1
AMENDED AND RESTATED
LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT is made and
entered into this 31st day of May, 1996, by and between 329
PARTNERS-II LIMITED PARTNERSHIP, an Oklahoma Limited Partnership,
hereinafter called "Landlord," and HAROLD'S STORES, INC.,
hereinafter called "Tenant," which amends and restates in full
that certain Lease Agreement of November 1, 1990, between
Landlord's predecessor in interest and Tenant in regard to the
Premises.
ARTICLE I
PREMISES
1.1 Agreement to Lease. In consideration of the rents,
covenants and agreements hereinafter reserved and contained on
the part of Tenant to be observed and performed, the Landlord
demises and leases to the Tenant, and Tenant rents from Landlord,
the following described real property situated in Dallas County,
Texas, described on Exhibit A (the "Premises").
ARTICLE II
TERM
2.1 Term of Lease. The term of this lease shall be for
sixteen (16) years, beginning on April 1, 1996 (the "Commencement
Date"), and terminating on March 31, 2012 (the "Expiration
Date"), unless sooner terminated as herein provided.
ARTICLE III
RENT
3.1 Base Rent. Tenant shall pay Landlord as base rent
("Base Rent") for the Premises annually, without setoff or
deduction, and without any prior demand therefor, the following:
April 1, 1996 to March 31, 2000 - $158,000.00
April 1, 2000 to March 31, 2001 - $180,000.00
April 1, 2001 to March 31, 2002 - $182,500.00
April 1, 2002 to March 31, 2003 - $185,000.00
April 1, 2003 to March 31, 2004 - $187,500.00
April 1, 2004 to March 31, 2005 - $190,000.00
April 1, 2005 to March 31, 2006 - $192,500.00
April 1, 2006 to March 31, 2007 - $195,000.00
April 1, 2007 to March 31, 2008 - $197,500.00
April 1, 2008 to March 31, 2009 - $200,000.00
April 1, 2009 to March 31, 2010 - $202,500.00
April 1, 2010 to March 31, 2011 - $205,000.00
April 1, 2011 to March 31, 2012 - $207,500.00
which said sums shall be payable in advance in equal monthly
installments on the first day of each and every month during the
lease term, the first of such monthly installments to be due and
payable on the Commencement Date.
3.2 Late Charges. If Tenant fails to make any
installment of Base Rent, or any other sum due Landlord
hereunder, within ten (10) days after such amount is due, then
the Landlord may make or assess a late charge of five percent
(5%) of the amount of each delinquent payment. Any assessment of
late charges by Landlord shall be considered for all purposes as
Additional Rent under the terms of this Lease, and shall be added
to and payable with the next maturing monthly rental installment
following such assessment. Assessment by Landlord of a late
charge as herein provided shall be without prejudice to any
remedies provided by law or under the provisions hereof. No
assessment, payment or acceptance of a late charge shall operate
as a waiver or estoppel of the right of Landlord to declare a
default hereunder, or to pursue any default remedies provided by
this Lease or by law. Such late charge shall be earned from the
day after the due date to the date paid.
ARTICLE IV
CONDITION OF PREMISES
4.1 Tenant's Acceptance of Premises. Neither Landlord
nor Landlord's agents have made any representations with respect
to the Premises or the land upon which it is erected, except as
expressly set forth herein, and no rights, easements or licenses
are acquired by Tenant by implication or otherwise, except as
expressly set forth in the provisions of this agreement. The
taking of possession of the Premises by Tenant shall be
conclusive evidence that Tenant accepts the Premises and that the
Premises were in good condition at the time possession was taken.
In no event shall Landlord be liable for any defects in the
Premises or for any limitation on its use. Landlord shall not be
responsible for any latent defect in the Premises, and the rent
hereunder shall in no case be withheld or diminished on account
of any defect in the Premises, any change in the condition
thereof, any damage occurring thereto, or the existence with
respect thereto of any violations of laws or regulations of any
governmental authority.
4.2 Landlord's Title. Landlord is leasing the Premises
and has the right to enter into this Lease, and the Premises are
accepted by Tenant subject to, and Tenant agrees to abide by, all
and singular, the easements, restrictions, covenants,
reservations, mineral reservations and other matters affecting
title to the Premises.
ARTICLE V
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
5.1 Improvements by Tenant. Tenant shall not make or
allow to be made any alterations or physical additions in or to
the Premises without first having the written consent of
Landlord. At such time as Tenant requests such consent of
Landlord, Tenant shall submit plans and specifications for such
alterations or additions, and comply with any and all reasonable
requirements of Landlord. Subject to the Landlord's lien, Tenant
may remove "removable trade fixtures," provided (1) any such
removal is made prior to the termination of this agreement; (2)
Tenant is not in default of any of the obligations or covenants
hereunder; and (3) such removal may be effected without damages
to the Premises, and Tenant promptly repairs all damage caused by
such removal at its sole expense. All trade fixtures,
merchandise, equipment and signs of every description which are
not removable or not removed in accordance with the preceding,
and any alterations or additions to the Premises shall become the
property of Landlord, and shall remain upon and be surrendered
with the Premises as part thereof at the termination of this
Lease. Tenant hereby waives all rights to any payment or
compensation therefor. Removable trade fixtures shall include
signs, tables, chairs, desks, wall brackets, shelves, mirrors and
business machines (provided same are not permanently attached),
but shall not include ducts, conduits, wiring, pipes, paneling,
wall covering or floor covering or permanently attached fixtures
which cannot be removed without damage to the Premises. Upon
termination of this agreement, Tenant will, at its sole cost and
expense, if requested by Landlord, remove any and all
alterations, additions, fixtures, equipment and property
installed by Tenant in the Premises and restore the Premises to
the condition thereof at the time of tender of possession of the
Premises, ordinary wear and tear excepted.
5.2 Signs. Tenant will not place or suffer to be
placed or maintained on any exterior door, wall or window of the
Premises any sign, awning or canopy, or advertising matter, or
other thing of any kind, and will not place or maintain any
decoration, lettering or advertising matter on the glass of any
window or door of the Premises without first obtaining Landlord's
written approval and consent. Tenant further agrees to maintain
such sign, awning, canopy, decoration, lettering, advertising
matter or other thing as may be approved in good condition and
repair at all times. Tenant, upon vacation of the Premises or
the removal or alteration of its sign, for any reason, shall be
responsible for the repair, painting and/or replacement of the
building surface where the sign is attached.
ARTICLE VI
REPAIR AND MAINTENANCE
6.1 Tenant's Maintenance. Tenant shall at all times
keep the Premises (including maintenance of exterior entrances,
all glass and show window moldings) and all plate glass,
partitions, doors, fixtures, plumbing, electrical, and the
heating and air conditioning systems, in good order, condition
and repair (including repair of damage from burglary or attempted
burglary of the Premises and reasonably periodic painting and
maintenance of the air conditioning system as required by
Landlord). Tenant shall be responsible for all utility repairs
in ducts, conduits, pipes and wiring located in, under and above
the Premises. Tenant's maintenance responsibilities shall also
include maintenance of the parking lot, and Tenant shall keep the
sidewalks and parking areas adjoining the Premises free from
rubbish, dirt, garbage, snow and ice.
6.2 Landlord's Option to Make Tenant Repairs. If
Tenant refuses or neglects to repair the Premises within thirty
(30) days after receipt of Landlord's written demand, Landlord
may make such repairs without liability to Tenant for any loss or
damage that may accrue to Tenant's merchandise, fixtures or other
property, or to Tenant's business by reason thereof, and upon
completion thereof, Tenant shall pay Landlord's cost for making
such repairs, plus twenty percent (20%) for overhead, upon
presentation of bills therefor, as Additional Rent.
6.3 Landlord's Maintenance. Landlord shall keep the
roof, exterior walls, foundations and building structure of the
Premises in a good state of repair; provided, however, if
Landlord is required to make repairs to structural portions by
reason of Tenant's negligent act or omission to act, Landlord
shall add the cost of such repairs, plus twenty percent (20%) for
overhead, to the rent which shall thereafter become due.
6.4 Waste and Surrender. Tenant shall not commit or
allow any waste or damage to be committed on any portion of the
Premises, and upon expiration or sooner termination of the term
hereof, Tenant agrees to deliver up the Premises to Landlord in
the condition set out above, ordinary wear and tear excepted, and
Landlord shall have the right to re-enter and resume possession
of the Premises.
6.5 Surrender of Key. At the expiration of the tenancy
hereby created, Tenant shall surrender all keys for the Premises
to Landlord at the place then fixed for the payment of rent, and
shall inform Landlord of all combinations on locks, safes and
vaults, if any, in the Premises. Tenant shall not change locks
on the Premises without the prior written consent of the
Landlord.
ARTICLE VII
UTILITIES
7.1 Tenant Pays All Bills. Tenant shall pay all bills
for water, gas, electricity, fuel, light, heat and power
furnished to or used by Tenant on or about the Premises, and all
disposal or sewage service charges for the Premises, and all
telephone bills and other bills incurred by Tenant. Landlord
shall have no responsibility for such payments.
ARTICLE VIII
TAXES
8.1Tenant's Responsibility. Tenant shall pay, in
addition to the rent specified above, all real estate taxes and
special assessments levied upon the Premises by any state, city,
school district or federal governmental authority. The payment
for real estate taxes should be made to Landlord on or before
December 15 of each year during the lease term, commencing
December 15, 1996. For the final year of the lease term, the
amount of the taxes shall be prorated. All other taxes shall be
paid directly to the taxing authority on or before their due
date.
ARTICLE IX
INSURANCE AND INDEMNITY
9.1 Tenant's Liability Insurance Requirements. During
the entire lease term, the Tenant shall, at its own expense,
maintain adequate liability insurance with a reputable insurance
company or companies, with minimum amounts of $1,000,000.00
combined single limit for personal injuries and property damage,
to indemnify both Landlord and Tenant against any such claims,
demands, losses, damages, liabilities and expenses. Landlord
shall be named as an additional insured, and shall be furnished
with a certificate of such insurance, which shall bear an
endorsement that the same shall not be cancelled except upon not
less than thirty (30) days prior written notice to Landlord.
Tenant shall also, at its own expense, maintain, during the lease
term, insurance covering its furniture, fixtures, equipment, all
leasehold improvements, and merchandise in an amount equal to not
less than one hundred percent (100%) of the full replacement
value thereof, and insuring against fire and all risk perils
coverage as provided by a standard all risk coverage endorsement,
and the plate glass and all other glass which is the
responsibility of the Tenant in the event of breakage from any
cause. Tenant shall provide Landlord with copies of the policies
of insurance or certificates thereof. If Tenant fails to
maintain such insurance, Landlord may maintain the same on behalf
of Tenant. Any premiums paid by Landlord shall be deemed
Additional Rent and shall be due on the payment date of the next
installment of Base Rent hereunder.
9.2 Tenant's Fire and Extended Coverage Insurance.
During the entire lease term, the Tenant shall, at its own
expense, maintain a fire and extended coverage insurance policy
on the Premises, in an amount and with endorsements required by
Landlord's first mortgage lender; provided, however, if there be
no first mortgage lender, the coverage shall, at a minimum,
insure all structures and improvements for not less than eighty
percent (80%) of the full insurable replacement cost value
thereof, and shall contain such other endorsements as Landlord
may from time to time require.
9.3 Indemnity. Tenant agrees to indemnify Landlord and
save Landlord harmless from and against any and all claims,
actions, damages, liability and expense in connection with loss
of life, personal injury and/or damage to property arising from
or out of any occurrence in, upon or at the Premises, or the
occupancy or use by Tenant of the Premises, or any part thereof,
if occasioned wholly or in part by any act or omission of Tenant,
Tenant's agents, contractors, employees, servants, lessees or
concessionaires. In case Landlord shall, without fault on
Landlord's part, be made a party to any litigation commenced by
or against Tenant, then Tenant shall protect and hold Landlord
harmless, and shall pay all costs, expenses and reasonable
attorney's fees incurred or paid by Landlord in connection with
such litigation.
9.4 Waiver of Subrogation. As long as their respective
insurers so permit, Landlord and Tenant hereby mutually waive
their respective rights of recovery against each other for any
loss insured by fire, extended coverage and other property
insurance policies existing for the benefit of the respective
parties. Each party shall apply to their insurers to obtain such
waivers. Each party shall obtain any special endorsements, if
required by their insurer to evidence compliance with the
aforementioned waiver.
ARTICLE X
CASUALTY LOSS
10.1 Damage to Premises. If the Premises shall be
damaged by fire, the elements, unavoidable accident or other
casualty, but are not thereby rendered untenantable in whole or
in part, Landlord shall, at Landlord's expense, cause such damage
to be repaired, and the rent shall not be abated. If by reason
of such occurrence, the Premises shall be rendered untenantable
only in part, Landlord shall, at Landlord's expense, cause the
damage to be repaired, and the Base Rent meanwhile shall be
abated proportionately as to the portion of the Premises rendered
untenantable. If the Premises shall be rendered wholly
untenantable by reason of such occurrence, the Landlord shall, at
Landlord's expense, cause such damage to be repaired, and the
Base Rent meanwhile shall xxxxx until the Premises have been
restored and rendered tenantable, or Landlord may, at Landlord's
election, terminate this Lease and the tenancy hereby created by
giving to Tenant, within the sixty (60) days following the date
of said occurrence, written notice of Landlord's election to do
so, and in the event of such termination, rent shall be adjusted
as of such date.
ARTICLE XI
SUBORDINATION
11.1 Subordination. This Lease shall be subordinate to
any mortgage that is now or may hereafter be placed upon the
Premises, and to any and all advances to be made thereunder, and
to the interest thereon, and to all renewals, replacements and
extensions thereof. Tenant shall, upon written demand by
Landlord, execute and deliver such instruments as may be required
at any time and from time to time to subordinate the rights and
interests of Tenant under this Lease to the lien of any mortgage
placed upon the Premises, or upon the real property of which the
Premises are a part at any time and from time to time, whether
before or after the commencement of this Lease or during the term
thereof.
ARTICLE XII
ASSIGNMENT OR SUBLETTING
12.1 Prohibitions. Tenant will not assign this Lease,
in whole or in part, nor sublet all or any part of the Premises,
without the prior written consent of Landlord in each instance,
which consent shall not be unreasonably withheld. The consent of
Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent
assignment or subletting. Tenant shall not mortgage, pledge or
otherwise encumber its interest in this Lease or the Premises
without the prior written consent of Landlord. If this Lease be
assigned, or if the Premises or any part thereof be sublet or
occupied by anybody other than Tenant, Landlord may collect rent
from the assignee, subtenant or occupant, and apply the net
amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a
waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant
herein contained. Notwithstanding any assignment or sublease,
Tenant shall remain fully liable on this Lease, and shall not be
released from performing any of the terms, covenants and
conditions of this Lease.
12.2 Landlord's Right to Transfer. Landlord shall have
the right to transfer and assign, in whole or in part, Landlord's
rights hereunder and in the Premises. In the event of the sale,
assignment or transfer by Landlord of Landlord's interest in the
Premises, Landlord shall thereupon be released or discharged from
all covenants and obligations of Landlord, and Tenant agrees to
look solely to such successor in interest of Landlord for
performance of such obligations. All covenants and obligations
of the Landlord shall run with the land and be binding upon each
new owner or successor of the Premises during their period of
ownership.
ARTICLE XIII
CONDEMNATION
13.1 Award of Damages. If the whole or any part of the
Premises shall be taken for any public or quasi-public purpose by
any lawful power or authority by the exercise of the right of
condemnation or eminent domain, Landlord shall be entitled to and
shall receive all awards that may be made in any such proceeding
for the Premises, and Tenant hereby assigns and transfers to
Landlord any and all such awards.
13.2 Taking of All of Premises. If such proceedings
shall result in taking of the whole or substantially all of the
Premises, this Lease shall terminate from the date of such
taking, and all rent and other sums or charges provided herein to
be paid by Tenant shall be apportioned and paid to the date of
such taking. If less than substantially all of the Premises
shall be taken in such proceedings, this Lease shall terminate
only as to the portion of the Premises so taken, and this Lease
shall continue for the balance of its term as to the part of the
Premises remaining. In the event of a partial taking, the Base
Rent to be paid by Tenant after such taking shall be reduced pro
rata in proportion to which the space so taken bears to the
entire space in the Premises originally demised.
13.3 Taking of Less Than All of Premises. If less than
substantially all of the Premises shall be taken, Landlord shall
repair the remaining portion of the Premises so as to restore
same as a building complete in itself, but Landlord shall not be
obligated to expend thereon more than the sum allowed to Landlord
in such condemnation proceeding for damage to the Premises, less
expenses incurred by Landlord for such proceeding.
Notwithstanding the foregoing, if the expense of such restoration
would be greater than the sum allowed Landlord, less expenses in
the condemnation proceeding, then Landlord shall have the option,
for a period of thirty (30) days after such partial payment,
within which to terminate this Lease.
13.4 Tenant's Damages. Although all damages in the
event of any condemnation are to belong to Landlord, whether such
damages are awarded as compensation for diminution in value of
the leasehold or to the fee of the Premises, Tenant shall have
the right to claim and recover from the condemning authority, but
not from Landlord, such compensation as may be separately awarded
or recoverable by Tenant in Tenant's own right on account of any
and all damages to Tenant's business by reason of the
condemnation and for or on account of any cost or loss to which
Tenant might be put in removing Tenant's merchandise, furniture,
fixtures, leasehold improvements and equipment.
ARTICLE XIV
ACCESS AND EASEMENTS
14.1 Access. Landlord or Landlord's agents shall have
the right to enter the Premises at all times to examine the same,
and to show them to prospective purchasers or tenants of the
Premises, and to make such repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable, and
Landlord shall be allowed to take all material into and upon the
Premises that may be required therefor, without the same
constituting an eviction of Tenant in whole or in part, and the
rent reserved shall in no way xxxxx while said repairs,
alterations, improvements or additions are being made, by reason
of loss or interruption of business of Tenant, or otherwise.
During the six (6) months prior to the expiration of the term of
this Lease, Landlord may exhibit the Premises to prospective
tenants or purchasers, and place upon the Premises the usual
notices "For Lease" or "For Sale," which notices Tenant shall
permit to remain thereon without molestation. If Tenant shall
not be personally present to open and permit an entry into the
Premises, at any time, when for any reason an entry therein shall
be deemed necessary or permissible, Landlord or Landlord's agents
may enter the same by a master key, or may forcibly enter the
same, without rendering Landlord or such agents liable therefor,
and without in any manner affecting the obligations and covenants
of this lease. Nothing herein contained, however, shall be
deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, maintenance
or repair of the Premises, or any part thereof, except as
otherwise herein specifically provided.
14.2 Structural Repairs. If an excavation or
construction shall be made upon land adjacent to the Premises, or
shall be authorized to be made, Tenant grants to the person
causing or authorized to cause such excavation or construction,
license to enter upon the Premises for the purpose of doing such
work as Landlord shall deem necessary to preserve the wall or the
building of which the Premises form a part from injury or damage,
and to support the same by proper foundations, without any claim
for damages or indemnification against Landlord, or diminution or
abatement of rent.
ARTICLE XV
TENANT'S PROPERTY
15.1 Tenant's Personal Property Taxes. Tenant shall be
responsible for and shall pay before delinquency all municipal,
county or state taxes assessed during the term of this Lease
against any leasehold interest or personal property of any kind,
owned by or placed in, upon or about the Premises by the Tenant.
15.2 Responsibility of Landlord. Landlord shall not be
liable for any damage to property of Tenant or of others located
on the Premises, nor for the loss of or damage to any property of
Tenant or of others by theft or otherwise. Landlord shall not be
liable for any injury or damage to persons or property resulting
from fire, explosion, falling plaster, steam, gas, electricity,
water, rain or snow, or leaks from any part of the Premises, or
from the pipes, appliances or plumbing works, or from the roof,
street or sub-surface, or from any other place, or by dampness,
or by any other cause of whatsoever nature. Landlord shall not
be liable for any such damage caused by occupants of adjacent
property, or the public, or caused by operations in construction
of any private, public or quasi-public work. All property of
Tenant kept or stored on the Premises shall be so kept or stored
at the risk of Tenant only, and Tenant shall hold Landlord
harmless from any claims arising out of damage to the same,
including subrogation claims by Tenant's insurance carrier,
unless such damage shall be caused by the willful act or gross
negligence of Landlord.
ARTICLE XVI
USE OF PREMISES
16.1 Tenant's Usage. The Premises are to be used and
occupied by Tenant solely for the purposes of a commercial
office, continuously during the term of this agreement. Tenant
shall not occupy or use, or permit any portion of the Premises to
be occupied or used for any business or purpose which, in
Landlord's opinion, is unlawful, disreputable or deemed to be
extra hazardous on account of fire, or permit anything to be done
which would in any way increase the rate of fire insurance
coverage on the Premises and/or its contents.
16.2 Compliance with Laws, Covenants and Regulations.
Tenant shall at all times comply with all laws, ordinances,
orders, rules and regulations of governmental agencies having
jurisdiction of the Premises, and of all restrictive covenants
relating to the use, condition or occupancy of the Premises. In
the event such laws mandate alterations to the Premises, Tenant
agrees to promptly make such alterations at its sole cost and
expense.
16.3 Concessionaires. Tenant shall not permit any
business to be operated in or from the Premises by any
concessionaire or licensee without prior written consent of
Landlord.
ARTICLE XVII
PEACEFUL ENJOYMENT
17.1 Covenant of Landlord. Tenant shall, and may
peacefully have, hold and enjoy the Premises, subject to the
other terms hereof, providing Tenant pays the rentals herein
recited and performs Tenant's covenants and agreements herein
contained. Tenant's quiet enjoyment shall be subject, however,
to the terms of this Lease, to dispossession by reason of
superior title in mortgagees and to all easements, restrictions
of record and governmental laws and ordinances. Should Tenant be
dispossessed from the Premises by reason of mortgagee's superior
title, the payment of rental shall cease from and after date, and
all rent that Tenant may have prepaid, or any sum constituting
deposits, shall be returned to Tenant, but Tenant shall not be
entitled to receive from Landlord any damages suffered by Tenant
as a result of such dispossession. It is understood and agreed
that this covenant and any and all covenants of Landlord
contained in this agreement shall be binding on Landlord and
Landlord's successors only with respect to breaches occurring
during Landlord's respective ownerships of Landlord's interest
hereunder.
ARTICLE XVIII
DEFAULT AND REMEDIES
18.1 Tenant's Default. Any of the following, if not
cured by Tenant within ten (10) days after written notice to
Tenant of their occurrence, shall constitute events of default on
the part of Tenant:
A. Failure of Tenant to pay Base Rent, Additional Rent,
or any other rent or other payment when due;
B. Failure of Tenant to comply with any covenant or
obligation of Tenant hereunder;
C. Abandonment or vacation of the Premises by Tenant;
D. The filing of a voluntary or involuntary petition in
bankruptcy by or against Tenant, or any guarantor
hereof, under the National Bankruptcy Act, or should
Tenant, or any guarantor, make an assignment for the
benefit of their creditors, or should a trustee,
receiver or liquidator of Tenant, or any guarantor
hereof, of Tenant's or any guarantor's property
hereof, be appointed, or should any governmental
authority institute any proceeding for the
dissolution of Tenant, or any guarantor hereof, or
should Tenant's interest hereunder pass by operation
of law or otherwise;
E. Failure to provide estoppel certificates as
requested by Landlord.
18.2 Remedies. In addition to any other rights and
remedies provided in this Lease or by applicable law or equity,
on the occurrence of any event of default and after expiration of
any cure period, Landlord will have the following remedies, all
of which may be exercised without any further notice or demand on
Tenant:
(A) Past Due Rent. Landlord may collect from Tenant all
past due rent, including interest thereon at twelve
percent (12%) per annum and late charges, and all
other reasonable damages caused by Tenant's default.
(B) Termination. Landlord may terminate this Lease, in
which event Tenant will immediately surrender the
Premises to Landlord, but if Tenant fails to do so,
Landlord may, without notice and without prejudice
to any other remedy Landlord might have, enter and
take possession of the Premises and remove Tenant,
anyone claiming under Tenant, and any property
therefrom without being subject to any claim for
damages therefor. Tenant shall be obligated to pay
to Landlord all costs reasonably incurred by
Landlord in any such action, including the costs of
taking possession of and repairing any damage to the
Premises, and all other reasonable damages caused by
Tenant's default. After default, this Lease may be
terminated only by written notice from Landlord, and
no other action or inaction by Landlord after
default shall constitute a termination of this
Lease.
(C) Reletting. If Landlord does not terminate this
Lease, then Landlord may, at its option, reenter and
remove any persons or property therein, forcibly if
necessary, without being guilty of trespass and
without the same constituting a termination of this
Lease, and may relet the Premises or any part
thereof for the benefit of Tenant, in which event
Tenant shall pay Landlord all reasonable costs
incurred by Landlord in taking such action,
including, without limitation, the costs of taking
possession of and repairing the Premises, the
reasonable cost of preparing the same for reletting,
attorneys' fees, brokerage commissions, and all
other damages caused by Tenant's default. Tenant
shall remain obligated to Landlord for the
difference between any rent received by Landlord as
a result of such reletting and the rent and other
sums for which Lessee is obligated hereunder. In
the event any such reletting results in payment of
rent thereunder to Landlord in excess of the rent
for which Tenant is obligated hereunder, Landlord
shall be entitled to retain such excess.
18.3 Landlord's Right to Cure. Should Tenant be in
default hereunder, Landlord may cure any such default on behalf
of Tenant, in which event Tenant shall reimburse Landlord for all
sums paid to effect compliance, together with interest at the
rate of eighteen percent (18%) per annum, from and after the date
of such expenditure, which shall be Additional Rent due
hereunder.
18.4 Landlord's Default. If Landlord fails to perform
any of Landlord's covenants hereunder, Landlord shall not be in
default unless: (1) Tenant gives Landlord written notice
thereof, setting forth in reasonable detail the nature and extent
of such failure, and (2) if such failure by Landlord is not cured
or attempted to be cured within thirty (30) days following the
delivery of such notice. If such failure cannot be reasonably
cured within thirty (30) days, the length of such period shall be
extended for a period reasonably required therefor if Landlord
commences curing such failure within the thirty (30) day period
and continues the curing thereof with reasonable diligence and
continuity.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 Amendment. This agreement may not be altered,
changed or amended, except by instrument in writing, signed by
all parties hereto.
19.2 Non-Waiver. Failure of Landlord to declare any
default immediately upon the occurrence thereof, or delay in
taking any action in connection therewith, or acceptance of
rental after same is due, shall not waive such default, but
Landlord shall have the right to declare any such default at any
time, and to take such action as may be lawful or authorized
hereunder, either at law or in equity.
19.3 Force Majeure. Neither Landlord nor tenant shall
be required to perform any term, condition or covenant in this
Lease so long as such performance is delayed or prevented by
force majeure, which shall mean acts of God, strikes, lock outs,
material or labor shortages, or restrictions by government
authorities and other causes which are not reasonably within the
control of either Landlord or Tenant, and which, by the exercise
of due diligence, Landlord or Tenant would be unable, wholly or
in part, to prevent or overcome. Provided, however, this
provision shall not apply to Tenant's obligation to pay Base Rent
and Additional Rent.
19.4 Interpretation. As used herein, the masculine or
neuter genders shall be deemed to include all genders and
singular, the plural, and vice versa, except where any such
construction would be unreasonable. This Lease shall be
construed under and in accordance with the laws of the State of
Texas, and all obligations of the parties hereunder are
performable in Dallas County, Texas. The paragraph headings are
inserted for convenience only, and shall not in any way vary the
provisions they identify. If any provision of this Lease or any
application thereof shall be invalid, illegal or unenforceable in
any respect, the validity, legality or enforceability of the
remaining provisions hereof and other applications thereof, shall
not in any way be affected or impaired thereby.
19.5 Covenants. All agreements, obligations and
undertakings of the parties shall be deemed to be covenants,
whether or not so denominated.
19.6 Notices. Except as may be otherwise specifically
provided herein, all notices required or permitted hereunder
shall be in writing, and shall be deemed to be delivered when
delivered personally, or when deposited with the United States
Postal Service, postage prepaid, registered or certified mail,
return receipt requested, addressed to the parties at the
respective addresses set forth hereunder, or at such other
address as may have been theretofore specified by written notice
delivered in accordance herewith.
19.7 Limitation of Landlord Liability. Any provisions
hereof to the contrary notwithstanding, Tenant hereby agrees that
no personal or partnership liability of any kind or character
whatsoever now attaches or at any time hereafter, under any
condition, shall attach to Landlord for payment of any amounts
payable under this agreement, or for the performance of any
obligations hereunder. The exclusive remedies of Tenant for the
failure of Landlord to perform any of its obligations under this
Lease shall be to proceed against the interest of Landlord in and
to the Premises.
19.8 Attorney's Fees. In the event Tenant defaults in
the performance of any of the terms, covenants, agreements or
conditions contained in this Lease and Landlord places the
enforcement of this Lease, or any part thereof, or the collection
of any rent due, or which may become due hereunder, or recovery
of the possession of the Premises, in the hands of an attorney,
or files suit upon same, Tenant agrees to pay to Landlord a
reasonable attorney's fee which is incurred by Landlord in such
enforcement, collection or recovery of possession.
19.9 Holding Over. In the event of holding over by
Tenant after the expiration or termination of this agreement
without the express written consent of Landlord, the Base Rent
shall be doubled for the entire holdover period. No holding over
by Tenant after the term of this Lease shall operate to extend
this Lease; and in the event of any unauthorized holding over,
Tenant shall indemnify Landlord from and against all claims for
damages by any other tenant to whom Landlord may have leased all
or any portion of the Premises, effective upon the termination of
this Lease. Any holding over with the consent of Landlord in
writing shall thereafter constitute this Lease a lease from month
to month.
19.10 Entire Agreement. This instrument constitutes
the entire agreement of the parties. It supersedes any and all
other agreements, either oral or in writing, between the parties
hereto. Each party to this Lease acknowledges that no
representations, inducements, promises or agreements, oral or
otherwise, have been made by any party or anyone acting on behalf
of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Lease shall
be valid or binding. This Lease may not be modified or amended
by oral agreement, but only by an agreement in writing, signed by
the parties hereto.
19.11 Recording. Except as provided in Section 17.5
hereof, this Lease may not be recorded by either party, but at
the request of either party, Landlord and Tenant shall execute a
short form memorandum of this Lease, which may be recorded for
all purposes.
19.12 Indemnity. Tenant shall indemnify Landlord
against all liabilities, expenses and losses incurred by Landlord
as a result of: (1) failure by Tenant to perform any covenant
required hereunder; (2) any accident, injury or damage which
shall happen in or about the Premises; (3) failure to comply with
any requirement of any governmental authority; and (4) any
mechanic's lien or security agreement filed against the Premises,
any equipment therein, or any materials used in the construction
or alteration of the Premises. Landlord shall not be liable for
injury or damage to any person or property occurring on the
Premises unless caused by or resulting from the gross negligence
of Landlord.
19.13 Estoppel Certificates. At any time and from time
to time within twenty (20) days after Landlord shall request the
same, Tenant will execute, acknowledge and deliver to Landlord or
any party as may be designated by Landlord, a certificate in a
reasonably acceptable form, with respect to the matters required
by such party, and such other matters relating to this Lease or
the status or performance of obligations of the parties hereunder
as may be reasonably requested by Landlord. If Tenant fails to
provide such certificate within twenty (20) days after request by
Landlord, Tenant shall be deemed to have approved the contents of
any such certificate submitted to Tenant by Landlord, and
Landlord is hereby authorized to so certify.
19.14 Binding Effect. This Lease shall be binding upon
and inure to the benefit of the parties hereto, their respective
successors, permitted assigns, heirs and legal representatives,
as the case may be.
EXECUTED as of the day and year first above written.
"LANDLORD" 329 PARTNERS-II LIMITED
PARTNERSHIP,an Oklahoma
Limited Partnership
By: 329 HOLDING LLC, an Oklahoma
Limited Liability Company
By:/s/H. Xxxxxx Xxxxxx
Title: H. Xxxxxx Xxxxxx, Manager
Address: 000 Xxx Xxxxxx
Xxxxxx, XX 00000
-and-
By:/s/Xxxxxxx X. Xxxxx
Title: Xxxxxxx X. Xxxxx, Manager
Address: 0000 XxXxxxxx Xxx.
Xxxxxx, XX 00000
"TENANT" HAROLD'S STORES, INC.
By:/s/H. Xxxxxx Xxxxxx
Title:President
Address: X.X. Xxxxxx 0000
Xxxxxx, XX 00000-0000
ACKNOWLEDGMENTS
STATE OF OKLAHOMA )
) ss:
COUNTY OF CLEVELAND )
The foregoing instrument was acknowledged before me this
31st day of May, 1996, by H. XXXXXX XXXXXX, Manager of 329
HOLDING LLC, an Oklahoma Limited Liability Company, on behalf of
329 PARTNERS-II LIMITED PARTNERSHIP, an Oklahoma Limited
Partnership.
/s/Xxxxx Xxxxxx
Notary Public
My commission expires:
April 14, 0000
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF CLEVELAND )
The foregoing instrument was acknowledged before me this
31st day of May, 1996, by XXXXXXX X. XXXXX, Manager of 329
HOLDING LLC, an Oklahoma Limited Liability Company, on behalf of
329 PARTNERS-II LIMITED PARTNERSHIP, an Oklahoma Limited
Partnership.
/s/Xxxxxxx X. Xxxxxxx
Notary Public
My commission expires:
April 7, 0000
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF CLEVELAND )
The foregoing instrument was acknowledged before me this
31st day of May, 1996, by H. XXXXXX XXXXXX, President of HAROLD'S
STORES, INC., an Oklahoma Corporation, on behalf of said
corporation.
/s/Xxxxxxx X. Xxxxxxx
Notary Public
My commission expires:
April 7, 1999
EXHIBIT A
to
LEASE AGREEMENT
LEGAL DESCRIPTION OF PREMISES
TRACT ONE:
The East 195 feet of the South _ of Lot Eleven (11), in
ELMWOOD ADDITION to Norman, Cleveland County, Oklahoma,
according to the recorded plat thereof.
TRACT TWO:
The West 115 feet of Lots Thirty-One (31) and Thirty-Two (32)
and the South 3.8 feet of the West 115 feet of Lot Thirty-
Three (33) in Block One (1) of XXXXX'X UNIVERSITY ADDITION to
the City of Norman, Cleveland County, Oklahoma, according to the
recorded plat thereof.
including all improvements, structures and fixtures thereon, and
all easements appurtenant thereto, and all right, title and
interest of the Seller in and to all land lying in the bed of any
street or easement adjoining the Property.
