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L E A S E
1. Premises. H.O.S. Partnership, (Hereinafter called Landlord)
hereby leases to Hawaiian Vintage Chocolate Company, (hereinafter called
Tenant) the subject premises which are owned by Landlord, described as a
2,000 square foot retail space at 1505 N. Veterans Parkway, Unit B,
Bloomington, McLean County, State of Illinois.
2. Useof Premises. Tenant shall use and occupy the premises for full
chocolatier Dessert shop featuring Hawaiian Vintage Chocolate products,
Hawaiian Vintage Estate Coffee and Espresso, Hawaiian Vintage cakes/pastries
/baked goods, ice creams, shakes and smoothies, assorted treats, gift baskets,
and pre-packaged gift items and accessories and for other such purposes as are
usual in connection therewith and for any other lawful purpose. Tenant's use
of the premises shall not violate any ordinance, law or regulations of any
governmental body, or the reasonable rules and regulations of Landlord herein
provided for. All signs and the location thereof shall be approved in advance
by Landlord.
3. Term. The term of the Lease shall commence upon the
issuance of a certificate of occupancy permit and shall end seven years
after. Hawaiian Vintage may terminate the Lease at any time after second
year anniversary with three months notice and a penalty consisting of 50% of
the non-amortized improvements provided by Landlord per final agreement and
three months rent at the then current rental rate.
4. Rent. Tenant agrees and covenants to pay the Landlord based on the
following schedule:
Year 1 @$39,700.00 per year Or $19.85 psf($3,308.33 per month)
Year 2 @$41,700.00 per year Or $20.85 psf($3,475.00 per month)
Year 3-4 @$43,700.00 per year Or $21.85 psf($3,641.67 per month)
Year 5-7 @$45,700.00 per year Or $22.85 psf($3,808.33 per month)
Tenant shall pay the sum of $3,308.33 upon signing this agreement for the
first month's rent. Thereafter, rent shall be paid to Landlord on the first
day of each month. Tenant shall pay a late charge of $150.00 for any rent
payment not received by Landlord within fourteen (14) days after said payment
is due.
5. Responsibility for Services. Tenant shall pay actual
prorata expenses for real estate taxes, insurance on the land and the
building, and common area maintenance. Tenant shall maintain the interior of
the building (including replacement of furnace filter, light bulbs,
ballast's, plumbing service calls and fire extinguisher). Tenant shall keep
the interior of the building clean and in good repair. Landlord shall
maintain the exterior of the building. Landlord shall be solely responsible
for snow removal and lawn maintenance. Tenant shall be responsible for own
garbage/waste removal. Tenant shall pay all utilities. However, expenses
relating to snow removal and lawn maintenance are part of common area
maintenance charges payable by Tenant.
Landlord shall not be liable to anyone for interruption in
or cessation of any service rendered to the premises or building or agreed to
by the terms of this Lease, due to any accident, making of repairs,
alterations or improvements, labor difficulties, trouble in obtaining fuel,
or supplies from the sources from which they are usually obtained for said
building, or any cause beyond the Landlord's control if such interruption or
cessation shall be for less than ten (10) consecutive days. If such
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interruption or cessation shall be for more than ten (10) consecutive days,
Tenant may abate all the rent after the first ten (10) days and other
obligations of the Tenant under this Lease until such time as that service
returns to normal, but if such cessation shall continue past thirty (30)
days, then Tenant shall have the option to terminate this lease by written
notice thereof to Landlord. If the building services are interrupted by
power, fire, gas or tornado, or any other cause, Tenant agrees to pay rent
for ten (10) days maximum while services are interrupted.
6. Tenant's Care.
A. Tenant will take good care of the premises and the
fixtures and appurtenances therein, and will suffer no active or permissive
waste or injury thereof. Tenant shall at Tenant's expense but under the
direction of the Landlord, promptly repair any damage to the premises caused
by the negligence of Tenant, or by persons permitted on the premises by
Tenant, or by Tenant moving in or out of the premises. Tenant shall be
allowed to remove Tenants trade fixtures and equipment, subject to the repair
of any damage caused by such removal.
B. Tenant will not, without Landlord's prior written
consent, which consent may not be unreasonably withheld, make any structural
change or other alterations, additions or improvements that cost $10,000 or
more in or about the premises, and will not do anything to or on the premises
which will increase the rate of fire insurance on the building. All
alterations, additions or improvements of a permanent nature made or
installed by Tenant to the premises shall become the property of Landlord at
the expiration of this Lease.
C. No later than the last day of the term, Tenant will
remove all Tenant's personal property and repair all injury done by or in
connection with installation or removal of said property, and surrender the
premises (together with all keys to the premises) in as good a condition as
they were at the beginning of the term, reasonable wear and tear and damage
by fire, the elements or other casualty excepted.
D. In doing any work related to the installation of
Tenant's furnishings, fixtures, or equipment in the premises, Tenant may use
contractors or workmen of his choice. Tenant shall promptly remove any lien
for material or labor claimed against the premises by such contractors for
workmen if such claim should arise, and hereby indemnifies and holds Landlord
harmless from any and all cost, expenses or liability incurred by Landlord as
a result of such liens.
E. Tenant agrees that all personal property brought into
the premises by Tenant, its employees, licensees, and invitees shall be at
the sole risk of Tenant and Landlord shall not be liable for theft thereof or
of money deposited therein for any damage thereto, such theft or damage being
the sole responsibility of Tenant unless caused by the negligence of
Landlord, his agents, employees or assigns.
7. Access. Landlord may enter the premises during normal
business hours upon reasonable notice during the last nine (9) months of this
Lease to exhibit the premises. Landlord may enter the premises during normal
business hours to inspect the premises, upon reasonable notice.
8. Indemnity. Tenant shall indemnify, pay and save harmless
Landlord from all liability, damage, reasonable expense, cost of actions,
suits, reasonable legal fees, claims and/or judgments arising from injury to
person or property upon the premises, unless caused by Landlord's negligence
or the negligence of Landlord's agents, employees or assigns.
9. Insurance. Landlord shall provide all risk fire and
extended coverage and liability insurance upon the leased premises, with
coverage in limits of at least $450,000.00 for the building, said amount to
increase every third year by at least ten percent (10%) (see Paragraph 5).
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Tenant shall provide liability insurance in the amount of $500,000 for
property damage and $1,000,000 in liability.
10. Waiver of Subrogation. Provided and so long as the
following provisions of the paragraph do not result in the invalidation or
cancellation of the fire and extended coverage or additional perils insurance
policies on the premises constituting a part of the building or do not
constitute a defense to any claim for loss under said policies, Landlord and
Tenant agree to and do hereby waive all rights of recovery and causes of
action against Tenant and Landlord respectively, and their officers,
employees, servants, agents, and all parties claiming through or under the
Lease, for any damage to or destruction of the premises caused by any of the
perils embraced within fire and extended coverage and additional perils
insurance policy of Landlord and/or Tenant respectively, notwithstanding the
fact that said damage shall be due to the negligence of any or all of the
parties in whose favor this Agreement operates.
11. Destruction of Premises. If the premises are partially or
totally damaged or destroyed by fire, other casualty or any other cause
whatsoever, Tenant shall give immediate notice thereof to Landlord.
Within fifteen (15) days of the date of such damage or
destruction, Landlord shall advise Tenant whether or not it intends to
rebuild and when such rebuilding or repairing shall be completed.
If the premises or the building of which the premises are a
part are totally destroyed or so damaged by fire, other casualty, or any
other cause whatsoever (except condemnation) that the premises are
substantially untenable and that rebuilding or repairing cannot be completed
within one hundred twenty (120) days from the date of the occurrence of such
damage or destruction, then Tenant may terminate this Lease and the rent and
any portion of the Lease term, effective as of the date of the damage or
destruction.
If the leased premises are damaged by fire, other casualty,
or any other cause whatsoever (except condemnation), but not to such an
extent that rebuilding or repairs cannot be completed within one hundred
twenty (120) days from the date of the occurrence of such damage, then this
Lease shall not terminate. Landlord shall, at Landlord's cost, utilizing its
best efforts and due speed and diligence, proceed to build, rebuild, or
repair the damaged premises or building to substantially the same condition
in which the premises or building existed prior to such damage. Tenant's
rent charges shall be reduced by an amount proportionate to the area of the
subject premises which is unusable during the period of repair.
12. Eminent Domain. If the entire premises shall be taken,
leased, or condemned (either temporarily or permanently) for public purposes,
or in the event Landlord shall convey or lease the property to any public
authority in settlement of a threat of condemnation or taking, the rent shall
be adjusted to the date of such taking or leasing or conveyance, and this
Lease shall thereupon terminate. If only a portion of the premises shall be
taken, leased, or condemned, and as a result of such partial taking, Tenant
is reasonably able to use the remainder of the premises for its intended
purposes, then this Lease shall not terminate but, effective as of the date
of such taking, leasing or condemnation, the rent and any other charges shall
be abated in an amount thereof proportionate to the area of the premises so
taken, leased, or condemned. If, following such partial taking, Tenant shall
not be reasonably able to use the remainder of the premises for its intended
purposes, then this Lease shall terminate as if the entire premises had been
taken, leased or condemned.
13. Default by Tenant. Each of the following shall be deemed a
default by Tenant under this Lease and a breach thereof:
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A. Rent. Failure of Tenant to make any rental payment
with fifteen (15) days after receipt of written notice that same is due.
B. Other Obligations. Failure of Tenant to comply with
any term or condition or fulfill any obligation of this lease (other than
payment of rent or other charges) within thirty (30) days after written
notice by Landlord specifying the nature of the default with reasonable
particularity. If the default is of such a nature that it cannot be
completely remedied within the 30 day period, this provision shall be
complied with and Tenant shall not be in default if Tenant commences
correction or cure of the default within the 30 day period and thereafter
proceeds with reasonable diligence and in good faith to effect the remedy as
soon as practicable.
C. Bankruptcy. The filing of a petition by or against
Tenant for adjudication under the Bankruptcy Act, as now or hereafter amended
or supplemented, or for reorganization or for arrangement within the meaning
of Chapter XI of the Bankruptcy Act, or the commencement of any action or
proceeding for the dissolution or liquidation of Tenant, whether instituted
by or against Tenant, provided that no such filing or proceeding instituted
by a third party shall be regarded as a default hereunder if Tenant shall
cause the same to be dismissed within thirty (30) days after filing.
D. Assignment for Benefit of Creditors. The making by
Tenant of an assignment for the benefit of creditors.
E. Taking on Execution. The taking of the leasehold created by
thisLease on execution or by other process of law.
14. Remedies of Landlord upon Default of Tenant. In the event of a
default by Tenant as specified in the preceding paragraph, Landlord may
enter upon the premises and again have, repossess and enjoy the premises as
if the Lease had never been executed in accordance with State and local law.
If Landlord so enters the premises, the Lease and all covenants therein
contained shall cease, without prejudice to the right of the Landlord to
recover from the Tenant for all damages the Landlord is entitled to receive
for breach of this Lease. Landlord will do everything possible to re-rent
the building and cut the costs of the tenant.
15. Default by Landlord. If Landlord defaults in the
performance of any term, covenant or condition required to be performed by it
under this Lease, Tenant, after not less than thirty (30) days written notice
to Landlord to remedy said default and if Landlord has failed to do so, then
and in that event Tenant may terminate this Lease or remedy such default by
any necessary action and in connection with such remedy may pay expenses and
employ counsel. All sums expended or obligations incurred by Tenant in
connection with the remedy or such default of Landlord shall be paid by
Landlord to Tenant on demand and on failure of such reimbursement.
16. Subordination and Attornment. Tenant agrees at the request
of Landlord to subordinate this Lease to any mortgage placed upon the
premises by Landlord provided that the holder of such mortgage enters into an
agreement with Tenant by the terms of which such holder agrees not to disturb
the Tenant in its possession of the premises, so long as Tenant continues to
perform its obligations hereunder, and, in the event of acquisition of
title by said holder through foreclosure proceedings or otherwise, to accept
Tenant as Tenant of the premises under the terms and conditions of this Lease
and to perform Landlord's obligations hereunder (but only while owner of the
premises). Tenant agrees to recognize such holder or any other person
acquiring title to the premises as Landlord. Landlord and Tenant agree to
execute and deliver any appropriate instruments necessary to carry out the
foregoing provision.
17. Assignment and Subletting. Tenant may not, without the
prior written consent of Landlord, assign this Lease or any interest
thereunder, or sublet the premises or any part thereof, or permit the use of
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the premises by any party other than Tenant. Landlord shall not unreasonably
withhold said consent. Consent by Landlord to one assignment or sublease
shall not destroy or waive this provision, and all later assignments and
sublease shall likewise be made only upon prior written consent of Landlord.
Subleasees or assignees shall become liable directly to Landlord for all
obligations of Tenant hereunder without relieving Tenant's liability to
Landlord therefor. In the event Tenant notifies Landlord of Tenant's intent
to sublease or assign this Lease, Landlord shall within thirty (30) days from
receiving such notice in writing (1) consent to such proposed subletting or
assignment, or (2) refuse such consent.
18. Remedies Cumulative. The rights given to Landlord or
Tenant herein are in addition to any rights that may be given to Landlord or
Tenant by any statute or under law.
19. Holding Over. If Tenant remains in possession after
expiration of the term, with Landlord's acquiescence and without any written
agreement between the parties, Tenant shall be a tenant at will and such
tenancy shall be subject to all the provisions hereof, except that the
monthly rental shall be as negotiated for the entire holdover period and
there shall be no renewal of this Lease by operation of law. Nothing in
this paragraph shall be construed as a consent by Landlord to the possession
of the premises by Tenant after the expiration of the term.
20. Entire Agreement - No Waiver. This Lease and the exhibits
attached to and made a part of this Lease contain the entire agreement of the
parties and no representations, inducements, promises or agreement, oral or
otherwise, between the parties not embodied herein, shall be of any force or
effect. The failure of either party to insist in any instance on strict
performance of any covenant or condition hereof, or to exercise any option
herein contained, shall not be construed as a waiver of such covenant,
condition or option in any other instance. This Lease cannot be changed or
terminated orally.
21. Headings. The headings in this Lease are included for
convenience only and shall not be taken into consideration in any
construction or interpretation of this Lease or any of its provisions.
22. Notices. Any notice by either party to the other shall be
valid only if in writing and shall be deemed to be duly given only if
delivered personally or sent by registered or certified mail, return receipt
requested, addressed (1) if to Tenant at 4614 Kilaueu Avenue Suite 435,
Honolulu, HI, 96816, and (2) if to Landlord at 405 N. Hershey Road,
Bloomington, IL, 61704, or at such other address that either party may
designate by notice. Notice shall be deemed given, if delivered personally,
upon delivery; and if mailed, upon the mailing.
23. Heirs and Assigns. The provisions of this Lease shall bind
and inure to the benefit of the Landlord and Tenant, and their respective
successors, heirs, legal representatives and assigns.
24. Time of Essence. Time is of the essence in this Agreement.
25. Severability. If any provision of this Lease or its
application to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Lease or the application of such
provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby and each provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
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26. Quiet Enjoyment. Landlord covenants that, upon the payment
of the rent herein provided and the performance by Tenant of all covenants
herein, Tenant shall have and hold the premises, free from any interference
from Landlord except as otherwise provided.
27. Hazardous Substances. Tenant shall not cause or permit any
Hazardous Substance to be used, stored, generated, or disposed of on, under,
in, or about the Premises by Tenant, Tenant's agents, employees, contractors,
or invitees without first obtaining Landlord's written consent (which consent
may be given or withheld in landlord's sole discretion). If Hazardous
Substances are used, stored, generated, or disposed of on, under, in, or
about the Premises, or if the Premises becomes contaminated in any manner,
Tenant shall reimburse, defend, indemnify and hold harmless the Landlord (and
its agents and employees) from and against any and all claims, damages,
fines, judgments, penalties, costs, liabilities, expenses, or losses
(including, without limitation, a decrease in value of the premises or the
land or building of which they are a part, damages caused by loss or
restriction of rentable or usable space, or any damages caused by adverse
impact on marketing of the space, and any and all sums paid for settlement of
claims, attorneys' fees, consultant, and expert fees) arising during or after
the Lease Term and arising as a result of any use, storage, generation or
disposal of any Hazardous Substance or any such contamination by Tenant.
This indemnification includes, without limitation, any and all costs incurred
because of any required or necessary investigation of the site, or any
cleanup, detoxification, removal, or restoration whether voluntary or
mandated by a federal, state, or local agency or political subdivision. If
the Tenant causes or permits the presence of any Hazardous Substance on the
Premises that results in contamination, Tenant shall promptly, at its sole
expense, take any and all necessary actions to return the Premises to the
condition existing prior to the presence of any such Hazardous Substance on
the Premises. Tenant shall first obtain Landlord's approval for any such
remedial action.
As used herein, "Hazardous Substance" means any substance
that is toxic, radioactive, explosive, ignitable, reactive, or corrosive
regardless whether same is regulated by any local government, the State of
Illinois, or the United States Government. "Hazardous Substance" includes,
but is not limited to any toxic or hazardous substance and any and all
material or substances that are defined as "hazardous waste," "extremely
hazardous waste," or a "hazardous substance" pursuant to state, federal, or
local governmental law. "Hazardous Substance" includes but is not restricted
to asbestos, polychlorobiphenyls ("PCBs"), petroleum and petroleum products.
28. Attorney's Fees. In the event of employment by an attorney
by either party because of the violation of any term or provision of the
Lease by the other, the party determined to be in default hereunder shall pay
the reasonable attorney's fees and costs of the other.
29. Tenant Finish. Landlord shall provide a white box finish
consisting of finished ceiling, flooring, exterior walls painted, two
restrooms, a mechanical room, a janitorial closet, standard heat, air
conditioning and lights. Additionally, Landlord shall contribute $20.00 per
square foot ($40,000) to Hawaiian Vintage Chocolate for finishing the space.
Construction shall be completed on or before February 3, 2000.
30. Parking. Tenant shall be allocated eight unassigned spaces
on the premises. Any spaces used by Tenant that exceed eight shall be towed.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this
Agreement as a sealed instrument as of the date set out below and represent
that their respective signatory whose signature appears below was taken and
is on the date of the Agreement duly authorized by all necessary and
appropriate corporate action to execute this Agreement.
Date: 1/24/2000
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LANDLORD: TENANT:
/s/ LARRY HUNDMAN /s/ JAMES WALSH
______________________________ ___________________________________
H.O.S. Partnership Hawaiian Vintage Chocolate Company