions precedent to be faithfully and fully performed
and observed by the Tenant to entitle Tenant to continue in
possession of the Premises hereunder; that said conditions are also
covenants on the part of Tenant; and that time of performance of
each is of the essence of this Lease.
AND IT IS HEREBY EXPRESSLY AGREED AND DECLARED that time is of the
essence of this Lease; that the term "Premises" wherever it appears
herein includes and shall be deemed to include (except where such
meaning would be clearly repugnant to the context) the commercial
retail/office space(s) described on the attached Lease Term Sheet
and the improvements now or at any time hereinafter comprising
or built in the suite(s) hereby leased; that the paragraph headings
herein are for convenience or reference and shall in no way define,
limit or describe the scope or intent of any provision of this Lease;
Page 21 of 23 Initial
that the term "Landlord" in this Lease shall include the named
Landlord and its successors and assigns; that in any case where this
Lease is signed by more than one cp person, the obligations
hereunder shall be joint and several; and that the term "Tenant" or
any pronoun used in place thereof shall indicate and include the
masculine or feminine, the singular or plural number, individuals,
firms or corporations, and their and each of their respective
successors, personal representatives, administrators and permitted
assigns, according to the context hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease,
including the Lease Term Sheet and addend, if any, attached hereto.
Landlord: Tenant:
Holomua Center, LLC County of Hawaii
By: By:
Brian Anderson, Manager
Date: Its:
Date:
Page 22 of 23 Initial
OPTION ADDENDUM
Option to Extend Term: If Tenant at all times during the term of this Lease shall
have promptly paid the rent and observed and performed all of the terms and conditions
contained in the Lease, and Tenant shall not have assigned this Lease or sublet the
Premises, Tenant shall have the right to extend the term for one 1) additional Two 2
year term(s) by giving Landlord written notice of such extension on or before one
hundred eighty (180) days prior to the end of the term of the Lease or the preceding
extension term. Any assignment of this Lease or subletting of the Premises by Tenant
shall void this Option Addendum unless otherwise specifically agreed by Landlord. Such
extension shall be upon the same terms and conditions of the Lease, excepting for this
option, the Monthly Base Rent, which shall be as follows:
For the period of December 1, 2006 through November 30, 2007 the Base Rent
shall be Nine Hundred Sixty and NO/100 ($960.00) per month;
For the period of December 1, 2007 through November 30, 2008 the Base Rent
shall be Nine Hundred Ninety and NO/100 ($990.00) per month.
landlord Tenant
Holomua Center, LLC County of Hawaii
ey:
Brian Anderson, Manager By:
Date: Its:
Date:
Page 23 of 23 Initial