THIS INDENTURE OF LEASE, made this 22nd day of February, 1978, effective as of December 1. 1977, by and between the TRUSTEES OF THE LILIUOKALANI TRUST, whose place of business and post office address is 161 South King Street, Honolulu, Hawaii, and KAWAIAHAO CHURCH, a Hawaii eleemosynary corporation, hereinafter collectively referred to as the “Lessor”, and BANYAN ONE, INC., a Hawaii corporation, the principal place of business and post office address of which is 2513 Kuhio Avenue, Honolulu, Hawaii, hereinafter called the “Lessee”,
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
NOW, THEREFORE, the Lessor, in consideration of the rent hereinafter reserved and of the covenants contained herein on the part of the Lessee to be observed and performed, does hereby demise and lease unto the Lessee and the Lessee does hereby accept and hire from the Lessor the premises described in Exhibits “A” and “B” attached hereto and by reference made a part hereof.
RESERVING, HOWEVER, unto the Lessor the right at its 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 Lessee; 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 Lessee agrees to join in such grants upon the request of the Lessor.
- For the first year of the term commencing on December 1, 1977 and ending on November 30, 1978, the amount of TWO HUNDRED TWENTY-ONE THOUSAND DOLLARS ($221,000.00) per annum;
- For the second year of the term commencing on December 1, 1978 and ending on November 30, 1979, the amount of TWO HUNDRED NINETY-FIVE THOUSAND DOLLARS ($295,000.00) per annum;
- For the next eleven years of the term commencing on December 1, 1979 and ending on November 30, 1990, the amount of TWO HUNDRED NINETY-FIVE THOUSAND DOLLARS ($295.000.00) per annum;
- For the next ten years of the term commencing on December 1, 1990 and ending on November 30, 2000, the amount of THREE HUNDRED NINETY THOUSAND DOLLARS ($390,000.00) per annum;
- For the next ten years of the term commencing on December 1, 2000 and ending on November 30. 2010, the amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per annum;
- The net annual rent for each of the subsequent ten-year period and the final fifteen-year period of the term thereafter successively ensuing shall be an amount equal to seven percent (7%) of the fair market value of the land exclusive of improvements and as if unencumbered by this lease. In the event the Lessor and Lessee shall fail to agree in writing to such rental at least ninety (90) days before the commencement of each successive period, the net annual rent shall be determined by the appraisal procedure set forth in paragraph 18 of this lease but in no event shall the rent be less than that payable for the immediately preceding rental period. If the rent has not been determined by the commencement of the period in question, the Lessee shall pay to the Lessor on account thereof rent in the same amount and in the same manner as was payable for the year immediately preceding the commencement of the period in question. Within thirty (30) days after the rental has been determined, the Lessee shall pay the Lessor all additional amounts due by reason of such determination, together with interest thereon 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.All such rent shall be net above taxes, assessments and charges of any kind, payable in equal quarterly installments, each in advance, on the first day of January, April, July and October in every year during said term; PROVIDED, HOWEVER, that the first such payment shall be prorated to the next rental due date and paid upon execution hereof.The Lessor hereby covenants with the Lessee that upon payment of the rent as aforesaid and upon the observance and performance of all the covenants and conditions herein contained and on the part of the Lessee to be observed and performed, the Lessee shall peaceably hold and enjoy the premises for the term demised without hindrance or interruption by the Lessor or any other person lawfully claiming by, through or under the Lessor, except as expressly provided otherwise herein.
- The Lessee, in consideration of this demise and the covenants of the Lessor, hereby covenants and agrees with the Lessor as follows:
The Lessee will also pay to the Lessor as additional rent, at least ten (10) days before they become delinquent, all taxes and assessments of every description to which the premises or any part thereof or improvements thereon or the Lessor or Lessee in respect thereof are now or during the term may be assessed or become liable, whether assessed to or payable by the Lessor or Lessee, including without limiting the generality of the foregoing, all real and personal property taxes or assessments and all general or other excise taxes, (but excluding Lessor’s net income taxes) payable by reason of the Lessee’s payment hereunder of rent, taxes, or any other outgoing of any description, whether actually or constructively received by the Lessor; provided, however, that such taxes shall be prorated between the Lessor and Lessee as of the commencement and expiration, respectively, of the term and provided, further, that with respect to any assessment made under any betterment or improvement law which may be payable in installments of principal together with interest on the unpaid balances as shall become due and payable during the term.
The Lessee will permit the Lessor and his agents to enter the premises and examine the state of repair and condition at all reasonable times during the term. The Lessee will repair those defects required by this lease to be repaired by the Lessee within thirty (30) days after notice to repair shall have been given by the Lessor or his agents. In default, the Lessor may cause such repairs to be made and shall not be liable to Lessee for any resulting loss or damage and the Lessee agrees to reimburse the Lessor for all costs of repair together with interest thereon at the rate of twelve percent (12%) per annum accruing from the date the Lessor incurs the expense until paid by the Losses.
Within the first three (3) years of the demised term of this lease, the Lessee shall construct and complete a high quality building or buildings on the demised premises suitable for use in accordance with applicable zoning laws, ordinances, rules and regulations.
(b) Development Plans.
Prior to the commencement of any demolition or construction of improvements on the properties and not later than nine (9) months after the date hereof the Lessee shall submit to the Lessor for approval
- a precise and detailed master plan for the development of the entire demised premises, showing the exact location and character of all uses;
- an artist’s rendering of all improvements to be constructed;
- plot plans and working drawings and specifications sufficiently detailed for obtaining firm bids for construction prepared by a licensed architect;
- a time schedule for the completion of the construction; and
- a cash flow projection for the completion of all improvements, free and clear of all liens, encumbrances and claims other than a permitted mortgage.
The Lessor shall approve or disapprove all of the same within fifteen (15) days after receipt thereof. The Lessor shall specify in reasonable detail items of which it does not approve and the Lessee shall promptly revise and re-submit those items in accordance with all reasonable requirements of the Lessor. Upon approval, these items and applicable covenants and conditions of the lease shall constitute the “Master Development Plan”, and shall be binding on the parties in the development of the properties, subject to modification by written agreement. Any submissions made to, and approved by the Lessor pursuant to the unrecorded option agreement between the Lessor and Lessee shall, if required herein, be deemed in compliance with this paragraph (b) and in any event shall constitute a part of the Master Development Plan of the demised premises.
(c) Completion of the Master Development Plan.
The Lessee will carry out the Master Development Plan at its own expense, diligently and in an orderly and efficient manner according to the construction plans and specifications prepared by the Lessee and approved in writing by Lessor and those governmental authorities having jurisdiction.
(d) Payment of Development Costs and Expenses.
The Lessee shall timely pay all costs and expenses, direct or indirect, arising out of or in connection with the demolition of existing improvements, and the construction and installation of the improvements and appurtenant improvements on the subject properties, including (without limiting the generality of the foregoing) all costs of surveying, mapping, engineering, drafting, grading, installing driveways, water lines, drainage structures, sanitary sewer and other utility facilities and structures, landscaping and fencing.
(e) Construction and Bond.
Prior to commencing construction of new improvements, the Lessee shall:
- Submit final working plans, specifications and schedules of the proposed new improvements, which have been prepared by an architect licensed in the State of Hawaii for the written approval of the Lessor, which approval Lessor will not unreasonably delay or withhold. The Lessee will reimburse the Lessor for the reasonable cost and expense incurred by the Lessor for the services of an architect and an engineer (for ventilating and structural matters) to review the plans and specifications;
- Submit the construction contract entered into by the Lessee and the general contractor;
- Engage a licensed architect to supervise construction;
- Obtain all permits required by governmental agencies for demolition and construction;
- Cause a one hundred percent (100%) performance and payment bond, in a form and with a surety satisfactory to the Lessor, to be delivered by the general contractor engaged to perform the demolition and construction. The performance and payment bond shall name the Lessor and a recognized financial lending institution which has issued a written commitment to the Lessee for a construction loan to finance the cost of construction of the development as additional obligees. Such lender’s commitment shall require that a performance and payment bond will be delivered to the lender before it will make any advances. The loan with such lender must actually close in accordance with its commitment. Such performance and payment bond must be acceptable to the lender, must be in the amount of the entire cost of construction of the project in accordance with plans and specifications approved by the Lessor as such cost of construction is stipulated in the construction contract between the Lessee and its general contractor, and must guarantee the full performance of the contract for the construction of the improvements in accordance with plans and specifications as approved by Lessor;
- Exhibit to Lessor a written commitment by a recognized lending institution authorized to do business in the State of Hawaii having a combined not worth of at least Ten Million Dollars ($10,000,000.00), which commitment shall have been duly accepted by the Lessee and by which the financing of the cost of construction of all improvements will be provided;
- Exhibit to Lessor a written “take-out” commitment, duly accepted by the Lessee, for the permanent financing of the new improvements by a recognized lending institution, by which commitment the permanent leasehold mortgage financing for the new building and/or the apartments comprising a condominium project with respect thereto will be provided;The Lessee shall have the right to change or modify any mortgage commitment in accordance with the terms hereof or substitute another commitment for the same purpose;
- Deliver to the Lessor insurance policies or current certificates thereof evidencing: (a) insurance against loss from fire and other casualty as required by paragraph 11 of this lease; (b) public liability and property damage insurance as required by paragraph 12 of this lease; and (c) Workmen’s Compensation insurance, to cover all .persons employed in connection with construction.
(f) Disputes, Arbitration.
If at any time during the term of this lease any dispute, difference or question shall arise concerning the interpretation, construction or effect of the terms and provisions of these development terms or concerning full compliance by the Lessee with the covenants herein contained or the rights or liabilities of the parties hereto. then every such dispute, difference or question shall at the written request of either the Lessor or the Lessee be submitted to and be determined by arbitration by three (3) impartial arbitrators appointed or selected in the same manner provided for the appointment of real estate appraisers and their decision shall be final, conclusive and binding upon the parties hereto; provided, however, that the arbitrators shall not be required to be qualified real estate appraisers unless the matter to be resolved requires an appraisal of the market value of the land or improvements. Should any dispute with respect hereto be arbitrated which relates to development of the property, Lessee shall not proceed with development during the pendency of arbitration without (i) the prior consent of the Lessor, which consent shall not be unreasonably withheld, or (ii) by depositing a bond with the Lessor in a form and with sureties Satisfactory to the Lessor indemnifying Lessor against all losses, damages, or claims and demands resulting from alteration of the Lessor’s right, power or interest or any further action hereunder by the Lessee.
(g) Force Majeure.
In the event that the Lessee shall be delayed or hindered in or prevented from the performance of any act required by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations unrelated to zoning, subdivision or land use, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this paragraph shall not operate to excuse the Lessee from the prompt payment of rent or any other payments required by the terms of this lease.
(h) If Lessee shall fail
to obtain and exhibit the documents referred to in (b) and (e) within a time above appointed, or shall fail to commence and complete construction as required by (a), (c) and (d), the Lessor shall have the right at any time within sixty (60) days thereafter to cancel and terminate this lease by written notice to the Lessee, in which event this lease shall terminate upon the tenth (10th) day after the date of service of such notice, unless within the ten-day period the Lessee shall satisfy whichever of the conditions in (b) and (e) as shall not have been theretofore satisfied or as to which the Lessee shall have successfully invoked arbitration pursuant to paragraph 8 (e) hereinabove, in which event the notice of cancellation shall become void and of no further force or effect. The failure of Lessor to avail itself of the cancellation right herein provided for shall in no way diminish or affect Lessee’s other undertakings in respect to the construction of new improvements as set forth herein or the remedies of the Lessor for the breach of such undertakings.
After Construction of the new improvements, the Lessee at Lessee’s sole expense, shall have the right, from time to time, to make such changes and alterations, demolition or new construction, structural or otherwise, to the improvements on the demised premises as the Lessee shall deem necessary or desirable. Such changes, alterations, demolition or new construction (in this paragraph referred to as the “work” or collectively as “changes” and/or “alterations”) shall be made in all cases subject to the following conditions which the Lessee covenants to observe and perform:
No change or alteration shall be undertaken until Lessee shall have procured and paid for all permits and authorizations of the various governmental agencies or departments having jurisdiction. The Lessor shall, but without cost and expense to it, join in the application for such permits or authorizations whenever such action is necessary.
(b) Conditions Precedent.
Any structural change or alteration shall be conducted under the supervision of an architect or engineer licensed in the State of Hawaii, selected by the Lessee, and if the estimated cost, as determined by such architect or engineer, of the work to be performed exceeds Ten Thousand Dollars ($10,000.00), the Lessee shall comply with the requirements of paragraph 8 (e) as it would apply to such work.
(c) Value of Alterations and Changes.
All changes and alterations shall be of such a kind that, when completed, the value and utility of the improvements on the demised premises shall be not less than the value and utility of the improvements immediately before any such change or alteration; except that in the case of a change or alteration involving demolition and the construction of a new building, such new building will be of a value not less than the value of the building to be demolished.
(d) Completion of Work.
All work done in connection with any change or alteration shall be done in a good and workmanlike manner in compliance with the applicable building and zoning laws and with all laws, ordinances, orders and requirements of all governmental agencies and authorities; the cost of such work or alteration shall be paid in cash or its equivalent, so that the fee of the demised premises shall at all times be free of liens for labor and materials supplied or claimed to have been supplied; the work shall be prosecuted with reasonable dispatch, unavoidable delays excepted. Workmen’s Compensation insurance covering all persons employed in connection with the work shall have been procured before any work is begun, and general liability and property damage insurance for the mutual benefit of the Lessor and Lessee with limits of not less than those required to be carried pursuant to paragraph 12 shall be maintained by Lessee at his cost and expense at all times when any work is in progress; and if the estimated cost of such work is less than Ten Thousand Dollars ($10,000.00). the Lessee shall provide satisfactory evidence of Lessee’s financial ability to complete the construction free of all claims and liens of mechanics and materialmen.
At the end of said term or upon sooner determination of this lease, Lessee will peaceably deliver possession of the premises to Lessor, it being understood that the Lessee may remove and dispose of any and all buildings situated on the land demised hereby, but if said buildings shall not be removed and disposed of on or before such termination date, then Lessee agrees to deliver possession of the buildings to Lessor in good order, repair and condition within ten (10) days from such termination date, and to execute a deed therefor to Lessor covering Lessee’s interest in the buildings.
IT IS MUTUALLY AGREED by and between Lessor and Lessee that:
- 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 Lessee 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 Lessee shall not by reason of such taking or condemnation be entitled to any claim against Lessor 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 all compensation and damages for or on account of any buildings or improvements on the demised land shall be payable to and be the sole property of the Lessee as the owner of the buildings and improvements, provided, however, that in case only part of said demised land shall be so taken or condemned, the aggregate rent thereafter payable hereunder 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;
- Lessee shall have the right to claim and recover from the condemning authority, but not from Lessor, such compensation as may be separately awarded or recoverable by Lessee in its 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 from or on account of any costs or loss to which Lessee 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 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 Lessee from full performance of all of his covenants hereunder, but Lessee in such event shall be entitled to present or pursue against the condemning authority his claim for and to receive all compensation or damages sustained by Lessee by reason of such condemnation, and Lessor’s right to recover 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 Lessee 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, Lessee 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 Lessor, Lessee shall assign to Lessor such portion of this right to compensation as shall be necessary to pay the rent and other charges payable to Lessor by Lessee under the terms of this lease as the same become due, Lessee to make up any deficiency as the same become apparent.
This demise is upon the express condition that if the Lessee shall:
- Fail to pay the rent reserved in whole or part or any of the costs or expenses enumerated in whole or part within ten (10) days after they become due, regardless of legal demand;
- Fail to observe or perform any other covenant or condition to be observed and performed by the Lessee and any such default shall continue for thirty (30) days after written notice to correct has been given to the Lessee;
- Become insolvent or shall make an assignment for the benefit of creditors, or shall file any proceedings as debtor or have taken against his any proceedings under any provision of the Federal Bankruptcy Act;
- Abandon the promises; or shall permit a materialman’s or mechanics lien to attach to the premises and shall fail to have it released or discharged within five (5) days after entry of judgment or order of court for foreclosure or other enforcement of the lien;
the Lessor may, in any such event, at once re-enter the demised premises, or any part in the name of the whole, and upon or without physical entry at its option terminate this lease by giving notice to the Lessee, and thereupon take possession of the demised premises and become wholly vested with all rights, title and interest of the Lessee and may expel and remove from the premises the Lessee or those claiming under Lessee and their effects, all without service of notice or resort to any legal process, and without being deemed guilty of any trespass or becoming liable for any loss or damage which may thereby be occasioned and without prejudice to any other remedy or right of action which the Lessor may have for collection of arrears of rent or for the same or any preceding or breach of covenant by the Lessee.
Each of the Lessors agrees that the Lessee may consolidate the parcels comprising the demised premises and does hereby authorize the Lessee to construct a building without regard to existing common boundaries. In the event a building is constructed upon the consolidated lands, the interest of the Lessor in said building shall be in the same ratio that the area of Lessor’s land bears to the total area of the lands consolidated for such purposes; provided, however, that nothing contained in this paragraph shall be construed or be deemed to alter or modify any other provision of this lease. Each of the Lessors further agrees to join in any application or execute any further documents to effectuate the purposes hereinbefore mentioned, including, any such as may be required by any applicable statute, including the Horizontal Property Act (Chapter 514A, Hawaii Revised Statutes, as amended) ordinance, rule or regulation, or any governmental agency, or lending institution with whom Lessee shall enter into negotiations for construction and/or permanent financing for the development contemplated hereby, documents effecting the consolidation of the respective titles of the respective Lessors.
Upon the request of the Lessee at any time and from time to time hereafter, any provision herein to the contrary notwithstanding, Lessor will join with Lessee and/or its designee to lease and sublease apartments comprising the condominium project created by the Declaration as aforesaid, to qualified purchasers; or if the Lessee should so request to join with the Lessee and/or its designees in executing Condominium Conveyance Documents, thereby conveying fee simple interests in each of the apartments comprising the project, together with an undivided interest in the common elements of the buildings of the project and a lease and sublease of an undivided interest in the land demised hereby. Such apartment leases or Condominium Conveyance Documents, as the case say be, shall be substantially in the form therefor heretofore agreed upon by and between the parties hereto pursuant to the letter agreement hereinbefore referred to, subject to appropriate revision by mutual agreement of the parties hereto and such further amendments as may be reasonably required by any lending institution and/or agency such as the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or the Government National Mortgage Association, from whom Lessee obtains a commitment for construction and/or permanent financing for the project contemplated hereby, or to comply with any requirements now or hereafter imposed upon Horizontal Property Regimes by law, the Real Estate Commission of the State of Hawaii, or any governmental agency of the Province of Alberta, Canada.
Lessor hereby agrees to execute each of said apartment leases or Condominium Conveyance Documents, as the case may be, upon presentment by Lessee and/or its designee, thereby ratifying, approving and confirming said apartment leases, or Condominium Conveyance Documents, as the case may be, and thereby undertaking and agreeing to and with Lessee and its designee that said apartment leases shall bind and demise all of the right, title, interest and estate of each of them in and to the premises and upon and in the event of a termination of the leasehold interest of the Lessee hereunder, each of said apartment leases and Condominium Conveyance Documents, as the case may be, shall remain and continue in full force and effect in accordance with and subject to the terms, conditions and covenants hereof.
This lease shall be construed and interpreted in accordance with the following definitions and rules of construction:
- “Premises” or “demised premises” as used herein means all of the land described and enumerated in Exhibit “A”, and all buildings and other improvements, and repairs, replacements and additions thereto, presently on or hereafter built or placed on the land, whether made, erected or constructed by the Lessor or Lessee, or both.
- “Lessor” shall mean and include persons identified as trustees in their fiduciary capacity and not in their personal capacity, and their successors in trust and assigns. “Lessee” shall mean and include the person or persons named above, it or their executors, administrators, and permitted successors in interest or title, as the case may be.
- “Person” shall mean and include, as the context may require, individuals, corporations, partnerships, trusts or associations.
- Gender and Number. The use of any pronoun in reference to the Lessor or Lessee shall be construed to mean the singular or plural, the masculine or feminine or the neuter as the instrument and context may require.
- Obligations Joint and Several. When the terms “Lessor” or “Lessee” refer to more than one person, each such person shall be jointly and severally bound and liable with respect to all covenants, conditions and remedies to be observed and/or performed by the Lessor or the Lessee; provided, however, that the obligations of the Lessor shall be as the trustees aforesaid and not individually, and this lease shall be enforceable against and satisfied only out of the respective trust estates.
- “Costs”, etc. The terms “advances”, “costs” and “expenses” shall mean and include reasonable attorney’s fees and court costs, title search and recording fees, whenever incurred.
In any case in which the Lessor’s approval or consent is required hereunder, such consent or approval shall not be unreasonably or arbitrarily withheld, nor shall Lessor require the payment of any money for the giving of such consent other than a reasonable charge for the processing of the application for and preparation of the consent.
In the event any payment provided for herein, including without limitation any payment of rent or real property taxes or assessments or excise and other taxes or rates or charges of every description to which the premises or any part thereof or improvements thereon, or the Lessor or Lessee in respect thereof may during the term be assessed or become liable shall become overdue, the Lessor in addition to its other remedies and at its option may require and the Lessee agrees to pay a “late charge” of four cents ($.04) for each dollar ($1.00) so overdue. In the event any such delinquency continues for more than thirty-one (31) days, the same shall bear interest at the rate of one percent (1%) per month from the 32nd day of the delinquency to the date of payment. Lessee shall also be responsible for the payment of any penalty and interest to which the premises or any part thereof or improvements thereon, or the Lessor or Lessee in respect thereof may during the term be assessed or become liable as the result of Lessee’s failure to make any of the foregoing required payments in a timely manner, and the Lessee shall reimburse the Lessor on demand in the event the Lessor pays the same.
The Lessor and Lessee agree that upon request of either party, they shall execute a memorandum agreement in recordable form referring to this lease, and containing a description of the property affected by this lease and the term of the lease, which memorandum may be filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii or the Bureau of Conveyances of the State of Hawaii.
The Lessor agrees that In the event that and so long as the property is registered pursuant to Chapter 501, Hawaii Revised Statutes, as amended., it will deposit all Transfer Certificates of Title covering the demised promises or any part thereof in the Office of the Assistant Registrar of the Land Court of the State of Hawaii.
THE LESSOR AND THE LESSEE HEREBY ACKNOWLEDGE AND AGREE THAT THIS LEASE RESTATES AND SUPERSEDES IN ALL RESPECTS THAT CERTAIN INDENTURE OF LEASE, DATED AS OF DECEMBER 1, 1977, HERETOFORE EXECUTED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have duly executed this instrument as of the day and year first above written.
All of that certain parcel of land (being a portion of Block F of Land Court Application 1865 (Pending) being also portions of Royal Patent 6098, Land Commission Award 1456, Apana 2 to lwinui; Royal Patent 2822, Land Commission Award 2839, Apana 1 to Kahaka; and Royal Patent 5588, Land Commission Award 8452, Apana 3, Section 1 to A. Keohokalole), situated on the Northeast side of Kuhio Avenue, between Ohua and Paoakalani Avenues, at Hamohamo, Waikiki, Honolulu, City and County of Honolulu, State of Hawaii, and thus bounded and more particularly described as per survey of Robert S. Torigoe, Registered Land Surveyor No. 1361, Dated December 15, 1977, as follows:
Beginning at a pipe at the North corner of this parcel of land, being also the North corner of Block F of Land Court Application 1865 (Pending), the coordinates of said point of beginning referred to Government Survey Triangulation Station “WAIKIKI” being 3,246.39 feet South and 2,786.85 feet East, thence running by azimuths measured clockwise from True South:
- 312 degrees 45 minutes, 230.00 feet along Lots 30-B, D-1 and 36-B of Land Court Application 615 to a pipe;
- 42 degrees 45 minutes, 420.02 feet along the Northwest side of Paoakalani Avenue to a pipe;
- 44 degrees 52 minutes, 16.65 feet along same;
- Thence along the North corner of the intersection of Paoakalani and Kuhio Avenues, on a curve to the right with a radius of 20.00 feet, the azimuth and distance of the chord being 95 degrees 14 minutes 30 sec, 30.81 feet;
- 145 degrees 37 minutes, 194.28 feet along the Northeast side of Kuhio Avenue to a pipe;
- Thence along the East corner of the intersection of Kuhio and Ohua Avenues, on a curve to the right with a radius of 20.00 feet, the azimuth and distance of the chord being 184 degrees 11 minutes, 24.94 feet to a pipe;
- 222 degrees 45 minutes, 73.04 feet along the Southeast side of Ohua Avenue;
- 315 degrees 12 minutes, 107.44 feet along the remainder of Royal Patent 5588, Land Commission Award 8452, Apana 3, Section 1 to A. Keohokalole;
- 225 degrees 00 minutes, 59.95 feet along same;
- 222 degrees 45 minutes, 14.76 feet along same;
- 135 degrees 20 minutes, 110.11 feet along same;
- 222 degrees 45 minutes, 244.60 feet along the Southeast side of Ohua Avenue to the point of beginning and containing an area of 91,649 square feet, more or less.
SUBJECT, HOWEVER, TO:
- Reservation in favor of the State of Hawaii of all mineral and metallic mines.
- Grant dated December 11, 1925, recorded on December 2, 1929 in the Bureau of Conveyances of the State of Hawaii in Book 1038, Page 23. in favor of CITY AND COUNTY OF HONOLULU, Board of Water Supply for sewer line and water main purposes.
- The terms and provisions of that certain Trust Deed dated December 2, 1909, recorded on December 2, 1909, in said Bureau of Conveyances in Book 319, Page 447; as amended by instrument dated April 20, 1910 in said Bureau of Conveyances in Book 225, Page 8; as further amended by instrument dated October 11, 1911 in said Bureau of Conveyances in Book 35O, Page 369; and as further amended by instrument dated September 2, 1915 in said Bureau of Conveyances in Book 442, Page 429.
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 1856 (Pending), along the remainder of Royal Patent 5588, Land Commission Award 8452, Apana 3, Section 1 to A. Keokalohe;
- 42 degrees 45 minutes, 14.76 feet along the same;
- 45 degrees 00 minutes, 59.95 feet along the same;
- 235 degrees 20 minutes, 59.95 feet along the same;
- 222 degrees 45 minutes, 75.02 feet along the Southeast side of Ohua Avenue to the point of beginning and containing an area od 8,160 square feet, more or less.
SUBJECT, HOWEVER, TO:
1. The reservation in favor of the State of Hawaii of all mineral and metallic mines.