21
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into
this ______ day of September, 2005, by and between HD
Investments, LLC hereinafter called "Landlord", Harold's Stores,
Inc. and hereinafter called "Tenant".
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,
those certain premises, which premises contain approximately
9,218 square feet and are comprised of the ground floor of the
building located at 765 Asp, Norman, Oklahoma and all rights and
appurtenances thereto, including, but not limited to, rights of
ingress and egress and parking, (hereinafter called the
"Premises"). In addition to the Premises located at 765 Asp,
Norman, Oklahoma being leased to Tenant hereunder, Tenant shall
have the right, and Landlord agrees to provide for the term of
this Lease, at no cost or expense to Tenant, thirty eight (38)
parking spaces, along with ingress and egress thereto, located at
770 ▇▇▇▇▇▇, Norman, Oklahoma shown on Exhibit B, for parking by
Tenant's employees, affiliates and if Tenant desires, Tenant's
customers. The right to the parking spaces shall be exclusive to
Tenant and the parking spaces shall be so marked and identified
for Tenant's exclusive use Monday through Friday 8:00 am to 6:00
pm. Landlord shall have the right to use such spaces after 6:00
pm on weekdays and all day Saturday and Sunday. Landlord agrees
to use reasonable efforts to enforce Tenant's exclusive rights to
said parking spaces.
At no time may more than four (4) of the thirty-eight (38)
parking spaces be located in space numbers forty (40) through
forty eight (48) in the alley, and at no time may more than four
(4) of Tenant's spaces be relocated to the alley adjacent to 770
▇▇▇▇▇▇, as shown on Exhibit B. In the event Landlord relocates
four (4) or less of Tenant's spaces to such alley, and in
Tenant's reasonable opinion, new signage is required, Landlord
shall install and maintain such signage as is reasonably
acceptable to Tenant at Landlord's sole cost.
In addition to the Premises being leased to Tenant
hereunder, Tenant shall have the exclusive right to use for
storage, and Landlord agrees to provide to Tenant for the first
twelve (12) months of the lease term, the west one-third (1/3) of
the building located at 770 ▇▇▇▇▇▇, Norman, Oklahoma, along with
ingress and egress thereto. Tenant shall pay no rent or charges
for this additional space but Tenant shall pay to Landlord, for
such twelve (12) month period, Tenant's reasonable prorata share
of utilities for such space. Landlord has no maintenance,
repair, or any other obligations with respect to such additional
space other than to make it available to Tenant for Tenant's use
and Tenant has no obligation to maintain, repair or insure such
additional space.
ARTICLE II
TERM
2.1 Term of Lease. The term of this Lease shall be for
Sixty (60) months, beginning on the first day after the Closing
referred to in the Purchase Agreement described in Section 19.18
hereof ("Commencement Date"), and ending on the last day of the
sixtieth (60th) month after the Commencement Date thereafter,
(the "Expiration Date"), unless sooner terminated or extended, as
herein provided ("Initial Term"). Tenant shall have one (1)
option to extend this Lease for an additional five (5) year term
("Option Term"). In order for Tenant to exercise the option,
Tenant must give Landlord notice in writing, not later than three
(3) months prior to the Expiration Date.
ARTICLE III
RENT
3.1 Base Rent. Tenant shall pay Landlord as base rent
("Base Rent") for the Premises each month, without setoff or
deduction, and without any prior demand therefor the following:
For each year of the Initial Term, Tenant shall pay
Eight and 50/100 Dollars ($8.50) per square foot of Premises
per year ($78,353.00 per year) ($6,529.42 per month);
For each year of the Option Term, Tenant shall pay Nine
and 50/100 Dollars per square foot of Premises per year
($87,571.00 per year) ($7,297.58 per month). , The Base Rent
shall be paid in monthly installments and the first of such
monthly installments shall be due and payable on the
Commencement Date (prorated for such first month if the
Commencement Date is not the first day of a calendar month).
3.2 Common Area Maintenance. In addition to Base Rent, and
commencing at the same time as Base Rent commences under this
Lease, and payable monthly, Tenant shall pay to the Landlord a
common area maintenance charge, equal to Two Thousand Nine
Hundred Fifty and No/100 ($2,950.00) per year ($245.83 per month)
(the "CAM Charge"). This CAM Charge shall be subject to the
annual adjustment set forth in Section 3.2.1. Landlord shall use
the funds to pay the operating expenses of the property of which
the Premises is a part and the following:
(A) Salaries and wages of all the employees of Landlord
engaged in the operation, maintenance and security
of the parking lot located at 770 ▇▇▇▇▇▇ and
common areas, including taxes, insurance and
benefits relating thereto.
(B) All supplies and materials used in the operation,
maintenance and security of the parking lot
located at 770 ▇▇▇▇▇▇ and common areas.
(C) Costs to Landlord (but not to other tenants) of all
utilities for the parking lot located at 770
▇▇▇▇▇▇ and common areas, including the cost of
water, power and lighting.
(D) Costs of all maintenance and service agreements for
the parking lot located at 770 ▇▇▇▇▇▇ and common
areas and the equipment therein.
(E) Cost of all insurance relating to the parking lots
and other common areas located in the parking lot
located at 770 ▇▇▇▇▇▇ and common areas.
(F) Cost of landscaping and sidewalk maintenance in the
parking lot located at 770 ▇▇▇▇▇▇ and common
areas.
3.2.1 Adjustment of CAM Charge. At the end of each calendar
year, beginning December 31, 2006, the CAM Charge shall be
adjusted by adding it to the sum determined by multiplying the
initial CAM Charge by the percentage that the Consumer Price
Index for the 12th month of the lease year then ending has
increased over the Consumer Price Index for the first month of
the lease term. For the purposes of this Lease, Consumer Price
Index shall mean the Consumer Price Index, Dallas-Ft. Worth,
Texas, All Urban Consumers, all items (base index year 1982-
84=100), as published by the United State Department of Labor
Bureau of Labor Statistics. If the Consumer Price Index shall
become unavailable, Landlord shall substitute therefor a
comparable index based upon changes in the cost of living or
purchasing power of the consumer dollar published by another
government agency; if no index shall be available, then a
comparable index published by a major financial institution,
University or a recognized financial publication. In no event
shall Tenant's CAM Charge increase by more than five percent (5%)
from one calendar year to the next.
3.3 Net Rentable Area. The term "Net Rentable Area", as
used herein, shall refer to the area calculated within the
boundaries defined by any exterior building walls bounding the
Premises (measured to the outside surface of the outer glass
walls and the midpoint of outer finished column walls), the
centerline of any common wall separating the Premises from areas
leased or to be leased to other tenants, and the exterior of any
walls separating the Premises from any public corridors or other
common areas. Notwithstanding anything in this Lease to the
contrary, the Premises it is hereby stipulated for all purposes
that the number of square feet in the Premises and the "Net
Rentable Area" of the Premises shall be deemed to be 9,218 square
feet, whether same would be more or less as a result of minor
variations. Neither the rent payable hereunder nor any other
obligation of Tenant shall be reduced, increased or otherwise
affected by any determination that the number of square feet, or
the amount of Net Rentable Area contained, in the Premises is
other than that stipulated above.
3.4 Rent. For the purposes of this Lease, Rent shall mean
Base Rent and all other payments required to be paid by Tenant
pursuant to this Lease ("Additional Rent").
3.5 Late Charges. If Tenant fails to make any installment
of Rent, or any other sum due Landlord hereunder, within Ten (10)
days after Tenant receives written notice from Landlord of
Tenant's failure to timely pay, the Landlord may make or assess a
late charge of ten percent (10%) 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
SECURITY DEPOSIT
4.1 Security Deposit. Intentionally Deleted.
ARTICLE V
CONDITION OF PREMISES
5.1 Intentionally Deleted
5.2 Landlord's Title. Landlord 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, provided same do
not interfere with Tenant's use and occupancy of the Premises and
Tenant's rights under this Lease.
ARTICLE VI
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
6.1 Improvements by Tenant. Tenant shall not make or allow
to be made any exterior or structural alterations to the Premises
without first having the written consent of Landlord, such
consent not to be unreasonably withheld. 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. Tenant may make
interior non-structural alterations to the Premises and Tenant
may remove "removable trade fixtures", provided (1) any such
removal is made prior to the termination of this Lease; (2)
Tenant is not in default of any of the obligations or covenants
hereunder; (3) such removable trade fixtures were not constructed
with allowances provided by Landlord; and (4) 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 other
permanently attached fixtures which cannot be removed without
damage to the Premises.
6.2 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 VII
REPAIR AND MAINTENANCE
7.1 Tenant's Maintenance. Tenant shall at its expense at
all times keep the Premises (including maintenance of exterior
entrances and all windows) and all plate glass, partitions,
doors, and trade fixtures, in good order, condition and repair
(including repair of damage from burglary or attempted burglary
of the Premises and reasonable periodic painting. Tenant
acknowledges that Landlord has no obligation to repair or
maintain the Premises, except as otherwise provided for in this
Lease.
7.2 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 twelve percent (12%) for overhead, upon
presentation of bills therefor, as Additional Rent.
7.3 Landlord's Maintenance. Landlord shall at its expense
at all times keep the roof, gutters and downspouts, exterior
walls, foundations, and structural portions, and the plumbing,
electrical and heating and air conditioning systems, of the
Premises and of the building of which the Premises is a part, as
well as the common areas pertaining thereto, in a good order,
condition and repair. Landlord shall also, at its expense, at all
times provide cooled air or heat, to the Premises so as to
maintain comfortable air temperature in the Premises at all
times.
7.4 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 and damage by
casualty excepted, and Landlord shall have the right to re-enter
and resume possession of the Premises.
7.5 Surrender of Keys. 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 VIII
UTILITIES
8.1 Service Provided. Landlord agrees to provide at its
expense, and at all times, adequate amounts of water, gas, sewer,
electricity and landline phone service to the Premises at the
places shown on Tenant's Plans (referred to in Exhibit C) or as
otherwise existing at the Premises if not shown on such plans,
for the operation of Tenant's business, but Landlord shall not be
liable to Tenant for any discontinuance or interruption of
service unless the negligence or willful acts or omissions of
Landlord, its agents, employees or contractors cause such
discontinuance or interruption. Tenant shall pay its prorata
share of charges incurred for the utility services used by Tenant
at the building of which the Premises is a part, which prorata
share shall be 54.76% of the water, gas, sewer and electrical
utility charges for such building. Landlord shall pay monthly the
total costs of all such utilities directly to the respective
utility companies and provide Tenant with a copy of each month's
▇▇▇▇. Tenant shall reimburse Landlord on a monthly basis for its
prorata share of such ▇▇▇▇ within fifteen (15) days after the
date Tenant receives such monthly ▇▇▇▇ from Landlord.
ARTICLE IX
INSURANCE AND INDEMNITY
9.1 Tenant's Insurance Requirements. At all times during
the term of the lease, the following insurance shall be
maintained with respect to the Premises and paid for by the
Tenant:
(A) Public Liability Insurance. Comprehensive public
liability insurance from reputable insurance
companies authorized to do business in the State
of Oklahoma in the amount of $1,000,000.00
combined single limit for personal injuries and
property damage. Such policies shall name the
Landlord and Tenant as insureds, as their
respective interests may appear.
(B) Personal Property Insurance. Personal property
insurance covering loss or damage to Tenant's
personal property located on the Premises.
(C) Builder's Risk Insurance. Builder's risk
insurance shall be obtained in amounts
satisfactory to Landlord covering any work which
Tenant may undertake, or have undertaken on
Tenant's behalf, with respect to the Premises.
Landlord shall be shown as loss payees under the
policy.
(D) Certificates of Insurance. The Tenant shall
furnish to the Landlord certificates of insurance,
and shall furnish proof of such insurance at any
time such proof is requested by Landlord. All
insurance required herein shall contain a
provision requiring at least thirty (30) days
prior written notice to the Landlord before any
cancellation, lapse or material change in policy
or any reduction in coverage.
9.2 Landlord's Liability Insurance and Fire and Extended
Coverage Insurance. Landlord shall maintain at its sole cost and
expense Public Liability Insurance for the common areas and for
that portion of the building and property of which the Premises
is a part which is not being leased to Tenant. Such insurance
shall comply with the requirements of Section 9.1(A) above.
Landlord also agrees to maintain at its sole cost and expense
fire and extended coverage insurance covering the Premises, the
building and property of which the Premises is a part including
the common areas and all improvements therein and additions
thereto (excluding Tenant's personal property), with the usual
industry standard extended coverage endorsements, together with
endorsements protecting against loss or damage from malicious
mischief, sprinkler leakage and vandalism, all in amounts of not
less than the replacement value and with insurance companies
authorized to do business in Oklahoma. This insurance shall inure
to the benefit of Tenant as well as Landlord. Tenant shall pay,
as Additional Rent, its prorata share of the premiums for the
fire and extended coverage insurance on the Premises, and the
building of which the Premises is a part, obtained by Landlord.
Tenant's prorata share of such premiums shall be 54.76% of the
costs of such fire and extended coverage insurance, and monthly,
Tenant shall pay Landlord the sum of Two Hundred Forty Five and
83/100 Dollars ($245.83) as an estimate of the premium for such
insurance. Within sixty (60) days after the end of each calendar
year, Landlord shall reconcile the monthly insurance and tax
payments (as hereinafter provided) against the actual insurance
premium and tax assessment due by Tenant for such year, and
notify Tenant if there is a deficiency or a surplus. If there is
a deficiency, Tenant shall pay same within thirty (30) days of
written notice from Landlord specifying the amount due; if there
is a surplus, Landlord shall credit the surplus against the
following year's monthly installments of rent and charges due to
Landlord by Tenant, unless it is the last year of the lease term
in which case Tenant shall be entitled to a refund. Tenant shall
not be entitled to interest on the insurance and tax deposits. In
no event shall the amounts Tenant owes Landlord for insurance
premiums referred to herein and the taxes referred to in Section
15.1 hereof, either individually or jointly, increase by more
than five percent (5%) from one calendar year to the next.
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, or Tenant's
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.
Landlord agrees to indemnify Tenant and save Tenant 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 common area and portions of the building and
the property of which the Premises is a part which is not leased
by Tenant, or if occasioned wholly or in part by any act or
omission of Landlord, Landlord's agents, contractors, employees
or servants. In case Tenant shall, without fault on Tenant's
part, be made a party to any litigation commenced by or against
Landlord, then Landlord shall protect and hold Tenant harmless,
and shall pay all costs, expenses and reasonable attorney's fees
incurred or paid by Tenant 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.
9.5 Increase in Insurance Rates. In the event Tenant uses
the Premises for purposes other than as a "general office" and
such other use of the Premises causes Landlord's insurance rates
for the Premises to increase, Tenant shall pay the increase
within thirty (30) days after receipt of an itemized statement.
In the event any other occupants of the building in which the
Premises is located causes Landlord's insurance rates to
increase, such occupant, and not Tenant, shall be solely
responsible for paying such increase.
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 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, cause the damage to be repaired, and the Base Rent and
Additional 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, cause such damages to be
repaired, and the Base Rent and Additional Rent meanwhile shall
▇▇▇▇▇ until the Premises have been restored and rendered
tenantable, or Landlord or Tenant may, at such party's election,
terminate this Lease and the tenancy hereby created by giving to
the other, within the sixty (60) days following the date of said
occurrence, written notice of it'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 to First Mortgage. Provided any such
mortgagee recognizes and agrees in writing not to disturb
Tenant's rights under this Lease as long as Tenant is not in
default beyond any cure period, the Lease created hereunder is
subject and subordinate to any first mortgage which may now or
hereafter encumber the Premises and to all renewals and
modifications, consolidations, additional advances, replacements
and extensions thereof. This clause shall be self-operative and
no further instrument of subordination need be required by any
mortgagee. In confirmation of such subordination, however,
Tenant shall, at Landlord's request, execute promptly any
certificate or instrument that Landlord may reasonably require
provided it is in a form reasonably satisfactory to Tenant. In
the event of enforcement by the mortgagee under any such mortgage
of the remedies provided for by law or by any such mortgage,
Tenant will, upon the request of any person or party succeeding
to the interest of Landlord, as a result of such enforcement,
automatically become the tenant of such successor in interest,
without change in the terms or other provisions of this Lease;
provided, however, that such successor in interest shall not be
bound by: (1) any payment of Rent for more than one (1) month in
advance, except prepayments in the nature of security for the
performance by Tenant of Tenant's obligations under this Lease,
or (2) any amendment or modification of this Lease made without
written consent of such mortgagee. Upon request by any successor
in interest, Tenant shall execute and deliver any reasonable
instrument or instruments confirming this attornment no later
than the Commencement Date and at any time thereafter within
thirty (30) days after written request from Tenant, from time to
time, and in no event later than the Commencement Date, Landlord
agrees to provide Tenant with a Non-Disturbance and Subordination
Agreement from Landlord's mortgagee in a form reasonably
acceptable to Tenant.
ARTICLE XII
ASSIGNMENT OR SUBLETTING
12.1 Prohibitions. Assignment of this Lease, in whole or in
part, or subletting all or any part of the Premises is prohibited
without Landlord's consent which shall not be unreasonably
withheld. Tenant may however, without Landlord's consent, assign
this Lease to an affiliate, subsidiary or acquirer of Tenant's
assets or capital stock.
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 provided the transferee
assumes in writing Landlord's obligations under this Lease. 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 provided
such transferee assumes in writing Landlord's obligations under
this Lease. 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. Subject to Section 15.4 below, 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.
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 expense 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. 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. Notwithstanding anything herein to the contrary in the
event any of the Premises or the parking referred to in Section
1.1 is taken, Tenant at its option may 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 upon reasonable advance written notice to Tenant, to enter
the Premises at reasonable 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 ▇▇▇▇▇ while said repairs, alterations, improvements or
additions are being made, by reason of loss or interruption of
business of Tenant, or otherwise provided however, in such event
Landlord shall use its best efforts not to interrupt Tenant's
business operations. During the thirty (30) days 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. Such signs shall not obstruct windows or window
displays. 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 however, in such event Landlord shall use
its best efforts not to interrupt Tenant's business operations.
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.
ARTICLE XV
PROPERTY TAXES AND TENANT'S PROPERTY
15.1 Ad Valorem Taxes. Tenant shall pay, as Additional
Rent, its prorata share, all real estate taxes, and special
assessments levied upon the Premises and building of which the
Premises is a part. Tenant's prorata share shall be 54.76% of
such taxes levied, by any state, city, school district or federal
government authority. Monthly, Tenant shall pay Landlord sum of
Three Hundred Forty Five and 68/100 Dollars ($345.68) as an
estimate of Tenant's prorata share of such ad valorem taxes.
Annually, the Landlord shall reconcile the tax payments in the
manner provided in Section 9.2. All other taxes or assessments
imposed directly on Tenant (i.e. for Tenant's personal property)
will be paid by Tenant directly to the taxing authority on or
before their due dates.
15.2 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.
15.3 Responsibility of Landlord. Unless resulting from the
negligence or willful acts or omissions of Landlord, its
employees, agents or contractors, 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. Unless resulting from the
negligence or willful acts or omissions of Landlord, its
employees, agents or contractors, 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. Unless resulting from the
negligence or willful acts or omissions of Landlord, its
employees, agents or contractors, Landlord shall not be liable
for any such damage caused by other tenants of Landlord, or
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 acts or omissions or negligence of Landlord, its
employees, agents or contractors.
ARTICLE XVI
USE OF PREMISES
16.1 Tenant's Usage. The Premises are to be used and
occupied by Tenant solely for general office use, or such other
use that Landlord, in its sole discretion, may approve in
writing. 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 Floor Load. Tenant will not place a load upon any
floor of the Premises exceeding the floor load per square foot
which such floor was designed to carry.
16.3 Compliance with Laws, Covenants and Regulations.
Tenant at its expense shall at all times comply with all laws,
ordinances, orders, rules and regulations of governmental
agencies having jurisdiction of the Premises which pertain to the
specific operation of Tenant's business at the Premises. Landlord
at its expense shall at all times comply with all laws,
ordinances, orders, rules and regulations of governmental
agencies having jurisdiction of the Premises, the building of
which the Premises is a part and the common areas pertaining
thereto, including, without limitation, the American's with
Disabilities Act and of all restrictive covenants relating to the
use, condition or occupancy of the Premises. In the event such
laws or restrictions mandate alterations to the interior of the
Premises, Landlord agrees to promptly make such alterations at
its sole cost and expense. The rules and regulations appended to
this Lease as Exhibit B are hereby made a part of this Lease, and
Tenant agrees to comply with and observe the same. Tenant's
failure to keep and observe said rules and regulations shall
constitute a breach of the terms of this Lease in the manner as
if the same were contained herein as covenants. Landlord
reserves the right from time to time to promulgate or amend or
supplement said rules and regulations, and to adopt and
promulgate additional rules and regulations applicable to the
Premises provided same are reasonably and non-discriminatory.
Notice of such additional rules and regulations, and amendments
and supplements, if any, shall be given to Tenant, and Tenant
agrees thereupon to comply with and observe all such rules and
regulations, and amendments thereto and supplements thereof
provided same are reasonably and non-discriminatory.
16.4 Nuisance. Neither Landlord, nor Tenant, nor any other
occupant of the building of which the Premises are a part, shall
perform any acts or carry on any practices which may injure the
Premises or be a nuisance or menace to others. Landlord shall be
responsible for the breach of this covenant by Landlord and/or
the occupants, other than Tenant, of the building of which the
Premises are a part.
16.5 Hazardous Substances. During the term of this Lease,
Tenant shall not use or allow the Premises to be used for the
Release, storage, use, treatment, disposal or other handling of
any Hazardous Substance, without the prior consent of Landlord.
The term "Release" shall have the same meaning as is ascribed to
it in the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. 9601, et seq., as amended ("CERCLA").
The term "Hazardous Substance" means (i) any substance defined as
a "hazardous substance" under CERCLA, (ii) petroleum, petroleum
products, natural gas, natural gas liquids, liquefied natural
gas, and synthetic gas, and (iii) any other substance of material
deemed to be hazardous, dangerous, toxic, or a pollutant under
any federal, state or local law, code, ordinance or regulation.
During the term of this Lease Tenant shall: (a) give prior
notice to Landlord of any activity or operation to be conducted
by Tenant at the Premises which involves the Release, use,
handling, generation, treatment, storage or disposal of any
Hazardous Substance ("Tenant's Hazardous Substance Activity"),
(b) at its expense comply with all federal, state and local laws,
codes, ordinances, regulations, permits and licensing conditions
governing the use, storage, Release, discharge, emission or
disposal of any Hazardous Substances, (c) at its own expense,
promptly contain and remediate any Release of Hazardous
Substances arising from or related to Tenant's Hazardous
Substance Activity in the Premises, or the environment and
remediate and pay for any resultant damage to property, persons
or environment, (d) give prompt notice to Landlord and all
appropriate regulatory authorities of any Release of any
Hazardous Substances in the Premises or the environment arising
from or related to Tenant's Hazardous Substance Activities, which
Release is not made pursuant to and in conformance with the terms
of any permit or license duly issued by appropriate governmental
authorities, and such notice to include a description of measures
taken or proposed to be taken by Tenant to contain and remediate
the Release and any resultant damage to property, persons, or the
environment, (e) in the event of a Release by Tenant, retain an
independent engineer or other qualified consultant or expert
acceptable to Landlord, to conduct an environmental audit of the
Premises and immediate surrounding areas, with the scope of work
to be performed by such engineer, consultant or expert to be
approved in advance by Landlord, and all of the engineer's,
consultant's or expert's work product shall be made available to
Landlord; provided that the cost of such audit shall be paid by
Tenant; (f) at Landlord's request from time to time, execute
affidavits, representations and the like concerning Tenant's best
knowledge and belief regarding the presence of Hazardous
Substances in the Premises, (g) reimburse to Landlord, upon
demand, the reasonable cost of any testing for the purpose of
ascertaining if there has been any Release of Hazardous
Substances in the Premises, if such testing is required by any
governmental agency and (h) upon expiration or termination of
this lease, surrender the Premises to Landlord free from the
presence and contamination of any Hazardous Substance, unless
such Hazardous Substance was not introduced into the Premises by
Tenant, its employees, agents or contractors in which case it
shall be Landlord's responsibility .
Landlord recognizes and agrees that Landlord is responsible
for any and all Hazardous Materials located at the Premises, or
in or about the building and property of which the Premises are a
part, which was in existence prior to the commencement of the
term of this Lease.
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. Landlord shall comply with the terms of all mortgages
placed by Landlord on the Premises and the lease by Landlord of
the Premises. Tenant's quiet enjoyment shall be subject,
however, to the terms of this Lease, and to all easements,
restrictions of record and governmental laws and ordinances in
existence as of two (2) days prior to the Commencement Date. It
is understood and agreed that this covenant and any and all
covenants of Landlord contained in this Lease shall be binding on
Landlord and Landlord's successors only with respect to breaches
occurring during Landlord's and Landlord's successors' 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 [except that Tenant shall have thirty (30) days
after written notice of occurrence (or such additional time as
may be necessary under the circumstances) for items (B)(C)(D) and
(E)], shall constitute events of default on the part of Tenant:
(A) Failure of Tenant to pay Base Rent and 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, including,
without limitation, the right to obtain specific performance of
Tenant's covenants, 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
Landlord, 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
difference between any Rent received by Landlord
as a result of such reletting and the Rent and
other sums for which Tenant 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. Landlord agrees to use
reasonable efforts to mitigate its damages in the
event of a default by Tenant.
(D) No Reletting. If Landlord elects not to terminate
this Lease, Tenant shall remain obligated to
Landlord for all Rent and other sums for which
Tenant is obligated hereunder for the remainder of
the Lease term, together with all compensatory
damages caused by Tenant's default.
(E) Landlord's Option to Perform. Landlord may perform
or cause to be performed the unperformed
obligations of Tenant under this Lease and may
enter the Premises at reasonable times and upon
reasonable notice to Tenant to accomplish such
purpose without being subject to any claim for
damages therefor. Landlord shall also be entitled
to seek specific performance or injunctive relief
(prohibitive or mandatory) with respect to
Tenant's obligations hereunder. Tenant agrees to
reimburse Landlord on demand for any reasonable
expense which Landlord might incur in effecting
compliance with this Lease on behalf of Tenant,
and Tenant further agrees that Landlord will not
be liable for any damages resulting to Tenant from
such action, excluding any damages caused by
Landlord's negligence or willful misconduct.
Landlord may exercise the remedies under this
section if Tenant has defaulted under this Lease
but the same is not yet become an "event of
default" as defined above if Landlord in good
faith reasonably believes that irreparable loss or
harm to the Premises, or damage or injury to
property or persons, might occur prior to the
default becoming an event of default as defined
above.
18.3 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) such failure by Landlord is not 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. Tenant
shall have any and all remedies afforded an aggrieved tenant at
law or in equity in the event of a default by Landlord plus
Tenant shall have the right of self-help, rent abatement, lease
termination and suing Landlord for damages and/or an injunction
in the event of a default by Landlord.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 Amendment. This Lease may not be altered, changed or
amended, except by instrument in writing, signed by all parties
hereto.
19.2 Lease Year Defined. The term "lease year" as used
herein shall mean a period of twelve (12) consecutive full
calendar months. The first lease year shall begin on the
Commencement Date hereof. Each succeeding lease year shall
commence upon the anniversary date of the first lease year.
19.3 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.
19.4 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, wholly or in
part, such party, using reasonable efforts, is unable to prevent
or overcome; provided, however, this provision shall not apply to
Tenant's obligation to pay Rent.
19.5 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
Oklahoma, and all obligations of the parties hereunder are
performable in Cleveland County, Oklahoma. 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.
19.6 Covenants. All agreements, obligations and
undertakings of the parties shall be deemed to be covenants,
whether or not so denominated.
19.7 Protection From Liens. Tenant shall keep the Premises
at all times during the term hereof free of Mechanic's Liens and
Materialman's Liens and other liens of like nature other than
liens created or claimed by reason of any work done by Landlord
or its agents, and Tenant shall at all times fully protect and
indemnify Landlord against all such liens or claims which may
ripen into liens and against all attorney's fees and other costs
and expenses growing out of or incurred by reason of or on
account of any such claim or lien based on work performed by
Tenant, or Tenant's agents or contractors.
19.8 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 or when given to a nationally recognized
overnight delivery service (such as Fed Ex, DHL, etc.) with
delivery fee prepaid for next day delivery, 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.
Landlord: H.D Investments, L.L.C.
c/o ▇▇▇ ▇▇▇▇▇ Restaurant Group
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax #:
Tenant: Harold's Stores, Inc.
765 Asp
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, CFO
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Harold's Stores, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
19.9 Limitation of Landlord Liability. Any provisions
hereof to the contrary notwithstanding, Tenant hereby agrees that
no personal or corporate 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 Lease, 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 and the building and property of which it is a
part.
19.10 Attorney's Fees. In the event either party defaults
in the performance of any of the terms, covenants, agreements or
conditions contained in this Lease and the other party 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, the prevailing party in such matter
agrees to pay to the other a reasonable attorney's fee.
19.11 Holding Over. In the event of holding over by Tenant
after the expiration or termination of this Lease without the
express written consent of Landlord, the Base Rent shall be one
and one quarter (1.25) times the Base Rent set forth in this
Lease 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.
19.12 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.
19.13 Recording. Upon the request of either, Landlord and
Tenant shall sign a memorandum of lease in form and substance
satisfactory to both Landlord and Tenant, and such memorandum may
be filed in the real estate records of Oklahoma. Upon termination
of this Lease for any reason, Tenant shall execute a notice of
termination and release and waiver of any interest in the
Premises in form and substance reasonably satisfactory to
Landlord and Tenant immediately upon the request of Landlord.
This Lease shall not be recorded by either Landlord or Tenant.
19.14 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 negligence of
Landlord.
Landlord shall indemnify Tenant against all liabilities,
expenses and losses incurred by Tenant as a result of: (1)
failure by Landlord to perform any covenant required hereunder;
(2) any accident, injury or damage which shall happen in or about
that portion of the building or property outside the Premises;
(3) failure to comply with any requirement of any governmental
authority; and (4) any mechanic's lien or security agreement,
resulting from Landlord's work, filed against the Premises and/or
the building and/or property of which the Premises is a part, any
equipment therein, or any materials used in the construction or
alteration of the Premises. Tenant shall not be liable for
injury or damage to any person or property occurring outside the
Premises and in the building or on the property of which the
Premises is a part, unless caused by or resulting from the
negligence of Tenant.
19.15 Binding Effect. This Lease shall be binding upon and
inure to the benefit of the parties hereto, their respective
successor, permitted assigns, heirs and legal representatives, as
the case may be.
19.16 Confidentiality The information contained in this
proposal shall be considered confidential. The Parties will
maintain all confidential information in confidence and will not
disclose such information to any other party without written
consent. Confidential Information may be released to the parties'
employees, partners, consultants, and lenders who have a
reasonable need for such Confidential Information, provided that
such individuals agree to maintain the confidential nature of the
information.
19.17 Counterparts. This Lease may be executed in
counterparts, and each of such counterparts shall for all
purposes be deemed to be an original.
19.18 Agreement for Purchase and Sale of Real Property
Landlord and Tenant recognize and agree that Tenant, as Seller,
and Landlord as Purchaser are parties to that certain Agreement
for Purchase and Sale of Real Property dated _______, 2005 (the
"Purchase Agreement") in which Tenant is selling to Landlord the
Premises and the building and property of which the Premises is a
part. This Lease is expressly contingent on the closing of the
transaction contemplated by such Purchase Agreement, and in the
event such closing does not take place, this Lease shall be null
and void and of no force and effect. This Lease may be assigned
by Landlord in connection with any assignment of Landlord's
rights under the Purchase Agreement.
19.19 Addenda and Exhibits. The following are attached
hereto and made a part hereof:
Addendum to Lease
Exhibit A - Rules and Regulations
Exhibit B - 770 ▇▇▇▇▇▇ Parking Lot
Exhibit C - Landlord's Work
19.20 Contingency. This Lease is contingent upon the following
conditions:
Closing of the transaction contemplated in the Purchase
Agreement described in Section
19.18 of the Lease
19.21 Landlord's Work. Landlord's work shall be as described in
Exhibit "C".
19.22 Early Termination. Tenant shall have the right to
terminate this Lease at any time after the initial twenty four
(24) month term of this Lease by giving Landlord at least six (6)
months advance written notice thereof.
19.23 Generator. Landlord recognizes and agrees (i) that Tenant
owns a generator which supplies back-up power to the Premises and
the building of which the Premises is a part (ii) that such
generator is located on property owned by a third party in close
proximity to the Premises (iii) that Landlord shall have no
rights to such generator and (iv) that Tenant at any time may
disconnect, remove and/or dispose of such generator as Tenant may
see fit.
ARTICLE XX
DISCLOSURE
Equity Realty, Inc. is acting as a transaction broker in this
transaction. No other broker is involved in this transaction
except as noted below:
BROKER: None Oklahoma Real Estate License Number:
__________Company:___________________
Sale, lease and other transactions can have local, state and
federal tax consequences for the seller/lessor and/or buyer/lessee.
Consult your tax or legal advisor. Real estate brokers are not
qualified to give legal or tax advice or to determine whether any
person is properly qualified to provide legal or tax advice.
EXECUTED as of the day and year first above written.
"LANDLORD" H.D. Investments
By:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: Manager
Landlord's Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
"TENANT" Harold's Stores, Inc
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial
Officer
Tenant's Address: 765 Asp
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT A
RULES AND REGULATIONS
Tenant shall, at all times during the term of the Lease:
1. Use, maintain and occupy the Premises in a careful, safe,
proper and lawful manner, keep the Premises and its
appurtenances in a clean and safe condition.
2. Keep all glass in the doors and windows of the Premises
clean and in good repair.
3. Keep the Premises in a clean, orderly and sanitary
condition, free of insects, rodents, vermin and other pests.
4. Not permit undue accumulations of garbage, trash, rubbish
and other refuse in the Premises, and place refuse in
designated containers outside Premises.
5. Not use the plumbing facilities in the Premises for any
purpose other than that for which they were constructed, or
dispose of any foreign substances therein.
EXHIBIT B
EXHIBIT C
Landlord's Work
Landlord shall at its sole cost and expense relocate Tenant
to, and remodel, the ground floor (Premises) of the building in
which the Premises are located and which Tenant currently
occupies and construct, in a good and workmanlike manner, all
improvements shown on Tenant's Plans (as hereinafter defined) at
Landlord's sole cost and expense. Tenant at its sole cost and
expense shall provide plans and specifications ("Tenant's Plans")
for Landlord's Work within ten (10) days of Tenant's execution of
this Lease. Landlord's Work shall include, but not be limited to,
creating a common entrance, or at Tenant's option providing two
separate and segregated entrances and separating the first and
second floor offices. Upon Landlord's approval of Tenant's Plans,
which approval shall not be unreasonably withheld, Landlord shall
commence construction of the remodel of the Premises and
diligently pursue same to completion. The final approved plans
prepared by The ▇▇▇▇▇▇▇▇ Partnership Architects are titled
"Harold's Corporate Offices Remodel" and are the 9/19/05 Permit
Set, and are incorporated and made part of this lease and
attached as Exhibit D. In no event shall such completion be
later than thirty (60) days after the Commencement Date unless
the cause of such later completion is Tenant's failure to provide
Tenant's Plans within the time specified above, in which event
the completion date shall be extended by the period by which
Tenant exceeded the time for providing Tenant's Plans. Tenant
shall be entitled to continue to conduct its normal business
operations during Landlord's Work and may continue to occupy and
operate in the upper floor of the building of which the Premises
is a part at no additional rent or cost, other than that already
set forth in this Lease until such time as Landlord has completed
Landlord's Work and the Premises are ready for Tenant's
occupancy. Landlord agrees that contractor will be performing all
work after business hours and Tenant agrees to provide contractor
needed building access. Landlord shall give Tenant written
notice of the date that the Landlord's Work will be completed and
Tenant can move into the Premises, such notice to be given at
least fourteen (14) business days prior to such date.