HomeMy WebLinkAboutCOM 0560.000 2004-2006 +tY Os y
Harry Kim ~ William Takaba
dlcll'm~ Ji,Ri
Oveclor
Nancy E. Crawlord
f~ os~N~
County of Hawaii
Finance Department
25 4upuni Street Reom I IS • Hilo, I Iaa~ali 96720
(808]961-8234 . fax (808)9fi 1-824R
November 14, 2005
Stacy K. Higa, Chairman and
Members of the Hawaii County Council
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Re: Resolution to Amend Resolution No. 97-05, Multi-year lease for the Department of
Research and Development's Kona Office
On June 1, 2005, the County Council adopted Resolution No. 97-05 that authorized the
payment of funds of a later fiscal year and more than one fiscal year for the multi-year lease of
office space for the Department of Research and Development's Kona Office at Lanihau
Professional Building, Room 2001 in Building LC, located at 75-5591 Palani Road, in Kona.
Since that time, an additional 200 square feet of adjacent office space has become available
and the Department of Research and Development wishes to include it as part of its total office
space.
Enclosed is a resolution amending Resolution No. 97-05 by increasing the square footage of
office space from 1,025 to 1,225. The monthly rates per square feet are unchanged.
If there are any questions, please do not hesitate to call the Department of Research &
Development.
r
~I-i,t L~2.
t 1~Villiarrl Takaba
Director of Finance
APPROVED:
C~U' r `"c~'~ ur
Harry Kim
4 Mayor
Comm No.
Enc. Ref. To;
cc: Research & Development R: f. f=are OV l S 7M5
/ p _ _ 1psy Hawai i County is an Equal Opportunity Provider and Employer
Form B-52
7/18/91
DEPARTMENT OF FINANCE
REQUEST FOR COUNCIL ACTION
DEPARTMENT: Research and Development DATE: Nov. 8, 2005
STAFF CONTACT: Jane Testa PHONE: x8366
A. REQUEST:
Resolution authorizing the payment of funds of a later fiscal year and of more than one fiscal year fora multi-
year lease for 1,225 sq. ft. Kona office space for the Department of Research and Development.
Note: Resolution 97-05 authorized multi-year lease agreement for 1,025 sq. ft. office space. The size of the
space has increased to 1,225 sq.ft. Monthly rates per sq. ft. are unchanged.
B. BACKGROUND AND JUSTIFICATION (USE ADDITIONAL SHEETS AS NEEDED):
The proposed Kona office will provide a centralized location for Research and Development's Kona staff.
The Film Specialist and Resource Center Specialist are currently occupying space in the Mayor's Kona office
and the Prosecutor's Kealakekua office, respectively. The space would provide an area for the Resource
Center and a Mass Transit office to serve North and South Kona.
R & D would like to lease a 1,225 sq. ft. space in the Lanihau Professional Building located at 75-5591
Palani Road, Building LC in Kona.
Lease terms are as follows:
Lessor: Frame 10, A Limited Partnership
Location: Lanihau Professional Building a Frame 10 Center located on 75-5591 Palani Road, Suite 2001,
Building LC, Kailua-Kona, HI 96740
Term: 5 years, from August 1, 2005 through July 31, 2010; with option for an additional 3 years.
Area: 1,225 sq. ft. approximately
Base Rent:$1.50 per sq. ft. monthly for first year, with annual increases thereafter to $1.57, $1.65, $1.73 and
$1.82 per sq. ft. monthly; net of all operating expenses.
Shared expenses: Estimated shared expenses of $.72 per rentable sq. ft. per month.
Tenant improvements: Landlord's responsibility to buildout space according to tenant needs. The cost of
buildout to be amortized over term of the lease; $75,000 estimated cost.
Refer to Lease Agreement dated 6/21/05 and draft "Addendum to Lanihau Professional Lease Agreement"
SIGNED: /11.<~~~~' NOV - g 2005
DATE:
Department Head
ADDENDUM TO
LANIHAU PROFESSIONAL CENTER
LEASE AGREEMENT
BETWEEN FRAME 10, "LANDLORD"
AND COUNTY OF HAWAII, "TENANT"
This amendment to the Lanihau Professional Center Standard Lease effective December
1, 2005, is made by and between Frame 10, A Hawaii Limited Partnership, whose principal place
of business and mailing address is 75-5591 Palani Road, Suite 3008, Kailua-Kona, Hawaii
96740, hereinafter referred to as "Landlord", and County of Hawaii, a Municipal Corporation of
the State of Hawaii, whose mailing address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter
referred to as "Tenant."
RECITALS
WHEREAS, on June 21, 2005, Landlord and Tenant entered into that certain Lanihau
Professional Center Lease ("Lease") for approximately 1,030 square feet of space, Suite number
2001 ("the Premises"), located at the Lanihau Professional Center, 75-5591 Palani Road, Kailua-
Kona, Hawaii, for a term commencing on August 1, 2005 and ending July 31, 2010;
WHEREAS, Landlord has offered Tenant 195 additional square feet of space in
consideration for additional rents;
NOW THEREFORE, in consideration of the mutual promises and covenants hereto
contained, to be performed by each party hereto, Landlord and Tenant agree to amend the Lease
dated June 21, 2005 as follows:
AMENDMENT
Paragraph 1.2 "Demised Premises". As used in this lease, the term "Demised
Premises" shall, except as otherwise provided in the last sentence of Section 7.1, mean that certain space in the
Building which is ]mown as Suite No. 2001 and which, Landlord and Tenant agree, includes -1
,4}301225 square feet
of gross leasable azea, more or less, located as shown on the Floor Plan annexed hereto as Exhibit A, together with
the air space extending to the ceiling immediately above the elevation of such floor and together with such rights in
common areas as are specified in Section R.
Paragraph 4.1. Monthly Rent. With respect to each calendar month during
the term of this lease, Tenant shall pay [o Landlord at the office of Landlord, or at such other place as Landlord shall
designate, in advance on or before the first day of each such calendar month, the rent set forth as follows:
For the period August 1, 2005 to July 31, 2006, $1.50 per square foot per month
or ONE THOUSAND EIGHT IIUNllI2ED THIRTY SHVF,N AND SOrAPJ;=TrR3l~,SAz]I)-F+4'
r~,^,R~L=43
pnn~}-p}acB~-T.aF}08sE)LFARSt00 UOi,,I ARb E$1$1 837 ~O~a43~)A);
For the period August 1, 2006 to July 31, 2007, $1.57 per square foot per month
or RNE-TI301SA?FFyz~l.~-#Fi3tiDRLI3-b{Yf~ly'F}~F;N-A?+-F-}--1(3~'a-08~~()01~I~~ARS-{-$~6}~{~()N_L-_IHOLiSANI)
TvlTv.l HLh'nfZfD T~YE\'1l TFINF,L_A'VD 25%(00 DOL I.;ARS (1,923 25~;
1
For the period August 1, 2007 to July 31, 2008, $1.65 per square foot per month
or Dx,}: .:FF1F31;~.4AF~{3 ~lY- 4{1~h-1-TIC{~[) NII~+(="1=Y- IvII>~I--AN{)--SEl1-IO{3{~6,4I2S-f $'I;F>943E){ 1'W O '1'FIOUSAND
1'WEN'I'Y ON43 AND 25/100 DOLLARS 1$2
(~.25~;
For the period August 1, 2008 to July 31, 2009, $1.73 per square foot per month
or 41N1~ FkIAidS.hty ET-;~,{;Sabi>V } {{3'-~}I)R F.I3.}i6G.}-V:.f Y { )Nli:--tANI) 9(d%d9A-ITDI,LAFFS $1.78-E 90)'I W'O ' l'FIOL SA Nll
ONI' III.'NDR}:U N1NIi'1'F.F I~ ANU 2_5'IQO,DOI_L,ARS ($2.1(9_25;
For the period August 1, 2009 to July 31, 2010, $1.82 per square foot per month
or O'ul;-'LFIL)1;4AY1)--LEI(,{#1= FFtdAFB{i~~VG,N'1~-F~CR7~1~-~ANd)-1>0;}AO-DF)6~LA-IFS;- ($+:874.(i0)l'WO
111Q1'S4_Nl> "f O f II!'VI)RI D I bVIiN I Y NFL' A'a1D ?0lI001)01,1,..1RS~2.229,5Q~;
If the term of this lease shall commence on a day other than the first day of a
calendar month, Tenant shall pay to Landlord, on the commencement date of the term, a portion of the monthly rent
specified in the first sentence of this Section 4.1, prorated on a per diem basis with respect to the fractional calendar
month preceding the calendar month in which the first Lease Year begins. If the term of this lease shall expire on a
day other than the last day of a calendar month, Tenant shall pay to Landlord, in lieu of the full month's rent
provided for in this Section 4.I, on or before the first day of the calendar month in which the term is to expire, a
portion of the monthly rent specified in the fast sentence of this Section 4.1 for the last Lease Year in the term,
prorated on a per diem basis with respect to the fractional calendar month in which the term is to expire.
The Landlord and Tenant hereby ratify and reaffirm all other provisions of the Lease and
as amended by this Addendum to said Lease.
1N WITNESS WHEREOF, the parties hereto have executed this Addendum on this
day of , 2005.
LANDLORD TENANT
Frame 10 (A Hawaii Limited Partnership) COUNTY OF HAWAII (A Municipal
Corporation)
By: By:
Date: Date:
z
LANIHAU PROFESSIONAL CENTER
LEASE
Suite No. 2001
THIS LEASE, hereinafter called "this lease," is made as of June 21, 2005
by and between FRAME 10, a Hawaii Limited Partnership, whose address is 75-5541
Palani Road, Suite 3008, Kailua-Kona, Hawaii 96740, hereinafter called the "Landlord,"
and County of Hawaii, a Municipal Corporation of the State of Hawaii whose address is 25
Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "Tenant."
WITNESSETH
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to hire from
Landlord, certain space (hereinafter called the "Demised Premises"), located in the Lanihau
Professional Center (hereinafter called the "Building") situated at 75-5591 Palani Road,
Kailua Kona, Hawaii, (the land upon which the Building is situated is hereinafter called the
"Land");
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein, Landlord and Tenant agree as follows:
1. DEFINITIONS.
1.1. "Common Areas". As used in this lease, the term
"common areas" shall mean those facilities on the Land and in the Building for the
nonexclusive use of Tenant in common with other authorized users, under such rules and
regulations as Landlord shall promulgate from time to time.
1.2. "Demised Premises". As used in this lease, the term
"Demised Premises" shall, except as otherwise provided in the last sentence of Section 7.1,
mean that certain space in the Building which is known as Suite No. 2001 and which,
Landlord and Tenant agree, includes 1,030 square feet of gross leasable area, more or less,
located as shown on the Floor Plan annexed hereto as Exhibit together with the air space
extending to the ceiling immediately above the elevation of such floor and together with
such rights in common areas as are specified in Section 8.
1.2.1. Tenant Improvements. Landlord shall create
space plan and drawings according to Tenant's requirements and construct improvements
for Tenant. All costs of construction are to be amortized over the term of the Lease and
paid by Tenant as additional rent as provided in Paragraph 4.4 below. Improvements shall
include new wall partitions, doors, demising walls, carpeting, air conditioning ducting and
diffusers, ceiling tiles, baseboards, etc. according to the floor plan attached as Exhibit A.
1.3. "Gross Leasable Area". As used in this lease, the
term "Gross Leasable Area" shall mean the total number of square feet of floor space on all
floors (not including mechanical penthouses) on or in rentable premises in the Building. In
computing such square feet of floor space for floors other than mezzanine, the necessary
measurements shall be made from the exterior faces of [he exterior walls of the Building
(except party walls, in which case the necessary measurements shall be made from the
center lines thereof). Space on roofs or other structures on roofs shal? not be included in
computing gross leasable area, but no deductions or exclusions from gross leasable area
shall be made for showcases, entrances, columns, stairs or other interior construction or
equipment (other than mechanical penthouses). Changes in gross leasable area occurring
during a particular calendar month shall, for purposes of this lease, be effective on the first
day of the next succeeding calendar month.
1.4. "Lease Yeaz". As used in this lease, the term "Lease
Year" shall mean a period of twelve consecutive full calendar months. The first Lease
Year shall begin on the commencement date of this lease, if such commencement date shall
fall on the first day of a calendar month. If such commencement date shall not fall on the
first day of a calendar month, the first Lease Year shall commence on the first day of the
calendar month immediately following the month in which the term of this lease shall have
commenced. Each succeeding Lease Year shall commence on the anniversary date of the
first Lease Year.
2. DEMISE.
2.1. Demised Premises. Landlord hereby leases to Tenant
and Tenant hereby leases from Landlord the Demised Premises, to be held upon and to be
subject to all of the terms of this lease, subject, however, to all encumbrances now of
record. Nothing in this lease shall be construed as creating in or transferring to Tenant any
interest in the Land, in the air space above the Demised Premises or in the parking and
other common areas, except as otherwise specifically provided in this lease.
2.2. Term. The term of this lease shall commence on
Aueust 1, 2005. The teen of this lease shall expire at midnight on July 31.2010, except as
provided in Paragraph 34 (Option to Extend).
2.3. Limited Use. The Demised Premises shall be used
for no purpose other than that of Research and Development Office and for other purposes
as agreed to by the parties.
2.4. Condition of Demised Premises. Landlord does
hereby warrant that the demised premises after the construction of the improvements as set
forth in this lease will meet all applicable safety, building codes and the current Americans
with Disabilities Act (ADA) requirements and any other applicable County, State or
Federal laws, regulations or requirements.
2.5. Tenant Assumes Certain Risks. Without limitation of
the generality of Section 2.4, Tenant hereby assumes all risks of monetary loss, unforeseen
expense, lost profits and other consequential damages, delay and difficulty or impossibility
of performance, in connection with this lease, azising from any of the following:
(a) Any governmental action or delay in any governmental action, whether
by federal, state or local government, including any quasi-govemmental body or authority;
surrounding land, whether or not reasonably foreseeable or within the knowledge or c rol
of Landlord, or Tenant, or any sublessee, concessionaire or licensee of Tenan ~ chiding
without limitation, any soil or subterranean condition, any faulty or impro r construction
of any buildings or other improvements or any fill or embankment, atent defects, code li„'~S
violations in building construction or other matters relating to th gality or integrity of the a
Building. ~ q,al
Any of the above conditions shat t cause any of the terms, conditions o~,~p~
covenants of this lease to be waived or mod' din any manner. Tenant acknowledges and 11~~
agrees that each of the foregoing spe " risks and all risks of property damage, personal
injury and wrongful death as w as monetary loss, unforeseen expense, lost profits and
other consequential damag icing out of or from or in connection with such risks, shall
be deemed to have be assumed by Tenant under and pursuant to and for all purposes of / ~ C
this Section 2.5, Landlord shall have no liability whatsoever in connection with any of cbJ "I
such risks ny other risks described in this Section 2.5 and Tenant shall indemnify and
hold a dlord harmless therefrom and will reimburse Landlord for all of its costs and
2.6. Delivery of Possession. Regardless of anything to the
contrary in this lease, Tenant agrees that, if Landlord is unable, for any reason whatsoever,
to deliver possession of the Demised Premises on the date on which the term of this lease
commences, neither Landlord nor any of its agents shall be liable for any damages incurred
by Tenant by reason of such delay, and this tease shall not thereby become void or voidable
by Tenant; provided, however, that Tenant shall not be liable for the payment of any rent
until Landlord delivers possession of the Demised Premises to Tenant and that the term of
this lease shall be extended by the amount of time during which possession by Tenant is
delayed.
3. OUIET ENJOYMENT.
3.1. Covenant. Upon payment by Tenant of the rent
specified herein and upon the observance and performance by Tenant of Tenant's
remaining covenants herein, Tenant shall peaceably and quietly hold and enjoy the
Demised Premises for the term of this lease, without hindrance or interruption by Landlord
or any other person or persons (other than Landlord's mortgagee) lawfully or equitably
claiming by, through or under Landlord.
4. RENT.
4.1. Monthly Rent. With respect to each calendar month
during the term of this lease, Tenant shall pay to Landlord at the office of Landlord, or at
such other phace as Landlord shall designate, in advance on or before the first day of each
such calendar month, the rent set forth as follows:
For the period August 1, 2005 to July 31, 2006, $1.50 per
square foot per month or ONE THOUSAND FIVE HUNDRED FORTY FIVE AND
NOll00 DOLLARS ($1,545.00);
For the period August 1, 2006 to July 31, 2007, $1.57 per
square foot per month or ONE THOUSAND SIX HUNDRED SEVENTEEN AND 10!100
DOLLARS ($],617.]0);
For the period August 1, 2007 to July 31, 2008, $1.65 per
square foot per month or ONE THOUSAND SIX HUNDRED NINETY NINE AND
SO/100 DOLLARS ($1,699.50);
For the period August 1, 2008 to Iuly 31, 2009, $1.73 per
square foot per month or ONE THOUSAND SEVEN HUNDRED EIGHTY ONE AND
90/100 DOLLARS $1,781.90);
For the period August 1, 2009 to July 31, 2010, $1.82 per
square foot per month or ONE THOUSAND EIGHT HUNDRED SEVENTY FOUR AND
60/100 DOLLARS ($1,874.60);
If the term of this lease shall commence on a day other than
the first day of a calendar month, Tenant shall pay to Landlord, on the commencement date
of the term, a portion of the monthly rent specified in the first sentence of this Section 4.1,
prorated on a per diem basis with respect to the fractional calendaz month preceding the
calendar month in which the first Lease Year begins. If the tens of this lease shall expire
on a day other than the last day of a calendaz month, Tenant shall pay to Landlord, in lieu
of the full month's rent provided for in this Section 4.1, on or before the first day of the
calendar month in which the term is to expire, a portion of the monthly rent specified in the
first sentence of this Section 4.1 for the last Lease Year in the term, prorated on a per diem
basis with respect to the fractional calendar month in which the term is to expire.
4.2. Gross Income Tax. Tenant shall pay to Landlord as
additional rent, together with each payment of rent or any other payment hereunder which
is subject to the general excise tax on gross income imposed by the law of Hawaii, as such
law may be amended from time to time, and all other similar taxes imposed on Landlord
with respect to said rent or other payments in the nature of a gross receipts tax, sales tax,
privilege tax or the like (excluding net income taxes), whether imposed by the United
States, the State of Hawaii, the County of Hawaii, or any other governmental body, a sum
(hereinafter called "gross income taxes" or "gross income tax") which, when added to such
rent or other payments, shall yield to Landlord, after deduction of all such taxes payable by
Landlord with respect to all such rent and other payments, a net amount equal to that which
Landlord would have realized from such rent or other payments if no such tax had been
imposed. The present tax rate so calculated is 4.166%.
4.3. Additional Rent -Tenant's Share of Common Area
Maintenance Charges and Utility Charges: During the entire term of this Lease,
commencing on August 1, 2005, including the extensions, if any, Tenant shall pay
monthly, as additional rent, its pro rata share of common area maintenance charges and
utility charges not separately metered, presently estimated at $0.72 per square foot per
month or SEVEN HUNDRED FORTY ONE AND 60/100 DOLLARS ($741.60) per
month, as provided in Paragraphs 8, 15, and 16 below and subject to adjustment, however,
as provided in Paragraph 8.5. Tenant shall pay as additional rent any money or charge
required to be paid by Tenant to Landlord under any provision of this lease, whether or not
designated as "additional rent." If such amounts or charges are not paid when required
under this lease, they shall, nevertheless, if not paid when due, be collectible as additional
rent with any installment of rent thereafter falling due hereunder, but nothing herein shall
be deemed to suspend or delay the obligation to pay any amount of money or charge at the
time same becomes due and payable hereunder or to limit any other remedy of Landlord.
4.4. Additional Rent - Reimbursement to Landlord for Cost of
Improvements: During the initial five year teen of this Lease, commencing on
August 1, 2005, Tenant shall pay monthly, as additional rent, a monthly payment amount
based on the total cost of~construction amount amortized over a period of 60 months at 7%,
plus gross income taxes as provided in pazagraph 4.2 above. For example, if the total
improvements cost amounted to $75,000, the monthly additional rent shall be $1,485.09
over sixty (60) months at 7%, plus gross income taxes of $61.87 per month or a total of
$1,546.96 per month. If Tenant shall exercise its option to renew this lease, the additional
rent for the cost of improvements as provided for in this paragraph 4.4 shall no longer be in
effect, provided that the total improvements cost has been fully amortized.
5. LANDLORD'S SECURITY.
5.1. Amount of Deposit. Tenant, contemporaneously with
the execution of this lease, has deposited with Landlord the sum of N/A which
amount is the total of one month's base rent and the general excise tax thereon), receipt of
which is hereby acknowledged. All sums paid to Landlord pursuant to this Section 5 shall
be held by Landlord, without liability for interest, as security for the faithful performance
by Tenant of all of the terms, covenants and conditions of this lease which are to be
complied with and performed by Tenant during the term hereof. In the event that the
monthly rent shall increase from time to time during the term of this lease, Tenant shall
deposit with Landlord within five (5) days after the effective date of such increase,
additional security deposit so that the amount of the security deposit held by Landlord shall
bear the same proportion to current rent as [he original security deposit bears to the original
monthly rent.
5.2. Use and Return of Deposit. If, at any time during the
term of this lease, any of the rent herein reserved shall be overdue and unpaid or any other
sum payable by Tenant to Landlord hereunder shall be overdue and unpaid, then Landlord
may, at the option of Landlord, appropriate and apply any portion of said deposit to the
payment of any such overdue rent or other sum. If Tenant fails to comply with and
perform the terms, covenants and conditions of this lease, or any of them, which are to be
complied with and performed by Tenant, then, at Landlord's option, Landlord may
appropriate and apply all amounts deposited pursuant to this Section 5 or so much thereof
as may be necessary, to compensate Landlord for all loss or damage sustained or suffered
by Landlord due to such breach by Tenant. [f the entire deposit, or any portion thereof,
shall be appropriated and applied by Landlord for the payment of overdue rent or other
sums due and payable to Landlord by Tenant, then Tenant, upon the written demand of
Landlord, shall forthwith remit to Landlord a sufficient amount in cash to restore the
security to the original sum deposited, and Tenant's failure to do so within five (5) days
after receipt of such demand shall constitute a breach of this lease. If Tenant shall
faithfully observe and perform all of its agreements hereunder, the deposit shall be
refunded without interest to Tenant at the end of the term of this lease, provided, Landlord
may retain the deposit beyond the term to secure Tenant's obligation to restore and repair
all damages to the Premises caused by or resulting from the removal of its trade fixtures,
attachments and equipment.
5.3. Transfer of Securiri. Landlord may transfer amounts
deposited pursuant to this Section 5 to any purchaser of Landlord's interest in this lease or
the Demised Premises, if that interest is sold, and Landlord shall thereupon be discharged
from any further liability with respect to said amounts so transferred.
6. LIGHT AND AIR.
6.1. Diminution. No diminution or shutting off of light or
air by any structure which may be erected in the vicinity of the Building shall affect the
rights or obligations of Landlord or Tenant under this lease or result in the imposition of
any liability on Landlord.
7. RELOCATION OF TENANT.
7.1. Landlord's Rieht. Landlord shall have the right, at
any time during the teen of this lease and from time to time, to relocate Tenant to other
premises in the Building which contains at least the same amount of Gross Leasable Area
as the premises then being leased to Tenant, subject to the following: (i) Landlord shall
give Tenant at least ninety (90) days' written notice of the proposed relocation; (ii) the
monthly rent under Section 4.1 shall be abated from the date on which Tenant commences
moving from the old premises until such time as Tenant opens for business in the new
premises, but such abatement shall in no event extend longer than thirty (30) days after the
new premises is available for occupancy by Tenant; (iii) Landlord shall reimburse Tenant
for all reasonable expenses incurred by Tenant in making such relocation, including the net
cost of putting the new premises in the same condition as the old premises, after crediting
the salvage value of any fixtures or other property relocated by Tenant from the old
premises to the new premises; and (iv) the monthly rent under Section 4.1 for the new
premises shall not be greater than the monthly rent for the old premises, unless the gross
leasable area in the new premises exceeds that in the old premises by more than ten percent
(]0%); provided, however, that Tenani shall, under no circumstances, be obligated to
accept a new premises which has a gross leasable area more than ten percent (10%) greater
than the Gross Leasable Area in the old premises. If Tenant is relocated, in accordance
with this Section 7.1, the term "Demised Premises," as used in this lease, shall thereafter
refer to Tenant's new premises in the Building.
8. COMMON AREAS.
8.1. Right to Use Common Areas. Except as otherwise
provided herein, Tenant and Tenant's customers shall have the right in common with others
to use any parking areas, restrooms, sidewalks, driveways, delivery and other areas as may
be designated by Landlord from time to time as common aeeas in connection with the
business to be conducted in the Demised Premises; provided, however, that Landlord
reserves the right to change, alter, remove and relocate any common areas.
8.2. Common Areas Maintenance Charee. In order to
defray the costs incurred by Landlord in operating, managing and maintaining the common
areas, Tenant shall pay to Landlord, in addition to rent and at the time the rent payments are
due, a pro rata share of such costs, in accordance with monthly billings by Landlord.
Tenant's pro rata share, as used in this lease, shall be the ratio that the total gross leasable
area in the Demised Premises bears to the total gross leasable area in the Building. If any
common area adjacent to the Demised Premises requires extraordinary cleaning as a result
of heavy use by Tenant's employees or customers, an additional common azea maintenance
charge may, at Landlord's option be assessed against Tenant. Each extraordinary common
area maintenance charge shall approximate the additional costs made necessary by such
heavy use and shall be payable at the same time and in the same manner as the regular
common area maintenance charge.
8.3. Costs Included. The cost of maintaining, managing
and operating the common areas shall include, without limitation, Landlord's overhead
expenses pertaining to the management of the common areas, repairs, line painting,
landscaping, electricity, air conditioning, elevator, bulb replacement, cleaning up, garbage
and refuse removal, employees' salaries (including payroll taxes and workers'
compensation premiums), directing or controlling parking and other policing, liability, fire
and property damage insurance for the entire Building, ground lease rents, signage, all
sums paid to any government or governmental agency by reason of providing parking
facilities or by reason of charging for the use of parking facilities, maintaining and
repairing equipment, acquisition, replacement or depreciation of equipment, all billing,
auditing and legal expenses, any expenses incurred in contesting real property tax
assessments and any assessments or charges made under any betterment or improvement
law or otherwise or in controlling picketing and handling labor disputes affecting common
areas, and other costs of operating such parking and other common aeeas. It is expressly
understood and agreed that, without limiting the generality of the foregoing, the phrase
"cost of maintaining, managing and operating the common areas," as used in this lease,
shall also include, but shall not be limited to, all sums paid or incurced by or on behalf of
the Landlord to install elevator(s) or air conditioning system(s) and to make interior and
exterior renovations to the Building, and all sums paid or incurred with respect to
installation, alterations, additions, capital improvements and capital expenditures: (i)
required by insurance carriers; (ii) required by any law, code, regulation or ordinance now
or hereafter in effect, (iii) made by Landlord to reduce energy requirements, (iv) which
have the effect of reducing the expenses which would otherwise be included in the
expenses for maintenance and operation, amortized over their reasonable life with interest
at the rate usually charged Landlord for borrowing on the amount of such costs or, if the
Landlord is prohibited by law from charging interest at such rate, at the rate provided in
Section 25.1, hereinbelow.
8.4. Allocation of Real Prooe Taxes. For purposes of
this Section 8, no real property taxes or assessments or chazges made under any betterment
or improvement law shall be allocated to any common area. Such taxes, assessments and
charges shall be payable as provided in Section 16.
8.5. Method of Billin¢. Monthly billings by Landlord for
common areas maintenance charges shall be on an estimated basis, with adjustment as soon
as reasonably practicable after the end of each fiscal year to reconcile such estimates with
actual expenditures.
8.6. Validated Parkine. If, in the opinion of Landlord,
validated parking in the parking areas shall become advisable, Landlord shall have the right
to enforce validated parking in the parking areas by controlled entrances or otherwise, and,
in such event, any net revenues derived from such validated parking after deducting the
costs thereof shall be applied toward common areas maintenance costs.
8.7. Rules and Reeulations. Landlord shall have the right
to police, regulate traffic in and otherwise control the use of the common areas. In
furtherance of such right, Landlord may promulgate reasonable rules and regulations
(Exhibit B), which may be amended from time to time at the discretion of the Landlord,
with respect to the common areas, and those rules and regulations shall be binding upon
Tenant on notice to Tenant. For the enforcement of the rules and regulations, Landlord
shall have all remedies in this lease provided For a breach of any term of this lease, as if the
rules and regulations were expressly incorporated herein, together with all legal or
equitable remedies, whether or not provided for in this lease. Tenant shall keep all
common areas free and clear of any obstructions created or permitted by Tenant or
resulting from Tenant's operations. If unauthorized persons are using any of the common
areas by reason of the presence of Tenant in the Demised Premises, Tenant, upon demand
of Landlord, shall exclude all such unauthorized persons by appropriate proceedings and at
Tenant's sole expense.
8.8. Tenant and Emnlovee Parking. Throughout the term
of this lease, Tenant shall have the right to use two (2) unreserved parking stalls designated
by Landlord. Landlord shall be entitled to change the stalls designated for Tenant's use by
notifying Tenant thereof. Tenant and employees of Tenant shall not othernise be permitted
to park their vehicles in the common areas, but, instead, shall park their vehicles in such
street or other parking areas as may be available from time to time. Landlord, in its
discretion, shall have the right to grant limited tenant and employee parking in the common
areas. Landlord shall have the right to designate particular parking areas to be used or not
to be used by tenants and employees, and any such designation may be changed from time
to time. The use of certain common areas for parking by tenants or employees shall at all
times be secondary and subordinate to the use of same by customers. Within five (5) days
after receiving written notice from Landlord, Tenant shall famish Landlord with the license
numbers assigned to Tenant's vehicles and to the vehicles of all of Tenant's employees. If
Tenant or its employees park vehicles in areas designated for customers, having been
granted discretionary permission to park in a designated area, park elsewhere in the
common areas, then Landlord, at its option, may charge Tenant ten (10) dollars a day for
each such vehicle parked in any unauthorized area, and Tenant shall pay same to Landlord
as additional rent.
9. THE BUILDING AND THE LAND.
9.1. Landlord's Rieht. Landlord reserves the right at any
time to change, remove, relocate or add to the various improvements, driveways, entrances
and exits, vehicle parking areas and other circulation areas shown on said Site Plan, to
rearrange parking spaces, to add more buildings and other improvements for such purposes
as Landlord shall desire and to add elevated parking, as long as the number of parking
spaces required by applicable laws is maintained and as long as Tenant's frontage on the
common areas and Tenant's access to parking areas and public roadways are not materially
affected.
10. OPERATION OF TENANT'S BUSINESS.
10.1. Disposal of Rubbish. Tenant shall keep the Demised
Premises clean and free from rubbish and dirt at all times. Tenant shall store all of
Tenant's trash and garbage in the Demised Premises and shall either arrange for such trash
and garbage to be hauled away at Tenant's expense or, if Landlord provides garbage
removal service, pay a pro rata share of the expense incurred by Landlord (together with
general excise taxes thereon) for such service.
10.2. Annovin~ or Injurious Conduct. Tenant shall do
nothing which might result in damage to the Building which might constitute a nuisance or
menace to other tenants in the Building. No auction, fire or bankruptcy sales may be
conducted in the Demised Premises without the prior written consent of Landlord. Tenant
shall not, without the prior written consent of Landlord, install any exterior decorations, do
any exterior painting or install any radio or television antennae, loudspeakers, sound
amplifiers or other devices on the roof or exterior walls of the Building. Tenant shall use
no loudspeakers, radios or other means of broadcasting to be heard outside the Demised
Premises.
10.3. No Waste or Strip. Tenant shall not make or suffer
any strip or waste or any unlawful, improper or offensive use of the Demised Premises or
any part thereof nor to overload the floors or any other parts of the Building. Further,
Tenant shall not carry on, do or suffer to be carried on or done upon the Demised Premises
or common areas any acts, trade, practices or business which may damage the Building or
the Demised Premises or be or become a nuisance or menace to persons or property or
interfere with the business or use of other parts of the Building by other tenants and shall
not do, permit or suffer to be carried on any activity, trade, practices or take or store upon
the Demised Premises objects or property which shall increase the rate of premiums for fire
insurance upon the Building, the Demised Premises or its contents.
10.4. Govemmenta) Reeulations. Tenant shall, at Tenant's
sole cost and expense, comply with all of the requirements of al{ municipal, county, state
and federal authorities in force from time to time pertaining to the Demised Premises and
shall faithfully observe in the use of the Demised Premises all government ordinances,
statutes and regulations in force from time to time. If, after receiving written notice from
Landlord or a municipal, county, state or federal authority of infractions of law or a failure
to meet any requirements of such an authority, Tenant refuses or neglects to take proper
corrective action, Landlord may, in its sole discretion and without prior notice, enter the
Demised Premises and take any action necessary to eliminate the infractions or to achieve
compliance with such requirements on Tenant's behalf, without liability to Tenant for any
loss or damage which may result to Tenant's merchandise, fixtures or other property or to
Tenant's business by reason thereof. Upon Landlord's presentation to Tenant of the bill for
the work (including, without limitation, the materials used in performing it) done by
Landlord in order to eliminate such infractions or to achieve such compliance, Tenant shall
pay to Landlord, as additional rent, the costs incurred by Landlord in performing such
work. The aforesaid bill shall include a markup of ten (10) percent on such costs to cover
Landlord's overhead, plus the general excise tax on said markup.
10.5. No Liens or Encumbrances. Tenant shall not commit
nor suffer any act or neglect whereby the Demised Premises, or the interest of Landlord in
the Demised Premises shall, at any time during the term, become subject to any attachment,
judgment, lien, charge or encumbrance whatsoever, and shall indemnify and hold harmless
Landlord against all such attachments, judgments, liens, charges and encumbrances on the
Demised Premises or the interest of Landlord therein and from all costs and expenses
arising or resulting therefrom, including a reasonable attorney's fee, it being expressly
understood and agreed that Tenant shall have no authority, express or implied, to create or
suffer to be imposed any lien, charge or encumbrance upon the Demised Premises or upon
the interest of Landlord therein.
11. FIXTURES. SIGNS AND ALTERATIONS.
11. L Constmction and Installation. Tenant will not make
or cause to be made any alterations or improvements or install or cause to be installed any
trade fixtures, window air conditioners, exterior signs, interior or exterior lighting,
plumbing fixtures, shades or awnings or make any changes to Tenant's shop front, except
with the prior written consent of Landlord. Tenant shall present to Landlord complete
plans and specifications for any such work at the time approval is sought, and any such
alterations, improvements or installations shall be in accordance with complete plans and
specifications first approved in writing by Landlord and in compliance and full
conformance with all applicable building codes or other laws. All fixtures installed by
Tenant shall be new or completely reconditioned. Within ninety (90) days after the
completion of any alterations, improvements or installations of any trade fixtures or other
fixtures, Tenant shall furnish Landlord with a statement in writing executed by Tenant (or
by an officer of Tenant, if Tenant is a corporation, or a partner in Tenant, if Tenant is a
partnership}, setting forth a description and the itemized cost of such alterations,
improvements or installations, and Tenant shall furnish to Landlord therewith the vouchers
and invoices pertaining to said alterations, improvements or installations. If Tenant shall
fail [o furnish Landlord with such written statements, vouchers and invoices within said
ninety-day period, then, regardless of anything to the contrary in this lease, Tenant shall not
be entitled to, and Landlord shall not be obligated to pay, any compensation or
consideration under Section ~ in the event of the relocation of Tenant or under any other
provision of this (ease, in respect of any such alterations, improvements or installations.
11.2. Ownershi~of Alterations. All alterations of or
improvements to the Demised Premises shall remain for the benefit of Landlord and shall
not be removed unless otherwise expressly agreed in writing and shall be presumed to be
an integral part of the Demised Premises.
113. Ownership of Abandoned Fixtures. Regardless of
anything to the contrary in this lease, Tenant shall have the right, if not in default in the
performance of its obligations under this lease, to replace and, during the last thirty days of
the term, to remove all trade fixtures, signs and other personal property installed or placed
in the Demised Premises, as long as Tenant repairs any damage caused by or resulting from
such removal. If Landlord shall be required to repair any damage caused to the Demised
Premises by such removal, Tenant shall reimburse Landlord for the cost thereof, together
with a markup often percent to cover Landlord's overhead, plus the general excise tax on
such markup. Any fixtures, signs and other furnishings or equipment left in the Demised
Premises by Tenant after the expiration of the term shall be deemed abandoned by Tenant
and shall be the property of Landlord.
11.4. Protection Against Liens. Prior to commencing any
interior constmction or any alterations, remodeling or other construction in the Demised
Premises, Tenant shall furnish evidence satisfactory to Landlord that Tenant is financially
able to pay the contractor(s), and Tenant shall famish Landlord with 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 insuring completion of the proposed work free and clear of liens. Tenant
shall promptly pay all contractors and materialmen, so as to minimize the possibility of a
lien's attaching to the Demised Premises, to the Land, or to the Building or other
improvements situated on the Land, and, if any such lien arises or is filed, Tenant shall
discharge same within ten days after a written request by Landlord to do so.
1 I .S. Exterior Appearance. If Tenant erects, installs, paints
or inscribes on any exterior door, wall or window or on any marquee or roof, or affixes to
the exterior or interior surface of any window, door or shop front, or displays anywhere
within the Demised Premises, in such manner as to be visible from any mall or sidewalk,
any sign, lettering, placard or advertising medium which, in the sole opinion of Landlord, is
injurious to the appearance of the Building exterior or which, in the sole opinion of
Landlord, creates a condition hazardous to persons or property, such sign, lettering, placard
or advertising medium shall, upon written notification to Tenant or the local manager or
assistant manager of Tenant's shop, be removed forthwith, and no such objectionable
materials shall thereafter be used by Tenant. The persistent use of any such objectionable
materials by Tenant after such notification shall entitle Landlord to immediate injunctive
relief (without the fifteen-day grace period provided for in Section 24.1), without bond and
without prejudice to any other remedies which may exist. Landlord shall retain complete
control over decisions regarding the appearance of the Building exterior and the common
areas. Landlord, in its sole discretion, may promulgate such rules and regulations
regarding the appearance of the exteriors of shops in the Building and Tenant agrees to be
bound by such rules and regulations.
12. MAINTENANCE OF BUILDINGS.
12.1. Repairs by Tenant. Tenant shall at all times keep the
Demised Premises (including exterior entrances, show window moldings and glass) and all
partitions, doors, fixtures, air conditioning system (including maintenance of air handlers
and condensers, changing of filters, replacement and repair of belts, supplying algaecide to
water, maintenance and replacement of drip pans, insulating pipes for water condensation,
etc.), equipment and appurtenances thereof (including lighting and plumbing fixtures but
excluding structural portions of the Demised Premises) in good order, condition and repair
(including reasonably periodic painting of the interior).
12.2. Landlord's Rieht to Cure Tenant's Default. If Tenant
refuses or neglects to make the repairs required hereunder 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 which may accrue to Tenant's
stock or other property or to Tenant's business by reason thereof, and, upon completion of
such repairs, Tenant sha}1 pay the costs of such repairs upon presentation of a bill therefor,
as additional rent. The bill shall include a markup of ten percent on such costs to cover
Landlord's overhead, plus the general excise tax on said markup.
12.3. General Repairs Maintenance Charee. General repair
maintenance costs are included in the Common Area Maintenance expenses and tenant
shall not be responsible for extra costs, except where those costs were caused by the
tenant's employees or invitees.
13. INSPECTION OF DEMISED PREMISES.
13.1. Access b~Landlord. Tenant shall permit Landlord
and its agents to enter the Demised Premises at all reasonable times for the purpose of
inspecting same and for the purpose of performing the maintenance and making the repairs
required of Landlord under the tenns of this lease, and, in that connection, Landlord shall
be permitted to erect and maintain such scaffolding, canopies, fences and props as may be
required, without any rebate of rent and without any liability to Tenant for any loss of
occupation or quiet enjoyment of the Demised Premises thereby occasioned; provided, that
all such work shall be done in such manner as to cause as little interference with Tenant's
business as is reasonably possible under the circumstances.
14. COMPLIANCE WITH DISABILITY ACCESS LAWS.
14.1. Tenant's Covenant. Tenant hereby covenants and
agrees with Landlord that Tenant shall at all times during the term of this lease comply
with any and all governmental regulation of the Demised Premises regarding access of
disabled persons, including without limitation, Titles III and V of the Americans with
Disabilities Act of 1990, 42 U.S.C. Sec. 12101 et seq. or any other similar federal, state or
local laws or ordinances and the regulations promulgated thereunder (collectively
"Disability Access Laws"); provided that the Landlord assures the Tenant that at the
commencement of the lease, the demised premises are in compliance with the above ADA
requirements.
15. UTILITIES.
15.1. Payment of Charees. Tenant shall pay for all water,
gas, electricity, telephone, sewage disposal and other utilities, services and similar things
furnished to or for the benefit of the Demised Premises, and Tenant shall be responsible
for, and shall pay the cost (including metering) of, insuring that charges therefor are
separately billed and allocated solely to the Demised Premises.
15.2. Non-Liability. for Interruption. Under no
circumstances shall Land lord be liable to Tenant, in damages or otherwise, for or as a result
of any failure to famish, or interruption in, any water, gas, electricity, telephone, sewage
disposal or other utilities, services or similaz things.
15.3. Air Conditionine. Air conditioning of the Demised
Premises shall be the sole responsibility of Tenant and shall be at the sole expense of
Tenant.
16. TAXES AND ASSESSMENTS.
16.1. Conveyance Tax. Any conveyance tax imposed
pursuant to Chapter 247 of the Hawaii Revised Statutes on account of this lease shall be
payable by Tenant. Landlord shall inform Tenant of the amount of said tax, if any, and
said tax shall be due payable at the time of execution of this lease.
16.2. Real Property Taxes and Assessments Under
Betterment or Improvement Laws. During the term of this lease, Tenant shall pay its pro
rata share of real property taxes and all assessments or charges made under any betterment
or improvement law or otherwise which may legally be imposed with respect thereto.
However, Tenant may obtain an exemption from real property taxes under Hawaii Revised
Statutes Section 246-36(2), and upon granting of the exemption, the Tenant's real property
taxes will be reduced by the Lessee's pro rata share. Accordingly, after the effective date
of the Tenant's tax exemption, neither the pro rata share nor the real property taxes of
others shall be actually assessed to or collected against the Tenant in any forth. Said
exemption shall effectively reduce Tenant's pro rata share of the operating costs and
utilities. All such taxes, assessments and charges after the commencement of the term of
this lease, and all. taxes, assessments and charges assessed during the term (but payable in
whole or in installments aRer the term), shall be adjusted and prorated in such a way that
Landlord shall pay its pro rata share for the periods prior to and subsequent to the term and
Tenant shall pay its pro rata share for the term on a monthly basis, together with its
monthly rent as provided in Section 4. I upon request of Landlord.
16.3. Other Taxes. Tenant shall be responsible for and
shall pay before delinquency all state, county and municipal taxes assessed against Tenant
during the term, in connection with Tenant's use of the Demised Premises or with respect
to personal property of any kind owned by Tenant or placed in or about the Demised
Premises by or at the expense of Tenant.
17. INSURANCE.
17.1. Commercial General Liability Insurance. Landlord
and Tenant acknowledge and agree that Tenant is self-insured. Pursuant to Chapter 2,
Article 28, Hawaii County Code, there exists aself-insurance fund for the purpose of
paying claims, settlements and judgments against the County.
17.2. Tenant's Pro Rata Contribution. In addition to
Tenant's other insurance obligations under this lease, Tenant shall pay its pro rata shaze of
the cost of the premiums for standazd fire and extended coverage insurance carried by
Landlord with respect to the Building and other improvements on the Land of which the
Demised Premises are a part, on a monthly basis together with its monthly rent as provided
in Section 4.1 upon request of Landlord.
17.3. Approval of Insurer and Conies of
Policies. Whenever Tenant is required by this lease to insure against any risk, the
insurance policy or policies, shall be issued by an insurance company approved by
Landlord, and a copy of the policy or policies shall be delivered to Landlord with a
commitment by the insurance carrier endorsed thereon to the effect that the policy or
policies cannot be modified or terminated without at least thirty days prior written notice to
Landlord.
17.4. Plate Glass Covera¢e. All glass, both exterior and
interior, of the Demised Premises is at the sole risk of Tenant and any glass broken during
the term hereon shall be promptly replaced by and at the expense of Tenant of at least the
same size, kind and quality.
18. DESTRUCTION OP OR DAMAGE TO IMPROVEMENTS.
18.1. Continuation of Business. During any period of
reconstruction or repair of the Demised Premises or the Building, Tenant shall continue to
operate Tenant's business in the standpoint of prudent business practice.
18.2. Repairs by Landlord. If the Building or any portion
of the Building shall be damaged or destroyed during the term of this lease by any insured
casualty, Landlord shall repair and/or rebuild same to substantially the condition thereof
immediately prior to such damage or destruction, except as provided in Sec[ion 18.3.
18.3. Election not to Repair. If the Building shall be
damaged or destroyed by an uninsured casualty, or if the Building or other improvement on
the Land is substantially damaged or destroyed, and the insurance proceeds are insufficient
for restoring the same, Landlord may either terminate this lease or elect to repair said
damage or destruction or restore the damaged or destroyed improvements. If Landlord
elects not to terminate this lease, Landlord shall repair and/or restore said improvements as
provided in Section 18.2. Landlord shall inform Tenant in writing within sixty days aRer
the casualty whether Landlord intends to repair or restore the improvements in question. If
Landlord elects not to repair or restore such improvements, this lease shall terminate
without further notice, and all further obligations of each party hereto to the other shall
cease, effective as of the date set forth in Landlord's notice of such termination. If such
damage or destruction occurs and Landlord does not terminate this lease as aforesaid, this
lease shall remain in full force and effect, and the parties hereto waive all provisions of law
to the contrary. Landlord's obligations under this Section 18.3 shall in no event exceed the
scope of the work done in the original construction of the buildings.
18.4. Repair by Tenant. i3nless this lease shall be
terminated as provided in Section 18.3, Tenant shall in the event of any damage or
destruction affecting the Demised Premises, forthwith replace or fully repair all plate glass,
exterior signs, trade fixtures, equipment, display cases and other installations originally
installed by Tenant. Tenant shall have no interest in the proceeds of any insurance carried
by Landlord.
19. EMINENT DOMAIN.
19.1. Automatic Termination of Lease. If the whole of the
Demised Premises shall be taken by any public authority under the power of eminent
domain, then this lease shall terminate as of the day possession is taken by such public
authority, and all rent shall be paid up to that date. If only par[ of the Demised Premises
shall be taken under the power of eminent domain, this lease shall be terminated with
respect to that portion of the Demised Premises so taken, but shall continue in full force
and effect as to the remainder of the Demised Premises, and the monthly rent under Section
4.] shall be reduced in the proportion which Tenant's gross leasable area taken bears to
Tenant's total gross leasable area prior to the taking. Tenant, at its own expense, shall
make all necessary repairs and alterations to the Demised Premises which are required by
such taking.
19.2. Tenant's Damages. 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 expense which Tenant might incur or loss which Tenant might
suffer in removing Tenant's merchandise, furnishings, fixtures, equipment and other
personal property from the Demised Premises.
19.3. Temporary Takin In the event of a condemnation
of a leasehold interest (a "temporary taking") in all or a portion of the Demised Premises,
without the condemnation of the fee simple title, this lease shall not terminate. Such a
condemnation shall not excuse Tenant from full performance of all of Tenant's covenants
hereunder, but Tenant shall be entitled to present to and pursue against the condemning
authority Tenant's claim for all compensation or damages sustained by Tenant by reason of
such condemnation. Landlord's right to recover compensation or damages in the event of
such a condemnation shall be limited to compensation for and damages, if any, [o
Landlord's reversionary interest in the Demised Premises. During such time as Tenant
shall be out of possession of the Demised Premises by reason of such condemnation, this
lease shall not be subject to forfeiture for Tenant's failure to observe and perform those
covenants not calling for the payment of money. If the condemning authority shall fail to
keep the Demised Premises in the state of repair required hereunder or to perform any or all
other covenants not calling for the payment of money, Tenant shall have ninety days after
the restoration of possession to Tenant within which to carry out Tenant's obligations under
such covenant or covenants. During such time as Tenant shall be out of possession of the
Demised Premises by reason of such a condemnation, Tenant shall pay to Landlord the
monthly rent provided for hereunder and all other payments required of Tenant hereunder.
At any time after such condemnation proceedings are commenced, Landlord shall have the
right, at its option, to require Tenant to assign to Landlord all compensation and damages
payable by the condemner to Tenant, 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 5rst to the payment of rent,
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. Such assignment shall not relieve Tenant of any of Tenant's
obligations under this (ease with respect to such rent, taxes, assessments, insurance
premiums and other sums, except as same shall actually be received by Landlord.
20. OFFSET STATEMENTS. ATTORNMENT AND
SUBORDINATION.
20.1. Offset Statements. If Landlord's mortgagee or
prospective mortgagee or a prospective purchaser of Landlord's mortgage or in the Land
and the improvements situated thereon shall desire a statement from Tenant as to claims
against Landlord on account of prepaid rent or otherwise, Tenant shall deliver such
statement (in recordable form, if requested) to the party requesting same, certifying (if such
be the case) that this lease is in full force and effect and unmodified (or stating the
modifications, if any) and that there are no defenses or offsets thereto (or stating those
claimed by Tenant, ifany).
20.2. Election of Morteaeee. If any mortgagee of Landlord
shall elect to have this lease be a lien prior to its mortgage, this lease shall, upon such
mortgagee's notifying Tenant to that effect, have priority over the lien of such mortgage to
the same extent as if this lease had been placed on record prior to such mortgage. Tenant
covenants and agrees that, if any proceedings are initiated for the foreclosure of any
mortgage made by Landlord covering the Demised Premises or if the power of sale under
any such mortgage is exercised (whether or not this lease is terminated by such foreclosure
or sale), Tenant will, upon request of the purchaser, attorn to the purchaser upon any
foreclosure or sale and recognize such purchaser as Landlord under this lease. It is the
intent of this Sec[ion 20.2 that, if this lease should be terminated by such foreclosure or
sale, it shall, upon request by the purchaser, be reinstated as a lease between the purchaser
and Tenant, but such purchaser shall not be liable for any act or omission of Landlord
hereunder or be subject to any offsets or defenses which Tenant may have against
Landlord. Upon request by any party in interest, Tenant shall execute such instrument or
instruments as shall be requested to carry out the intent of this Section 20.2.
20.3. Subordination of Lease to MorteaQe. If the
Landlord's mortgage shall so provide or the mortgagee shall agree in writing to recognize
and be bound by this lease in the event of foreclosure as long as Tenant is not then in
default hereunder, this lease and all of the rights of Tenant hereunder shall be subordinated
to any mortgage now or hereafter covering the Demised Premises, or any property of which
the Demised Premises are a part, as security for any indebtedness incurred by Landlord.
Tenant will execute such instrument or instruments subordinating this lease and all of the
rights of Tenant hereunder to any such mortgage as may be procured. If Tenant fails to
execute and deliver any such instrument or instruments within ten days after receipt of
written notice to do so and the receipt by Tenant of the instrument or instruments to be
executed by it, Tenant hereby irrevocably appoints Landlord, and Landlord's successors
and assigns, as the case may be, as the attorney-in-fact of Tenant to execute and deliver any
and all such instruments for and on behalf of Tenant; provided, however, that Tenant shall
not be required to effectuate such subordination and Landlord shall not be authorized to
effect such subordination on behalf of Tenant, unless the mortgagee under such mortgage
first agrees in writing, for the benefit of Tenant, that, so long as Tenant is not in default
under this lease, neither this lease nor any of the rights of Tenant hereunder shall be
terminated or modified or be subject to termination or modification, and Tenant's
possession of the Demised Premises shall not be disturbed or interfered with by any action
or proceeding to foreclose the mortgage.
21. ASSIGNMENT AND SUBLETTING.
21.1. Restrictions. Tenant shall not assign this lease, or any
interest in it, and shall not sublet the Demised Premises or any part thereof, or any right or
privilege appurtenant thereto, or permit any other person (the agents and servants of Tenant
excepted) to occupy or use the Demised Premises, or any portion thereof, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld. Landlord's
consent 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 such consent shall be void and
shall, at the option of Landlord, terminate this lease. Neither this lease nor any interest in it
shall be assignable (as to the interest of Tenants by operation of law, without the prior
written consent of Landlord. Regardless of anything to the contrary in Section 23.1,
Landlord may, in addition to any other reason supportive of refusal to consent, refuse to
consent to an assignment, subletting, occupation or use because of a reasonable belief on its
part (i) that the proposed assignee would be financially unable to perform in accordance
with the terms of this lease, (ii) that [he use to be made of the Demised Premises by the
proposed assignee, subtenant or other person would not be within the scope of use
permitted by Section 2.3, or (iii) that the proposed subletting, occupation or use would
increase the possibility of default by Tenant.
21.2. Chanee of Control. If Tenant is a corporation,
partnership or other entity, the consent of Landlord shall be required prior to any change in
[he present ownership or control 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 present ownership or control of Tenant's business shall be deemed to be an assignment
for purposes of this Section 21, and Landlord shall have the right, at its option, to terminate
this lease in the event of any such assignment without Landlord's consent as provided in
Section 21.1. Regardless of anything to the contrary in Section 23.1, Landlord may, in
addition to any other reason supportive of refusal to consent, refuse to consent to any such
change in the present ownership or control of Tenant's business because of a reasonable
belief on Landlord's part that the proposed transfer would increase the possibility of default
by Tenant.
21.3. Charges. Landlord shall be entitled to charge Tenant
a reasonable amount for processing any application for consent and for preparing any
consent document(s).
21.4. Effect a Waiver. A waiver by Landlord on any
occasion of any right granted to it by this Section 21 shall not prejudice Landlord's exercise
on any other occasion of that or any other right granted to it by this Section 21 with respect
to any other Building tenant under any other lease.
21.5. No Release of Tenant. If this lease shall be assigned
in accordance with this Section 21, Landlord may collect rent from the assignee and apply
the net amount collected to the rent herein reserved, but no such assignment shall be
construed as a release of Tenant from Tenant's obligations under Tenant's covenants
herein. Regardless of any assignment or sublease by Tenant, Tenant shall remain fully
liable under this lease and shall not be released or excused from performing any of
Tenant's obligations under this lease.
22. HAl.ARDOUS MATERIALS.
22.1. Definition. As used in this lease, the term
"Hazardous Material" means and includes any flammable explosives, radioactive materials,
toxic substances, hazardous wastes and any other substances or materials defined as or
included in any definition of "hazardous substances", "hazardous wastes", "hazardous
materials", or "toxic substances" under, or for the purposes of any federal, state or local
laws, ordinances or regulations now or hereafter in effect, relating to environmental
conditions, industrial hygiene or hazardous materials including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980; the
Resource Conservation and Recovery Act; the Hazardous Materials Transportation Act; the
Clean Water Act; the Clear Air Act; the Toxic Substances Control Act; the Safe Drinking
Water Act; and any similar state or local laws or ordinances and the regulations now or
hereafter adopted, published and/or promulgated pursuant thereto (collectively "Hazardous
Materials Laws").
22.2. Prohibition on Hazardous Materials. Tenant hereby
agrees and covenants with Landlord that (a) Tenant shall keep and maintain the Demised
Premises in compliance with, and shall not cause or permit the Demised Premises to be in
violation of any Hazardous Materials Laws, (b) Tenant shall not use, generate,
manufacture, treat, handle, refine, produce, process, store, place, discharge, release, dispose
of or allow to exist on, within, under or about the Demised Premises, any Hazardous
Material, without first obtaining the prior written approval of Landlord, which approval
may be withheld at the sole discretion of the Landlord, (c) Tenant shall be solely
responsible for any clean up, removal, disposal, and transportation of any Hazardous
Material used or allowed or permitted on, within, under or about the Demised Premises,
and (d) Tenant shall indemnify and hold harmless Landlord from all costs and expenses
(including reasonable attorneys' fees), losses, damages and liabilities which may arise out
of or relate to the presence of any Hazardous Material on, within, under or about the
Demised Premises.
23. CONSENTS.
23.1. Delaying or Withholding. Except as may otherwise
be provided herein, any case in which Landlord's approval or consent or Tenant's approval
or consent is required, either by the terms of this lease or otherwise, such approval or
consent shall not be unreasonably or arbitrarily delayed or withheld.
24. DEFAULT.
24.1. Rieht to Re-enter. Each of the following occurrences
shall be considered a default by Tenant hereunder: (i) a failure by Tenant to pay rent when
due, (ii) a failure by Tenant to comply with any provision of this lease for more than fifteen
(15) days after written notice of such failure shall have been given to Tenant, (iii)
falsification by Tenant of any reports or statements required hereunder, (iv) an attempt to
defraud Landlord in any manner, (v) Tenant's becoming bankrupt or insolvent, making an
assignment for the benefit of creditors, filing any debtor proceedings or initiating (or
having initiated against Tcnant) any proceedings under the United States Bankruptcy Act
seeking (or having any order or decree rendered against Tenant directing) any reduction of
Tenant's debts, liabilities or obligations, (vi) the abandonment by Tenant of the Demised
Premises, and (vii) suffering this lease to be taken under a writ of execution or otherwise.
Upon any default, Landlord, in addition to any other rights or remedies it may have, shall
have the right, with or without termination of this lease, [o re-enter [he Demised Premises
immediately, to remove all persons and property therefrom and to store such property in a
public warehouse or elsewhere at the expense, and for the account, of Tenant--all without
notice or resort to legal process and without being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby.
24.2. Right to Re-let. If Landlord elects to re-enter for
Tenant's default, as provided in Section 24.1, or takes 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 relet the Demised Premises and then re-let them (or
any part thereof} for such term or terms, for such rent and upon such other terms and
conditions as Landlord, in its sole discretion, may deem advisable. Upon each such
re-letting, all rent received by Landlord from such re-letting shall be applied as follows:
first, to the payment of any indebtedness of Tenant to Landlord hereunder (other than rent);
second, to the payment of any costs and expenses of such re-letting and of such alterations
and repairs; third, to the payment of tent due and unpaid hereunder; and the residue, if any,
to be held by Landlord and applied in payment of future rent as it may become due and
payable hereunder. If the rent received from such re-letting during any calendar month
shall be less than that required to be paid during that calendar month by Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. Termination may, but need not necessarily, be made effective by Landlord's
giving notice to Tenant of Landlord's intention to terminate this lease, specifying a day not
earlier than five days thereafter. Upon the giving of such notice, the term of this lease and
all of the right, title and interest of Tenant hereunder shall expire as fully and completely on
the day so specified as if that day were the date herein specifically fixed for the expiration
of the term. No re-entry or taking possession of the Demised Premises by Landlord shall
be construed as an election on its part to terminate this lease unless a notice of such
intention is given to Tenant or such termination is decreed by a court of competent
jurisdiction. Regardless of any such re-letting without termination, Landlord may at any
time thereafter elect to terminate this lease for such previous default. if Landlord at any
time terminates this lease for Tenant's default, Landlord, in addition to any other remedies
it may have, may recover from Tenant all damages Landlord may incur by reason of such
default, including, without limitation, the cost of recovering the Demised Premises,
reasonable attorneys' fees and the worth at the time of such termination of the excess, if
any, of the amount of rent and charges equivalent to rent reserved in this lease for the
remainder of the term of this lease over the then reasonable rental value of the Demised
Premises for the remainder of the stated term. All such amounts shall be immediately due
and payable by Tenant to landlord.
24.3. Sepazate Suits. Landlord shall have the privilege of
splitting its cause of action for rent so as to permit its instituting separate suits or
proceedings for the rent provided for in this lease and separate suits or proceedings for any
other payment required hereunder. Neither the institution of such suits or proceedings nor
the entering of judgment therein shall bar Landlord from bringing subsequent suits or
proceedings for unpaid rent or for any other payments required hereunder.
24.4. Waiver. The waiver by Landlord of any breach of
any term, covenant or condition in this ?ease shall not be deemed to be a waiver of such
term, covenant or condition for any subsequent breach thereof or any other term, covenant
or condition in this lease. The subsequent acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver of any prior 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 prior breach at the time of
acceptance of such rent.
24.5. Accord and Satisfaction. No payment by Tenant or
receipt by Landlord of an amount less than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, and no endorsement or
statement on any check or any letter accompanying any check or payment as rent shall be
deemed an accord and satisfaction. Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or to pursue any other
remedy provided in this lease or otherwise permitted by law.
24.6. Landlord's Security Interest. Tenant hereby grants to
Landlord a continuing security interest in all fixtures (including trade fixtures), equipment,
inventory and other personal property of Tenant located in the Demised Premises from time
to time, in all accessions thereto, substitutions therefor and replacements thereof, in all
proceeds from the sale or other disposition of any of such collateral, and in all cash and
accounts receivable located in the Demised Premises or arising from business conducted
therein. The purpose of this security interest is to secure the performance of Tenant's
obligations under this lease. Landlord shall have the right, upon Tenant's default, in
addition to any other rights Landlord may have under [his lease or at law or in equity, to
seize any or all such collateral and dispose of same at public or private sale in accordance
with Chapter 490 of the f{await Revised Statutes and to apply the proceeds of such sale(s)
against any amounts which may then be due and owing to Landlord, including the costs of
effecting such sale(s). Tenant agrees that ten days' notice of either private or public sale
shall be reasonable notice. Landlord shall have the right to require Tenant to surrender all
cash collections to Landlord at the close of business on each day Tenant continues to
conduct business in the Demised Premises after default, or at such other intervals as
Landlord may determine. Landlord shall have the right to collect Tenant's accounts
receivable and, in that connection, to notify the account debtors to make payment directly
to Landlord. Tenant agrees that Landlord need not first proceed against the collateral, but
may pursue any remedy Landlord may have, including sale of the collateral, in any order or
sequence, whether consecutively or concurrently. Tenant agrees to execute any financing
statement, continuation statement or other documents necessary to perfect Landlord's
security interest under this Section 24.6.
24.7. Landlord's Failure to Perform. Landlord shall not be
deemed to be in default in the performance of any obligation required by it under this lease
unless and until it has failed to perform such obligation within thirty (30) days after written
notice by Tenant to Landlord, specifying wherein Landlord has failed to perform such
obligation; provided that if the nature of Landlord's obligation is such that more than thirty
(30) days are required for its performance, Landlord shall not be in default if Landlord
commences to cure the default within such thirty (30) day period and thereafter diligently
prosecutes the same to completion.
24.8. Notice to Landlord's Mort¢aaee. In the event of any
ac[ or omission by Landlord which would give Tenant the right to terminate this lease or to
claim a partial or total eviction, Tenant shall not exercise any such right (i) unless and until
Tenant shall have given written notice of such act or omission, by registered or certified
mail, to the holder of any mortgage whose name and address shall have been furnished to
Tenant in writing, at the last address so furnished, and {ii) unless and until a reasonable
period of time for remedying such act or omission shall have elapsed following the giving
of such notice and, following the giving of such notice, Landlord or said holder shall not
have undertaken, with reasonable diligence, to eemedy such act or omission or to cause
same to be remedied.
24.9. Remedies Cumulative. Each right and remedy
provided for in this lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this lease or which now or hereafter exists at law or in equity,
whether by statute or otherwise, and the exercise by Landlord or Tenant of any one or more
of the rights or remedies provided for in this lease or which now or hereafter exist at law or
in equity, whether by statute or otherwise, shall not preclude the simultaneous or later
exercise of any or all other rights or remedies provided for in this lease or which now or
hereafter exist at law or in equity, whether by statute or otherwise.
25. INTEREST ON PAST DUE AMOUNTS.
25.1. Rate. Any amounts owing by Tenant to Landlord
under this lease shall bear interest from the date such amounts due until paid. The rate of
such interest shall be either (i} at the specified maximum rate, if any, then allowed by law,
or (ii) if there is then no such maximum rate, one percentage point above the base rate of
interest then being charged by Bank of Hawaii. Such interest shall be considered as part of
the rent payable hereunder. As used in this Section 25.1, the term "base rate" means the
primary index rate established from time to time in good faith by Bank of Hawaii in the
ordinary course of its business, with due consideration of the money market, and published
by Bank of Hawaii in its intrabank circular letters or memoranda for the guidance of its
loan officers in pricing those of its loans for which the interest rates float with the base rate.
If Bank of Hawaii discontinues use of its base rate at any time and replaces it with a
comparable rate, then, for purposes of this lease, such comparable rate shall be substituted
for the discontinued rate. If the discontinued rate is not replaced with a comparable rate,
the discontinued rate shall be replaced with the primary index rate established from time to
time in good faith by Bank of Hawaii for the guidance of its loan officers in pricing its
commercial loans
25.2. Late Payment Penalty. If Tenant shall default in the
payment of rent herein reserved or any part thereof or any of the sums, costs and expenses
enumerated herein and such default shall continue for a period of five (5) days, Tenant
shall pay to Landlord a "late charge" equal to the higher of $75.00 or five percent (5%) of
the amount then due to defray additional costs incurred by Landlord in connection with the
delinquent payment. The late charge shall be in addition to any other remedy of [he
Landlord described herein.
26. SURRENDER OF DEMISED PREMISES AND HOLDING OVER.
26.I. Showing. During the last three months of the term of
this lease, Landlord shall be permitted to show the Demised Premises to prospective
tenants during Tenant's business hours. Showing the Demised Premises as aforesaid shall
be carried out in such a manner as to entail a minimum of interference with the business of
Tenant.
26.2. Surrender Upon Termination. At the expiration of the
tenancy hereby created, Tenant shall surrender the Demised Premises and the
improvements therein in the same condition of cleanliness, repair and sightliness as they
were in upon Tenant's commencement of business under this lease, reasonable wear and
tear and damage by unavoidable casualty excepted. Tenant shall surrender to Landlord at
the place then fixed for the payment of rent all keys for locks in the Demised Premises and
shall inform Landlord of the combinations of all locks, safes and vaults, if any,
permanently situated in the Demised Premises. On the day on which the tenancy hereby
created expires, all alterations, additions, improvements, hardsurface bonded or adhesively
affixed flooring and all fixtures in the Demised Premises, other than Tenant's trade
fixtures, operating equipment and carpeting, shall become the property of Landlord and
shall remain in and be surrendered to Landlord with the Demised Premises as a part
thereof, without disturbance, molestation or injury and without credit to Tenant, or
Tenant's sublessees, concessionaires or licensees. On or before the last day of the term of
this lease or the earlier termination thereof, Tenant if not then in default, shall remove from
the Demised Premises all of Tenant's trade fixtures, operating equipment and other
personal property and repair any damage occasioned by any such removal. Property not so
removed shall be deemed abandoned by Tenant. If the Demised Premises are not
surrendered at such time, Tenant shall indemnify Landlord against loss or liability resulting
from delay by Tenant in so surrendering the Demised Premises, including, without
limitation, any claims made by any succeeding Tenant based on such delay. Tenant's
obligation to observe or perform this covenant shall survive the expiration of the term, or
other termination, of this lease.
26.3. Liuuidated Damaees. If, upon the expiration of the
term, or other termination, of this lease, Tenant shall fail to yield to Landlord possession of
the Demised Premises and the improvements therein after having been notified by
Landlord to vacate same, Landlord shall have the option of requiring Tenant to pay, for
each day possession is withheld, an amount equal to double the daily minimum rent (as of
such expiration or termination), computed on a thirty-day month basis. Landlord will
exercise such option by written notice to Tenant pursuant to the provisions of Section 31.1
of this lease. If Landlord exercises said option, Tenant shall pay said amount as liquidated
damages. Tenant acknowledges that any failure of Tenant to vacate the premises as
required under this lease will result in substantial damage to Landlord by reason of the
additional expenses incurred by Landlord in connection with such failure, and frustration to
the Landlord in meeting its other commitments; and that it will be extremely difficult and
impractical to ascertain the extent of such damages caused by Tenant's failure. The Tenant
and Landlord have thus agreed that a reasonable estimate of such damage must be based in
part upon [he duration of Tenant's default and that the liquidated damages specified above
would not unreasonably compensate a Landlord for such damages.
26.4. Holdine Over. Any holding over by Tenant 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 125% of the rent herein provided for the last year of the
term of this lease and shall otherwise be on the terms and conditions herein specified, so far
as applicable.
27. INDEMNIFICATION AND LIMITATION OF LIABILITY.
27.1. Indemnification of Landlord and Landlord's Property
Manaeer. Tenant shall indemnify Landlord and Landlord's property manager and save
them harmless from and against any and all claims, actions, damages, liability and expense
in connection with loss of life, personal injury and/or damage to property azising from or
out of any occurrence in the Demised Premises, or the occupancy or use by Tenant of the
Demised Premises and the Building, or any part thereof, or occasioned wholly or in part by
any act or omission of Tenant or Tenant's agents, contractors, employees, servants,
subtenants or concessionaires. If Landlord and/or Landlord's property manager, shall,
without fault, be made a party or parties to any litigation commenced by or against Tenant,
then Tenant shall pay all costs, expenses and reasonable attorneys' fees incurred by
Landlord and Landlord's property manager, in connection with such litigation. Tenant
shall also pay all costs, expenses and reasonable attorneys' fees which may be incurred by
Landlord in enforcing any of the provisions of this lease.
27.2. Limitation of Landlord's Liability. In consideration
of the benefits accruing hereunder, Tenant hereby covenants and agrees that, in the event of
any actual or alleged failure, breach or default by Landlord arising out of this lease, or in
the event of any claims for personal injury or damages for which Landlord may be liable,
Tenant's sole and exclusive remedy shall be against those assets comprising and included
within the books of record and account maintained for the Land, the Building and other
improvements situated on the Land, and Tenant will not execute on any assets of Landlord
other than Landlord's interest in the Land and Building.
28. ATTORNEYS' FEES.
28.1. Tenant's Liabiliri. If Landlord shall, without fault on
its part, be made a party or parties to any litigation commenced by or against Tenant arising
out of Tenant's occupancy of the Demised Premises or any act of Tenant concerning the
Demised Premises or this lease, or if suit shall be brought for recovery of possession of the
Demised Premises, for the recovery of rent or any amount due under the provisions of this
lease, or because of Tenant's breach of any other covenant herein and a breach shall be
established, Tenant shall pay to Landlord all reasonable expenses incurred by Landlord in
connection therewith, includingreasonable attorneys'fees.
29. LANDLORD'S RIGHT TO ASSIGN AND TRANSFER
SECURITY.
29.1. Land]ord's Right. Landlord may without consent of
Tenant, sell, assign, mortgage, transfer or hypothecate all of its right, title and interest in
this lease, in the improvements constructed on the Demised Premises, or its interest in the
property of which the Demised Premises is a portion, to the extent of its right, title, and
interest therein; and if any security or consideration has been given by Tenant to secure the
faithful performance of any or all of the covenants of this lease, Landlord may transfer
and/or deliver said security or considerations as such to the transferee of the said interest,
and thereupon Landlord shall be discharged from any and all liabilities hereunder, with the
transferee of the said interest to Landlord to be solely liable to Tenant. In the event
Landlord proposes to sell, assign, mortgage, transfer or hypothecate all or any portion of
Landlord's right, title or interest in this lease and the prospective purchaser, assignee,
mortgagee or other financial source requires verification of any or all of Landlord's
tenants' financial condition and capabilities, Tenant will famish to Landlord, upon request,
any and all financial statements or records reasonably necessary to verify such financial
conditions and capabilities.
30. NOTICES.
30.1. Notices to Tenant. Unless otherwise specifically
provided in this lease, all notices to be given to Tenant shall be in writing and shall be
delivered personally to Tenant, Tenant's corporate officer, Tenant's managing or general
agent, the Office of the Corporation Counsel or any authorized agent of Tenant or shall be
deposited in the United States mail, registered or certified, postage prepaid, and addressed
to Tenant at the Demised Premises. A Tenant that is a foreign corporation or partnership
shall designate in writing a person residing within the State of Hawaii upon whom legal
notice and process may be served and delivered.
30.2. Notices to Landlord. Unless otherwise specifically
provided in this lease, all notices to be given to Landlord shall be in writing and shall either
be delivered personally to Landlord or deposited in the United States mail, registered or
certified, postage prepaid and addressed to Landlord at Landlord's address set forth above,
or such other address as Landlord may designate from time to time in a written notice to
Tenant.
30.3. Time of Notice. Any written notice sent by registered
or certified mail shall be deemed to have been given as of the date it is mailed in
accordance with the foregoing provisions of this Section 31.
31. FORCE MAJEURE.
31.1. Performance Excused. Unless otherwise specifically
provided herein, if either party hereto shall be delayed or hindered in or prevented from the
performance of any act required hereunder by reason of strikes, lockouts, labor troubles,
inability to procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war or any other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under this lease, then performance
of such act shall be excused for the period of the delay, and the period for the performance
of such act shall be extended for a period equivalent to the period of such delay; provided,
however, that this Section 32.1 shall not operate to excuse Tenant from the prompt
payment of rent or any other payments required by this lease.
32. MISCELLANEOUS.
32.1. Time of Essence. Except as otherwise provided in
Section 32.1 time is of the essence under this lease.
32.2. Jurv Trial and Counterclaims. Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by either of
them against the other on all matters arising out of or in any way connected with this lease,
with the relationship of Landlord and Tenant, with Tenant's use or occupancy of the
Demised Premises and/or with any claim or injury or damage. If Landlord commences any
proceedings for nonpayment of rent or additional rent, Tenant shall not interpose any
counterclaim of any nature in any such proceedings, but this prohibition shall not be
construed as a waiver of Tenant's right to assert such claims in sepazate proceedings
initiated by Tenant.
32.3. Rights of Redemption. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or future laws in
the event of Tenant's being evicted or dispossessed for any cause or in the event of
Landlord's obtaining possession of the Demised Premises by reason of the violation by
Tenant of any of the covenants or conditions of this lease, or otherwise.
32.4. Brokerage Commissions. Landlord represents and
warrants that it has done nothing to give rise to a claim against Tenant for brokerage
commissions or finder's fees in connection with this lease; Tenant represents and warrants
to Landlord that Tenant has done nothing to give rise to a claim against Landlord for
brokerage commissions or finder's fees in connection with this tease. Landlord agrees to
indemnify Tenant against, and hold Tenant harmless from, all liabilities arising from any
such claims based upon acts of Landlord (including, without limitation, any attorneys' fees
in connection therewith); Tenant agrees to indemnify Landlord against, and hold Landlord
harmless from, all liabilities arising from any such claims based upon acts of Tenant
(including, without limitation, any attorneys' fees in connection therewith).
32.5. Grammatical Chances. The grammatical changes
necessary to make the provisions of this lease apply in the plural sense where there is more
than one Tenant or Landlord and to corporations, associations, partnerships or individuals
(whether male or female) shall, in all instances, be assumed as though in each case fully
expressed herein.
32.6. Partial Invalidity. If any term, covenant or condition
of this lease or the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term, covenant or
condition of this lease shall be valid and enforced to the fullest extent permitted bylaw.
32.7. Entire Agreement. This lease contains the entire
agreement between the parties, and any executory agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
32.8. Governinc Law. The laws of the State of Hawaii
shall govern the validity, performance and enforcement of this lease.
32.9. Successors in Interest. The covenants and conditions
in this lease shall apply to, bind and inure to the benefit of the respective heirs, successors,
legal representatives and assigns of the parties hereto.
32.10. Joint and Several Liability. If there shall ever be
more than one Tenant hereunder, each such Tenant shall be jointly and severally liable
hereunder.
32.11. References to Statutes. References in this lease to
Hawaii statutes are to Hawaii Revised Statutes, as amended from time to time, and shall be
deemed to refer to corresponding provisions of any subsequent Hawaii statutes, as amended
or re-enacted.
32.12. References to Sections. References in this lease to
numbered sections are to the designated sections of this lease.
32.13. Section Headincs. The section headings in this lease
are inserted solely as a matter of convenience and for reference and in noway define, limit
or describe the scope or intent of any provision of this lease or in any way affect any such
provision.
32.14. Recordable Memorandum of Lease. Tenant shall not
record this lease without Landlord's prior written consent and such recordation without
Landlord's consent shall, at the option of Landlord, constitute anon-curable default of
Tenant. Either party shall, upon request of the other, execute, acknowledge and deliver to
the other a "short form" memorandum of this lease for recording purposes. Tenant shall
pay, when due, any conveyance tax imposed by the State of Hawaii arising out of or upon
the recording of Said memorandum of lease.
33. OPTION TO EXTEND
33.1 Option to Extend. Notwithstanding any other
provision herein to the contrary if the 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 the Tenant shall not have assigned this Lease or sublet the
Premises, the Tenant shall have the right to extend the term of the Lease for one (1)
additional period(s) of three (3) years by giving the Landlord written notice of such
extension on or before ninety (90) days prior to the end of the original term of the Lease.
33.2 Assignment or Subletting Any assignment of this
Lease or subletting of the Premises by the Tenant shall void this Option unless otherwise
specifically agreed in advance by the Landlord. Such extension shall be upon the same
terms and conditions of the Lease excepting for this Option and the Rent.
33.3 Rent for the Extended Term. The Rent for the
extended term shall be in such amount as may be agreed upon by the parties or the fair
mazket rental value for the premises as may be established by arbitration if they fail to
agree by the end of the term of the Lease. Market rental value shall exclude all trade
fixtures and furnishings which the Tenant has the right to remove at the end of the term, if
any.
33.4 Arbitration. Arbitration shall be by three (3)
arbitrators who shall be recognized real estate appraisers. Each party shall name one
arbitrator and notify the other in writing and, in case of the failure of either to appoint an
arbitrator within ten (10) days after notification of appointment of an arbitrator, the party
appointing the first azbitrator may apply to the Circuit Court of the Third Circuit, State of
Hawaii, for the appointment of a second arbitrator; the two (2) arbitrators shall appoint a
third arbitrator and, in case of their failure to do so within ten (10) days after the
appointment of the second arbitrator, either party may have such third arbitrator appointed
by the Court. The three (3) azbitrators so appointed shall proceed to determine the matter
in question and the decision of a majority of them shall be final, conclusive and binding
upon the parties. In no event, however, shall the base rent per month during any extended
period be less than the average monthly rental due for the prior year. The provisions herein
shall be governed by the provisions of Chapter 658, Hawaii Revised Statutes as the same
now is or may from time to time be amended, and judgment may be entered upon the
arbitrators' decision by the Circuit Court of the Third Circuit as provided in said Chapter.
The fee of the arbitrators selected by the each of the parties and attorney and witness fees
shall be borne by the party incurring the same; the balance of the cost of arbitration,
including the fee of the third arbitrator, shall be borne equally by the Landlord and Tenant.
33.5 Retroactive Rent. In the event the fair market rental
value is not determined until after the beginning of the extended term, then it shall be
retroactive to the beginning of the extended term.
IN WITNESS WHEREOF, the parties hereto have executed these presents
as of the day and year first above written.
RECOMMEND APPROVAL: COUNTY OF HAWAII
~ BY.~~
JANE TESTA DIXIE KAETSU
Director, Department of Research and Its Managing Director
Development
APPROVED AS TO FORM AND FRAME 10
LEGALITY:
- B e~~9/
Y
Depu rporation Counsel WILLIAM L. WONG
AUG 1 8 2005 President
Date: WLW Development Methods, Inc.
Managing General Partner for
Frame 10
RECOMMEND APPROVAL:
BRUCE C. McCLURE, P.E., Director
Public Works
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On this day of , 2005, before me personally
appeared DIXIE KAETSU, to me personally known, who, being by me duly sworn, did
say that she is the Managing Director of the County of Hawaii, a municipal corporation
of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate
seal of said County of Hawaii; that the foregoing instrument was signed and sealed in
behalf of the County of Hawaii by authority given to said Mayor of the County of Hawaii
by Section 5-1.3(g) of the County Charter, County of Hawaii (2000), as amended, and
assigned by the Mayor to the Managing Director pursuant to Section 6-1.3(h) of the
County Charter; and said DIXIE KAETSU acknowledged said instrument to be the free
act and deed of said County of Hawaii.
Signat r
CATHY T. CARR&A
Name (Print or Type)
Notary Public, State of Hawaii
My Commission Expires:10~,(3~OG
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STATE OF HAWAII )
ss.
COUNTY OF HAWAI )
On this 2151 day of July , 2005 ,before me, Elaine Hi a~shi , a
Notary Public for said State, personally appeared William L. Wong ,personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person or the entity upon behalf of which the
person acted, executed the instrument
WITNESS my hand and official seal.
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pug~,~ ~ ~ ~ My commission expires: November 24, 2006
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"EXHIBIT A"
FRAME 10 CENTER
STANDARD OFFICE LEASE
RULES AND REGULATIONS
General Rules
1. Lessee shall not suffer or permit the obstruction of any Common Areas, including
driveways, walkways, and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in good faith judges to be
a threat to the safety, reputation, or property of the Building and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or interfere with other
Lessees or persons having business within the Building.
4. Lessee shall not keep animals or birds within the Building, and shall not bring
bicycles, motorcycles or other vehicles into areas not designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in appropriate receptacles for that
purpose.
6. Lessee shall not alter any lock or install new or additional locks ox bolts.
7. Lessee shall be responsible for the inappropriate use of any toilet rooms, plumbing or
other utilities. No foreign substances of any kind are to be inserted therein.
8. Lessee shall not deface the walls, paztitions or other sttrfaces of the premises or Office
Building Project.
9. Lessee shall not suffer or permit anything in or azound the Prerises ox Building that causes
excessive vibration or floor loading in any pazt of the Budding.
10. Furniture, significant freight, and equipment shall be moved into or out of the building only
with the Lessor's knowledge and consent, and subject to such reasonable limitations,
techniques and timing, as may be designated by Lessor. Lessee shall be responsible for any
damage to the Building arising from any such activity.
11. Lessee shall not employ any service or contractor for services or work to be performed in
the Building, except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on Saturdays, Sundays and legal
holidays, and on other days between the hours of 7:00 p.m. and 8:00 a.m. of the following
day. If Lessee uses the Premises during such periods, Lessee shall be responsible for
securely locking any doors it may have opened for entry.
13. Lessee shall return all keys at the termination of its tenancy and shall be responsible for the
cost of replacing any keys that are lost.
14. I~io window coverings, shades or awnings shall be installed or used by Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the building.
]6. Lessee shall not suffer or permit smoking or carrying of lighted cigars or cigarettes in areas
reasonably designated by Lessor or by applicable governmental agencies as non-smoking
areas.
17. Lessee shall not use any method of heating or air conditioning other than as
provided by Lessor.
] 8. Lessee shall not install, maintain or operate any vending machines upon the Premises
without Lessor s written consent.
] 9. The Premises shall not be used fot lodging or manufacturing, cooking or food
preparation.
20. Lessee shall comply with all safety, Fire protection and evacuation regulations
established by Lessor or any applicab]e governmental agency.
21. Lessor reserves the right to waive any one of these roles or regulations, andjor as to any
particular Lessee, and any such waiver shall not constitute a waiver of any other rule or
regulation or any subsequent application thereof to such Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to keep its Premises locked
as may be required.
23. Lessor reserves the right to make such other reasonable rules and regulations as it may
from time to time deem necessary fot the appropriate operation and safety of the Office
Building Project and its occupants. Lessee agrees to abide by these and such rules and
regulations.
Parking Rules
1. Parking areas shall be used only fot parking by vehicles no longer than full size,
passenger automobIles herein called "Permitted Size Vehicles". Vehicles other than
Permitted Size Vehicles are herein referred to as "Oversized Vehicles".
2. Lessee shat] not permit or allow any vehicles that belong to or are controlled by Lessee or
Lessee's employees, suppliers, shippers, customers, or invitees; to be loaded, unloaded, or
parking in areas other than those designated by Lessor fox such activities.
3. Parking stickers or identification devices shall be the property of Lessor and be returned to
Lessor by the holder thereof upon termination of the holder's parking privileges. Lessee
will pay such replacement charge as is reasonably established by Lessor fox the loss of such
devices.
4. Lessor reserves the right to refuse the sale of monthly identification devices to any person
or entity that willfully refuses to comply with the applicable rules, regulations, laws
and/or agreements.
5. Lessor reserves the right to relocate all or a part of parking spaces from floor to floor,
within one floor, and/or to reasonably adjacent offsite locations(s), and to reasonably
allocate them between compact and standard size spaces, as long as the same complies
with applicable laws, ordinances and regulations.
6. Users of the parking area will obey all posted signs and park only in the areas designated
for vehicle parking.
7. Unless otherwise instructed, every person using the parking area is requited to park and
lock his own vehicle. Lessor will not be responsible for any damage to vehicles, injury to
persons or loss of property, all oEwhich risks are assumed by the party using the pazking
area.
8. Validation, if established, will be permissible only by such method or methods as Lessor
and/or its licensee may establish at rates generally applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the parking structure or
Common Areas is prohibited.
10. Lessee shall be responsible for seeing that all of its employees, agents and invitees comply
with the applicable parking rules, regulations, laws and agreements.
11. Lessor reserves the right to modify these rules and/or adopt such other reasonable and
non-discriminatory rules and regulations as it may deem necessary for the proper
operation of the parking area.
t2. Such parking use as is herein provided is intended merely as a license only and no bailment
is intended or shall be created hereby.
"EXHIBIT B"