SECOND AMENDED AND RESTATED HOTEL GROUND LEASE
(THE ▇▇▇▇-▇▇▇▇▇▇▇, KAPALUA)
BETWEEN
MAUI LAND & PINEAPPLE COMPANY, INC.
(LESSOR)
AND
RCK HAWAII, LLC dba RCK HAWAII-MAUI
(LESSEE)
TABLE OF CONTENTS
I DEFINITIONS 1
1.1 USE OF DEFINED TERMS 1
1.2 TERM 2
1.3 DEFINED TERMS 2
a. ADDITIVE CHANGE ORDER 2
b. AFFILIATE 2
c. AFFILIATED CONCESSIONAIRE 2
d. AIA GENERAL CONDITIONS 2
e. AMENDMENT AND RESTATEMENT OF TENNIS
OPERATING AGREEMENT 2
f. ANNUAL STATEMENT 3
g. BEST OFFER 3
h. BEST OFFER ENTITY 3
i. BEST OFFER ENTITY REVIEW PERIOD 3
j. CHANGE ORDERS 3
k. COMMENCEMENT OF CONSTRUCTION 3
l. COMPLETED AND COMPLETION 3
m. CONCESSIONAIRE 3
n. CONSTRUCTION 3
o. DECLARATION OF COVENANTS, CONDITIONS, AND
RESTRICTIONS 3
p. ESTIMATED MONTHLY PERCENTAGE RENT 4
q. FORECLOSURE 4
r. GOLF COURSE USE AGREEMENT 4
▇. ▇▇▇▇▇ ANNUAL PERCENTAGE RENT 4
▇. ▇▇▇▇▇ REVENUES 4
u. HOTEL 4
v. HOTEL OPERATING AGREEMENT 4
w. HOTEL OPERATOR 4
x. HOTEL ROOM 4
y. INITIAL LEASE DATE 4
z. INSTITUTIONAL LENDER 5
aa. JOINT MAI 5
bb. KAPALUA RESORT AREA 5
cc. KMA 5
dd. KRA 5
ee. KRA ADVERTISING 5
ff. LAND 5
gg. LEASE YEAR, RENTAL YEAR AND YEAR 5
hh. LEASEHOLD MORTGAGE FORECLOSURE PURCHASER 5
ii. LEASEHOLD MORTGAGEES 5
jj. LESSEE'S MAI 5
kk. LESSEE'S REVIEW PERIOD 5
ll. LESSOR MORTGAGE 6
mm. LESSOR'S COST OF MONEY 6
nn. LESSOR'S MAI 6
oo. MAUI LAND & PINEAPPLE, INC.'S OFFER 6
pp. MORTGAGEE 6
qq. NEW LEASE 6
rr. OFF-SITE IMPROVEMENTS 6
ss. OFF-SITE PARKING SPACES 6
tt. PERSON 6
uu. PLANS 6
vv. PRECONDITIONS FOR CONSTRUCTION 6
ww. PREMISES 6
xx. QUALIFIED PURCHASER 6
yy. QUIET HOURS 7
zz. RC'S OFFER 7
aaa. RECORD AND FILE 7
bbb. TENNIS CENTER 7
ccc. TENNIS SITE 7
ddd. TERM 7
eee. THIRD PARTY OFFER 7
fff. THIRD PARTY SALE AGREEMENT 7
ARTICLE II DEMISE AND QUIET ENJOYMENT; INTERRELATIONSHIP OF
INTERESTS 7
2.1 DEMISE 7
2.2 QUIET ENJOYMENT 7
2.3 INTERRELATIONSHIP OF INTERESTS 8
ARTICLE III RENTAL 8
3.1 LESSEE TO PAY NET RENT 8
3.2 GROSS REVENUES 8
3.3 MINIMUM RENT 9
3.4 PERCENTAGE RENT ("GROSS ANNUAL PERCENTAGE RENT" 9
a. JANUARY 1, 1995 THROUGH DECEMBER 31, 1998 9
b. JANUARY 1, 1999, THROUGH DECEMBER 31, 2094 9
c. RECORDS AND ANNUAL STATEMENT 10
d. ACCOUNTING METHOD 11
3.5 ACCESS TO GUEST LISTS 11
3.6 GROSS EXCISE TAX 11
3.7 PAYMENT 12
a. PERCENTAGE RENT 12
b. CURRENCY; AGENT 12
3.8 LATE PAYMENT 12
3.9 OFF-SITE IMPROVEMENTS 12
ARTICLE IV CONSTRUCTION OF IMPROVEMENTS 12
4.1 CONSTRUCTION REQUIREMENTS 12
a. LESSOR'S APPROVAL 13
b. LESSEE'S NOTIFICATION OF ARCHITECT AND
CONTRACTOR 13
4.2 PRE-CONDITIONS FOR CONSTRUCTION 13
a. PERFORMANCE AND PAYMENT BONDS 13
b. GOVERNMENTAL APPROVALS 13
c. FINANCING COMMITMENTS 13
d. CONSTRUCTION LIABILITY INSURANCE 14
4.3 CHANGE ORDERS 14
4.4 FORCE MAJEURE 14
4.5 MINIMUM INTERFERENCE DURING CONSTRUCTION 15
4.6 RISK OF OBTAINING GOVERNMENTAL APPROVALS FOR
CONSTRUCTION 16
4.7 DELIVERY OF PLANS AND SPECIFICATIONS UPON COMPLETION 16
ARTICLE V FINANCING 16
5.1 RIGHT TO MORTGAGE 16
5.2 NOTICE TO AND RIGHTS OF LEASEHOLD MORTGAGES 17
5.3 NEW LEASE IF NO BANKRUPTCY 19
5.4 CONSENT OF MORTGAGEE 20
5.5 NO MERGER 20
5.6 FINANCING BY LESSOR 20
5.7 [INTENTIONALLY DELETED] 20
5.8 OPTION FOR NEW LEASE IF BANKRUPTCY 21
5.9 [INTENTIONALLY DELETED] 22
ARTICLE VI INSURANCE 22
A. INSURANCE OF BUILDINGS 22
6.1 FIRE AND HAZARD INSURANCE 22
6.2 PAYMENT OF INSURANCE PROCEEDS 22
6.3 USE OF INSURANCE PROCEEDS 22
6.4 UNINSURED CASUALTY AND ABATEMENT OF RENT 23
B. LIABILITY INSURANCE 24
6.5 LESSEE TO OBTAIN LIABILITY INSURANCE 24
C. GENERAL INSURANCE REQUIREMENTS 24
6.6 POLICY PROVISIONS 24
6.7 CERTIFICATES OF INSURANCE 25
ARTICLE VII CONDEMNATION 25
7.1 TOTAL CONDEMNATION 25
7.2 PARTIAL CONDEMNATION 25
a. TERMINATION AS TO PORTION 25
b. CONTINUED OPERATIONS 26
c. TERMINATION OF LEASE 26
7.3 COMPENSATION AND DAMAGES 27
a. LAND 27
b. IMPROVEMENTS 27
7.4 CONDEMNATION OF LEASEHOLD INTEREST 27
7.5 LOSS OF BUSINESS DAMAGES 27
7.6 CONVEYANCE AS CONDEMNATION 28
ARTICLE VIII MAINTENANCE AND USE OF PREMISES 28
8.1 TAXES AND ASSESSMENTS 28
8.2 LESSEE TO PAY ALL RATES AND CHARGES 29
8.3 IMPROVEMENTS REQUIRED BY LAW 29
8.4 REPAIR AND MAINTENANCE 29
8.5 OBSERVANCE OF LAWS 30
8.6 INSPECTION OF PREMISES 30
8.7 WASTE AND UNLAWFUL USE 30
8.8 USE OF PREMISES 30
a. OPERATION OF HOTEL 30
b. HOTEL OPERATING AGREEMENT 31
c. PROHIBITED USES 32
d. NUISANCE 32
8.9 LIENS 32
8.10 KAPALUA RESORT ASSOCIATION 32
8.11 KAPALUA MARKETING ASSOCIATION 32
8.12 VISITOR STATISTICS 33
8.13 COVENANT TO OPERATE HOTEL 33
8.14 NAME OF HOTEL 33
ARTICLE IX DEFAULT 34
9.1 EVENTS AND CONSEQUENCES OF DEFAULT 34
a. FAILURE TO PAY RENT 34
b. BREACH OF COVENANT 34
c. ABANDONMENT 34
d. BANKRUPTCY, INSOLVENCY OR TAKING 34
9.2 ACCEPTANCE OF RENT NOT WAIVER 35
9.3 LIMITED LIABILITY OF LESSEE. 35
ARTICLE X SURRENDER 35
10.1 SURRENDER 35
ARTICLE XI GENERAL PROVISIONS 36
11.1 BEACH 36
11.2 ASSUMPTION OF RISK 36
11.3 HOLDING OVER 36
11.4 ACCEPTANCE OF NEARBY OR ADJACENT LAND USE 36
a. PINEAPPLE AND SIMILAR AGRICULTURAL OPERATIONS 36
b. GOLF COURSES 37
11.5 NOTICES 37
11.6 ARTICLE AND PARAGRAPH HEADINGS 37
11.7 ASSIGNMENTS AND SUBLEASES 38
11.8 ATTORNEYS' FEES 44
11.9 INDEMNITY 44
11.10 MULTIPLE LESSEES 45
11.11 NO INCREASE OF LESSEE'S ESTATE 45
11.12 CALENDAR PERIODS 45
11.13 INTEREST ON ALL LATE PAYMENTS 45
11.14 NEITHER LESSOR NOR LESSEE DEEMED DRAFTER 45
11.15 SUCCESSORS AND ASSIGNS 46
11.16 LESSOR'S RIGHT TO SELL FEE 46
11.17 ENTIRE AGREEMENT 46
11.18 CONSENT 46
11.19 AMENDMENT 46
11.20 ESTOPPEL CERTIFICATES 46
11.21 TIME OF THE ESSENCE 46
11.22 CONVEYANCE AND HOTEL ROOM TAXES 47
11.23 SHORT-FORM LEASE 47
ARTICLE XII SPECIAL PROVISIONS 47
12.1 LESSEE'S RIGHT OF FIRST REFUSAL 47
a. SALE OF FEE SIMPLE TITLE AND/OR LEASE 47
b. SALE OF INTERESTS IN ADDITION TO FEE SIMPLE
TITLE AND/OR LEASE 48
12.2 NON-COMPETITION 49
12.3 SIGNAGE 49
12.4 NO LICENSE OF BUTTERFLY LOGO 49
12.5 ADDITIONAL PARKING SPACES 49
EXHIBIT "A" - PREMISES
EXHIBIT "A-1" - OFF-SITE PARKING MAP
EXHIBIT "A-2" - TENNIS ACCESS ROADWAY MAP
EXHIBIT "B" - OFF-SITE IMPROVEMENTS
EXHIBIT "C" - BUTTERFLY LOGO
SECOND AMENDED AND RESTATED
HOTEL GROUND LEASE
THIS SECOND AMENDED AND RESTATED LEASE is made effective as
of January 31, 2001 (the "Effective Date"), by and between MAUI
LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation, whose
principal place of business is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇, and whose post office address is ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called the "Lessor", and RCK
HAWAII, LLC dba RCK HAWAII-MAUI, a Delaware limited liability
company, whose principal place of business is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called the "Lessee".
This instrument is sometimes referred to herein as "this Lease",
and may be referred to as the "Lease."
W I T N E S S E T H:
Whereas, Lessor and NI Hawaii Resort, Inc. entered into that
certain unrecorded Hotel Ground Lease dated February 24, 1996,
but effective as of January 1, 1996 (the "Hotel Ground Lease"), a
Memorandum of which dated February 24, 1996, but effective as of
January 1, 1996, was recorded in the Bureau of Conveyances of the
State of Hawaii as Document No. 96-046331.
Whereas, the Hotel Ground Lease was amended by that certain
First Amendment of Hotel Ground Lease dated April 15, 1999,
recorded as aforesaid as Document No. 99-059178, and by that
certain Second Amendment of Hotel Ground Lease dated September
27, 2000, recorded as aforesaid as Document No. 2000-135417.
Whereas, the Hotel Ground Lease, as amended, was assigned to
Lessee by that certain Assignment of Ground Lease dated September
27, 2000, recorded as aforesaid as Document No. 2000-135421.
Whereas, Lessor and Lessee desire to further amend the Hotel
Ground Lease, as amended, and to restate the Hotel Ground Lease
as so amended in its entirety.
Now Therefore, in consideration of the respective and mutual
covenants of Lessor and Lessee and the rent set forth in this
Lease below, Lessor and Lessee hereby agree to all of the
following terms, conditions and covenants.
ARTICLE I
Definitions
1.1 Use of Defined Terms. For purposes of construing and
interpreting this Lease, the terms defined in Sections 1.2 and
1.3 when written with initial capital letters in this Lease shall
have the meaning given such terms in those sections. The terms
defined in Sections 1.2 and 1.3 may be used in the singular or
plural or in varying tenses or forms, but such variation shall
not affect the meaning of such terms set forth in those sections
so long as those terms are written in initial capital letters.
When such terms are used in this Lease but are written without
initial capital letters, such terms shall have the meaning they
have in common usage; provided, however, that where legal,
technical or trade terms are used and the context in which such
terms are used indicates that such terms are to be given their
legal, technical or trade usage meanings, such terms shall be
given such legal, technical or trade usage meanings.
1.2 Term. "Term" shall mean the term of this Lease which
shall commence as of January 1, 1996 ("Initial Lease Date") of
this Lease, except for Sections 3.1 and 3.4 which shall be
effective January 1, 1995, and terminate at midnight on
December 31, 2094.
1.3 Defined Terms.
a. Additive Change Order. "Additive Change Order"
shall have the definition set forth in Section 4.3.
b. Affiliate. An "Affiliate" of a person or entity
is a person or entity that directly or indirectly controls, is
controlled by, or is under common control with, such person or
entity. The term "control", as used in the immediately preceding
sentence means, with respect to an entity that is a corporation,
the right to the exercise, directly or indirectly, of more than
fifty percent (50%) of the voting rights attributable to the
shares of the controlled corporation, and with respect to a
person or entity that is not a corporation, the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of the controlled person
or entity.
c. Affiliated Concessionaire. An "Affiliated
Concessionaire" is a Concessionaire in which any one of (i)
Lessee, (ii) Lessee's general or limited partners, if any, (iii)
Affiliates of Lessee or Lessee's general or limited partners,
(iv) any shareholder of Lessee, of Lessee's general or limited
partners or an Affiliate of Lessee or its general or limited
partners holding alone or in the aggregate more than twenty-five
percent (25%) of the stock of any one such entity, (v) employees
or agents of Lessee, Lessee's general or limited partners or
Affiliate of Lessee or Lessee's general or limited partners, or
(vi) immediate family members of officers of Lessee, Lessee's
general or limited partners, or any Affiliates of Lessee or its
general or limited partners, (vii) immediate family members of
shareholders owning alone or in the aggregate more than twenty-
five percent (25%) of the stock of any one of Lessee, Lessee's
general or limited partners or any Affiliate of Lessee or
Lessee's general or limited partners or (viii) Affiliates of the
persons or entities set forth in clauses (i) through (vii) above,
have an ownership-interest, whether equitable or otherwise.
d. AIA General Conditions. The "AIA General
Conditions" shall mean the standard general conditions of the
standard form AIA construction agreement.
e. Amendment and Restatement of Tennis Operating
Agreement. The "Amendment and Restatement of Tennis Operating
Agreement" shall mean the unrecorded Amendment and Restatement of
Tennis Operating Agreement dated January 9, 1996, by and between
Lessee, as Owner, and Kapalua Land Company, Ltd., as Operator, as
the same may be amended from time to time.
f. Annual Statement. "Annual Statement" shall have
the definition set
forth in Section 3.4.
g. Best Offer. "Best Offer" shall have the
definition set forth in Section 11.7.
h. Best Offer Entity. "Best Offer Entity" shall have
the definition set forth in Section 11.7.
i. Best Offer Entity Review Period. "Best Offer
Entity Review Period" shall have the definition set forth in
Section 11.7.
j. Change Orders. "Change Orders" shall have the
definition set forth in Section 4.3.
k. Commencement of Construction. "Commencement of
Construction" shall mean "visible commencement of operations" as
that term is defined in Section 507-41 of the Hawaii Revised
Statutes in effect on the date of this Lease.
l. Completed and Completion. A structure,
improvement, building or room which is "Completed" is a
structure, improvement, building or room for which a "certificate
of occupancy" has been issued by the appropriate governmental
authority. The "Completion" of a structure, improvement,
building or room shall mean the issuance of a "certificate of
occupancy" by the appropriate governmental agency for such
structure, improvement, building or room.
m. Concessionaire. "Concessionaire" shall mean a
person or entity, including without limitation a shopkeeper,
retailer or provider of services which has entered into a
sublease, concession agreement, contract, license or similar
agreement with Lessee for the transaction of business on or from
the Premises or the operation of the Hotel.
n. Construction. "Construction" shall have the
definition set forth in Section 4.1.
o. Declaration of Covenants, Conditions, and
Restrictions. "Declaration of Covenants, Conditions, and
Restrictions" shall mean the Declaration of Covenants,
Conditions, and Restrictions dated September 26, 1990, recorded
in the Bureau of Conveyances of the State of Hawaii as Document
No. 90-149096.
p. Estimated Monthly Percentage Rent. "Estimated
Monthly Percentage Rent" shall be the amount computed by
multiplying the Gross Revenues for the month by the percentage
rate under Section 3.4.
q. Foreclosure. "Foreclosure" shall mean foreclosure
of the lien imposed by a Leasehold Mortgage by power of sale or
judicial foreclosure or by deed in lieu of foreclosure or the
exercise of remedies under the Leasehold Mortgage which results
in the Lessee losing possession of the Property, or which results
in a transfer of title to or possession of the Lessee's interest
in this Ground Lease. The term "Foreclosure" shall include,
without limitation, any one or more of the following events, if
they occur in connection with a default under a Mortgage: (i) a
transfer by judicial foreclosure; (ii) a transfer by deed or
assignment in lieu of foreclosure; (iii) the appointment by a
court of a receiver to assume possession of the Premises, and
(iv) a transfer of either ownership or control of the Lessee;
r. Golf Course Use Agreement. The "Golf Course Use
Agreement" shall mean the Amended and Restated Golf Course Use
Agreement dated September 27, 2000, by and among Maui Land &
Pineapple Company, Inc., NI Hawaii Resort, Inc., and The ▇▇▇▇-
▇▇▇▇▇▇▇ Hotel Company, L.L.C., a memorandum of which was recorded
as aforesaid as Document No. 2000-135418, with respect to golf
course use.
▇. ▇▇▇▇▇ Annual Percentage Rent. "Gross Annual
Percentage Rent" shall have the definition set forth in Section
3.4.
▇. ▇▇▇▇▇ Revenues. "Gross Revenues" shall have the
definition set forth in Section 3.2.
u. Hotel. "Hotel" shall mean the hotel known as of
January 1, 1996 as The ▇▇▇▇-▇▇▇▇▇▇▇, Kapalua, together with
lobbies, kitchens, dining rooms, bars, swimming pool,
landscaping, parking areas, roadways, walkways and all other
facilities and improvements now or hereafter constructed and
situated on the Premises.
v. Hotel Operating Agreement. "Hotel Operating
Agreement" shall mean an agreement between Lessee and Hotel
Operator for the operation and management of the Hotel.
w. Hotel Operator. "Hotel Operator" shall mean The
▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company, L.L.C., a Delaware limited liability
company, or its successor or successors as permitted by Section
8.8(b).
x. Hotel Room. "Hotel Room" shall mean the smallest
room or combination of rooms in the Hotel which may be rented to
overnight guests.
y. Initial Lease Date. "Initial Lease Date" shall
have the definition set forth in Section 1.2.
z. Institutional Lender. "Institutional Lender"
shall mean a foreign or domestic commercial bank, trust company,
savings bank, savings and loan association, life insurance
company, real estate investment trust, pension trust, pension
plan or pension fund, a public or privately-held fund engaged in
real estate and/or corporate lending, university endowment fund,
grantor trust, investment bank or any other financial institution
(or any Affiliate thereof) having a minimum paid up capital (or
net assets) of One Hundred Million Dollars ($100,000,000) (or any
Affiliate thereof), whether acting for its own account or in a
representative, fiduciary or trust capacity, including as trustee
in connection with a securitization of commercial mortgage loans
or any entity owned by any of the foregoing.
aa. Joint MAI. "Joint MAI" shall have the definition
set forth in Section 12.1.
bb. Kapalua Resort Area. The "Kapalua Resort Area"
shall mean the existing and proposed development of the Kapalua
area on Maui, more particularly set forth in Lessor's Master Plan
for the Kapalua Resort, as amended from time to time.
cc. KMA. "KMA" shall have the definition set forth in
Section 8.11.
dd. KRA. "KRA" shall have the definition set forth in
Section 8.10.
ee. KRA Advertising. "KRA Advertising" shall have the
definition set forth in Section 3.5.
ff. Land. "Land" shall mean the land included in the
Premises exclusive of any improvements existing at any time on
such land.
gg. Lease Year, Rental Year and Year. The terms
"Lease Year," "Rental Year," and "Year" as used herein shall mean
a time period of 12 calendar months.
hh. Leasehold Mortgage Foreclosure Purchaser.
"Leasehold Mortgage Foreclosure Purchaser" shall have the
definition set forth in Section 5.1.
ii. Leasehold Mortgagees. "Leasehold Mortgagees"
shall have the definition set forth in Section 5.1.
jj. Lessee's MAI. "Lessee's MAI" shall have the
definition set forth in Section 12.1.
kk. Lessee's Review Period. "Lessee's Review Period"
shall have the definition set forth in Section 11.7.
ll. Lessor Mortgage. "Lessor Mortgage" shall have the
definition set forth in Section 5.6.
mm. Lessor's Cost of Money. "Lessor's Cost of Money"
for any period during the Term shall mean an annual rate of
interest equal to the lesser of: (i) two percent (2%) over the
prime interest rate for such period of time, which shall be the
prime interest rate then in effect or announced by Manufacturers
Hanover Trust Company or any successor thereto or other major
national bank directed by Lessor if such bank ceases to announce
a prime rate, or (ii) the maximum per annum rate of interest
permitted to be charged by then applicable law.
nn. Lessor's MAI. "Lessor's MAI" shall have the
definition set forth in Section 12.1.
oo. Maui Land & Pineapple, Inc.'s Offer. "Maui Land &
Pineapple, Inc.'s Offer" shall have the definition set forth in
Section 11.7.
pp. Mortgagee. "Mortgagee" shall have the definition
set forth in Section 5.8.
qq. New Lease. "New Lease" shall have the definition
set forth in Section 5.8.
rr. Off-Site Improvements. "Off-Site Improvements"
shall have the definition set forth in Section 3.9.
ss. Off-Site Parking Spaces. "Off-Site Parking
Spaces" shall have the definition set forth in Section 12.5.
tt. Person. "Person" shall mean an individual,
partnership, corporation, trust, unincorporated association,
joint stock company, or other entity or association.
uu. Plans. "Plans" shall have the definition set
forth in Section 4.1.
vv. Preconditions for Construction. The
"Preconditions for Construction" shall mean all of the conditions
set forth in subsections 4.2(a) through 4.2(d).
ww. Premises. The "Premises" shall mean the land
described in Exhibit "A" (including the Tennis Site) attached
hereto and incorporated herein by reference and all rights,
easements, privileges and appurtenances belonging or appertaining
to such land on the date hereof or at any time thereafter.
xx. Qualified Purchaser. "Qualified Purchaser" shall
have the definition set forth in Section 11.7(a).
yy. Quiet Hours. "Quiet Hours" shall mean the hours
between 10 p.m. and 7 a.m. each day.
zz. RC's Offer. "RC's Offer" shall have the
definition set forth in Section 11.7.
aaa. Record and File. To "Record" a document shall
mean to record such document in the Bureau of Conveyances of the
State of Hawaii. To "File" a document shall mean to file such
document in the Office of the Assistant Registrar of the Land
Court of the State of Hawaii.
bbb. Tennis Center. "Tennis Center" shall mean the
approximately ten-court tennis center on the Tennis Site.
ccc. Tennis Site. "Tennis Site" shall mean that
portion of the Premises on which the Tennis Center is built.
ddd. Term. "Term" shall have the definition set forth
in Section 1.2.
eee. Third Party Offer. "Third Party Offer" shall have
the definition set forth in Section 11.7.
fff. Third Party Sale Agreement. "Third Party Sale
Agreement" shall have the definition as set forth in Section
11.7.
ARTICLE II
Demise and Quiet Enjoyment;
Interrelationship of Interests
2.1 Demise. In consideration of the Lessee's agreement to,
and acceptance of, the terms, conditions and covenants of this
Lease and the rent set forth in this Lease below, Lessor hereby
leases the Premises to Lessee for the Term, subject to all of the
terms and conditions of this Lease.
2.2 Quiet Enjoyment. Upon observance and performance by
Lessee of the covenants and conditions of this Lease and the
Declaration of Covenants, Conditions and Restrictions, Lessor
hereby covenants with the Lessee that the Lessee shall peaceably
hold and enjoy the Premises for the Term without hindrance or
interruption by the Lessor or any other person or persons
claiming by, through, or under Lessor except as in this Lease
expressly provided.
2.3 Interrelationship of Interests. The Lessor and the
Lessee covenant and agree that the interest of the Lessee in the
Hotel on the Premises and the interest of the Lessee in this
Lease are not separately transferable by the Lessee. Thus, under
no circumstances, may the Hotel be separated from the leasehold
interest in the Premises; and the Hotel may only be transferred
or encumbered together with the leasehold interest in the
Premises; provided that a Lessee may sublet the Premises for tax
or other legal compliance reason (such as to comply with
restrictions on real estate investment trusts or pension funds).
During the Term of this Lease, Lessee shall own all right, title,
and interest in and to all improvements on the Premises and shall
retain all rights to depreciation deductions and tax credits
arising from the ownership of such improvements. However, upon
termination of this Lease, title to all improvements in the
Premises shall thereupon revert to the Lessor subject to Section
10.1.
ARTICLE III
Rental
3.1 Lessee to Pay Net Rent. Throughout the Term, Lessee
shall pay to Lessor the annual minimum and percentage rents set
forth in Sections 3.3 and 3.4 in the manner set forth in this
Article, net of any and all taxes, rates, assessments, charges,
impositions, and expenses payable under this Lease and without
deductions of any kind whatsoever. Minimum and percentage rent
shall not be reduced or abated except as expressly provided in
this Lease.
3.2 Gross Revenues. The term "Gross Revenues" shall mean
all revenues, receipts and income of any kind derived directly or
indirectly by the Lessee in the form of cash, property or
services (i.e., barter, "contra", accounts, and such alternatives
to cash payments, which together with property and services,
shall be valued at their fair market value) from or in connection
with the Hotel or the Tennis Center (including any loss of income
insurance proceeds paid to the Lessee or the Lessor in the event
of casualty to the Hotel, or as a result of the occurrence of any
other event making use of all or a portion of the Hotel
impossible or impractical), and rentals or other payments under
the Amendment and Restatement of Tennis Operating Agreement
and/or the Golf Course Use Agreement, and from any condominium
units managed by the Lessee in the Kapalua Resort Area, and from
Concessionaires (but not including their gross receipts), whether
on a cash basis or credit, paid or collected, determined in
accordance with generally accepted accounting principles and
Uniform System; excluding, however: (i) funds furnished by the
Owner under the Hotel Operating Agreement, (ii) interest accrued
on amounts in the reserve under the Hotel Operating Agreement,
(iii) federal, state and municipal excise, sales, use and room
taxes collected directly from patrons and guests or as part of
the sales price of any foods, services or displays, such as gross
receipts, admissions, cabaret or similar or equivalent taxes and
paid over to federal, state or municipal governments, (iv)
gratuities, (v) proceeds of insurance (excluding loss of income
insurance proceeds which shall be included as a part of Gross
Revenues) and condemnation, (vi) value of free or any discounted
portion of rooms or services under the Amendment and Restatement
of Tennis Operating Agreement and/or the Golf Course Use
Agreement or complimentary policies of the Hotel approved by the
Lessor, (vii) any loan proceeds, and (viii) proceeds from the
sale of the Hotel or the improvements and furniture, fixtures and
equipment owned by the Lessee.
When there are Affiliated Concessionaires operating at the
Hotel, if the rental rate to any Affiliated Concessionaire is
lower than the rental rate which is being charged another third
party, non-Affiliated Concessionaires operating a business
similar to those of the Affiliated Concessionaires in a location
at the Hotel similar to that of the Affiliated Concessionaire,
the Gross Revenues from such Affiliated Concessionaire shall be
deemed to be the same as the rental rate being charged such other
Concessionaire, and Gross Revenues shall be computed as so
determined. If there is no third party non-Affiliated
Concessionaire operating a similar business in a similar location
to that of an Affiliated Concessionaire, then for purposes of
determining Gross Revenues, the Gross Revenues from such
Affiliated Concessionaire shall be determined according to rental
rates that would have been charged to a non-Affiliated
Concessionaire in an "arm's length" negotiation to acquire the
same concession for the same business in the same location as
given such Affiliated Concessionaire.
Gross Revenues shall be reduced for actual bad debts
reasonably determined to be uncollectible by the Lessee, which
reduction shall not include payments for any bad debt reserve or
sinking fund or similar fund or reserve, for bad debts. If any
debts previously deducted as uncollectible shall subsequently be
collected, such collected amounts shall be included in Gross
Revenues in the fiscal year collected after deducting reasonable
collection expenses actually incurred.
"Gross Revenues" shall be determined on an annual basis,
except that in computing Estimated Monthly Percentage Rent, Gross
Revenues shall be determined either just for that month or on a
quarterly basis, as the case may be.
3.3 Minimum Rent. Commencing January 1, 1996, and
continuing through the Term of this Lease, no minimum rent shall
be paid hereunder.
3.4 Percentage Rent ("Gross Annual Percentage Rent").
a. January 1, 1995 Through December 31, 1998. For
each calendar year or portion thereof during the period from
January 1, 1995 through December 31, 1998, the percentage rent
shall be an amount equal to 2.5% of the Gross Revenues for that
year, or a prorated amount for any portion of such year.
b. January 1, 1999 Through December 31, 2094. For
each year during the period from January 1, 1999, through
December 31, 2094, the percentage rent shall be an amount equal
to 1% of Gross Revenues for that year; provided, however, if the
total Gross Revenues for any twelve (12) consecutive calendar
months during this period exceeds SIXTY MILLION AND NO/100
DOLLARS ($60,000,000), the percentage rent for the remainder of
the Term shall increase, effective the first month following such
twelve (12) consecutive months, to an amount equal to 1.5% of
Gross Revenues. Lessor and Lessee acknowledge and agree that,
prior to the date of this Second Amended and Restated Hotel
Ground Lease, such target was achieved and, therefore, the
percentage rent payable for each year of the remainder of the
Term is 1.5% of Gross Revenues.
c. Records and Annual Statement. Lessee shall
maintain and keep full and accurate records on the Premises of
all business under the control of Lessee done or transacted in,
upon or from the Premises which may reasonably assist Lessor in
determining the percentage rent to be paid by Lessee under this
Lease, and shall retain and preserve such records on the
Premises(or the Island of Maui) for at least five (5) years after
submission of the annual audited statement provided for in this
paragraph and permit Lessor upon reasonable advance notice to
inspect such records at any and all reasonable times during
business hours. Lessor shall also be given access at the Hotel
upon reasonable advance notice at any and all reasonable times
during business hours to any other books or records of Lessee,
and to any other books or records of Concessionaires, including
but not limited to Affiliated Concessionaires, that may be
necessary to enable Lessor to make a full and proper audit of the
Gross Revenues derived from all business done in, upon or from
the Premises. The Lessee shall submit to the Lessor on or before
the expiration of ninety (90) days following the end of each
calendar year of the Term after the commencement of the 1st
Rental Year of the Term, a complete statement (the "Annual
Statement") audited and signed by a certified public accountant
firm of recognized national and industry stature, entirely at
Lessee's sole expense; provided, however, Lessor and Lessee agree
and acknowledge that Lessee may fulfill such requirement for an
audited Annual Statement if Lessee provides to Lessor the audited
and signed Annual Statement given by the then current Hotel
Operator to Lessee pursuant to the terms of any hotel operating
agreement by and between the then current Hotel Operator and
Lessee. The Annual Statement shall be certified and signed by an
officer of Lessee, showing in reasonable detail satisfactory to
the Lessor Gross Revenues, prior to the deductions and exclusions
from Gross Revenues permitted under Section 3.2, and a reasonably
detailed statement of the deductions and exclusions from Gross
Revenues claimed by the Lessee, for the preceding year, and the
amount of Gross Annual Percentage Rent due under this Lease for
such year. The Lessor agrees to treat all such information,
records and reports as confidential and, except in response to a
valid court subpoena or proceeding, shall not divulge any of the
same to third parties without the prior written consent of the
Lessee, which consent may be unreasonably withheld. In addition
to the Annual Statement, Lessor shall have the right to audit, at
Lessor's expense except as provided in the immediately following
sentence, all records of Lessee and Concessionaires relating to
the Hotel and the concessions, and statements furnished by the
Lessee for purposes of determining percentage rent. If such an
audit shall reveal errors or improper entries or similar facts
which result in a difference in annual percentage rent exceeding
two percent (2%), all costs of such audit shall be borne by the
Lessee. The Lessor's right to audit shall include the right to
take such steps as are generally deemed proper in auditing
practices and shall include the right to audit Concessionaires,
including but not limited to Affiliated Concessionaires. Lessee
shall cooperate in any audit made by Lessor. After completion of
the audit, whichever party is then owing money for an adjusting
refund to the other by the audit shall pay the amount shown to be
due for such refund by the within fourteen (14) days after
completion of the audit by cash payment to Lessor (together with
interest in accordance with Section 11.13 from the date the
moneys should have been paid) or by credit against the next
monthly rents due if to Lessee. Completion of the audit shall be
deemed to occur at the time of delivery of the auditor's report
to both Lessor and the Lessee. If the Lessor is due an adjusting
refund, the Lessee shall pay the same in cash to the Lessor
(together with interest in accordance with Section 11.13 from the
date the rent adjustment should have been paid) at the time of
delivery of the Annual Statement.
d. Accounting Method. Lessee shall keep its books of
account in accordance with generally accepted accounting
principles.
3.5 Access to Guest Lists. Lessee understands that Lessor
may desire from time to time to distribute information with
respect to the Kapalua Resort Area ("KRA Advertising") to former
guests of the Hotel. Lessor understands that (i) Lessee is
vitally interested in the image of the Hotel and the Kapalua
Resort Area presented to former and prospective guests of the
Hotel, and (ii) Lessee's guest lists constitute valuable and
confidential trade secrets of Lessee. Accordingly, Lessor shall
not be entitled to such guest lists but may require Lessee to
distribute, at Lessor's cost, any KRA Advertising to the persons
listed on Lessee's guest lists provided that such KRA Advertising
consists of advertising and promotion of the Kapalua Resort Area
or projects located therein, is of a first-class nature and
quality consistent with the Kapalua luxury resort image, and does
not refer to any hotel other than the Hotel or to any villa,
condominium and/or apartment rental program other than that
operated by Lessee. Any questionnaires must be general without
naming the Hotel.
3.6 Gross Excise Tax. In addition to the rents, taxes and
all other charges of every description payable hereunder, the
Lessee shall pay the Lessor, as additional rent, together with
each payment of rent or any other payment required hereunder, an
amount equal to the amount of excise taxes payable by the Lessor
pursuant to the State of Hawaii General Excise Tax Law, as it may
be amended from time to time, or any successor or similar law,
assessed or based on gross income of every description actually
or constructively received (to the extent taxed) by the Lessor
under this Lease, including without limiting the generality of
the foregoing: (i) the rents payable hereunder; (ii) any amount
directly or constructively received by the Lessor (to the extent
so taxed) by reason of payment by the Lessee to the Lessor,
governmental agency or others of real property taxes, insurance
premiums or any other charges or costs hereunder, (iii) amounts
paid to Lessor pursuant to this provision. Said amount payable
to Lessor shall take the character of the gross income on which
it is based and shall be an amount which, when added to such
rental or other payment, shall yield to the Lessor, after
deduction of all such tax payable by the Lessor with respect to
all such rent and other payments, a net amount equal to that
which the Lessor would have realized from such payments had no
such tax been imposed.
3.7 Payment.
a. Percentage Rent. Annual percentage rent for each
year for which such rent is due as provided in Section 3.4 shall
be paid in monthly installments of "Estimated Monthly Percentage
Rent", computed for each month of such year, due on the 12th day
of the month after the month for which the Estimated Monthly
Percentage Rent is computed. Any adjusting payments required
will be made at the calendar year end at the time of delivery to
Lessor of the Annual Statement. If the Lessee is due an
adjusting refund from the Lessor, the Lessor will make a like
credit against the next monthly rents unless the Lessor disputes
the Annual Statement. If the Lessor is due an adjusting refund,
the Lessee shall pay the same in cash to the Lessor (together
with interest in accordance with Section 11.13 from the date the
rent adjustment should have been paid) at the time of delivery of
the Annual Statement.
b. Currency; Agent. All rent and all other charges
payable by Lessee under this Lease shall be paid in lawful
currency of the United States of America to the Lessor or to such
agent as shall be designated by the Lessor in written notice to
the Lessee at least twelve (12) days prior to any rent payment
due date.
3.8 Late Payment. If Lessee fails to pay the percentage
rent within ten (10) days after such rent is due, Lessor shall be
entitled to a "late charge" equal to four percent (4%) of the
rent due to compensate Lessor for the administrative burden of
handling the late payment of rent. In addition, interest shall
be charged on such rent in accordance with Section 11.13.
3.9 Off-Site Improvements.
Lessor has completed all off-site improvements described in
Exhibit "B" attached hereto and incorporated herein by reference
(the "Off-Site Improvements"), all in accordance with applicable
government requirements. Lessor and Lessee shall, subject to
Lessor's and Lessee's approval, join in any grant of easements
which may be necessary to bring any utility services from the
boundaries of the Land to the improvements thereon. Lessor
expressly acknowledges and agrees that it shall maintain, at
Lessor's sole expense, all Off-Site Improvements owned by Lessor.
ARTICLE IV
Construction of Improvements
4.1 Construction Requirements. Prior to Commencement of
Construction on the Premises of any construction for material
extension and/or alterations on the outside dimension of the
Hotel in excess of ONE MILLION AND NO/100 DOLLARS ($1,000,000)
("Construction"), Lessee shall comply with all of the conditions
set forth in Sections 4.1(a) and 4.1(b) and all of the
Preconditions for Construction set forth in Sections 4.2(a)
through 4.2(d); provided, however, this section 4.1 shall not
apply to any interior additions and/or improvements to the Hotel
of THREE MILLION AND NO/100 DOLLARS ($3,000,000) or less,
interior renovations, any exterior maintenance, and any
furniture, fixtures, and equipment.
a. Lessor's Approval. Lessee shall inform Lessor of
the nature of any Construction which Lessee is then planning to
construct on the Premises prior to Commencement of Construction
thereof. Lessee shall, prior to commencing any Construction,
submit a copy of the layout, location, elevation and renderings
("Plans") for such Construction for Lessor's approval, which
shall not be unreasonably withheld. Lessor shall approve or
disapprove the Plans within thirty (30) days after Lessee
delivers them to Lessor. If Lessee does not receive written
disapproval of the Plans within such thirty (30) day period, the
Plans shall be deemed approved by the Lessor. If Lessor
disapproves in writing of such Plans, Lessor shall, within such
thirty (30) day period, give the Lessee in reasonable detail the
reasons why.
All such Plans shall also conform to the provisions of the
Declaration of Covenants, Conditions and Restrictions pertaining
to the Premises.
b. Lessee's Notification of Architect and Contractor.
The Lessee shall notify the Lessor of the identity of the
architect and contractor to be utilized for the Construction.
4.2 Pre-Conditions for Construction. Prior to construction
on the Premises of any Construction, Lessee shall comply with all
of the conditions set forth in Sections 4.2(a) through 4.2(d)
(the "Preconditions for Construction").
a. Performance and Payment Bonds. Lessee shall
deposit with the Lessor certificates or other satisfactory
evidence that the contractor has procured one or more customary
payment and performance bonds for a total amount not less than
one hundred percent (100%) of the total cost of the Construction,
naming the Lessor and Lessee as co-obligees, in customary form
and content and with a surety or sureties approved by Lessor and
authorized to do business in Hawaii, guaranteeing the full and
faithful performance of the construction contract for such
construction free and clear of all mechanics' and materialmen's
liens and the full payment of all subcontractors, labor and
materialmen.
b. Governmental Approvals. Lessee shall furnish
Lessor with evidence (which may be in form of an opinion of
counsel reasonably satisfactory to Lessor) that all governmental
approvals necessary to commence the construction have been
obtained including without limitation the issuance of a building
permit for such construction.
c. Financing Commitments. Lessee shall provide
Lessor with a construction budget for proposed construction
projects and evidence that there are funds available and
committed to Lessee sufficient to pay for one hundred percent
(100%) of the total direct and indirect costs of construction of
the entire construction. Such evidence may include, but not be
limited to, an executed copy of the building loan agreement or
its equivalent, and an executed copy of Acceptable Loan
Commitments for interim financing for such construction and any
permanent financing necessary to permit the Lessee to finance the
repayment of the interim loan.
d. Construction Liability Insurance. In addition to
the requirements of part A of Article VI and the requirements of
parts B and C of Article VI, beginning with the Commencement of
Construction and continuing until all construction is completed,
Lessee shall maintain a comprehensive general liability insurance
policy in customary form and content and with an insurance
company authorized to do business in Hawaii and insuring the
Lessor and Lessee against at least all of the following: loss or
damage to third parties or their property from excavation, pile
driving, loss of subterranean support, boiler explosion as well
as all other hazards normally insured against in the construction
industry. Prior to the Commencement of Construction, Lessee
shall deliver to Lessor certificates of insurance certifying that
such insurance is in full force and effect.
4.3 Change Orders.
a. Throughout the course of any Construction for
which Lessee is required under this Lease to comply with the
requirements of Sections 4.1(a) and 4.1(b) above, any proposed
substantial and material variation in such Plans previously
approved by Lessor shall be made pursuant to supplemental plans
and specifications and "change orders", as that term is defined
in the AIA General Conditions, and Lessee shall submit for the
Lessor's approval in the same manner as in Section 4.1(a) and
retention copies of any and all such supplemental plans and
specifications and proposed change orders and obtain such
approval before undertaking any such Construction.
b. If the Lessee proposes to enter into an "additive
change order" as that term is used in the AIA General Conditions,
which additive change order would have the effect of depleting
entirely the amount provided for contingencies in the
construction budget, then prior to the execution of such additive
change order, Lessee shall make funding arrangements reasonably
satisfactory to Lessor to fund the additional sums required to
cover the amount by which the construction budget, after all
contingencies have been depleted or committed, is increased by
the additive change order. Lessee must make such funding
arrangements reasonably satisfactory to lessor prior to the
execution of any such additive change order.
4.4 Force Majeure. If any performance or condition
required to be completed by Lessor or Lessee under the terms of
this Lease is delayed by war, riots, insurrection, earthquake,
fire, flood, Acts of God, or other similar disaster, by
governmental ruling, regulation or law, by strike in the State of
Hawaii or on the Island of Maui, or by general transportation or
shipping strikes, or by strikes or shortages which affect the
delivery of materials critical to construction on the Premises,
which conditions are not within such party's control and are not
such party's fault, then the time for the completion of such
performance or such condition shall be extended by a time period
equal to the duration of such delay; provided, however, that the
Lessee's obligations to pay any and all sums due under this
Lease, including but not limited to percentage rent, shall not be
affected by any such extension and the time for payment of such
sums shall not be so extended; and provided further, that in no
event shall the Term be so extended.
4.5 Minimum Interference During Construction.
a. During the portion of the Term while any
construction on the Premises is underway, Lessee shall take all
steps and precautions reasonably possible to provide that
Lessee's construction activities do not interfere with the
operation of the Kapalua Resort Area or result in inconvenience
to guests, tenants and residents in the Kapalua Resort Area,
including but not limited to the following:
(i) Except under emergency conditions, Lessee
shall obtain the Lessor's approval, which approval will not be
unreasonably withheld, for any anticipated disruption of water,
electricity, sewerage, traffic or other utility services to such
guests, tenants or residents at least fourteen (14) days prior to
such disruption. Lessee shall minimize the frequency and
duration of such disruptions and shall notify (through the Hotel
Operator, if a hotel, and through the condominium association, if
a condominium project) all affected utility users at least ten
(10) days prior to such disruption.
(ii) If Lessee's construction activities result in
damage to water or sewer lines, electrical systems, streets or
other utility systems, Lessee shall immediately notify Lessor of
such damage. If such damage occurs, Lessor may either (1)
require that Lessee immediately repair such damage at Lessee's
sole expense or (2) repair such damage and require that Lessee
pay all of Lessor's reasonable expenses. Lessor and Lessee agree
that in addition to repair or payment of expenses as set forth in
the immediately preceding sentence, if such damage to any utility
facilities results in an interruption in utility services not
approved and announced as provided in clause (i) above, Lessee
shall also pay for such interruption any actual damages incurred.
(iii) If piles must be driven during any
construction on the Premises, Lessee shall take all reasonable
precautions to reduce noise and shall use the quietest pile
driving equipment reasonably available in Hawaii under the then
current state of technology and shall engage in such activity
only between the hours of 9 o'clock a.m. and 4 o'clock p.m.
(iv) Lessee shall institute noise and dust
controls at all times during the construction to minimize the
emission of noise and dust on or from the Premises, including but
not limited to observing and requiring compliance with the
Lessor's Quiet Hours.
Lessee shall incorporate appropriate provisions in its
construction contract to implement the conditions set forth in
subsections (i) through (iv) above, including without limitation,
a provision requiring that Lessee's contractor comply with
Lessee's noise and dust controls. Lessee agrees that Lessee's
covenant to indemnify Lessor set forth in Section 11.9 below
shall include the indemnification of Lessor for any liability or
expenses arising from dust, noise, or utility interruptions
caused by construction on the Premises.
b. If Lessor has any construction activities of its
own which affect the Premises, Lessor shall also comply with the
provisions of Section 4.5(a).
4.6 Risk of Obtaining Governmental Approvals for
Construction. It is specifically understood and agreed that the
risk of obtaining all governmental approvals needed for
construction, including but not limited to the risk of down-
zoning of the Premises, is on the Lessee. Failure to obtain such
approvals and Lessee's resulting inability to construct any
improvements shall in no event terminate the Lessee's obligation
to make the payments required in this Lease, including but not
limited to the obligation for rent, or extend the time for or
reduce the amount of any rental or other payment due under the
Lease.
4.7 Delivery of Plans and Specifications Upon Completion.
After completion of any construction on the Premises required to
be made under the Preconditions for Construction, Lessee shall
provide Lessor with a copy of a complete set of plans and
specifications for the entirety of such construction certified by
a licensed professional architect as showing the completed
construction "as built", all at Lessee's sole expense.
ARTICLE V
Financing
5.1 Right to Mortgage.
a. Lessee may, from time to time, with the consent of
Lessor, which consent shall not be unreasonably withheld,
hypothecate, mortgage, pledge or alienate Lessee's leasehold
estate and rights hereunder, and/or may cause a pledge of its
shares or other ownership interests, as security for payment of
any indebtedness of Lessee. Lessor's consent shall be deemed to
be given for any hypothecation, mortgage, pledge or alienation of
Lessee's leasehold estate and rights hereunder, and/or pledge of
Lessee's shares or other ownership interests, as security for
payment of any indebtedness of Lessee, to an Institutional
Lender, so long as the indebtedness to be thereby secured,
together with any other then-existing indebtedness of Lessee,
does not exceed eighty-five percent (85%) of the fair market
value at such time of the Hotel and Lessee's rights hereunder;
provided, however that in no event may the aggregate principal
amount of mortgages encumbering Lessee's leasehold estate
outstanding at the time of granting of any such mortgage, exceed
eighty percent (80%) of the fair market value at such time of the
Hotel and Lessee's rights hereunder. The holder or holders of
any such lien or pledge shall be referred to herein as "Leasehold
Mortgagees".
b. A Leasehold Mortgagee or its assignee may enforce
its mortgage, lien or pledge and acquire title to the leasehold
estate or ownership or control of Lessee in any lawful way and,
pending Foreclosure of such lien, the Leasehold Mortgagee or its
assigns may take possession of and operate the Premises,
performing all obligations to be performed by Lessee. Upon
Foreclosure of such lien, the Leasehold Mortgagee or any wholly
owned affiliate of the Leasehold Mortgagee may purchase or
acquire the leasehold estate and rights hereunder or the stock or
other ownership interests of Lessee (the Leasehold Mortgagee or
any such affiliate thereof being hereinafter referred to as a
"Leasehold Mortgagee Foreclosure Purchaser"), without the consent
of the Lessor and without any obligation to comply with the
provisions of Section 11.7(d) hereof, provided that the Leasehold
Mortgagee Foreclosure Purchaser must meet the requirements of
Section 11.7(a) clauses (i), (ii), (iii) and (iv) if foreclosing
on the mortgage on the leasehold estate and meet the requirements
of Section 11.7(a) clauses (i), (ii) and (iii) if foreclosing on
a pledge of the stock or other ownership interest of Lessee.
After completion of Foreclosure, a Leasehold Mortgagee
Foreclosure Purchaser may sell and assign the leasehold estate
hereby created and the rights of Lessee hereunder, or ownership
or control of Lessee, but any purchaser or assignee must meet the
requirements Section 11.7(a) clauses (i), (ii), and (iii) and, if
transferring the leasehold estate, clause (iv) and any such sale
which occurs more than twelve (12) months after completion of
Foreclosure must comply with the provisions of Section 11.7(d)
and any such sale or transfer prior to twelve months after
completion of Foreclosure shall not be subject to the provisions
of Section 11.7(d). In addition, upon Foreclosure of a Leasehold
Mortgage, a purchaser or transferee which is not the Leasehold
Mortgagee or a wholly-owned affiliate of a Leasehold Mortgagee
shall not be subject to the provisions of Section 11.7(d) hereof,
but any future sale or transfer by such purchaser or transferee
shall be subject to Section 11.7 (d) hereof. Any Leasehold
Mortgagee Foreclosure Purchaser acquiring such leasehold estate
shall be liable to perform the obligations imposed on Lessee by
this Lease only during the period such Person has ownership of
said leasehold estate or possession of the Premises.
5.2 Notice to and Rights of Leasehold Mortgages.
a. When giving notice to Lessee with respect to any
default hereunder, Lessor shall also serve a copy of each such
written notice upon any Leasehold Mortgagee who shall have given
Lessor a written notice specifying its name and address. If
Lessee shall default in the performance of any of the terms,
covenants, agreements and conditions of this Lease on Lessee's
part to be performed, any Leasehold Mortgagee shall have the
right, within the grace period available to Lessee for curing
such default, plus such additional grace periods which may be
allotted to the Leasehold Mortgagee, to cure or make good such
default or to cause the same to be cured or made good whether the
same consists of the failure to pay rent or the failure to
perform any other obligation and Lessor shall accept such
performances on the part of any Leasehold Mortgagee as though the
same had been done or performed by the Lessee.
b. In case of a default by Lessee in the payment of
money, Lessor will take no action to effect a termination of this
Lease by reason thereof unless such default has continued beyond
forty (40) days after Lessor shall have served a copy of such
written notice upon Lessee and any Leasehold Mortgagee, it being
the intent hereof and the understanding of the parties that any
Leasehold Mortgagee shall be allowed up to, but not in excess of,
forty-five (45) days to cure any default of Lessee in the payment
of rent or in the making of any other monetary payment required
under the terms of this Lease in addition to the ten (10) days
granted to Lessee to make such payments.
c. In the case of any other default by Lessee, Lessor
will take no action to effect a termination of this Lease by
reason thereof unless Lessee or any Leasehold Mortgagee fails,
within forty-five (45) days after written notice from Lessor to
any Leasehold Mortgagee of Lessor's intention to terminate the
Lease:
(i) to commence to cure such default, if such
default is susceptible of being cured by the Leasehold Mortgagee
without the Leasehold Mortgagee obtaining possession of the
Premises;
(ii) to commence and diligently pursue efforts to
obtain possession of the Premises (including possession by a
receiver) and to cure such default in the case of a default which
is susceptible of being cured when the Leasehold Mortgagee has
obtained possession thereof; or
(iii) to institute foreclosure proceedings and
to complete such foreclosure proceedings or otherwise acquire
Lessee's interest under this Lease, or the right of possession
hereunder, with reasonable and continuous diligence in the case
of a default which is not so susceptible of being cured by the
Leasehold Mortgagee,
provided it is the intention hereof and the understanding of the
parties that any Leasehold Mortgagee shall be allowed up to, but
not in excess of, forty-five (45) days in addition to the time
period granted to Lessee pursuant to Section 9.1(b) to commence
action under Sections 5.2(c)(i)-(iii); and provided, further,
that a Leasehold Mortgagee shall not be required to continue such
possession or continue such foreclosure proceedings if the
default which prompted the service of such a notice has been
cured.
d. The time available to a Leasehold Mortgagee to
initiate foreclosure proceedings as aforesaid shall be deemed
extended by the number of days of delay occasioned by judicial
restriction against such initiation or occasioned by other
circumstances beyond the Leasehold Mortgagee's control.
e. During the period that a Leasehold Mortgagee shall
be in possession of the Premises and/or during the pendency of
any foreclosure proceedings instituted by a Leasehold Mortgagee,
the Leasehold Mortgagee shall pay or cause to be paid the rent
specified in Article III above and all other charges of
whatsoever nature payable by Lessee hereunder which have been
accrued and are unpaid and which will thereafter accrue during
said period. Following the acquisition of Lessee's leasehold
estate by the mortgagee or a Qualified Purchaser, either as a
result of foreclosure or acceptance of an assignment in lieu of
foreclosure, or the right of possession hereunder, the Leasehold
Mortgagee or party acquiring title to Lessee's leasehold estate
shall, as promptly as possible, commence the cure of all defaults
(other than money defaults, it being understood that any such
money defaults would have already been cured and that thereafter
all rent and other money items would be kept current) hereunder
to be cured and thereafter diligently process such cure to
completion, except such defaults which cannot in the exercise of
reasonable diligence be cured or performed by the Leasehold
Mortgagee or party acquiring title to Lessee's leasehold estate,
whereupon Lessor's right to effect a termination of this Lease
based upon the default in question shall be deemed waived. Any
default not susceptible of being cured by the Leasehold Mortgagee
or party acquiring title to Lessee's leasehold estate shall be,
and shall be deemed to have been waived by Lessor upon completion
of the foreclosure proceedings or acquisition of Lessee's
interest in this Lease by any Qualified Purchaser (who may, but
need not be, the Leasehold Mortgagee) at the foreclosure sale, or
who otherwise acquires Lessee's interest from the Leasehold
Mortgagee or by virtue of a Leasehold Mortgagee's exercise of its
remedies. Any such purchaser, or successor of purchaser, shall
be liable to perform the obligations imposed on Lessee by this
Lease incurred or accruing only during such purchaser's or
successor's ownership of the leasehold estate or possession of
the Premises.
f. Nothing herein shall preclude Lessor from
exercising any of Lessor's rights or remedies with respect to any
other default by Lessee during any period of any such
forbearance, subject to the rights of any Leasehold Mortgagee as
herein provided.
g. All notices by Lessor to Leasehold Mortgagees
shall be given by registered or certified mail, return receipt
requested, addressed to the Leasehold Mortgagees at the address
last specified to Lessor by the Leasehold Mortgagees, and any
such notice shall be deemed to have been given and served as
provided in Section 11.5.
h. If two or more Leasehold Mortgagees each exercise
their rights hereunder and there is a conflict which renders it
impossible to comply with all such requests, the Leasehold
Mortgagee whose Leasehold Mortgage would be senior in priority if
there were a foreclosure shall prevail. If any Leasehold
Mortgagee pays any rental or other sums due hereunder which
relate to periods other than during its actual ownership of the
leasehold estate, such Leasehold Mortgagee shall be subrogated to
any and all rights which may be asserted against Lessor with
respect to such periods of time.
5.3 New Lease if No Bankruptcy. If this Lease is
terminated or cancelled for any reason where the Leasehold
Mortgagee has not been given an opportunity to cure pursuant to
Section 5.2 and if Section 5.8 below is not applicable, any
mortgagee shall have the right, within thirty (30) days after the
receipt of notice of such termination, to demand a new Lease
covering the Premises for a term to commence on the date of
procurement by Lessor of possession of the Premises and to expire
on the same date as this Lease would have expired if it had
otherwise continued uninterrupted until its scheduled date of
termination, and containing all of the same rights, terms,
covenants, considerations, unexpired options, and obligations as
set forth in this Lease. Such new lease shall be executed and
delivered by Lessor to the Leasehold Mortgagee within thirty (30)
days after receipt by Lessor of written notice from the Leasehold
Mortgagee of such election and upon payment by the Leasehold
Mortgagee of all sums owing by Lessee under the provisions of
this Lease (less any rent and other income actually collected by
Lessor in the meantime from subtenants or other occupants of the
Premises) and upon performance by the Leasehold Mortgagee of all
other obligations of Lessee under the provisions of this Lease
with respect to which performance is then due and which are
susceptible of being cured by a Leasehold Mortgagee. After such
termination of this Lease and prior to the expiration of the
period within which the Leasehold Mortgagee may elect to obtain
such new lease from Lessor, Lessor shall refrain from terminating
any existing subleases and from executing any new subleases
without the prior written consent of all Leasehold Mortgagees,
and Lessor shall account to the Leasehold Mortgagee for all rent
collected from subtenants during such period. Any new lease
granted to a Leasehold Mortgagee shall enjoy the same priority as
this Lease over any mortgage or other lien created by Lessor, in
its capacity as Lessor, before or after the date of such new
lease.
5.4 Consent of Mortgagee. Without the prior written
consent of all Leasehold Mortgagees, neither this Lease nor the
leasehold estate created by this Lease shall be surrendered,
cancelled, modified or amended (except with respect to
termination pursuant to any eminent domain proceedings concerning
the whole of the Premises, as provided in Article VII below),
unless the mortgagee has had an opportunity to cure any default
of Lessee pursuant to Section 5.2 and has failed to do so. No
agreement purporting to surrender, cancel, terminate, modify or
amend this Lease without such consent shall be valid or
effective.
5.5 No Merger. No merger of Lessee's leasehold estate
into Lessor's fee title shall result or be deemed to result by
reason of ownership of Lessor's or Lessee's estates by the same
party or by reason of any other circumstances, without the prior
written consent of the Leasehold Mortgagee, unless such merger
results from a default by Lessee where the Leasehold Mortgagee
has been given an opportunity to cure and has failed to do so.
5.6 Financing by Lessor. Any mortgage made by Lessor
(referred to herein as "Lessor Mortgage") covering its interest
in the Premises shall be subject to the rights of Lessee and any
Leasehold Mortgagees in the Premises, as set forth in this Lease.
Lessor agrees that any such Lessor Mortgage shall include a
clause stating that such Lessor Mortgage is so subject as set
forth above, but any such Lessor Mortgage shall automatically be
subject to this Lease regardless of whether or not any such
clause is in fact included in such Lessor Mortgage. The basic
substance of the foregoing provisions shall be included in the
short form Lease described in Section 11.23. If any proceedings
are brought for the foreclosure of, or in the event of exercise
of the power of sale under, any Lessor Mortgage or if Lessor
sells, conveys or otherwise transfers its interest in the
Premises, Lessee hereby agrees to attorn to whatever party
legally succeeds to the interest of Lessor in the Premises.
5.7 [Intentionally deleted]
5.8 Option for New Lease if Bankruptcy.
a. If there is an actual or deemed rejection of the
Lease (or of the new lease hereinafter described), under any
provision of the Bankruptcy Code (Title 11, United States Code)
or any successor law having similar effect, which results in a
termination of the Lease (or such new lease), Lessor agrees that
the senior leasehold mortgagee (the "Mortgagee") shall have the
right, for a period of sixty (60) days subsequent to such
termination, to demand from Lessor a new lease of the Premises
(the "New Lease"). The New Lease shall be for a term commencing
on the date the Lease was terminated and expiring on the date
stated in the Lease as the fixed date for the expiration thereof.
The rental and all provisions, covenants and conditions of the
New Lease shall be the same as the rental, provisions, covenants
and conditions of the Lease as of the date of termination
thereof, except that the liability of the Mortgagee under the New
Lease shall not extend beyond the period of its occupancy
thereunder. As the Lessee under the New Lease, the Mortgagee
(with respect to the Lessor) shall have the same right, title and
interest in and to the buildings and improvements on the Premises
as the Lessee had under the Lease immediately prior to its
termination.
b. If the Mortgagee shall elect to demand such New
Lease, the Mortgagee shall, within such period, deliver written
notice to the Lessor of such election; and thereupon, within
fifteen (15) days thereafter, the Lessor and the Mortgagee shall
execute and deliver such New Lease upon said term, rental,
provisions, covenants and conditions, and the Mortgagee shall, at
the time of the execution and delivery of such New Lease, pay to
the Lessor all rental, charges, and taxes, owing by the Lessee to
the Lessor under the terms of the Lease immediately prior to the
termination of the Lease together with reasonable attorneys' fees
and expenses incurred by the Lessor in connection with the
rejection and termination of the Lease and the preparation,
execution and delivery of the New Lease, and all rentals, charges
and taxes owing by the Mortgagee, as lessee under such New Lease.
The Mortgagee shall also indemnify and hold the Lessor harmless
from and against all claims, damages, losses and expenses,
including reasonable attorneys' fees arising out of or in
connection with the termination of the Lease and the issuance of
the New Lease. The Lessor may, at its option, require the
Mortgagee to obtain an appropriate order from the Bankruptcy
Court.
c. The Lessor shall be under no obligation to accept
rent from or otherwise agree to an attornment from any subtenants
of the Premises whose rental agreements or subleases shall have
terminated upon the termination of the Lease. If the Mortgagee
demands such New Lease as provided herein, the New Lease will be
issued by Lessor subject to (and together with a quitclaim
assignment of Lessor's interests in) any and all subleases or
rights or tenants in possession and the Mortgagee shall have the
rights and obligations as landlord or sublessor with respect to
such sublessees or tenants and the same obligations to indemnify
and hold the Lessor harmless from any and all expenses connected
with and Claims from such sublessee or tenants, as the Lessee had
under the Lease (to the same extent and effect as if the Lease
had been assigned to the Mortgagee). The Mortgagee shall be
given credit for any net rents and income actually collected and
accepted by the Lessor from such sublessees or tenants of the
Premises.
d. Any and all mortgages, or other lien, on the
Lessor's interest in the Premises, subsequent to the date of
filing or recording, to the extent permitted by law, shall be
subject and subordinate to this Lease. Any New Lease issued
pursuant to the provisions hereof, to the extent permitted by
law, shall be superior and prior to any such mortgage or other
lien.
5.9 [Intentionally Deleted]
ARTICLE VI
Insurance
A. Insurance of Buildings.
6.1 Fire and Hazard Insurance. In order to secure the
rents due the Lessor, the Lessee shall, at its own expense, at
all times during the Term keep all buildings, other improvements
and fixtures, by whomsoever installed or constructed, existing on
the Premises on the date of the Lease or at any time thereafter,
insured against (a) the "all risks" coverage (including, if
available and without exorbitant costs, earthquake, flood,
boiler, machinery, and war insurance), and (b) such other hazards
or risks which are covered by customary insurance by similar
hotels in the area (including the Kaanapali area of Maui). All
such insurance shall be in an amount equal to the full
replacement cost of such buildings, improvements and fixtures
without deduction for depreciation, with an "agreed amount
endorsement" and with an "inflation guard" endorsement. All such
insurance shall be with an insurance company or companies
authorized to do business in Hawaii, naming Lessor, any mortgagee
of Lessor, and any mortgagee of Lessee, as additional insureds as
their interests may appear. Loss shall be adjusted with Lessee.
6.2 Payment of Insurance Proceeds. Every policy of the
insurance described in Section 6.1 shall be issued to cover and
insure all the several interests in the buildings, improvements,
fixtures and rent required to be insured in Section 6.1 of the
Lease, the Lessor and any Mortgagees under any mortgage of this
Lease, as their respective interests are defined in this section
below, and shall be made payable in case of loss or damage to the
respective parties as their interests may appear. The respective
interest of the Lessor, the Lessee and any Mortgagees in any
proceeds of the insurance required in Section 6.1 above payable
for insured loss or damage shall be fixed and determined as of
the date of such loss or damage.
6.3 Use of Insurance Proceeds. In case the buildings,
improvements or fixtures required to be insured in Section 6.1 or
any part thereof shall be destroyed or damaged by fire or such
other casualty required to be insured against, then and as often
as the same shall happen, all proceeds of such insurance shall be
available for and used with all reasonable dispatch by the Lessee
in rebuilding, repairing, replacing or otherwise reinstating the
buildings, improvements or fixtures so destroyed or damaged in a
good and substantial manner according to the plan and elevation
thereof, or according to such modified plan as shall be approved
under Section 4.1(a), and to pay the rent due the Lessor. If the
available insurance proceeds shall be insufficient for
rebuilding, repairing, replacing or otherwise reinstating such
buildings, improvements or fixtures in the manner provided in
this section above, then the Lessee shall provide the balance of
all funds required to completely rebuild, repair, replace or
otherwise reinstate such buildings, improvements or fixtures.
Lessee shall undertake promptly to reinstate the building or
buildings, or portions thereof, so destroyed or damaged according
to the original plan and elevation thereof, or according to such
modified plan as shall be approved by Lessor pursuant to Section
4.1(a). If a casualty under this Section 6.1 shall occur in the
last ten (10) years of the Term of this Lease, the Lessee shall
have the option of notifying the Lessor that the Lessee does not
intend to rebuild the buildings, improvements, or fixtures so
destroyed, but rather elects to terminate the Lease as of the
date of the casualty, by giving Lessor written notice at least
thirty (30) days after the date of the casualty, and then Lessee
will, at its own expense, pay all real property taxes and any
assessments then outstanding and shall pay over all insurance
proceeds to the Lessor, except if requested by Lessor, Lessee
shall use the insurance proceeds to promptly remove from the
Premises, all buildings, improvements and trade fixtures, and
restore the Land then remaining to good, orderly and sanitary
condition and even grade, and upon so doing the Lessee shall then
surrender any remaining balance of the insurance proceeds (if
any), surrender this Lease and Lessee shall be relieved of
further performance under this Lease. If the available insurance
proceeds shall be insufficient, then Lessee shall provide the
balance of all funds required to remove from the Premises, all
buildings, improvements and trade fixtures, and restore the Land
then remaining to good, orderly and sanitary condition and even
grade.
6.4 Uninsured Casualty and Abatement of Rent. If a portion
of the Hotel, as it exists from time to time, the value of which
exceeds ten percent (10%) of the value of the entire Hotel, shall
be rendered untenantable by casualty not required by this Lease
to be insured against, Lessee shall not have any obligation to
rebuild, repair or otherwise reinstate such buildings. If Lessee
shall undertake to reinstate the building or buildings, or
portions thereof, so destroyed or damaged according to the
original plan and elevation thereof, or according to such
modified plan, then such plans shall be subject to approval by
the Lessor pursuant to Section 4.1(a). If the Lessee does not
rebuild, repair or otherwise reinstate such buildings, Lessee
will at its own expense, pay all real property taxes and any
assessments then outstanding and, if requested by Lessor,
promptly remove from the Premises all buildings, improvements and
trade fixtures and restore the Land then remaining to good,
orderly and sanitary condition and even grade, and upon so doing
the Lessee shall then surrender this Lease and thereby be
relieved of further performance under this Lease.
B. Liability Insurance.
6.5 Lessee to Obtain Liability Insurance. The Lessee shall
maintain at its own expense during the Term a policy or policies
of comprehensive general liability insurance naming the Lessor
(and its wholly-owned subsidiaries) and the Lessee as insureds
thereunder with respect to liability for personal injury, death
and property damage arising from use, management, ownership or
occupation of the Premises in form and with coverage reasonably
satisfactory to and reasonably approved by the Lessor (including
a broad form CGL endorsement and full liquor law or dramshop
liability coverage as well as business automobile liability
coverage including non-owned and hired automobile liability
coverages), with minimum limits of not less than TWENTY-FIVE
MILLION DOLLARS ($25,000,000) for injury to more than one person
in any one accident, and for property damage in any one accident,
in any insurance company or companies authorized to do business
in Hawaii. Lessee shall periodically, but not less frequently
than annually, reevaluate the scope of the risks covered and the
liability limits of such insurance and, if necessary, increase
such coverage or liability limits in order to provide coverage of
risks and liability limits which a prudent businessman would
provide for property being put to uses similar to those of the
Premises.
C. General Insurance Requirements.
6.6 Policy Provisions. Each policy of comprehensive
general liability or hazard insurance required in parts A and B
of this Article above and in Section 4.2(d) of Article IV shall,
to the extent available and customary for hotels on Maui:
a. provide that the liability of the insurer
thereunder shall not be affected by, and that the insurer shall
not claim, any right of setoff, counterclaim, apportionment,
proration, or contribution by reason of, any other insurance
obtained by or for Lessor, Lessee, or any person claiming by,
through, or under any of them;
b. contain no provision relieving the insurer from
liability for loss occurring while the hazard to buildings,
improvements and fixtures is increased, whether or not within the
knowledge or control of, or because of any breach of warranty or
condition or any other act or neglect by, Lessor, Lessee, or any
person claiming by, through, or under any of them;
c. provide that such policy may not be cancelled,
changed or modified (except to increase coverage), whether or not
requested by Lessee, except upon the insurer giving at least
thirty (30) days' prior written notice thereof to Lessor, Lessee,
every mortgagee of any interest in the Premises, and every other
person in interest who has requested such notice of the insurer;
d. contain a waiver by the insurer of any right of
subrogation to any right of Lessor or Lessee against any of them
or any person claiming by, through, or under any of them; and
e. in the case of hazard insurance, contain a
standard mortgagee clause which shall:
(i) provide that any reference to a Mortgagee in
such policy shall mean and include all holders of mortgages of
any interests in the Premises, in their respective order and
preference as provided in their respective mortgages;
(ii) provide that such insurance as to the
interest of any Mortgagee shall not be invalidated by any act or
neglect of Lessor, Lessee or any person claiming by, through, or
under any of them; and
(iii) waive any provision invalidating such
Mortgagee clause by reason of the failure of any Mortgagee or
Lessor, Lessee, or any person claiming by, through, or under any
of them to notify the insurer of any hazardous use or vacancy,
any requirement that any Mortgagee pay any premium thereon, or
any contribution clause.
6.7 Certificates of Insurance. Lessee shall deposit and
maintain with Lessor current certificates of insurance issued by
the insurance carriers certifying that Lessee has in effect all
the insurance required in parts A and B of this Article with
certificates of renewal delivered by Lessee to Lessor at least
thirty (30) days prior to the expiration date of such policies.
All such certificates shall specify that the Lessor (and where
applicable, its wholly-owned subsidiaries) is a named insured and
that the policies to which they relate cannot be cancelled or
modified on less than thirty (30) days (or ten (10) days in the
case of failure to pay premiums) prior written notice to Lessor.
ARTICLE VII
Condemnation
7.1 Total Condemnation. If at any time during the Term,
all of the Premises shall be taken or condemned by any authority
having the power of eminent domain, then the estate and interest
of the Lessee in the Premises shall at once cease and determine.
The Term of the Lease shall cease as of the day possession is
taken by such authority and all rents shall be paid up to that
date.
7.2 Partial Condemnation.
a. Termination As To Portion. If at any time or
times during the Term any part of the Premises shall be taken or
condemned by any authority having the power of eminent domain,
then and in every such case the estate and interest of the Lessee
in any part of the Premises so taken or condemned shall at once
cease and determine, and this Lease shall terminate as to the
portion taken.
b. Continued Operations. If after a partial
condemnation, this Lease is not terminated pursuant to Section
7.2(c), then:
(i) Taking or condemnation of a part of the
Premises, whether of the Land or any buildings or improvements on
the Land, shall not affect the provisions for determination or
payment of percentage rent set forth in this Lease.
(ii) If an economically viable hotel of the same
quality at the time of any condemnation can be restored, rebuilt
or otherwise repaired on the remaining portion of the Premises at
a cost not exceeding the condemnation award paid with respect to
buildings or improvements so taken or condemned, then all such
amounts shall be available for and used with all reasonable
dispatch by the Lessee in rebuilding, repairing or otherwise
reinstating or replacing such portion of such building or
improvement taken or condemned on the balance of the Land, to the
extent of such condemnation award, in a good and substantial
manner according to such plan as shall be approved by the Lessor
in accordance with Section 4.1(a). The provisions of this
paragraph relate only to the handling of condemnation proceeds
attributable to the partial taking of any building or
improvements and do not in any way alter the provisions of
Section 7.3(a) with respect to condemnation proceeds paid for the
taking of all or any portion of the Land.
c. Termination of Lease. If only part of the
Premises shall be so taken or condemned, Lessee shall have the
right and option to terminate this Lease if:
(i) The balance of the Premises is unsuitable for
construction and operation of an economically viable hotel of the
same quality as the Hotel, or
(ii) a portion of the Hotel, as it exists from
time to time, the value of which exceeds twenty-five percent
(25%) of the value of the entire Hotel shall be taken or
condemned.
If Lessee elects to terminate, Lessee will notify Lessor and upon
such notification Lessee's obligation to pay rent shall cease,
and Lessee shall pay all real property taxes and assessments then
due and, if requested by Lessor, remove all buildings and other
improvements then remaining on the Premises and restore the Land
then remaining to good and orderly condition and even grade, and
terminate this Lease. Upon such termination the Lessee shall be
relieved of all further obligations under this Lease, the Lessor
shall refund to the Lessee any unearned portion of the rent paid
in advance prior to the effective date of such termination and
Lessee shall receive the Lessee's interest in such condemnation
compensation and damages.
7.3 Compensation and Damages.
a. Land. In every case of taking or condemnation of
all or any part of the Premises, all compensation and damages
payable for or on account of the taking of all or any part of the
Land shall be payable to and be the sole property of the Lessor,
and neither Lessee nor any mortgagee of the Lessee's interest
under this Lease shall have any interest or claim to such
compensation or damages or any part thereof whatsoever.
b. Improvements. Subject to this Section 7.3 all
compensation and damages payable for or on account of the taking
of all of any buildings and other improvements erected on the
Land and any plans and other preparations therefor shall be
payable to the Lessee and any mortgagee of the Lessee's interest
under this Lease, in accordance with their respective interests,
after deducting the Lessor's interest; provided, however, if the
mortgage was approved by the Lessor or otherwise permitted under
Section 5.1 hereof, the Mortgagee shall be entitled to be paid
the then outstanding balance of the mortgage before deducting the
Lessor's interest. The Lessor's interest therein shall be a
proportionate amount of such compensation and damages in the
ratio which the expired portion of the Term starting with the
Initial Lease Date bears to the total Term (less the portion
prior to the Initial Lease Date).
7.4 Condemnation of Leasehold Interest. In the event at
any time or times during the Term a leasehold interest in the
Premises or any part of such interest shall be taken or
condemned, then and in every such case, notwithstanding the
foregoing provisions of this Article VII, Lessee shall have the
option to terminate and/or be fully released and discharged from
all further liabilities and obligations under this Lease by
paying to Lessor all compensation and damages for the taking or
condemnation of such leasehold interest (exclusive of all
compensation and damages for any taking or condemnation of the
Hotel), or, if Lessee does not elect to terminate this Lease,
then such taking or condemnation shall not result in any
reduction in minimum or percentage rent under this Lease, nor
excuse the Lessee from the full and faithful performance of any
or all of its covenants and obligations under this Lease for the
payment of money, nor excuse or relieve the Lessee from the
performance of its covenants and obligations under this Lease
except to the extent that, and for so long as, the performance of
such covenants and obligations shall be rendered impossible by
reason of the loss by the Lessee of possession of such part of
the Premises subject to such taking or condemnation. In every
such case of taking or condemnation of all or a part of the
Lessee's leasehold interest, the Lessee shall be entitled to
claim and recover from the condemning authority its damages
sustained by reason of such taking, and all compensation and
damages payable for or on account of such taking or condemnation
of any part of such leasehold interest shall be payable to and be
the sole property of the Lessee unless Lessee elects to terminate
this Lease as set forth above.
7.5 Loss of Business Damages. Notwithstanding the
foregoing provisions of this Article VII, if and only if such
claim for damages is not adverse to any interest of Lessor, the
Lessee and/or the Hotel Operator shall have the right to claim
and recover from the condemning authority but not from the
Lessor, such compensation as may be separately awarded or
recoverable by the Lessee and/or the Hotel Operator in its own
right on account of any and all damage to its business by reason
of any condemnation and for or on account of any cost or loss to
which the Lessee and/or the Hotel Operator might be put in
removing its furnishings and equipment.
7.6 Conveyance as Condemnation. The term "condemnation" as
used in this Lease shall include any conveyance made under threat
or imminence of condemnation by any public or private authority
having the power of eminent domain.
ARTICLE VIII
Maintenance and Use of Premises
8.1 Taxes and Assessments. Lessee shall pay throughout the
Term, beginning as of the date of this Lease, directly to the
appropriate taxing or other applicable authority at least three
(3) days before the same become delinquent, all real property
taxes and assessments of every description attributable to the
Premises or any part thereof or improvement thereon, or for which
the Lessor or Lessee in respect thereof, are now or may during
the term be assessed or become liable, whether assessed to or
payable by Lessor or Lessee (with the property taxes for the
first and last Lease years prorated if applicable); provided,
however, that with respect to any assessment made under any
betterment or improvement law which may be payable in
installments, Lessee shall be required to pay only such
installments of principal and interest as shall become due and
payable during the Term. Lessee's covenant for the payment of
the taxes set forth in the preceding sentence shall include the
payment of any new tax (except federal or state net income taxes)
which supplements or replaces either the real property tax or
increases in real property taxes and is assessed upon the
Premises or any part thereof or upon the rents received under
this Lease by Lessor or upon Lessor in respect of any of the
preceding items. Lessee shall also pay the gross excise tax on
such taxes and assessments in accordance with Section 3.6.
Subject to all of the conditions set forth in this sentence,
Lessee may contest in good faith at Lessee's sole expense by
appropriate proceedings, as may be allowed by law, the validity
or amount of any tax or assessment required in this paragraph to
be paid by the Lessee, which conditions are as follows: (a) such
actions must be commenced before any such tax or assessment
becomes delinquent, (b) the action commenced by the Lessee must
be an action which either stays the collectibility of such tax or
prevents the sale of the Premises in satisfaction of such tax or
assessment or lien securing such tax or assessment, or in the
alternative to the previous two types of actions, an action in
which Lessee pays such tax or assessment while such action
ensues, (c) Lessee complies with all requirements of such action,
including but not limited to the posting of bond or payment of
such tax or assessment while such action ensues, (d) Lessee gives
notice to Lessor of Lessee's intention to contest such tax or
assessment not less than ten (10) days before such taxes or
assessments become delinquent, and (e) prior to undertaking such
action, Lessee gives security, reasonably satisfactory to Lessor
in both quality and quantity, to Lessor for payment of such
taxes; provided, however, that notwithstanding the foregoing,
Lessee shall pay all such taxes, rates, assessments or charges,
together with all interest, penalties or fines accrued thereon or
imposed in connection therewith, immediately upon the
commencement of proceedings to foreclose any lien which attached
to the Premises or any part thereof as security for such taxes,
rates, assessments or charges. If the Lessee shall fail to pay
any taxes or assessments as provided in this paragraph and elects
not to dispute such taxes or assessments in accordance with the
provisions above, then the Lessor may at any time thereafter pay
the same, together with any interest, penalties, fines and costs
accrued thereon or imposed in connection therewith, and Lessee
shall repay to the Lessor upon demand therefor the full amount so
paid by the Lessor, together with interest at Lessor's Cost of
Money accruing from the date such payments were due until Lessor
is reimbursed for such payments by Lessee.
8.2 Lessee to Pay All Rates and Charges. Lessee shall pay
directly before such charges and rates become delinquent, all
utility charges, water and sewer rates, garbage rates, Kapalua
Resort Association and Kapalua Marketing Association assessments,
and other charges and outgoings of every description attributable
to the Premises or any part thereof or improvement thereon, or
for which Lessor or Lessee in respect thereof may during the Term
be assessed or become liable, whether assessed to or payable by
Lessor or Lessee and whether such charges and rates are imposed
by governmental authority, public or private utility together
with the gross excise tax, if applicable, as required by Section
3.6. Anything in this Lease to the contrary notwithstanding,
Lessee shall not be required to pay any tax or assessment in the
nature of an income, state, or inheritance tax imposed because of
Lessor's receipt of rental payments from Lessee or because of
Lessor's ownership of the fee title to the Premises or because of
Lessor's interest in the Lease or in the Premises.
8.3 Improvements Required by Law. The Lessee shall at its
own expense during the whole of the Term of this Lease make,
build, maintain and repair all fences, roads, curbs, sidewalks,
sewers, drains, parkways and parking areas and other improvements
on the Premises which may be required by law to be made, built,
maintained or repaired upon or adjoining or in connection with or
for the use of the Premises or any part thereof except for
improvements which are to be located on property owned or leased
by others. Without limiting the foregoing sentence, Lessee
agrees that all such improvements shall be subject to the
Lessor's right of approval as provided in Article IV above.
8.4 Repair and Maintenance. In order to preserve the high
aesthetic standards in the Kapalua Resort Area, the Lessee will
at its own expense keep the Premises, all landscaping, all
structural and non-structural portions of all buildings and other
improvements existing on the Premises at any time during the
Term, in good order, condition, maintenance and repair including
without limitation (a) repainting the exterior of the Hotel as
required to maintain the appearance of the Hotel, (b) complying
with the landscaping and other maintenance requirements and
covenants imposed upon the Lessor as Grantor under the
Preservation and Conservation Easement described in Exhibit "A"
hereof, and (c) maintaining landscaping to screen the Hotel's
Aloha Pavilion from Office Road. All repairs which would
constitute Construction shall be subject to the Preconditions for
Construction in Sections 4.2(a) and 4.2(b). Repairs which
constitute Construction but which return the Premises to their
original condition and aesthetic appearance as shown in plans and
specifications previously approved by Lessor shall not require
Lessor's prior consent but shall meet without limitation the
Preconditions for Construction. Any change of color of exterior
painting of the Hotel must be approved by Lessor.
8.5 Observance of Laws. The Lessee shall during the Term
keep the Premises in a strictly clean and sanitary condition and
observe and perform all laws, ordinances, rules and regulations
whether now or hereafter made by any governmental authority for
the time being applicable to the Premises or the use thereof, and
except with respect to the negligence or willful misconduct of
Lessor or Lessor's agents, employees or contractors, Lessee shall
indemnify the Lessor against all actions, suits, claims and
damages by whomsoever brought or made by reason of the
nonobservance or nonperformance of such laws, ordinances, rules
and regulations or this covenant.
8.6 Inspection of Premises. The Lessee shall permit the
Lessor and its agents upon reasonable advance notice and at
reasonable times during the Term to enter and examine the state
of repair and condition of the Premises. If any significant
safety hazard defect comes to Lessor's attention, Lessor may give
notice of such defect to Lessee and within sixty (60) days after
such notice, Lessee shall repair and make good such defect if
required by the terms of this Lease to be repaired and made good
by the Lessee; provided, however, that if such repair or
correction may be made within a reasonable period of time but
cannot reasonably be made within sixty (60) days, then such
repair or correction shall be deemed to be made if begun within
the sixty (60) day period and thereafter continuously and
diligently undertaken to completion by Lessee. If the Lessee
shall refuse or neglect to commence and complete such repairs
within the time period provided in the preceding sentence, the
Lessor may make such repairs or cause the same to be made and
shall not be responsible to the Lessee or any persons claiming by
or through Lessee for any loss or damage that may be caused to
the property or business of the Lessee or such persons claiming
by or through Lessee by reason of such repairs, except for
Lessor's negligence or willful misconduct and if the Lessor shall
make such repairs or cause the same to be made, the Lessee shall
pay forthwith on demand to the Lessor the cost of such repairs,
with interest at Lessor's Cost of Money.
8.7 Waste and Unlawful Use. The Lessee will not make or
suffer any strip or waste or unlawful, improper or offensive use
of the Premises or any part thereof.
8.8 Use of Premises.
a. Operation of Hotel. The Lessee will use the
Premises for the purposes of, and for no other purpose than,
maintaining and operating the Hotel, the Tennis Center, and the
rental and management of villas, condominiums and apartments,
including all facilities and related commercial retail
operations, operated by Lessee or Concessionaires, reasonably
related to a resort hotel operation; provided, however, Lessee
agrees not to engage in the business of renting villas,
condominiums and apartments so long as Lessor is actually renting
villas, condominiums and apartments in the Kapalua Resort Area.
Lessee agrees that Lessee will maintain and operate a hotel at
the Premises at quality standards generally found in those full
service resort hotels in the State of Hawaii with at least a 4-
Diamond rating from the American Automobile Association as of
January 1, 1996. Lessee covenants that it will in good faith
diligently and continuously operate the Hotel in accordance with
reasonable business practices. Any commercial operations on the
Premises, whether conducted by Lessee or a Concessionaire,
involving any unreasonably noisy, dangerous or obnoxious
activities or the leasing or rental of unreasonably noisy,
dangerous or obnoxious equipment, including without limitation
water ski rides or instruction and rental of "jet skis", mopeds
or similar items, shall require the prior written approval of
Lessor and Lessor may unreasonably withhold such approval or
require the termination of any such commercial operations then in
existence on the Premises. Since only a hotel operation is
intended as aforesaid, the area on the Premises occupied by
commercial retail operations (exclusive of the area occupied by
any and all restaurants, laundries, health clubs and other
similar facilities proximately related to the operation of a
hotel to a standard provided in this Lease) shall not exceed the
initial area (plus up to ten (10%) percent more) agreed upon in
the initial construction of the Hotel. The Lessee shall use its
best efforts to ensure that any concession, commercial activity,
or other Hotel activity shall be in keeping with the first-class
image of the Kapalua Resort Area.
b. Hotel Operating Agreement. Lessee agrees that
proper management and operation of the Hotel is necessary to
maximize Lessor's percentage rent. Accordingly, Lessee shall
enter into a Hotel Operating Agreement for the management and
operation of the Hotel by Hotel Operator with the consent of
Lessor, which consent shall not be unreasonably withheld if the
Hotel Operating Agreement expressly provides that the Hotel
Operator has read this Lease and agrees to observe and where
applicable perform the terms and conditions of this Lease in
connection with the operation of the Hotel. Such agreement(s)
shall be maintained for the term of the Lease, with any successor
Hotel Operator being subject to Lessor's consent. Any amendment,
modification or replacement of the Hotel Operating Agreement such
that the amended, modified or new Hotel Operating Agreement
provides for monthly deposits into an FF&E Reserve Account or its
equivalent of an amount less than three percent (3%) of "Gross
Revenues" as defined in the Management Agreement between Ground
Lessee and The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company, L.L.C. dated January
__, 2001 from the Hotel, regardless of the identity of the Hotel
Operator, shall require the Lessor's prior written approval.
Hotel Operator shall have the right to assign its rights and
obligations under the Hotel Operating Agreement to any assignee
who (a) acquires all, or substantially all, of the assets of
Hotel Operator; (b) assumes its obligations, including those
pursuant to the Hotel Operating Agreement; (c) enters into an
agreement with Owner that the assignee will continue to operate
the Hotel as a luxury hotel as part of the ▇▇▇▇-▇▇▇▇▇▇▇ chain or
to the ▇▇▇▇-▇▇▇▇▇▇▇ Standards as defined in the Hotel Operating
Agreement or at quality standards generally found in those full
service resort hotels in the State of Hawaii with at least a 4-
Diamond rating from the American Automobile Association as of
January 1, 1996; and (d) has sufficient financial capability and
experience to carry out its obligations under the Hotel Operating
Agreement.
The following criteria shall be applied to determine the
reasonableness of Lessor in consenting to any Hotel Operator
selected by Lessee, or as to any Affiliate or any proposed
assignee selected by Hotel Operator: (a) whether as its primary
business, it owns, leases or operates any casino or gambling
facility if such business, ownership, leasing or operation might
reasonably impair the ability of the Lessee, the Hotel Operator
or their respective Affiliates, as applicable, to obtain or
retain any necessary regulatory approvals for the operation of
the Hotel; (b) whether it owns or operates a distillery, winery
or brewery or a distributorship of alcoholic beverages if such
ownership or operation might reasonably impair the ability of the
Lessee, the Hotel Operator or their respective Affiliates, as
applicable, to obtain or retain liquor licenses for the Hotel;
(c) whether it has sufficient financial capability and experience
to carry out its obligations under the Hotel Operating Agreement;
and (d) whether it has the capability to operate the Hotel to a
quality standard generally found in those full service resort
hotels in the State of Hawaii with at least a 4-Diamond rating
from the American Automobile Association as of January 1, 1996.
c. Prohibited Uses. Lessee shall not use the
Premises for commercial retail operations (except as otherwise
provided in this Lease), a realty sales office (except for a
Kapalua Land Company realty sales office) and shops selling items
bearing the Kapalua logo, which is a stylized butterfly with a
pineapple in the center, unless operated or licensed by Kapalua
Land Company. Lessee shall not use the Hotel's parking lot for
storage or stockpiling of supplies and materials.
d. Nuisance. At all times during the Term, but
especially during Quiet Hours, Lessee covenants that it will use
its best efforts to prevent the escape from the Premises of loud
noises, obnoxious bright lights, odors, dust, smoke or other
noxious agents which could disrupt the quiet, sleep and peaceful
enjoyment of the Kapalua Resort Area of guests of other hotels or
other residents of the Kapalua Resort Area.
8.9 Liens. Lessee shall keep the Premises at all times
free and clear of all liens, charges and encumbrances of every
nature, other than such mortgages as may be permitted under this
Lease, and will indemnify and save harmless the Lessor from all
loss, cost and expense, including reasonable attorneys' fees,
with respect to any such liens, charges and encumbrances.
8.10 Kapalua Resort Association. Lessee shall become a
member of the Kapalua Resort Association (the "KRA") in
accordance with KRA's articles and bylaws. As a member of KRA,
Lessee shall comply with the articles and bylaws of the KRA and
pay a pro rata portion of the annual KRA budget in monthly
installments as provided in the articles and bylaws of the KRA.
Lessor reserves all voting rights in KRA as it pertains to the
Land and Lessee shall have all voting rights in KRA as it
pertains to the Hotel (excluding the Land).
8.11 Kapalua Marketing Association. The Lessee shall become
a member of the Kapalua Marketing Association ("KMA") and shall
pay its pro rata share up to one-half percent (0.5%) of the Gross
Revenues for the applicable years as Lessee's contribution
towards KMA's annual budget so long as the Kapalua Bay Hotel is a
member of KMA and pays the same percentage of its gross revenues
(as defined under its lease).
8.12 Visitor Statistics. For purposes of Lessor's
forecasting and planning for the development of the Kapalua
Resort Area, on the 30th day of each month of the Term, Lessee
shall provide Lessor the following information regarding
operation of the Hotel for the preceding month:
a. the number of available room days at the Hotel;
b. the number of room days occupied broken down into
rented, complimentary and staff occupied categories;
c. the average occupancy rate for the hotel rooms in
the Hotel;
d. the average number of guests per room at the
Hotel; and
e. the percentage of the total number of the Hotel's
guests who are in tour groups.
Lessor shall have the right to inspect Lessee's records to verify
the information set forth above, but shall not share this
information with any other hotel in the Kapalua Resort Area or
with any other third party without Lessee's consent (except the
Hawaii Visitors Bureau, Pannell, Kerr, ▇▇▇▇▇▇▇, and similar
organizations which compile visitor statistics but without
identifying individual properties), which consent may be
unreasonably withheld by Lessee.
8.13 Covenant to Operate Hotel. Lessee understands that
Lessor's expectation of lease rent revenues, especially
percentage rent, is predicated on Lessee operating a successful
hotel on the Premises which maximizes long-term revenues.
Accordingly, Lessee covenants and agrees that it will in good
faith diligently and continuously operate (or cause to be
operated) a hotel on the Premises 365 days each year in
accordance with reasonable business practices and the standards
of Section 8.8(a) with the goal of maximizing long-term revenues.
During the time of any failure to operate continuously the Hotel,
Lessor shall, in addition to any other remedies available to it
under this Lease, be entitled to receive a rental which shall be
no less than the average of that payable during the preceding
three full Rental Years. Notwithstanding the foregoing, Lessee
shall have the right from time to time to close the Hotel or
parts thereof for such reasonable periods of time as may be
required to make repairs, alterations, remodeling, or for any
reconstruction. Lessee will use its best efforts to ensure that
any such period of time will not exceed six months with the
exception of any reconstruction of the Hotel as described in
Sections 6.3, 6.4, and 7.2, subject to any delay caused by force
majeure.
8.14 Name of Hotel. Lessee will not change the name of the
Hotel without the prior written consent of Lessor, which consent
shall not be unreasonably withheld.
ARTICLE IX
Default
9.1 Events and Consequences of Default. This Lease is
entered into upon the express condition that if any one or more
of the events of default set forth in Sections 9.1(a) through
9.1(d) shall occur, the Lessor may, subject to requirements of
notice and opportunity to cure any default to be given to
Mortgagees of the Lessee's interests under this Lease and any
subordination rights under Section 5.1 and as provided in Section
5.3 and subject to the limited liability provided in Section 9.3,
upon the occurrence of such event of default or at any time
thereafter during the continuance of such default, may then or at
any time thereafter bring an action for summary possession of the
Premises or any part thereof as provided by law, all without
prejudice to any other remedy or right of action which the Lessor
may have for arrears of rent or for any preceding or other breach
of contract. If this Lease is Filed or Recorded, such
termination of this Lease may but need not necessarily be made
effective by Filing if the Lease is Filed or Recording if the
Lease is Recorded an order of a court of the State of Hawaii
canceling this Lease. The events of default are as follows:
a. Failure to Pay Rent. (i) The Lessee shall fail to
make full payment of any payment of rent or any other payments
required under this Lease within ten (10) days after the date
such payment is due, whether such payment shall or shall not have
been legally demanded, and (ii) such payment shall not have been
cured in full together with the late payment due thereon under
Section 3.8 and the interest thereon due under Section 11.13,
within ten (10) days after written notice of such default by
Lessor to Lessee; or
b. Breach of Covenant. The Lessee shall fail to
observe or perform any of the covenants contained in this Lease
and on the part of the Lessee to be observed and performed, and
such failure shall continue for a period of thirty (30) days
after written notice of such failure given by the Lessor to the
Lessee without substantial action having been initiated by Lessee
within such period to diligently and continuously continue to
remedy such failure; or
c. Abandonment. The Lessee shall abandon the
Premises; or
d. Bankruptcy, Insolvency or Taking. The making by
Lessee of any general assignment for the benefit of creditors;
the filing by or against Lessee of a petition to have Lessee
adjudged a bankrupt or the petition for reorganization or
arrangement under any law relating to bankruptcy unless, in the
case of a petition filed against Lessee, the same is dismissed
within ninety (90) days; the appointment of a trustee or receiver
to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease,
where possession is not restored to Lessee within ninety (90)
days; or the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or
of Lessee's interest in this Lease where such seizure is not
discharged within ninety (90) days.
9.2 Acceptance of Rent Not Waiver. The acceptance of rent
by the Lessor or its agent shall not be deemed to be a waiver by
Lessor of any breach by the Lessee of any covenant contained in
this Lease or of the right of the Lessor to terminate this Lease
and reenter the Premises. The express waiver by the Lessor of
any breach shall not operate to extinguish the covenant or
condition the breach of which has been waived nor be deemed to be
a waiver by the Lessor of its right to declare a forfeiture of
this lease for any breach thereof.
9.3 Limited Liability of Lessee. Notwithstanding anything
to the contrary herein, from and after the Initial Lease Date the
Lessee shall not be responsible for any liability under this
Lease arising after any termination under Section 9.1 or any
foreclosure sale pursuant to Section 5.1 other than to bring the
rents and any other money charges current up to that date plus
one year's rent (including one year's real property taxes) based
on the rent paid for the immediately preceding full Rental Year;
or unless from and after the Initial Lease Date the Lessee shall
give Lessor at least one year's notice of its election to
terminate this Lease, in which case the Lessee shall pay the rent
and other money charges due as of that termination date and have
no future liability under this Lease. In either case, title to
the improvements on the Premises (including the Hotel, the Tennis
Center and all of the Hotel's and Tennis Center's furniture,
furnishings, equipment and at Lessor's option, any sublease,
license or contract related to the Hotel including the Hotel
Operating Agreement or to the Tennis Center) shall automatically
revert to Lessor and if requested by Lessor, the Lessee shall
quitclaim any interest it has in any such improvements on the
Premises to the Lessor and if Lessee shall refuse, then the
Lessor is hereby appointed the attorney-in-fact of the Lessee to
execute such quitclaim documents in the name of the Lessee to the
Lessor, and such power of attorney shall be deemed to be a power
of attorney coupled with an interest; and, if a casualty is
involved, Lessee shall pay over any insurance proceeds to the
Lessor. If a termination of this Lease occurs in the last twenty
(20) years of the Term, Lessor shall have the option of requiring
the Lessee to remove the improvements pursuant to Section 10.1.
ARTICLE X
Surrender
10.1 Surrender. Subject to the terms of Section 6.4 dealing
with termination of the Lease in the event of an uninsured
casualty, and Article VII, dealing with termination of the Lease
in the event of condemnation under certain conditions, at the end
of the Term or sooner termination of this Lease, the Lessee shall
peaceably deliver to the Lessor possession of the Premises.
Lessee shall, at its expense and within ninety (90) days after
the end of said Term or other termination date, at Lessor's
option, remove all buildings, improvements located on the
Premises and all debris resulting from such removal and restore
the Land to even grade and good and orderly condition, with the
Lessee receiving any salvage value of the materials if Lessee's
contractor does such removal.
ARTICLE XI
General Provisions
11.1 Beach. Lessee covenants and agrees that Lessee will,
at its cost and expense, keep the section of the Honokahua Beach
immediately fronting the Premises in a clean and orderly
condition, free of litter and rubbish to the water's edge.
11.2 Assumption of Risk. The Lessee shall and does hereby
assume all risk of loss or damage to furnishings, furniture,
fixtures, supplies, merchandise and other property, by whomsoever
owned, stored, placed or affixed in the Premises for events
occurring from the date hereof, including any damage from
construction, and does hereby agree that the Lessor shall not be
responsible for loss or damage to any such property, and except
with respect to the negligence or willful misconduct of Lessor or
Lessor's agents, employees or contractors, the Lessee hereby
agrees to indemnify and save harmless the Lessor from and against
any and all claims for such loss or damage.
11.3 Holding Over. If the Lessee shall, without the consent
of the Lessor, remain in possession of the Premises after the
expiration of the Term without executing any extension or renewal
of this Lease, Lessee shall be deemed to occupy the Premises as a
tenant from month-to-month subject to all of the terms and
conditions of the Lease, to the extent such terms and conditions
are applicable to a month-to-month tenancy except that each
month's rent shall be one twelfth (1/12) of one thousand percent
(1000%) of the amount of the annual percentage rent, if any, paid
for the year preceding the expiration date. This section shall
not apply to any reasonable extension of the Lease required by
Lessor's election to require the Lessee to remove improvements
pursuant to Section 10.1 or any other provision of this Lease.
11.4 Acceptance of Nearby or Adjacent Land Use.
a. Pineapple and Similar Agricultural Operations.
Lessee understands and agrees that Lessor's subsidiary Maui
Pineapple Company, Limited, is engaged in the operation of a
pineapple plantation and similar agricultural operations within
the areas adjacent to the Premises and that the operations,
milling and other activities incident to a pineapple plantation
or similar agricultural activities may result in the creation of
nuisances during the Term and that Maui Pineapple Company,
Limited holds a perpetual right and easement over and upon the
Premises for nuisances of every description arising from
activities incidental to the operation of a pineapple plantation
or similar agricultural activities by Haul Pineapple Company,
Limited, its successors and assigns. The Lessee shall not hold
or attempt to hold the Lessor or Maui Pineapple Company, Limited
responsible for the creation of such nuisances, arising out of or
in connection with such pineapple or similar agricultural
operations. Lessor will use its best efforts to inform the
Lessee, at Lessee's request, of any harvesting schedule for such
pineapple operations. All such pineapple operations shall be
done in accordance with applicable state and federal regulations.
b. Golf Courses. Lessee understands and agrees that
the Premises are adjacent to golf courses operated by Lessor or
its subsidiaries; that Lessee desired and sought such location
with the understanding that this location may result in nuisances
or hazards to persons and property on the Premises including
without limitation those caused by stray golf balls. Lessee
covenants that during the Term of this Lease, Lessee agrees to
such nuisances and hazards and shall assume all risks associated
with such location, including but not limited to the risk of
property damage or personal injury suffered by Lessee (but not by
a guest) arising from stray golf balls.
11.5 Notices. Any notice or demand to be given to or served
upon either the Lessor or the Lessee in connection with this Lease
shall be in writing and shall be given or served for all purposes
by being sent by certified mail, postage prepaid, return receipt
requested, addressed to such party at the following address, or
at such other post office address as such party may from time to
time designate in writing to the other party, or by being
delivered personally to any officer of such party within the
State of Hawaii, and any such notice or demand shall be deemed
conclusively to have been given or served on the date indicated
on the return receipt or upon the date of such personal delivery:
Notices to Lessor shall be sent to:
Maui Land & Pineapple Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Executive Vice President/Resort
Notices to Lessee shall be sent to:
RCK Hawaii, LLC
d/b/a RCK Hawaii-Maui
c/o Blackacre Capital Management, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
And to:
RCK Hawaii LLC d/b/a RCK Hawaii-Maui
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
11.6 Article and Paragraph Headings. The article and
paragraph headings in this Lease are inserted only for
convenience and reference and shall in no way define, limit or
describe the scope or intent of any provision of this Lease.
11.7 Assignments and Subleases.
a. Subject to Section 11.7(d), this Lease may be
assigned or transferred in whole or in part by Lessee without
Lessor's consent if:
(i) The assignee does not as its primary business own,
lease or operate any casino or gambling facility if
such business, ownership, leasing or operating might
reasonably impair the ability of the Lessee or the
Hotel Operator, as applicable, to obtain or retain
any necessary regulatory approvals for the operation
of the Hotel.
(ii) The assignee does not own or operate a distillery,
winery or brewery or a distributorship of alcoholic
beverages if such ownership or operation might
reasonably impair the ability of the Lessee or the
Hotel Operator, as applicable, to obtain or retain
liquor licenses for the Hotel.
(iii)The assignee is not considered in the relevant business
community to be engaged in criminal, dishonest, or
unethical conduct, has not been convicted of a felony
in any state or federal court, and is not in control of
or controlled by persons who have been convicted of
felonies in any state or federal court.
(iv) The assignee has a verifiable net worth, determined in
accordance with generally accepted accounting principles,
after giving effect to such transfer, of not less than the
lesser of (x)THIRTY MILLION AND NO/100 DOLLARS ($30,000,000)
(after adjustment to reflect increases after the date hereof
in the U.S. Bureau of Labor Statistics' Consumer Price Index
(CPI-U)) or (y)twenty percent (20%) of the value of the
Hotel and Lessee's interest hereunder (which, in connection
with any sale or assignment of the Hotel and Lessee's
interest hereunder, shall be equal to the purchase price, or,
in connection with a foreclosure, shall be equal to the
appraised value of the Hotel and Lessee's interest hereunder
at the time of the making of the loan), but in no event shall
such standard be less than THIRTY MILLION AND NO/100 DOLLARS
($30,000,000). For purposes of this paragraph, the term "net
worth" means total assets less total liabilities (based on
book value) of the Lessee. For purposes of determining the
net worth of a Lessee or assignee, if the Lessee or assignee
has, for tax or other legal compliance reason (such as to
comply with restrictions on real estate investment trusts or
pension funds), subleased the Premises to an Affiliate, the
net worth of the both the Lessee/assignee and its Affiliate
as subtenant shall be combined (and any inter-Affiliate debt
directly related to the Hotel excluded) so long as the
Affiliate agrees to be directly liable to the Lessor on this
Lease; it being intended that the required capitalization
need not be duplicated as a condition of a sublease to an
Affiliate.
And,
(v) The most recent Hotel Operating Agreement approved by Lessor
remains in effect after such assignment, with only such
material amendments or modification as Lessor has approved,
or a new Hotel Operating Agreement is approved by Lessor in
connection with the assignment.
Except for mortgages or pledges permitted without consent under
Section 5.1(a) or transfers pursuant to Section 5.1(b), any other
assignment, sublease, or transfer of this Lease of any kind shall
require Lessor's prior written consent, which consent shall not
be unreasonably withheld. In the event of any such other
assignment, Lessee acknowledges and agrees that Lessor may
withhold its consent to any proposed assignee that does not
satisfy the requirements of clauses (i), (ii), (iii) and (iv) of
this Section 11.7(a).
For purposes of this Lease, a change in ownership or control
of the Lessee shall be deemed to be an assignment of this Lease,
but such change of ownership or control of the Lessee shall not
require Lessor's consent if, subsequent to such change, the
Lessee continues to satisfy the requirements of clauses (i),
(ii), (iii), (iv) and (v) of this Section 11.7(a) and the
Person(s) acquiring ownership or control of the Lessee satisfy
the requirements of clauses (i), (ii), and (iii) of this Section
11.7(a). For purposes of this Lease, a change in ownership or
control includes:
(a) If the Lessee (or a multiple Lessee) is a corporation,
a change or changes in the ownership, whether voluntary,
involuntary, by operation of law, or otherwise, which
aggregates fifty percent (50%) or more of the total
capital stock of Lessee or fifty percent (50%) or more
of the voting capital stock of Lessee;
(b) If the Lessee (or a multiple Lessee) is a partnership,
any change of control, whether voluntarily, involuntarily,
by operation of law, or otherwise, including any addition
or withdrawal of a general partner of the partnership or
of any partnership which is a partner in the partnership
(including in the case of a corporate general partner, a
change of control using the test of the preceding
sentence); and
(c) If the Lessee (or a multiple Lessee) is a limited
liability company, any change in control of the Lessee,
whether voluntarily, involuntarily, by operation of law,
or otherwise, including, without limitation, the transfer
of fifty percent (50%) or more of the interest(s) of the
member(s) of the company in the company's capital or
profits (whether accomplished by the sale, transfer or
exchange of interests or by the admission of new members)
and any change or change in control of a managing
member of the Company.
Notwithstanding any of the foregoing, Lessor acknowledges and
agrees that changes in ownership of Capital Hotel Investments,
LLC shall not require Lessor's consent and shall not be subject
to Section 11.7(d) so long the Lessee, after such transfer,
continues to satisfy the requirements of clauses (i), (ii),
(iii), (iv), and (v) of this Section 11.7(a).
Any Person who satisfies the requirements for assignment
without Lessor's consent under clauses (i), (ii), and (iii), and
if applicable (iv) and (v) of this Section 11.7(a), or to whom
Lessor otherwise consents in writing, shall be considered a
"Qualified Purchaser."
The consent by Lessor, if required, to one assignment,
subletting, mortgage, pledge, hypothecation or encumbrance shall
not be deemed to be a consent to any further assignment,
subletting, mortgage, pledge, hypothecation or encumbrance for
which consent is required. In the absence of an express
agreement in writing to the contrary and executed by Lessor or
except as otherwise provided herein, no assignment, mortgage,
pledge, hypothecation, encumbrance, subletting or license hereof
or hereunder shall act as a release of Lessee from any of the
provisions, covenants and conditions of this Lease on the part
of Lessee to be kept and performed, the assignor shall remain
primarily liable hereunder and any amendment of this Lease
subsequent thereto shall not release the assignor or sublessor
from said liability.
b. Lessee shall be entitled to assign and transfer
this Lease to any corporation or entity that is an Affiliate of
Lessee or (subject to obtaining consent required in connection
with any change of ownership or control that constitutes an
assignment pursuant to Section 11.7(a)) to the surviving
corporation in the event of a consolidation or merger to which
Lessee shall be a party; provided, however, that such subsidiary,
affiliated firm or surviving corporation shall in writing
expressly assume all of the provisions, covenants and conditions
of this Lease on the part of Lessee to be kept and performed; and
provided, further, that no such assignment or transfer shall act
as a release of Lessee from any of the provisions, covenants and
conditions of this Lease on the part of Lessee to be kept and
performed.
c. Except as provided in Section 5.1 or otherwise
herein, any assignment, mortgage, pledge, hypothecation,
encumbrance, subletting or license of this Lease, the leasehold
estate hereby created, or the Premises or any portion thereof,
either voluntary or involuntary, whether by operation of law or
otherwise, without the prior required written consent of Lessor,
shall be null and void, and shall at the option of Lessor
terminate this Lease.
d. (i) Except as provided in Section 5.1, if at any
time Lessee intends to sell, assign or transfer the Hotel and/or
this Lease, or any portion which is fifty percent (50%) or more
thereof, Lessee shall give written notice of such intention
stating Lessee's intention to sell, assign or transfer the Hotel
and/or this Lease to (i) Maui Land & Pineapple Company, Inc., so
long as Maui Land & Pineapple Company, Inc., is the owner of the
Premises at such time written notice of such intention stating
Lessee's intention to sell, assign or transfer the Hotel and/or
this Lease is given and (ii) The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company,
L.L.C. so long as The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company, L.L.C. is the
Hotel Operator at such time written notice of such intention
stating Lessee's intention to sell, assign or transfer the Hotel
and/or this Lease is given. Within fourteen (14) days of receipt
of such written notice from Lessee stating Lessee's intention to
sell, assign or transfer the Hotel and/or this Lease, Maui Land &
Pineapple Company, Inc. shall provide written notice of its
desire to negotiate with Lessee for the sale, assignment or
transfer of the Hotel and/or this Lease to Maui Land & Pineapple
Company, Inc. If no such written notice from Maui Land &
Pineapple Company, Inc. stating its desire to negotiate with
Lessee for the sale, assignment or transfer of the Hotel and/or
this Lease is received by Lessee in such fourteen (14) day period
then Lessee shall be entitled, at any time after such failure, to
sell, assign or transfer the Hotel and/or this Lease to any other
party. Maui Land & Pineapple Company, Inc. understands,
acknowledges and agrees that notwithstanding Maui Land &
Pineapple Company, Inc.'s decision to negotiate with Lessee for
the sale, assignment or transfer of the Hotel and/or this Lease,
The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company, L.L.C. will have the same rights,
including the same time period, to elect to negotiate (perhaps in
addition to Maui Land & Pineapple Company, Inc.) with Lessee for
the sale, assignment or transfer with respect to the Hotel of the
Hotel and/or this Lease.
(ii) If Maui Land & Pineapple Company, Inc. elects
to enter into negotiations with Lessee for the sale, assignment
or transfer of the Hotel and/or this Lease and provides written
notice to Lessee within such fourteen (14) day period, the
parties shall enter into good faith negotiations for the sale,
assignment or transfer of the Hotel and/or this Lease. The
Lessee shall promptly, upon request, provide Maui Land &
Pineapple Company, Inc. such due diligence materials, including
operating statements, contracts and other materials with respect
to the Hotel as may be reasonably requested by it (collectively
"Due Diligence Materials") and shall afford Maui Land & Pineapple
Company, Inc. and its representatives and agents the opportunity
to inspect and investigate the Hotel, subject to customary
indemnification during the period beginning on the date Lessee
gives notice to Maui Land & Pineapple Company, Inc. of its intent
to sell, assign or transfer the Hotel and/or this Lease or any
portion which is fifty percent (50%) or more thereof and ending
thirty (30) days after the date of Maui Land & Pineapple Company,
Inc.'s notice provided for in the following sentence. Within
thirty (30) days from the date of Maui Land & Pineapple Company,
Inc.'s written notice to Lessee of its desire to negotiate with
Lessee for the sale, assignment or transfer by Lessee of the
Hotel and/or this Lease, Maui Land & Pineapple Company, Inc.
shall submit in writing to Lessee a firm and binding offer by
Maui Land & Pineapple Company, Inc. of the terms and conditions
of a proposed sale, assignment or transfer of the Hotel and/or
this Lease by Lessee to Maui Land & Pineapple Company, Inc. (the
"Maui Land & Pineapple Company, Inc.'s Offer"). Maui Land &
Pineapple Company, Inc.'s Offer shall include, at a minimum, (i)
the purchase price of the proposed sale, assignment or transfer
which purchase price shall be paid by cash or cash equivalent,
(ii) closing date, (iii) due diligence period, (iv) any and all
contingencies or conditions which must be completed by Lessee
prior to the closing date or any date prior to the closing date
and (v) a representation that Maui Land & Pineapple Company,
Inc.'s Offer will remain firm and binding on Maui Land &
Pineapple Company, Inc. for a period of thirty (30) days from the
day of receipt of Maui Land & Pineapple Company, Inc.'s Offer.
Maui Land & Pineapple Company, Inc. understands, acknowledges and
agrees that notwithstanding Maui Land & Pineapple Company, Inc.'s
Offer, The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company, L.L.C. will have the same
rights, including the same time period, to submit a firm and
binding offer (the "RC's Offer"). Lessee, in its sole and
absolute discretion, shall determine whether to accept Maui Land
& Pineapple Company, Inc.'s Offer. Lessee shall be under no
obligation to accept either Maui Land & Pineapple Company, Inc.'s
Offer or RC's Offer. However, if Lessee selects either Maui Land
& Pineapple Company, Inc.'s Offer or RC's Offer then the other
party's offer is deemed rejected by Lessee.
(iii) If no written acceptance of Maui Land &
Pineapple Company, Inc.'s Offer is received by Maui Land &
Pineapple Company, Inc. in the thirty (30) day period following
Lessee's receipt of Maui Land & Pineapple Company, Inc.'s Offer,
Lessee is deemed to reject Maui Land & Pineapple Company, Inc.'s
Offer. Upon the earlier of (i) such thirty (30) day period or
(ii) written notice by Lessee to Maui Land & Pineapple Company,
Inc. that Lessee rejects Maui Land & Pineapple Company, Inc.'s
Offer (the "Lessee's Review Period"), Lessee may proceed to sell,
assign or transfer the Hotel and/or this Lease to any other party
subject to the following terms and conditions.
(iv) If Lessee rejects both Maui Land & Pineapple
Company, Inc.'s Offer and RC's Offer, Lessee may sell, assign or
transfer or agree to sell, assign or transfer to a third party
provided that such third party sale is completed within fifteen
(15) months following the end of the Lessee's Review Period, and
provided, further, that, subject to the terms set forth below,
the purchase price paid by such third party (which shall be paid
in cash or cash equivalent) is no less than ninety-five percent
(95%) of the highest purchase price of either Maui Land &
Pineapple Company, Inc.'s Offer or RC's Offer (the "Best Offer")
(provided that if the consideration is payable over time then
such consideration (inclusive of interest payments) shall be
adjusted using a discount rate of ten percent (10%) to reflect
differences in payment dates). If Lessee enters into a binding
purchase and sale agreement subject to arms length conditions and
contingencies ("Third Party Sale Agreement"), with an original
stated purchase price (which shall be paid in cash or cash
equivalent) of not less than ninety-five percent (95%) of the
purchase price contained in the Best Offer (provided that if the
consideration is payable over time then such consideration
(inclusive of interest payments) shall be adjusted using a
discount rate of ten percent (10%) to reflect differences in
payment dates), neither Maui Land & Pineapple Company, Inc. nor
The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company, L.L.C. shall have any right to
purchase as contained herein, provided that the closing under the
Third Party Sale Agreement occurs not later than fifteen (15)
months following the end of the Lessee's Review Period.
(v) If Lessee desires to accept a purchase offer
from a third party (a "Third Party Offer") that has a cash or
cash equivalent purchase price that is less than ninety-five
percent (95%) of the purchase price contained in the Best Offer
(provided that if the consideration is payable over time then
such consideration (inclusive of interest payments) shall be
adjusted using a discount rate of ten percent (10%) to reflect
differences in payment dates), the entity offering the Best Offer
(the "Best Offer Entity") shall have the right within thirty (30)
days after receipt of written notice from Lessee to conduct due
diligence and to elect to purchase the Hotel and/or Lease (as the
case may be) (the "Best Offer Entity Review Period") on terms
identical to those set forth in the Third Party Offer as set
forth in the notice from Lessee, with no exception unless
expressly agreed by Lessee in its sole and absolute discretion;
provided, however, (i) in no event shall Best Offer Entity's
right to purchase the Hotel and/or the Lease (as the case may be)
contain a due diligence period or contingency (it being
understood that the Best Offer Entity shall have the opportunity
to conduct due diligence during the Best Offer Entity Review
Period), and the closing under such right to purchase shall occur
no later than thirty (30) days from Best Offer Entity's written
election to purchase, and (ii) that if any of the terms and
conditions of the proposed transfer are not reasonably
susceptible of performance by the Best Offer Entity (for example,
third party guarantees of debt, property exchanges, stock
exchanges, etc.), Lessee shall, in its notice to the Best Offer
Entity, propose alternative terms and conditions of Lessee which
are the substantial economic equivalent of such terms and
conditions and which reasonably can be expected to be performed
by the Best Offer Entity. During the thirty (30) day period
after receipt of written notice as aforesaid, the Lessee shall,
upon request, provide the Best Offer Entity with updated Due
Diligence Materials and an opportunity to further inspect and
investigate the Hotel, subject to customary indemnification. If
the Best Offer Entity timely elects to purchase the Hotel and/or
Lease (as the case may be) within the Best Offer Entity Review
Period then upon acceptance, the Best Offer Entity shall deposit,
with an escrow company in the State of Hawaii mutually acceptable
to the Best Offer Entity and Lessee, a sum of TEN MILLION DOLLARS
($10,000,000) which shall be nonrefundable if the transaction
with the Best Offer Entity fails to close as the result of a
breach by the Best Offer Entity of any term or condition of the
purchase agreement (or any alternate term or condition as set
forth above). In the event of such failure to close by the Best
Offer Entity, its rights under this Section 11.7(d) are null and
void.
(vi) If the Best Offer Entity fails to give
written notice of the Best Offer Entity's election to purchase
within the Best Offer Entity Review Period or fails to provide a
deposit of TEN MILLION DOLLARS ($10,000,000) within the Best
Offer Entity Review Period, Lessee shall be entitled to sell,
assign or transfer the Hotel and/or this Lease to any third party
at a purchase price which is no less than ninety-five percent
(95%) of the purchase price contained in the "Third Party Offer"
(provided that if the consideration is payable over time then
such consideration (inclusive of interest payments) shall be
adjusted using a discount rate of ten percent (10%)) and
otherwise upon the terms and conditions set forth in the Third
Party Offer within fifteen (15) months following the end of the
Lessee's Review Period.
(vii) If the third party transaction to which
Lessee's notice to the Best Offer Entity applied does not close
for any reason then Lessee shall have the remainder of the
fifteen (15) months from the end of Lessee's Review Period to
sell, assign or transfer or agree to sell, assign or transfer to
another third party; provided that such third party sale is
completed within fifteen (15) months following the end of
Lessee's Review Period, and provided, further, that, subject to
the terms set forth below, the purchase price paid by the third
party (which shall be paid in cash or cash equivalent) is no less
than (a) ninety-five percent (95%) of the highest purchase price
of the Best Offer Entity (with an adjustment of the consideration
(inclusive of interest) if payable over time, using a discount
rate of ten percent (10%)), or (b) ninety-five percent (95%) of
the purchase price contained in the Third Party Offer (with an
adjustment of the consideration (inclusive of interest) if
payable over time, using a discount rate of ten percent (10%)),
whichever is less. If no sale, assignment or transfer of the
Hotel and/or this Lease is completed within fifteen (15) months
following the end of Lessee's Review Period, then, subject to the
above provisions, the rights of Maui Land & Pineapple Company,
Inc. and The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company, L.L.C. under this
Section 11.7(d) shall commence again if any time after the end of
the fifteen (15) months following the end of Lessee's Review
Period, Lessee intends to sell, assign or transfer the Hotel
and/or the Lease or any portion thereof.
(viii) Within five (5) days of executing a
letter of intent with a prospective purchaser, Lessee shall
notify Maui Land & Pineapple Company, Inc. of the identity of
such prospective purchaser.
(ix) Maui Land & Pineapple Company, Inc.
understands, acknowledges and agrees that the provisions of this
Section 11.7(d) are for the benefit of only Maui Land & Pineapple
Company, Inc. so long as Maui Land & Pineapple Company, Inc. is
the fee simple owner of the Premises and/or The ▇▇▇▇-▇▇▇▇▇▇▇
Hotel Company, L.L.C. so long as The ▇▇▇▇-▇▇▇▇▇▇▇ Hotel Company,
L.L.C. is the Hotel Operator, and the provisions of this Section
11.7(d) shall not inure to the benefit of its successors or
assigns unless agreed to otherwise by Lessee in its sole
discretion.
e. Notwithstanding the foregoing, Lessee may, without
the consent of Lessor, operate the Hotel as a hotel and license,
sublease or enter into concession agreements for use of a portion
of the Premises for commercial use normally found in hotels in
accordance with this Lease but in compliance with Section 8.8(a).
11.8 Attorneys' Fees. If any action, suit or proceeding is
brought by any party hereto with respect to this Lease, the
prevailing party in any such action, suit or proceeding shall be
entitled to recover from the other party or parties, in addition
to such other relief as the court may award, all reasonable
attorneys' fees and costs of suit incurred by the prevailing
party in connection with such action, suit or proceeding.
11.9 Indemnity.
a. Lessee shall defend, indemnify and hold the Lessor
harmless from and against any and all claims and demands for loss
or damage, including claims for property damage, personal injury
or wrongful death, arising out of or in connection with the use
or occupancy of the Premises by the Lessee or any other person
claiming by, through or under Lessee, or any accident or fire on
the Premises, or any nuisance made or suffered thereon, or any
failure of the Lessee to maintain the Premises in a safe
condition, and the Lessee shall reimburse the Lessor for all
costs and expenses, including reasonable attorneys' fees, paid or
incurred by the Lessor in connection with defense of any such
claims, including but not limited to all costs of Lessor's
defense to any such claim or in any such action as well as all
costs for research regarding settlement or other preventive
measures which Lessor may take prior to the filing of such action
or to attempt to prevent the filing of such an action.
▇. ▇▇▇▇▇▇ shall defend, indemnify and hold the Lessee
harmless from and against any and all claims and demands for loss
or damage, including claims for property damage, personal injury
or wrongful death, arising out of or in connection with the use
or occupancy of the Premises by the Lessor or any other person
claiming by, through or under Lessor, or any accident or fire on
the Premises, or any nuisance made or suffered thereon, or any
failure of the Lessor to maintain the Premises in a safe
condition, and the Lessor shall reimburse the Lessee for all
costs and expenses, including reasonable attorneys' fees, paid or
incurred by the Lessee in connection with defense of any such
claims, including but not limited to all costs of Lessee's
defense to any such claim or in any such action as well as all
costs for research regarding settlement or other preventive
measures which Lessee may take prior to the filing of such action
or to attempt to prevent the filing of such an action.
11.10 Multiple Lessees. If more than one Lessee is
entering into this Lease, then all such Lessees shall be jointly
and severally bound by the Lessee's covenants in this Lease and
any notice given to any one such Lessee by Lessor shall be deemed
to be notice upon all such Lessees.
11.11 No Increase of Lessee's Estate. Lessee hereby
waives and relinquishes any and all rights given to a lessee
under Chapter 516 of the Hawaii Revised Statutes (1968), as
amended from time to time, or any similar law which may be
enacted at any time during the Term giving Lessee the right to
expand Lessee's leasehold estate under this Lease, which the
Lessee would not have under the terms of this Lease in the
absence of such chapter or such law, it being understood and
agreed by and between Lessor and Lessee that the provisions of
such chapter or such law shall not apply to this Lease. Any
attempt by Lessee or any person claiming by or through Lessee to
expand its estate under this Lease pursuant to such chapter or
such law shall be a breach of this Lease.
11.12 Calendar Periods. Unless explicitly provided
otherwise in this Lease, all references in this Lease to periods
of time, including without limitation days, months, quarters, and
years, shall mean calendar periods of time.
11.13 Interest on All Late Payments. All payments
required to be made by Lessee to Lessor or by Lessor to Lessee
under this Lease which are not paid within ten (10) days of the
due date for such payments required in the Lease shall bear
interest at a rate equal to Lessor's Cost of Money accruing from
the due date until such overdue payments are paid in full.
11.14 Neither Lessor nor Lessee Deemed Drafter. All
provisions of this Lease have been negotiated by Lessor and
Lessee at "arm's length" and with full representation of their
respective legal counsel and Lessor and Lessee agree that neither
party shall be deemed to be the drafter of this Lease and further
that in the event that this Lease is ever construed by a court of
law, such court shall not construe this Lease or any provision of
this Lease against either party as the drafter of the Lease.
11.15 Successors and Assigns. All the terms, covenants
and conditions of this Lease shall inure to the benefit of and be
binding upon the successors and permitted assigns of the Lessor
and Lessee to the same extent as said terms, covenants and
conditions inure to the benefit of and are binding upon the
Lessor and the Lessee, respectively.
11.16 Lessor's Right to Sell Fee. Subject to the right
of first refusal contained in Section 12.1, Lessee agrees that
nothing in this Lease shall be construed to prevent the Lessor
from selling, assigning or otherwise transferring all or any part
of the Lessor's fee simple interest in the Premises subject to
this Lease. In the event of Lessor's transfer of all of Lessor's
fee simple interest in the Premises subject to this Lease, Lessee
agrees that, so long as the assignee assumes in writing this
Lease, any and all obligations of Lessor under this Lease not
then accrued shall terminate upon the effective date of such sale
and Lessee hereby releases Lessor from any obligations or
covenants under this Lease which have not accrued prior to such
effective date.
11.17 Entire Agreement. This Lease constitutes the full
and complete agreement of Lessor and Lessee and all other prior
oral and written agreements shall be deemed to have merged into
this Lease and have no further force or effect. This Lease may
be amended only in writing, signed by both Lessor and Lessee.
11.18 Consent. Where the consent or approval of the
Lessor or Lessee is required by any provision of this Lease, all
such approvals or consents shall be in writing and unless
expressly so provided to the contrary, such consent shall not be
unreasonably withheld or delayed.
11.19 Amendment. This Lease may only be amended in
writing executed by both Lessor and Lessee.
11.20 Estoppel Certificates. Within ten (10) days of
written notice from Lessor or Lessee, Lessor or Lessee shall
execute, acknowledge and deliver to the other a statement in
writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is
in full force and effect) and the date to which the rent and
other charges are paid in advance, if any, and (ii) acknowledging
that there are not, to the other's knowledge, any uncured
defaults on the part of the other hereunder, or specifying such
defaults if any are claimed, such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the
Premises.
11.21 Time of the Essence. Time is of the essence of
this Lease.
11.22 Conveyance and Hotel Room Taxes. Lessee shall be
responsible for paying any conveyance tax that may be required to
be paid as a result of this Lease and any hotel room taxes
(including but not limited to taxes under the Hawaii Transient
Accommodations Tax Law).
11.23 Short-Form Lease. Lessor and Lessee shall execute
and Record or File a short form of this Lease at the same time as
this Lease is executed.
ARTICLE XII
Special Provisions
12.1 Lessee's Right of First Refusal.
a. Sale of Fee Simple Title and/or Lease. If at any
time the Lessor shall receive an offer to purchase the fee simple
title to the Premises and/or its interest in this Lease, and the
Lessor intends to accept such offer, or Lessor otherwise intends
to sell, assign, or transfer the fee simple title and/or its
interest in the Lease (other than by way of Lessor's Mortgage,
which pursuant to Section 5.6 shall be subject to the rights of
Lessee under this Section 12.1), then the Lessor shall give
Lessee written notice of such offer or intention stating (i)
Lessor's intention to sell, assign or transfer the Premises
and/or this Lease to such purchaser and (ii) all of the terms and
conditions of such offer, proposal or agreement; if Lessor has a
proposed written agreement or offer, Lessor shall include a copy
of such agreement or offer with such notice to Lessee. If any of
the terms and conditions of the proposed transfer are not
reasonably susceptible to performance by Lessee (for example,
third-party guarantees of debt, property exchanges, stock
exchanges, etc.), Lessor shall, in its notice to Lessee, propose
alternative terms and conditions which are the substantial
economic equivalent of such terms and conditions and which
reasonably can be expected to be performed by Lessee. Lessee
shall have the right within sixty (60) days after receipt of such
notice within which to elect to purchase the Premises and/or this
Lease (as the case may be) on terms identical (or alternate terms
and conditions as set forth above) to those set forth in the
notice from Lessor; with the only exception that the consummation
of Lessee's purchase from Lessor shall occur on the later of the
sixtieth day following the date of Lessee's acceptance or the
date set forth in Lessor's notice to Lessee. If Lessee fails to
give notice of Lessee's election to purchase within sixty (60)
days of receipt of Lessor's notice or elects not to so purchase,
Lessor shall be entitled, at any time after such failure or
election, to sell the Premises and/or this Lease (as provided in
Lessor's notice to Lessee) to the purchaser with respect to whom
Lessor's notice to Lessee applied and upon the terms and
conditions set forth in such notice within one hundred twenty
(120) days after such failure of or election by Lessee, subject
to Lessee's consent as set forth above. Lessor may not, however,
sell or agree to sell during that 120-day period or thereafter to
a purchaser on more favorable terms and conditions without
offering the more favorable terms and conditions to Lessee again
under this paragraph.
b. Sale of Interests in Addition to Fee Simple Title
and/or Lease. Lessor agrees that if the offer to purchase and/or
intent to sell the fee simple title to the Premises and/or
Lessor's interest in this Lease is part of a transaction which
includes the sale, assignment, transfer or conveyance of any
other interest (whether real or personal property or intangible),
Lessor will offer the fee simple title to the Premises and/or
Lessor's interest in this Lease to Lessee as a separate and
independent transaction from any other interests which Lessor
intends to sell, assign, transfer or otherwise convey; provided,
however, that neither this Section 12.1(b) nor Section 12.1(a)
shall apply if the fee simple title to the Premises and/or
Lessor's interest in this Lease is sold, assigned, transferred or
conveyed as part of a sale, assignment, transfer or conveyance of
the interests of Lessor and/or its Affiliates in multiple
parcels, and such transaction involves in the aggregate one-half
or more of the total number of acres of real property within the
Kapalua Resort Area to which Maui Land & Pineapple Company and/or
its Affiliates held fee simple title as of December 31, 1995.
The purchase price for the separate and independent interest in
the fee simple title to the Premises and/or Lessor's interest in
this Lease shall be the lesser of (i) the price allocated by the
proposed transaction to the fee simple title to the Premises
and/or Lessor's interest in this Lease as part of an offer
involving more than the sale of such interest or (ii) the fair
market value of the fee simple title to the Premises and/or
Lessor's interest in this Lease as determined by appraisal.
Lessee shall notify Lessor of its intent to proceed to appraisal,
and Lessor and Lessee shall each, within twenty (20) days of
Lessee's notification to Lessor of Lessee's intent to proceed to
appraisal, appoint an Appraiser who is a Member of the
Appraisers' Institute. The Appraiser appointed by Lessor shall
be referred to as "Lessor's MAI" while the Appraiser appointed by
Lessee shall be referred to as "Lessee's MAI." Lessor's MAI and
Lessee's MAI shall then determine the fair market value of
Lessor's fee estate in the Premises for the purpose set forth
herein. If within fifteen (15) days following the appointment of
Lessor's MAI and Lessee's MAI, Lessor's MAI and Lessee's MAI are
unable to agree on the fair market value of Lessor's fee estate
in the Premises, then the Lessor and Lessee shall within ten (10)
days appoint a third appraiser who is a Member of the Appraisers'
Institute ("Joint MAI"), and the majority of Lessor's MAI,
Lessee's MAI, and Joint MAI shall determine the fair market value
of Lessor's fee estate in the Premises within fifteen (15) days
of the appointment of the Joint MAI. If either the Lessor or the
Lessee fails or refuses to appoint their respective Appraiser
within the time provided aforesaid, the other party shall appoint
the two Appraisers who shall then determine the value of this
Lease. If either the Lessor or the Lessee fails or refuses to
appoint a Joint MAI as aforesaid, the Lessee shall apply to the
Court having proper jurisdiction over this subject matter for the
appointment of such Joint MAI who shall also be a Member of the
Appraisers' Institute whereupon the majority of the three so
appointed shall determine the fair market value of Lessor's fee
estate in the Premises. The Appraisers shall reduce to writing
and deliver to each party a statement of the fair market value of
the Lessor's fee estate in the Premises and such value shall
serve as fair market value of the Lessor's fee estate in the
Premises for any excess proceeds. Lessor and Lessee shall each
pay for the cost of their respective appraiser and shall each pay
one-half (1/2) of the cost of the Joint MAI, if such appraiser is
needed.
For the purposes of this Section 12.1, any offer or sale,
assignment or transfer by Lessor to any Affiliate of Lessor shall
not be subject to Lessee's right of first refusal.
12.2 Non-Competition. Lessor shall not itself develop, or
permit a third party to develop, another luxury oceanfront hotel
within the Kapalua Resort Area within ten (10) years after the
Initial Lease Date, except for: (a) the Kapalua Bay Hotel site
(including the existing hotel, any expansions, replacements or
the like), (b) the adjacent Site 29 property; and (c) specialized
housing such as for a health spa, international center not
containing a luxury oceanfront hotel, and similar developments
including condominium projects.
12.3 Signage. During the Term hereof, Lessor shall use its
best efforts to cause KRA (or where it is in Lessor's control) to
erect and maintain within the Kapalua Resort Area appropriate
directional signage for the Hotel as reasonably requested by the
Lessee. To the extent controllable by Lessor, such rights shall
not be subject to termination by a transfer of the rights of the
Lessor. Any such signage shall be in compliance with KRA
regulations and any applicable government rules and regulations
and shall be compatible with the signage theme in the Kapalua
Resort Area.
12.4 No License of Butterfly Logo. Lessor does not grant to
Lessee or the Hotel Operator any right or license, non-exclusive
or otherwise, to use the butterfly logo depicted on Exhibit "C"
of the Golf Course Use Agreement in connection with the
operation, advertising and promotion of the Hotel or any
condominium units in the Kapalua Resort Area owned or managed by
the Lessee or the Hotel Operator and/or the merchandising,
manufacture, promotion, sale and distribution of goods or
services related thereto, at the Hotel or such condominium units,
or in connection with anything else. Any such license shall be
in the sole and absolute discretion of the Lessor and neither the
Lessee nor the Hotel Operator shall use the butterfly logo
without the prior written consent of the Lessor, which consent
may be unreasonably and arbitrarily withheld.
12.5 Additional Parking Spaces. Lessee shall have the
right, for the Term hereof, to use the thirty (30) parking spaces
within the parking lot on Lot 1B, as described in Exhibit "A"
(the "Off-Site Parking Spaces") shown on the map of the parking
lot attached hereto as Exhibit "B" and made a part hereof.
Lessor and Lessee shall mutually agree upon the location of signs
and markings to identify the same.
Throughout the Term, Lessee shall have first priority to use
the Off-Site Parking Spaces for hotel parking only. At such time
that Lessee chooses to exercise its right to utilize the Off-Site
Parking Spaces, Lessee shall provide the Lessor with prior
written notice of its intent to do so and shall specify the
commencement date of its use. At all times that Lessee uses the
Off-Site Parking Spaces, certain sections of the Ground Lease
listed below shall apply to Lessee's use provided, however, that
the interpretation and application of such sections shall be
modified by substituting the term "Off-Site Parking Spaces" in
place of the term "Premises" in each provision and by the fact
that the parties have agreed that Lessor, and not Lessee, shall
bear the obligation, at Lessor's sole expense, to repair and
maintain the Off-Site Parking Spaces in good order and condition.
Section 8.7, Waste and Unlawful Use, Section 8.9, Liens, and
Section 11.9, Indemnity, of the Ground Lease, modified as
hereinbefore described, shall apply to the Off-Site Parking
Spaces during any period that Lessee exercises its right to use
the Off-Site Parking Spaces. In addition, during any period that
Lessee exercises its right to use the Off-Site Parking Spaces,
Lessee shall add the Off-Site Parking Spaces to the areas covered
by the comprehensive general liability insurance policy that
Lessee is required to maintain under Section 6.5 of the Ground
Lease and shall provide the Lessor with evidence of such
insurance coverage.
It is understood and agreed that Lessee may for a period of
time terminate its use of the Off-Site Parking Spaces by
providing written notice to Lessor of its intent to do so and
that Lessee shall also have the right from time to time during
the Term of the Ground Lease to re-commence its use of the Off-
Site Parking Spaces in the same manner and on the same conditions
as described herein above. It is further understood and agreed
that during any period that Lessee chooses not to exercise its
right to utilize the Off-Site Parking Spaces, Lessor may use the
Off-Site Parking Spaces for resort parking.
IN WITNESS WHEREOF, the Lessor and Lessee have caused
these presents to be executed as of the day and year first above
written.
MAUI LAND & PINEAPPLE COMPANY, RCK HAWAII, LLC dba RCK
INC., Lessor HAWAII-MAUI, Lessee
By BCM/CHI RCK Kapalua, Inc.
its sole member
By /S/▇▇▇ ▇▇▇▇▇ By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Executive Vice President/Resort Its President