THIS INDENTURE made this ____ day of ____, 1979 by and between the TRUSTEES OF THE LILIUOKALANI TRUST, hereinafter referred to as the “Trustees”, and KAWAIAHAO CHURCH, hereinafter referred to as “Kawaiahao”, said Trustees and Kawaiahao being herein collectively referred to as the “Lessor”, BANYAN ONE, INC., a Hawaii corporation, the principal place of business and post office address of which is Suite 505, 677 Ala Moana Boulevard, Honolulu, Hawaii, hereinafter referred to as the “Sublessor”, WAIKIKI BANYAN, INC., a Hawaii corporation, hereinafter referred to as the “Grantor”, and
husband and wife, whose residence and post office address is
hereinafter referred to as the “Sublessee”,
W I T N E S S E T H :
WHEREAS, the Trustees are the owners in fee simple of the real property described in Exhibit “A” attached hereto and incorporated herein by reference; and
WHEREAS, Kawaiahao is the owner of the real property described in Exhibit “B” attached hereto and incorporated herein by reference; and
WHEREAS, by Indenture of Lease dated February 22, 1977, effective as of December 1, 1977, recorded in the Bureau of Conveyances of the State of Hawaii in Liber 12746, Page 429, herein referred to as the “Master Lease”, said Trustees and Kawaiahao demised the real property described in Exhibits “A” and “B” attached hereto to the Sublessor; and
WHEREAS, by Declaration of Horizontal Property Regime dated March 23, 1978, recorded in the Bureau of Conveyances of the State of Hawaii in Liber 12789, Page 613, as amended, also mentioned in Transfer Certificate of Title No. 209,1663, issued to First Hawaiian Bank, a Hawaii corporation, Clorinda Low Lucas and David M. Peters, as Trustees of the Liliuokalani Trust, hereinafter called the “Declaration”, Lessor, Sublessor and Grantor have submitted the land together with the improvements to be constructed thereon to a Horizontal Property Regime known as WAIKIKI BANYAN, hereinafter referred to as the “Project”, pursuant to Chapter 514A, Hawaii Revised Statutes, as amended; and
WHEREAS, the Grantor intends to transfer absolutely to Sublessee an apartment in the Project, together with an undivided fractional interest in the common elements of the buildings of the Project; and
WHEREAS, the Sublessor intends to Sublease an undivided fractional interest in the land of the WAIKIKI BANYAN Condominium Project described in said Exhibits “A” and “B”, hereinafter referred to as “the Land”, to the Sublessee;
Grantor for and in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration to it paid, receipt of which is hereby acknowledged, does hereby sell, convey, assign, transfer, set over and deliver to Sublessee as joint tenants with full rights of survivorship and not as tenants in common:
Apartment No. ____, in the ____ Tower of said project as described in and established by Declaration of Horizontal Property Regime dated February 28, 1978, recorded in the Bureau of Conveyances of the State of Hawaii in Liber 12789, Page 613, as amended, as shown on Condominium File Plan No. 537 recorded as aforesaid.
EXCEPTING AND RESERVING easements through said apartment appurtenant to the common elements of the buildings and all other apartments for the support and repair of the common elements of the building and all other apartments.
TOGETHER with nonexclusive easements in the common elements designed for such purposes for ingress to, and egress from, utility services for and support of said apartment, in the other common elements for the use according to their respective purposes, and in all other apartments of said building for support.
An undivided 1/876 fractional (.11415+%) interest as tenant in common with Grantor, its successors and assigns, and the holders from time to time of other undivided interests in and to the common elements of the buildings which as used herein shall be deemed to include all foundations, columns, beams, supports, load-bearing walls, roofs, chases, entry halls, stairs, walkways, entrances and exits of said buildings; all refuse areas, parking areas and all pipes, cables, conduits, ducts, electrical equipment, wiring and other central and appurtenant transmission facilities and installations over, under and across the Project such as power, light, gas, water, sewer, telephone and television signal distribution, if any; and any and all other apparatus and installations of common use and all other parts of the property necessary to its existence, maintenance and safety, or normally in common use; provided, however, that the term “common elements of the buildings” shall not include the land upon which the buildings are erected;
SUBJECT as to said common elements to nonexclusive easements appurtenant to all apartments for ingress, egress, support and repair, and further subject to the rights of all other apartment owners to use the common elements of the buildings;
SUBJECT, ALSO, as to said undivided interest in the common elements of the buildings to the restriction that it may not be transferred or assigned separately and apart from the apartment herein described;
SUBJECT, FURTHER, as to said apartment and said undivided interest in the common elements of the buildings that during the term of the lease issued to the Sublessee as sublessee of an undivided interest in the land described in said Declaration of Horizontal Property Regime, that said apartment and undivided interest in the common elements of the buildings cannot be separated from said Sublease and that said apartment and undivided interest in the common elements of the buildings may only be transferred or encumbered together with said Sublease during the term of said Sublease.
SUBJECT, FURTHER, to the encumbrances set forth in said Exhibits “A” and “B”.
TO HAVE AND TO HOLD the same unto the Sublessee forever, subject as aforesaid and subject also to the Declaration of Horizontal Property Regime and By-Laws attached thereto and said Condominium Map filed as aforesaid, all of which are incorporated herein by reference with the same effect as though fully set forth herein, and as the same are or may hereafter be amended in accordance with the law and the terms of said Declaration and By-Laws.
The Grantor for itself, its successors and assigns, hereby covenants that the Grantor is the owner of said buildings and the same is free and clear of all encumbrances except as herein mentioned; that Grantor is the sole and absolute owner of said personal property, if any, and the Grantor’s title thereto is free and clear of all encumbrances; that it has the right to sell the apartment and undivided interest in the common elements of the buildings, and said personal property, if any, as aforesaid; that Grantor will WARRANT and DEFEND the same unto the Sublessee and the Sublessee’s heirs, personal representatives, administrators, successors and assigns forever against the lawful claims and demands of all persons as herein mentioned.
And Banyan One, Inc., the Trustees of the Liliuokalani Trust and Kawaiahao Church, for themselves, their successors, successors in trust and assigns, do and each of them does hereby jointly and severally release, remise and forever quitclaim unto Sublessee and Sublessee’s heirs, personal representatives, administrators, successors and assigns, absolutely and in fee simple, all of their, and each of their, estate, right, title and interest in and to all of the property described in the Apartment Deed.
The Sublessee does hereby covenant on behalf of the Sublessee and the Sublessee’s heirs, personal representatives, administrators, successors and assigns, for the benefit of the owners from time to time of all other apartments in said Project, to at all times observe, perform and comply with the said Declaration of Horizontal Property Regime and the By-Laws attached thereto as amended or may hereafter be further amended in accordance with the law and the terms of said Declaration and By-Laws. The covenants of the Sublessee herein contained shall run with the land.
Sublessor, in consideration of the rent hereinafter reserved and of the covenants hereinafter contained and on the part of the Sublessee to be observed and performed, and upon and subject to the terms and conditions hereinafter set forth, does hereby demise and let unto the Sublessee and the Sublessee does hereby sublease from the Sublessor under the same tenancy as is hereinbefore set forth in the Apartment Deed, an undivided 1/876 fractional (.11415+%) interest as tenant in common with other Sublessees in and to the land situate at Waikiki, City and County of Honolulu, State of Hawaii, more particularly described in said Declaration, and in Exhibits “A” and “B” attached hereto and made a part hereof.
TOGETHER with the exclusive right, along with the owners of all other apartments of the Project, to use the land occupied by the buildings of the Project during the term of this lease.
SUBJECT, HOWEVER, TO:
- The rights of all of the other owners of the apartments in and to the common elements of the buildings of the Project to maintain said buildings on said land;
- The terms, provisions, covenants and conditions of said Declaration of Horizontal Property Regime, as amended, and By-Laws attached thereto and Condominium File Plan No. 537 filed as aforesaid, and the encumbrances set forth in said Exhibits “A” and “B”;
- The use of the area adjacent to the buildings by the owners of apartments in said buildings on said land;
- The right of Lessor and the Sublessor at their expense to delineate and grant perpetual easements and rights of way to appropriate governmental authorities or utility companies over, under, across and through the demised premises for sewer, water, electrical power, telephone, gas, drainage and flowage and other similar public service purposes, including the right to enter the demised premises for the construction, reconstruction, installation, maintenance and operation of facilities and equipment in connection with such easements; provided, however, that such easements and rights of way shall not unreasonably interfere with the use of the premises by the Sublessee; and provided, further, if such grants of easements or rights of way shall not be for the use and benefit of the demised premises they shall not materially detract from the value of the premises. The Sublessee agrees to join in such grants upon the request of the Lessor or Sublessor.
TO HAVE AND TO HOLD the same, together with the rights, easements, privileges, and appurtenances thereunto belonging or appertaining but subject to said Declaration of Horizontal Property Regime, as amended, the By-Laws attached thereto and said Condominium Map, unto Sublessee for a term commencing as of the date hereof, and ending on November 29, 2035, unless said term be sooner terminated as herein provided, SUBLESSEE YIELDING AND PAYING therefor unto Sublessor, in equal quarterly installments, each in advance on the first day of January, April, July and October in each and every year during said term, net over and above all taxes, assessments and other charges hereunder payable by Sublessee, rent as follows:
- FIVE HUNDRED FORTY DOLLARS ($540.00) per annum, for and during the portion of the term hereby demised commencing on the above stated commencement date and ending on November 30, 1990;
- SEVEN HUNDRED TWO DOLLARS ($702.00) per annum, for and during the ten (10) year period thereafter ensuing;
- NINE HUNDRED TWELVE AND 60/100 DOLLARS ($912.60) per annum, for and during the ten (10) year period thereafter ensuing;
- Such net annual rent for and during each of the next ten-year and fifteen-year periods thereafter successively ensuing;
- respectively, as shall equal Sublessee’s proportionate share, as established for said apartment by the Declaration or any amendment thereto, of the then prevailing net percentage rate of annual rental return enjoyed by owners of land in Honolulu bearing comparable characteristics and possessing similar amenities multiplied by the fair market value, in fee simple, as of the date of commencement of such periods, of the land upon which the Project is located, which fair market value and prevailing net percentage rate shall be determined by written agreement of the Sublessee, acting by and through the Association of Apartment Owners of the Project, acting by and through the Board of Directors as its sole agent, or if they fail to reach such agreement at least ninety (90) days prior to the commencement of each such period, as determined by appraisers appointed, as provided in Paragraph O hereof; provided, however, that the rent determined by appraisal as aforesaid shall in no event be less than one hundred fifteen percent (115%) of the aggregate rent payable under the Master Lease for such periods, nor greater than one hundred thirty-three and one-third percent (133 1/3%) of said aggregate rent payable under the Master Lease for such periods and provided, further, that such rent shall in no event be less than the rent payable for the preceding period of said term. If and whenever the fixing of such rental is under arbitration or appraisal on the commencement date of any such period, Sublessee, pending the determination thereof, shall continue to pay the same rental which he had been paying during the last preceding rental period and shall promptly pay the deficiency, if any, upon the conclusion of the arbitration proceedings, together with interest accrued on such amounts from the date such additional rental would have been paid under this Sublease, at a rate equal to three percent (3%) over the prime rate of interest established by the Bank of Hawaii for its large commercial borrowers as determined, as to each installment of additional rent payable, as of the due date thereof; provided, further, that such interest rate shall in no event exceed the maximum rate permitted under any applicable law.
- In addition to the rent herein provided, Sublessee shall also pay over and reimburse unto Sublessor on each rental payment date during the term hereof that portion of the State excise or gross income tax assessed to the Sublessor and attributable to the rent paid to the Sublessor (or attributable to the taxes, assessments or other charges payable hereunder, if such taxes, assessments or other charges shall constitute income to Sublessor subject to such taxes) under the terms of this lease (presently in the amount of 4.17% thereof) and Sublessee will also pay all and any increases in said taxes from time to time and any and all other taxes or duties levied or assessed by the State of Hawaii, the City and County, of Honolulu, or any other political subdivision of the State of Hawaii now or hereafter having power to levy taxes or duties which are attributable to the rent (or other charges paid to the Sublessor or otherwise payable hereunder) under the terms of this lease. It is the intent of this provision and of the other provisions of this lease to insure that the rent herein provided to be paid to Sublessor by Sublessee will be received by Sublessor without diminution by any tax, assessment, charge or levy of any nature whatever, except all net income taxes, and the terms and conditions of this lease shall be liberally construed to effect such purpose.
AND SUBLESSOR hereby covenants with Sublessee that upon payment of the rent as aforesaid and upon observance and performance of the covenants by Sublessee hereinafter contained, Sublessee shall peaceably hold and enjoy the premises for the term hereby demised without hindrance or interruption by Sublessor or any other person or persons lawfully claiming by, through or under Sublessor except as herein expressly provided.
AND SUBLESSEE hereby covenants with Sublessor as follows:
Sublessee will, at his proportionate share of the expense by the Association, at all times keep all buildings of the Project, including the common elements and, whether or not part of the common elements, all exterior and interior walls, floors and ceilings, in accordance with the “as built” condominium plans and specifications, insured against loss or damage by fire with extended coverage in an insurance company authorized to do business in Hawaii, having a financial rating by Best’s Insurance Reports of Class VI or better, in an amount sufficient to provide for the full repair or full replacement thereof without deduction for depreciation, in the name of the Association, and Lessor, Sublessor and mortgagees as their interests may appear, and payable in case of loss to such bank or trust company authorized to do business in the State of Hawaii as the Board shall designate for the custody and disposition as herein provided of all proceeds of such insurance, and from time to time cause to be deposited promptly with Lessor, Sublessor and the Secretary of the Association true copies of such insurance policies or current certificates thereof, without prejudice to the right of each apartment owner to insure his apartment for his own benefit. Flood insurance shall also be provided under the provisions of the Federal Flood Disaster Protection Act if the property is located in an identified flood hazard area as designated by the Department of Housing and Urban Development in the amount of the aggregate of the outstanding principal balance of all mortgage loans on apartments in the Project or the maximum limit of coverage available under the National Flood Insurance Act of 1968, as amended, whichever is less. The members of the Association may by majority vote at any meeting of the Association require that exterior glass of the Project also be insured under such policy. In every case of such loss or damage all insurance proceeds shall be used as soon as reasonably possible by the Association for rebuilding, repairing or otherwise reinstating the building, except as provided in paragraph K of the Declaration, in a good and substantial manner according to the original plan and elevation thereof or such modified plans conforming to laws and ordinances then in effect as shall be first approved by Lessor and Sublessor and as provided in the Declaration, and the Association at its common expense shall make up any deficiency in such insurance proceeds. Every such policy of insurance shall:
- Provide that the liability of the insurer thereunder shall not be affected by, and that the insurer shall not claim any right of set-off, counterclaim, apportionment, proration or contribution by reason of, any other insurance obtained by or for any apartment owner;
- Contain no provision relieving the insurer from liability for loss occurring while the hazard to such building is increased, whether or not within the knowledge or control of the Board, Lessor or Sublessor, or because of any breach of warranty or condition or any other act or neglect by the Board, the Lessor or the Sublessor or any apartment owner or any other persons under either of them;
- Provide that such policy and the coverage thereunder may not be cancelled or substantially modified (whether or not requested by the Board) except by the insurer giving at least sixty (60) days’ prior written notice thereof to the Board, Lessor, Sublessor, every first mortgagee of an apartment and every other person in interest who shall have requested such notice of the insurer;
- Contain a waiver by the insurer of any right of subrogation to any right of the Board, Lessor, Sublessor or apartment owners against any of them or any other persons under them;
- Provide that the insurer, at the inception of the policy and on each anniversary date thereof, shall provide the Board with a written summary, in layman’s terms, of the policy. This summary shall include, without limitation, a description of the type of policy, the coverage and limits thereof, the amount of the annual premium, and the renewal dates. Upon receipt of such summary from the insurer, the Board shall provide the summary to the apartment owners; and
- Contain a standard mortgagee clause which shall:
Provide that any reference to a mortgagee in such policy shall mean and include all holders of mortgages of any apartment or Condominium Conveyance Document of the Project, in their respective order and preference, whether or not named therein;
Provide that such insurance as to the interest of any mortgagee shall not be invalidated by any act or neglect of the Board, Lessor, Sublessor or apartment owners or any persons under any of them;
Waive any provision invalidating such mortgagee clause by reason of the failure of any mortgagee to notify the insurer of any hazardous use or vacancy, any requirement that the mortgagee pay any premium thereon, and any contribution clause; and
Provide that, without affecting any protection afforded by such mortgagee clause, any proceeds payable under such policy shall be payable to said bank or trust company designated by the Board.
7. Contain a waiver by the insurer of any right of the insurer to repair, rebuild or replace, if the apartment owners decide pursuant to paragraph K of the Declaration not to repair, reinstate, rebuild or restore the damaged or destroyed improvements.
AND IT IS HEREBY MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
- In case at any time or times during the term hereof the demised land or any part thereof shall be taken or condemned in fee simple by any authority having the power of eminent domain, then and in every such case the estate and interest of Sublessee in the demised land so taken or condemned shall at once cease and determine upon acquisition by such authority of title thereto or right of possession thereof, and Sublessee shall not by reason of such taking or condemnation be entitled to any claim against Sublessor or others for compensation or indemnity for his leasehold interest in the demised land, and all compensation and damages for or on account of any land shall be payable to and be the sole property of Lessor and Sublessor as their interests may appear under the Master Lease, and all compensation and damages for or on account of any buildings or improvements on the demised land shall be payable to such bank or trust company authorized to do business in the State of Hawaii as the Board shall designate as Trustee for all apartment owners and mortgagees according to the loss or damage to their respective apartments and appurtenant common interests; provided, however, that in case only part of said demised land shall be so taken or condemned, the aggregate rent thereafter payable by all the sublessees for the remainder of said term shall be reduced in the proportion that the area of land so taken bears to the total area of land hereby demised; provided, further, that all compensation and/or damages awarded or recoverable on account of such taking of all or any portion of the buildings and improvements on said land shall be paid to the Board of Directors or such Trustee as provided in the Declaration, who shall disburse the same in accordance with the provisions of the Declaration to restore, and repair the same, and in the event the Sublessee’s apartment is taken in such condemnation and not restored by the Board of Directors, all compensation or damages awarded or recoverable on account of the taking of said apartment shall be paid first to any institutional mortgagee holding a first mortgage on the apartment in an amount sufficient to satisfy the mortgage indebtedness, and the balance, less the proportionate share of said apartment in the cost of debris removal, shall be paid to Sublessee; provided, further, that in the event all of the buildings and improvements are taken or excess proceeds remain after repairing the buildings and remaining improvements, Sublessee shall be entitled to that portion thereof equal to the undivided interest in the common elements of the buildings appurtenant to said apartment.
- Sublessee shall have the right to claim and recover from the condemning authority, but not from Lessor or Sublessor, such compensation as may be separately awarded or recoverable by Sublessee in his own right on account of any and all damages to him during such period as the premises are rendered unfit for occupancy by reason of any condemnation and/or for or on account of any costs or loss to which Sublessee might be put in altering said buildings or improvements as a result of such condemnation, or in removing his furniture, fixtures and equipment, so long as such action or the payment of such damages shall not affect or diminish the compensation payable to Lessor or Sublessor upon condemnation as provided for herein.
- In the event of a condemnation of a leasehold interest in all or a portion of the demised land without the condemnation of the fee simple title also, such condemnation shall not excuse Sublessee from full performance of all of his covenants hereunder, but Sublessee in such event shall be entitled to present or pursue against the condemning authority his claim for and to receive all compensation or damages shall be limited to compensation for and damages, if any, to their reversionary interests, if any; it being understood, however, that during such time as Sublessee shall be out of possession of the demised land by reason of such condemnation, this lease shall not be subject to forfeiture for failure to observe and perform those covenants not calling for the payment of money. In the event the condemning authority shall fail to keep the premises in the state of repair required hereunder, or to perform any other covenant not calling for the payment of money, Sublessee shall have ninety (90) days, or such longer period as may be necessary in the exercise of due diligence, after the restoration of possession to him within which to carry out his obligations under such covenants. On request of Sublessor, Sublessee shall assign to Sublessor such portion of this right to compensation as shall be necessary to pay the rent and other charges payable to Sublessor by Sublessee under the terms of this lease as the same become due, Sublessee to make up any deficiency as the same become apparent.
AND the said Trustees of the Liliuokalani Trust and Kawaiahao Church, owners in fee simple of the above-described premises, do hereby jointly and severally ratify and approve and confirm this Sublease, and do, and each of them does hereby undertake and agree to and with Sublessee, its successors and assigns, that this Sublease shall bind and demise all of the right, title and interest and estate of the said owners in fee simple in said land, and upon and in the event of a determination of the leasehold interest of the Sublessor, this Sublease shall remain and continue in full force and effect in accordance with and subject to the terms, conditions and covenants hereof.
AND the Lessor and the Sublessor do hereby further agree upon the reasonable request of Sublessee, to issue Lessor’s Estoppel Certificates in the form attached hereto as Exhibit “C” and incorporated herein by reference, it being expressly understood and agreed, however, that the Lessor and Sublessor may each require a reasonable fee not exceeding FIFTY DOLLARS ($50.00) for the processing and execution of each such certificate.
IN WITNESS WHEREOF, the Lessor, the Sublessor, the Sublessee and the Grantor have executed these presents the day and year first above written.
All of that certain parcel of land situate at Hamohamo, Waikiki, Honolulu, City and County of Honolulu, State of Hawaii, described as follows:
LOT 2, area 91,642.0 square feet, of Block “F”, as shown on Map 3, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 1865 (amended) of First Hawaiian Bank, a Hawaii corporation, Clorinda Low Lucas and David M. Peters, Trustees of the Liliuokalani Trust.
Being the remainder of the premises described in original Certificate of Title No. 209,663 issued to TRUSTEES OF THE LILIUOKALANI TRUST. SUBJECT, HOWEVER, to:
- The reservation in favor of the State of Hawaii of all mineral and metallic mines.
- Easement “G” for sanitary sewer and water purposes, as shown on map 2, which easement was granted to the CITY AND COUNTY OF HONOLULU, by instrument dated December 11, 1925, recorded in the Bureau of Conveyances of the State of Hawaii in Liber 1038, Page 23.
Beginning at the North corner of this parcel of land and on the Southeast side of Ohua Street, the coordinates of said point of beginning referred to Government Survey Triangulation Station “WAIKIKI” being 3,426.01 feet South and 2,620.82 feet East, thence running by azimuths measured clockwise from True South:
- 315 degrees 20 minutes, 110.11 feet along Block F of Land Court Application 1865 (pending), along the remainder of Royal Patent 5588, Land Commission Award 8452, Apana 3, Section 1 to A. Keohokalole;
- 42 deg 45 min, 14.76 feet along the same;
- 45 deg 00 min, 59.95 feet along the same;
- 135 deg 20 min, 107.74 feet along the same;
- 222 deg 45 min, 75.02 feet along the Southeast side of Ohua Avenue to the point of beginning and containing an area of 8,160 square feet, more or less.
SUBJECT, HOWEVER, to the reservation in favor of the State of Hawaii of all mineral and metallic mines.
the principal place of business and post office address of which is
the (Lessor) (Sublessor) under that certain Condominium Conveyance Document dated ____________________, 19_____ by and between The Trustees of the Liliuokalani Trust and Kawaiahao Church, therein collectively referred to as “Lessor”, Banyan One, Inc., a Hawaii corporation, the principal place of business and post office address of which is
therein referred to as the “Sublessor”, and
as amended, herein referred to as the “Condominium Conveyance Document”, relating to property located at Waikiki, City and County of Honolulu, State of Hawaii, hereby certifies to
1which will rely on said certification for the purpose of making or purchasing a mortgage loan covering the fee simple and subleasehold interests under the Condominium Conveyance Document, that the Condominium Conveyance Document is in full force and effect and unmodified accept (sic) as stated above, that all rent and additional rent payable thereunder has been paid in full to the date of this certificate, and that to the best of the undersigned’s knowledge no default exists under the Condominium Conveyance Document on the part of either party thereto except as follows:
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this ________________ day of _____________________, ________.